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Home EJIL Analysis Russia and China Challenge the Western Hegemony in the Interpretation of International Law

Russia and China Challenge the Western Hegemony in the Interpretation of International Law

Published on July 15, 2016        Author: 

On 25 June 2016, the Presidents of Russia and China adopted a common Declaration on the Promotion of International Law in Beijing. The Declaration has already been subject to insightful commentary in the Western blogosphere, for example by Ingrid Wuerth.

The context of the Declaration is that both Russia and China have recently faced criticism for their attitudes towards, and even violations of, international law. In March 2014, the majority of states in the UN General Assembly considered Russia’s annexation of Ukraine’s Crimean Peninsula illegal under international law. On 12 July 2016, about two weeks after the Russian-Chinese Declaration was adopted, the Permanent Court of Arbitration in a case initiated by the Philippines, de facto rejected most of Chinese territorial claims in the South China Sea.

In this sense, the Russian-Chinese Declaration represents a defensive political document in which the signatory states reject Western suggestions that the two UN SC permanent members have a somewhat problematic relationship with international law. Within the Declaration, Russia and China offer their own interpretation of what the big picture of international law is – an interpretation according to which it is the West, especially the US, that emerges as an actor displaying a problematic record and attitude. It is important that the two powers have now officially come together to put forward a common interpretation on the big picture of international law. At least in Russia, strategic criticism of the Western approach to international law has been prominent in strategic documents for the last ten or so years.

One has to keep in mind that the discourse on international law within Russia and China differs considerably from the way it is typically understood and constructed in the West. However, the realization of this fact is not necessarily too deep in the West where at least academic discourse on international law is usually carried out as an intra-Western affair i.e. Western experts debating with other Western experts. Outside the West, international law is often portrayed as an hegemonic tool of the West. For example, in April 2016, the Director of the Investigative Committee of the Prosecutor General’s Office of the Russian Federation and a leading practitioner in international law matters in Russia, Alexander Bastrykin, made a statement according to which, international law has for a while been used as an element of Western hybrid warfare against Russia.

Thus, the Russian-Chinese Joint Declaration has been conceived of as part of a struggle for ideational power and moral high ground regarding international law as the common language of the international community.

The Joint Declaration is a patchwork of Russian and Chinese inputs. Emphasizing the role of ‘principles of international law’ as they are enshrined in the UN Charter and the UN GA Friendly Relations Declaration of 1970 has been a specific trait of the Russian concept of international law since the post-World War II Soviet period. Until today, Russian textbooks on international law are organized around the idea of the ‘principles of international law’ as taken particularly from Article 2 of the UN Charter. China, in turn, has contributed to the Joint Declaration, reference to the Five Principles of Peaceful Coexistence of 1954, which also emphasizes sovereignty and the right to be left alone by other powers.

The condemnation of “interference by states in the internal affairs of other states with the aim of forging change of legitimate governments” points at the current legal-political Achilles heel of Russia (the ousting of the Yanukovych government by Euromaidan protesters in Kyiv to which Moscow reacted with the annexation of Crimea). In contrast, both Moscow and Beijing have an interest in emphasizing consent as the key element in dispute settlement (the Yukos and South China Sea arbitrations respectively). Criticism of ‘double standards’ in international law by the West has been for quite awhile, a favorite trope for both Moscow and Beijing. However, criticism of ‘unilateral sanctions’ as problematic and even illegal from the viewpoint of the UN Charter (because all sanctions should go through the UN SC) has been an argument specific to Moscow.

What the Russian-Chinese Declaration reveals is the extent to which there is disagreement between the West and the two leading non-Western powers – China and Russia – on foundational constitutional principles of international law, especially the UN Charter. In their Joint Declaration, Russia and China emphasize state sovereignty and non-intervention in the internal or external affairs of states, as well as the exclusive right of the UN SC in deciding on issues of use of military force (i.e., their own veto power). They see the Western post-Cold War emphasis on human rights and democratic legitimacy of governments as unilateral attempts to reinterpret or bypass the original purpose of the UN Charter as the constitutional treaty of the international community.

Concretely, the thing with the ‘principles of international law’ is that when taken literally, based on Article 2 of the UN Charter, they emphasize the role of state sovereignty and non-intervention rather than, for example, human rights and self-determination of peoples, which are merely mentioned among the ‘purposes’ of the UN Charter in Article 1. Moreover, the text of the UN Charter does not even distinguish between democratic and non-democratic states and thus neglects the need for democratic legitimacy of governments, which is at least in the West a mainstream political idea.

