6.4 CARL SCHMITT ON THE THEORY AND PRACTICE OF OCCUPATION

While both Strupp and Heyland maintained a distinction between formal claims to sovereignty and actual territorial jurisdiction, Carl Schmitt denied the very possibility of this distinction.

Indeed, it was precisely within the context of the crises of 1923 that Schmitt, now the director of an ‘Institute for International Law and Politics' at the University of Bonn,^[428] first wrote to his publisher with the idea of writing a textbook on the law of nations as he began to think about the status of the Rhineland.^[429] Although that project never came to fruition, his shorter texts on the law of nations show an underappreciated engagement that has implications for how we should think about Schmitt's relationship to the theory and practice of international law, and what he saw as its anti-political claims to justification at the bar of humanity.^[430]

Schmitt located the origin of what he took to be a novel form of occupation in prior colonial forms of occupation, newly applied to forms of governance on European soil. For it was ‘in the era of imperialism [that] a different form of domination was developed, which avoided a public political subjugation'.^[431] As a result, the state was allowed to continue to exist, but only in a superficial form, because although there was the appearance of ‘freedom and sover­eignty', the population itself was degraded [Herabwürdigung] and stripped of those very attributes that were proclaimed.

Previously, the law of nations had made a distinction between Christian (civilized) and non-Christian (un-civilized) nations, and it was still possible to speak of ‘Christian international law and the law of Christian nations'.^[433] The slippage in terms of how colonial power-politics trumped the political sover­eignty of those who were colonized through mere force, and which was now applied to a European nation-state, was what motivated Schmitt's ferocious attacks on international law as a sop for cynical Realpolitik.⁷⁴ However, Schmitt further claimed that Versailles had changed this relationship through the vagueness of the terms of the treaty, which permitted a permanent intervention into the political existence of the Rhineland, and of Germany as a whole.

Furthermore, each of these plans displayed anew the methods by which a territory could be made into merely technical object. For example, while the battle over Schmitt's beloved Elsaß-Lothringen was fought over the possibility of annexing the territory, annexation had disappeared from the options open for the future of the Rhineland. Schmitt attributed this shift to Wilson's right of self-determination [Selbstbestimmungsrecht] of a nation, which he took to mean that ‘every nation as subject can decide its own political and state existence'.⁷⁵ However, the treaty that Wilson helped to design had instead created the conditions under which the Rhineland was unable to decide its own fate. Further, French reluctance to annex the Rhineland was not a sign of their kind-heartedness; rather, their hesitancy showed that there were more advantages to not annexing the territory directly, but following one of those four alternative paths.⁷⁶ In line with the general security policy of the French

fundamental dividing line of the Respublica Christiana. See Carl Schmitt, Der Nomos der Erde im Volkerrecht des Jus Publicum Europaeum (5th ed.) (Berlin: Duncker & Humblot, 2011), 25-35, 69-75; cf. Joshua Smeltzer, ‘On the Use and Abuse of Francisco de Vitoria: James Brown Scott and Carl Schmitt', Journal of the History of International Law 20 (2018), 345-72.

⁷⁴ Benno Gerhard Teschke, ‘Fatal Attraction: A Critique of Carl Schmitt's International Political and Legal Theory', International Theory 3 (2011), 179-227.

⁷⁵ Schmitt, ‘Rheinlande', 27: ‘Selbstbestimmung heißt doch wohl, dass ein Volk als Subjekt seine eigene politische und staatliche Existenz bestimmt.'

