After Trump: China and Russia move from norm-takers to shapers of the international legal order

The Western media hardly reported that on Tuesday 8^th November 2016, the Chinese Premier, LI Keqiang, visited Russia. Maybe the date of the visit (the day of the de facto election of the US President) was chosen to convey a message. The deepening Chinese-Russian partnership seeks to work towards an alternative to what is perceived by the leaders of those two powers to be a US-dominated world order. It is plausible that an unpredictable, inexperienced, and undiplomatic US President will contribute to a weakening of that order. It is also likely that all recent moves will entail some changes in international law.

Let us recapitulate the latest official statements. On the official English-language website of the Chinese government, the Chinese Premier commented yesterday’s meeting as follows: “China−Russia cooperation is not only beneficial to the two sides, but also to regional and world peace, stability, development, and prosperity.”

A more detailed exposition of this view was offered by Ms FU Ying, the co-chairperson of the Foreign Affairs Committee of the National People’s Congress of the People’s Republic of China, and the current vice minister of the Foreign Ministry of the People’s Republic of China. She gave a speech at a meeting of a Russian intellectual elite-discussion circle (the “Valdai Club”) which was quickly published in China Daily − European Weekly of October 28 – November 3, 2016, entitled “Major Countries Need to Build Trust”.

Here, the Foreign Affairs chairperson made the following statements:

“Am I right to say that ‘the world order’ the US claims to lead is a power structure, sitting on American values, rejecting other ideologies and supported by a military alignment, which does not take into consideration the security interests of others. (…) China does not have a ‘strategy’ to challenge the US-led ‘world order’, but when it ostracizes the Chinese political system and security interests, it’s hard for China to think of supporting it.  Then, will the US adjust? I discussed this with many US scholars and the answer is No. (…) The Chinese have their own view of the order for the world. What China supports is the international order centered around the UN. (…) The Chinese President XI Jinping said that China (…) together with other countries would want to ‘make the international order more just and equitable.’ (…) China should find it comfortable to stay within this framework of international order as it has allowed China to achieve its purposes. But we also think there is the need of reform. (…) The existing international order needs to improve to better suit the time and to upgrade global governance, but changes should be incremental. (…) While the world expects China to take more responsibilities it also wants to understand China’s intentions. It is important that China explains to the world more effectively in order to win more trust. China also needs to learn from other countries and to be open to new ideas while developing its own thinking for the world.” (emphasis mine).

Some months ago, a Chinese−Russian letter to the UN Secretary General of 8 July 2016 (UN Doc. S/2016/600) contained the Declaration of the Russian Federation and the People’s Republic of China on the Promotion of International Law, signed in Beijing on 25 June 2016 by the two states’ Ministers of Foreign Affairs. That Declaration, launched four days before the publication of the PCA arbitral award of 12th July 2016 on the Chinese South Sea (to which I will come back below), has been analysed by Ingrid Wuerth on Lawfare, and by Lauri Mälksoo on this blog. The Russian−Chinese declaration stays within the acknowledged international law principles, but with important nuances. It prominently mentions the Bandung principles which do not normally appear in the Western canon. Also, it ends with a condemnation of double standards and unilateral sanctions (point 6). Most conspicuously, it does not mention human rights with one single phrase. This is alarming.

Difficult times for individual freedom and equality? A US colleague, William Burke-White, recently found that the rising powers’ “reassertion of the centrality of the State conflicts with the individualization of international law”, and has predicted that “[f]or legal rules and regimes that seek to advance this individualization or draw their effectiveness from it […] the return of the state will likely have pronounced negative consequences. Over time these regimes may be ratcheted back as international law returns closer to its Westphalian origins as a system of sovereignty, among sovereigns.” (William W. Burke-White, Harvard International Law Journal 56 (2015), 1-80, at 77).

Burke-White is surely right to diagnose “power shifts in international law” (my emphasis). And we also need to admit that these shifts come first of all from outside the law. Can (international) law at all provide for a helpful “counter-reality” to the forces of the economy and the military, to use the words of historian Perry Anderson? Around the time of the Chinese Foreign Affairs chairperson’s talk which I mentioned above, Anderson gave a lecture at Peking University under the heading: “International law: Is it law? Is it international?” Unsurprisingly for a neo-Marxist, Anderson reached the conclusion that the texts (and the ideas they embody) we are used to call international law are neither “law”, nor “international”. (That particular lecture is not on the web, but see http://www.bestchinanews.com/International/2858.html).