Historically, this difference of accents regarding the big picture of international law and order between Western and non-Western powers existed since the adoption of the UN Charter in 1945. It is interesting that the Russian-Chinese Joint Declaration now goes back to some essentially Cold War concepts such as peaceful coexistence as enshrined in the Five Principles of Peaceful Coexistence. It is logical that in and since 1945 when international law attempted to become truly universal, the non-Western great powers such as China and the USSR would want their own political identity and philosophy reflected in the interpretation of the big picture of international law. The result is a continuance of the ongoing struggle between the Western and non-Western great powers on underlying political philosophies of the UN Charter and world order.

It should be obvious by now that this struggle and divergence of interpretations cannot be solved only by textual interpretations of the UN Charter. Instead, the West should take on the Russian and Chinese interpretations of the UN Charter and their implications on the world order substantively. The world of ‘sovereign equality’ of the UN SC’s permanent members is also a world of de facto legitimized spheres of influence where dictators are entitled to do what they want because they are protected by their state sovereignty and the veto power of their protector state among the permanent members of the UN SC. It should be a cause for self-reflection in the West in particular, whether the US, UK and France really agreed to this kind of universal international law in 1945. One actual result of disagreements on the UN Charter and the limits of the veto power in the UN SC has been the flourishing of regional, rather than universal, international law since the end of the Cold War, including in matters of collective security (see especially NATO).

Secondly, in order to begin to understand and take seriously differences in interpretations of international law between the West on the one hand, and non-Western great powers such as Russia and China on the other, more academic and policy studies of non-Western approaches to international law and actual conversations across regions must be undertaken. Without global dialogue and engagement we will continue to have, in the context of international law, a dialogue de sourds where even potentially sincere positions of certain players appear ridiculous merely because one is not fully aware of the way the other understands and speaks the language of international law.

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11 Responses

  1. Olexiy

    It is nice of you that you are trying to consider the non-Western approaches to international law to be just as valuable as the Western approach. However, you keep thinking as a westerner and you think that IL is just as important for Russia and China as it is for the West. I am not an expert in Chinese IL, but I know something about the Russian approach. For the West IL is a value. It is something that is based on the centuries-long tradition of respect to law and justice. For Russia law itself is nothing. It is simply a reflection of the existing balance of power. Power is important. Agreements are sometimes and to some extent important. Law…why do they need law, if they have the power? While arguing that intervention into the internal affairs of independent states is inpermissible, Russia has made it a common practice to intervene in the most brutal and devastating manner in the internal affairs of other states. Russia claims that the West has praised the revolutionary events in Ukraine. Maybe the West did. But this is not interference. Meanwhile, Russia has openly supported a failed President of Ukraine, occupied parts of Ukrainian territory, sent armed groups and organized terrorist attacks to destabilize Ukraine. If this is not interference, what would you call interference? Russia has completely no respect to the mere idea of international law, and its declarations are political tools, not legal.

  2. Ray

    Interesting! Africa and the third world in general is challenging the cold war and somewhat ”bipolar” interpretation of the principles of International Law

  3. Theodor Schilling

    Lauri, thanks for your insightful comment. According to Marina Aksenova, Anchugov and Gladkov is not Enforceable: the Russian Constitutional Court Opines in its First ECtHR Implementation Case, at opinio juris(2016/04/25), the Russian Court has held in case No. 21-II/2015 that the principal of sovereign equality is a peremptory norm (jus cogens). That would fit well into your description of Russian (and Chinese) ideas of international law. But is it the case? The point is not included in the judgment’s English resume (here: http://www.ksrf.ru/en/Decision/Judgments/Documents/resume%202015%2021-%D0%9F.pdf)

  4. Lauri Mälksoo Lauri Mälksoo

    Olexiy, I agree with you in the sense that when Russia and China insist on the principle of ‘sovereign equality of states’ (as they do in this joint document as well) what they actually seem to mean is the equality of permanent members of the UN SC, i.e. that the US would treat them as equal. Georgia and Ukraine, Vietnam and the Phippines probably do not feel that Russia and China want to be truly ‘equal’ to them. From the Russian perspective, Moscow’s international legal relations with UK, France or China seem to be qualitatively something else than for instance its legal relations in the post-Soviet space. It is important to point out that THIS attitude is not covered by the UN Charter either – who wants equality from the US, should also be able to offer equality to one’s own neighbors, other UN member states.

