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

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.