I personally do not believe that international law can best be described, in Marxist terms, as a “superstructure”, as a mere epiphenomenon of a given power constellation. However, we must admit that – just like the State itself – the international legal order, composed (mainly) of States “feeds on preconditions which itself cannot guarantee.” (Ernst Wolfgang Böckenförde: “Der Staat lebt von Voraussetzungen, die er selbst nicht garantieren kann”).

But these pre-conditions and side conditions are not only material and economic, but also intellectual and moral (this was probably what the Hegelian Böckenförde had in mind). I would like to believe that, if the international order is currently changing, then it is not only due to the economic power of China but also due to the power of ideas. And it is up to intellectuals  to feed good ones into a global public discourse about the fairness and operation of the international legal order and its appropriate first principles. Only on such a basis, international law itself may deploy some normative force, and not only cloak with the mantle of legality the actions of those in power. China aims at providing such an ideational basis − however false, hypocrite, and dangerous this might sound to many, when the ideas come from a State which does not respect the rule of law, human rights, and democracy.

The PCA arbitral award on the South Chinese Sea of July 2016 is an important event in this world of ideas. The tribunal had in 2015 assumed jurisdiction over parts of the dispute (and formally reaffirmed those conclusions and reasoning in its award on the merits of 2016), despite a 2002 China–ASEAN Declaration on the Conduct of Parties in the South China Sea, which according to the Chinese position constituted a legally binding agreement on a different type of dispute settlement (namely negotiations), despite the Chinese declaration of 2006 under Art. 298 UNCLOS by which the State had activated the exceptions to the compulsory dispute settlement, and despite China’s non-appearance in the proceedings. The award of 2016 rejected Chinese claims to historic rights over islands and rocks, and exposed the Chinese failure to protect and preserve the marine environment. Although the awards’ reasoning affirming the tribunal’s jurisdiction is quite complicated, it is defensible and – in the light of the object and purpose of UNCLOS to provide for a complex but watertight system of third party dispute settlement, not arbitrary. And the denunciation of pollution is most welcome.

However, in China, this award fueled new suspicion against international law. It bolstered the long-lasting Chinese auto-posture as being the victim of an unfair international legal order. That narrative goes back to the so-called “unequal treaties” of the 19^th century between Western powers and China, of which China could rid itself only after the Second World War. In the popular discourse, the Chinese−Philippine maritime dispute is normally being referred to as the Chinese−American dispute – so obvious it seems to ordinary people that the Philippines are a vassal of the US, and that the entire arbitration was just a plot of the US to maintain its military bases in China’s back”yard”-waters.

Coming back to the US presidential election of 8 November 2016, its outcome is apt to confirm what many Chinese might be inclined to think: that democracy does not really function well (that it is not “the worst form of government except all the others, ….”) if it generates such a result. With a view to the idea of democratizing China, I have met young Chinese saying that the country is too big, and that the economic and intellectual inequalities are too great to allow for majority voting. Also, the rampant human rights violations in China ranging from censorship over arbitrary arrests to oppression and discrimination of ethnic minorities are not widely known in China due to a tight control of the media and of the internet – maybe some Chinese do not even care strongly about them?

However, the international order can only be as good as its members. Notably the international rule of law (as invoked in the 2012 UN General Assembly Declaration 67/1 “on the rule of law at the national and international levels”) needs to grow bottom-up. In order for the rising powers to move towards a rule of law, these societies are probably well advised to draw on their own cultural traditions in order to escape the “droit public européen”-phenomenon. For China, this might be the great Chinese post-Confucian philosopher HAN Fei of the third century B.C, who was the leader of the so-called legalist school. His rule-of-law-based thinking has been praised as a possible orientation for Chinese governance by LIN Yutang in his 1936 book My country and My People which is still in print and makes a good read. Sadly, HAN Fei had been condemned to death by taking the poisoned chalice. But that story is familiar from Western history of philosophy, too, isn’t it?