  5. JI HUA

    It is very interesting. As a Chinese international lawyer, I believe the deep reason of diverergence on outlook of International law between China, Russia and Western countries is not legal terms but cultural, political views. Who defines Demorcracy, human rights? If we stick to western approach, International law is western. International law should be more accommdated, which includes different cultures and systems. It is the birth of IL defines the tensions of International legal arguments.

  6. Oleksandr Marusiak

    Very concise and sober reflection on the issue of last days! I would also say that Russian approaches to international law (and to law at all) are still based on soviet paradigm of self-delusion and hypocrisy in legal issues. And what about China? Where does the roots of Chinese approaches to international law come from? Maybe form ancient doctrine of tianxia (‘under heaven’)?

  7. Lauri Mälksoo Lauri Mälksoo

    Theodor, the important judgment of the Russian Constitutional Court from 14 July 2015 that preceded their judgment in Anchugov and Gladkov in April 2016, does mention the principle of sovereign equality of states as an example of a jus cogens norm in international law. What is meant with it is the idea that if – for instance due to Western ‘double standards’ – this principle would be violated against Russia via a judgment of the ECtHR, Russia would have the right not to implement it. (A somewhat idiosyncratic construction in the context of the ECtHR, I would say.) If I may add: I have written a longer case note on the landmark judgment of the Russian CC of 14 July 2014; it is scheduled to be published in the next issue of European Constitutional Law Review (EuConst).

  8. Jordan

    It may be that the two view self-determination and human rights as principles, but both are cemented into duties of the UN and members in Articles 55 and 56. They are relevant also to the third form of unlawful threats and uses of force in Article 2(4).

  9. Nicolás Carrillo-Santarelli Nicolás Carrillo-Santarelli

    Very interesting article. The discussion reminds me of something Myres McDougal argued during the Cold War: namely, that there is a tension stemming from what international legal aspects, values and principles different sides stress, as human dignity or non-interference. Yet -I am South American- I find the Russian and Chinese narrative flawed, insofar as criticizing breaches of obligations and demanding that international duties are respected is legitimate and not contrary to non-interference. Furthermore, erga omnes obligations have an impact. Their discourse may serve them to conceal the intention to prevail by might or (legal, e.g. veto power) privileges.

  10. Njiti Batty

    Congratulation Lauri for the food of mind, I do think that Russian and China are trying to strengthen their ties on the equality of permanent members of the UNSC when it comes to the utilisation of their veto powers. In future as time goes on when it will come for decision making by the UNSC, this Russian-Chinese Declaration would be felt. While each permanent member (France, UK & USA) of the UNSC is deliberating on the matter; the Russian-Chinese wing would have got one ally. So, I do not see this (Russian-Chinese Declaration) as the realisation and recognition of the principle of ‘sovereign equality of states’ and even of having the sole intention of making sure that each state as provided for by the Montevideo Convention (art 1) enjoys its rights. This may be seen as a kind of coming together between ‘so & so versus so & so’. Therefore, as established in some comments; there is a need of focusing on the ‘small picture’ from the ‘big picture’ of international law. The permanence of membership of UNSC is questionable and time has come for the amendment of the UN Charter especially article 23 so as to accommodate the reality.The living examples such as current development of the international criminal chamber/section within the African Court on Human and Peoples’ Rights (AfCHPR) which is the result of the conflict of the African Union (AU) & UNSC on deferral matters should offer a big lesson.

  11. Farshad Garavand

    This Joint Declaration is nothing new! Both Russia and China are trying to interpret international law in a way to be fitted in line with their realpolitik. Of course, I does not mean that, on the other side, the western powers are sticking to the purposes and principles enshrined in the UN Charter faithfully but the realty is these two big powers should bear this point in mind that international law and order could not be interpreted in regional alliances only with the aim of disregarding the the existing reading prevailing in the international community. Having a bizarre interpretation of the universal order is nothing but trying to weaken the principles, though not solid, which are now governing the international community. I personally think that this measure should be taken more political than legal and actually in the long run is doomed to fail. It goes without saying, international law belongs to the whole humanity and if sates in a certain region would like to legalize their foreign relations, they cannot do it while ignoring the existing structure.