⁷⁶ There was some effort at the time to distinguish between what could be called the ‘French Public Opinion' versus the government position. See Charles Seignobos, ‘Die offentliche Meinung Frankreichs und der Vertrag von Versailles', Zeitschrift für Politik 12 (1923), 80-94, at 86. state during the war, this tied back to the Franco-German antagonism that had structured Clemenceau's willingness to see reparations as delayed recompense for the Franco-Prussian war half a century before.^[434] In fact, that longer-run backdrop also formed the intellectual-historical context out of which Schmitt's thinking developed. For instance, Edgar Loning, the one-time editor of Johann Kaspar Bluntschli's Staatslehre, and populariser of Francis Lieber's thinking on occupation and the laws of war, published contemporary accounts of governmental administration in Alsace during the 1870-1 war, which Schmitt would use in his discussions of siege and military occupation.^[435] French writers in the wake of 1871, for their own part, routinely looked back to 1848-9 to counter contemporary discussions of occupation and its legitimacy on the part of Germany, moving towards the idea of a ‘real' versus a ‘fictive' state of siege.^[436] That sort of division between a real military state of siege, and a fictive political one, would underscore French writing about occupation in the immediate aftermath of the Great War too, providing ideas Schmitt would also embellish.^[437]

For Schmitt, the next step was to understand what interest the ‘ruling powers' had in not annexing a territory.

Schmitt's contribution to the discussion of the legal occupation of the Rhineland was therefore quite different to the leading accounts of mixed occupation offered by Heyland and Strupp. Yet although he offered no citations in the text of his speech, he still pointed to the same problematique as they had done, namely that the occupation blurred the distinction between peace and war due to its mixed form, and could not police the political boundary positions adequately or effectively. Schmitt wrote that ‘through such indeterminacies the border between war and peace is itself left vague, and elementary concepts, such as war and peace - without whose clear differenti­ation the cohabitation of peoples is absolutely impossible - lose their straight­forward meaning and dissolve into a torturous indeterminate state'.^[441] However, what for others appeared as a conceptually beneficial means of differentiating the current German situation from its previous occupation of Belgium, Schmitt took as an indication of a deeply unsettling shift in the meaning of occupation and its implications for the Rhineland.

Equally, if Schmitt was keen to develop the idea that the colonial forms of international law that had structured the jus publicum Europeaeum were now, inappropriately, being applied to the occupation of a European state, then this would also show the claim to occupational neutrality on the part of the allies to be little more than a ‘power decision', or an act of imperial politics. This would illustrate the mythology of a ‘shared' set of interests and cultures among the people of Europe, and prompt the famous thought that the sphere of the political is really a gauge for measuring the level of intensity between friends and enemies, particularly in this case between Germany and France.

Once again, Schmitt was returning to some of his earliest published work on the state of siege and dictatorship. His first thoughts on those subjects, developed from a sample lecture given to colleagues at Strasbourg in the context of World War I, assessed the state of war and its effects on military command and procedure. He concluded that there was no legal ‘right' to command that could be derived from the state under military occupation, such that it would legally grant the military commander his authority. Rather, such authority was simply practical and dependent upon his control and assessment of the military situation. The separation of military occupation and the ‘political' or ‘fictive' state of siege outlined there, would readily be redeployed in the language of a ‘real' and political jus publicum Europaeum that was newly dethroned by the ‘fictive' legality of Allied occupation and blockade.^[443] In effect, Schmitt turned the language of legal artifice against those who had theorized the artifice of a mixed occupation, in order to dramatize the political content and context of a transformation in international law.

In a state of siege, traditional justifications for the separation between legislation and implementation were sidelined, with power and authority centralized in the singular body of the executive. Under a dictatorship, although the conceptual distinctions between legislation and implementation remained, their separation was in practice eliminated because either the legislative or the executive completely took over.^[444] Therefore, although the political consequences may seem similar, from a legal point of view one needs to differentiate between a military state of siege and its possible use as a political tool on the one hand, and on the other to notice whether the legislative power has superseded the executive, or vice versa, to understand the realities of dictatorship. Schmitt's political theory of dictatorship, which built on his analysis of siege conditions from long-term European history as well as the immediate context of World War I, deployed the history of modern political theory to present an opposition between liberal claims about how constitutionalism could create new forms of politics (sovereign dictatorship), and liberal amnesia about the technique of (commissarial) dictatorship as conventional, if prudential, crisis management.^[445]

Schmitt used the occupation of the Rhineland as an opportunity to praise the function of authority in establishing the basis of political community, even claiming that ‘no human coexistence is possible without an open and clear authority'.^[446] Schmitt's argument, however, was that the structure of inter­national governing commissions - the High Commission in the case of the Rhineland - lacks precisely the open and clear character essential to authority. This is because the structure of the commission functions to conceal the ‘foreign' and ‘invisible' powers ruling through the ‘governmental apparatus'.^[447] Indeed, with reference to the public nature of state authority Schmitt argued that the modern condition is fundamentally distinct from that of the early­modern period. While theologians and jurists of those earlier periods dis­cussed the limits of obedience and the right of revolution, ‘they all presuppose that the authority [Obrigkeit] will publicly position itself with the entire force of its political will'. Even the despicable tyrant, Schmitt argued, was held to be acting publicly, arguing that while ‘the tyrant abuses his power... he demands obedience and loyalty, justly or unjustly, but at least in complete candour'.^[448] By contrast, ‘modern methods lead to concealing the actual power and to transforming the publicity and representation of state life into an empty faqade', even if they do so in the name of forms of publicity and transparency through political representation.^[449]

There seem to be three distinct issues raised by this analysis in Schmitt's account. First, he maintained that modern forms of political control originate in the evolutionary dominance of the economic sphere. ‘We are experiencing today', he wrote, ‘the first, extremely dangerous attempts to transfer the methods of modern industrial and financial practice onto political and state life, and to hide the real relations of power in a system of interrelated companies [Schachtelgesellschaften] and the fictitious founding of companies [Scheingründungen].’^[450] More than merely an aside, Schmitt believed these forms of control originated as economic instruments. They were to be casti­gated the moment they encroach upon the separate sphere of the political, even though the imbrication between merchant companies that acted like states, and states that cultivated forms of representation that made them look like companies, had been a long-standing concern of historians of early­modern state formation and imperialism. For Schmitt, the very success of this mutually constitutive model in modern Europe, however, had been the eventual prioritizing of forms of depoliticized thinking. ‘The contemporary leading type of economic-technical thought’, he argued, ‘may no longer even perceive a political idea’.^[451]

Second, Schmitt claimed that the forms of control at stake in the Rhineland occupation now had a quasi-permanent character given their economic, rather than political or military, justifications. This rendered the Rhineland something new, in comparison to classical theories of belligerent and peaceful occupation, that ‘could only be something transitional, a provisional measure of relatively short length’.^[452] The ultimate consequence of this view is that ‘the above described moral duties, as they arise against the rightful state authority, do not apply for the occupying power and, as a result, do not apply for the occupying bureaucratic authorities [Besatzungsbehorden]’ ^[453]

Third, Schmitt articulated a distinction between the forms of governance suitable to Europeans - referred to elsewhere in the essay as belonging to ‘civilized nations’ - and non-Europeans. While he thought international commissions could be used for such issues as rendering the Danube River navigable for ships, using it as a form of government violated the particular dignity of European peoples. Here, he argued that ‘every European people with its own national consciousness is appalled at the thought of being governed and controlled by foreigners', for it violates the sense of natural community [Gemeinschaft] established by the state and nation.^[454] Worse than being ruled by one foreign power, an international commission compounds the problem, for the territory is ruled neither by the best interests of the inhabitants, nor the interests of a single foreign power, but is conditioned by political and economic disputes between multiple powers. It is in this sense that the Rhineland had become an object, for its future was conditional on the outcome of decisions among foreign powers. By highlighting the political dimensions of economic decisions, and the ways in which the norms of international law were subject to political calculation, Schmitt offered a highly polemical counterpoint to contemporary theories of occupation and sovereignty. And one way to see quite how foundational this moment was for his later work, is to consider the way in which it all came together in another searing polemic, The Nomos of the Earth (1950).