China, Russia, and International Law

Whatever economic problems China and Russia may be experiencing, the foreign policy of both countries of growing importance to global peace and security. Russia’s military intervention in Syria and Ukraine have changed the political and military calculus in the Middle East and Eastern Europe. China’s land reclamation in the South China Sea has made that region into a global hotspot of interstate conflict, one that is unlikely to be diffused by the Permanent Court of Arbitration’s decision in Philippines v. China.

Working together, the two countries have voted together to block important U.N. Security Council action on Syria. And now they have signed a Joint Declaration on international law, signaling more concerted action going forward. For an earlier joint declaration see here. Some parts of the 2016 Joint Declaration (formally titled: Declaration of the Russian Federation and the People's Republic of China on the Promotion of International Law) are directed at specific foreign policy issues (although without saying as much): Paragraph 5 is a reference, for example, to China’s argument that the Philippines did not adequately exhaust diplomacy before initiating arbitration under UNCLOS before the Permanent Court of Arbitration; Paragraph 6 is partly response to European and U.S. sanctions against Russia for its actions in Ukraine; and Paragraph 10 is , in part, a reference to the U.S. failure to join UNCLOS and the U.S. invocation of some parts of UNCLOS as representing customary international law, while at the same time not agreeing to be bound by the terms of the Convention as a whole. Paragraph 4’s condemnation of the extraterritorial application of national law in violation of international law, harkens back to the much-criticized treaties made by Western powers with China during the Qing period.

The Joint Declaration is also directed at other areas of international law. First, the Joint Declaration explicitly emphasizes the ongoing importance of the sovereign equality of states to international law, an emphasis likely meant to highlight that some aspects of human rights law, the right to democracy, and the responsibility to protect are based on the views of some but not all states. Hence, the Joint Declaration’s language that “States have the right to participate in the making of, interpreting and applying international law on an equal footing” – meaning that Western states may not build or change norms of international law at the exclusion of non-Western or developing countries. More fundamentally, the sovereign-equality aspect of the Joint Declaration highlights the long-standing and deeply held views of Russia and China that international law has historically been a tool of Western Imperialism and that sovereignty and sovereign equality of the states are the key doctrinal bulwarks against such imperialism today. This history deeply informs public opinion and foreign policy of both countries today.

Second, the Joint Declaration explicitly suggests that state immunity is alive and well – maybe including even the absolute rather than the restrictive view of foreign state immunity. There has been some evidence over the past decade that both China and Russia would accept the “restrictive view” of immunity, pursuant to which foreign states are not immune from suit in foreign domestic courts for (at least) their commercial conduct. An 2013 European Court of Humans Rights decision, Oleynikov v. Russia, explains Russia’s unclear position on restrictive immunity. China has signed (but not ratified) the U.N. Convention on the Jurisdictional Immunity of States and the Their Property, a treaty which takes the restrictive approach, but China subsequently suggested in F.G. Hemisphere Assocs. v. Dem. Rep Congo (Congo II), (2010) 2 H.K.L.R.D. 66, ¶ 91 (C.A.) (H.K.) that it will continue to take the absolute approach. The Joint Declaration does not explicitly reject the restrictive view of immunity, but it does at least suggest that China and Russia will take the absolute approach and that they will continue to reject human-rights based restrictions on the immunity of individual officials.

Finally, as mentioned above, the Joint Declaration may mean bad news for the humanitarian intervention and responsibility to protect. Here, too, there has arguably been some movement toward accepting these doctrines, perhaps most importantly in U.N. Security Council Resolution 1973 authorizing the use of force in Libya. China and Russia both later criticized Western use of force to assist in ousting Qaddafi from power, however, which may be what the Joint Declaration is referring to when it “condemn[s] as a violation of this principle any interference by States in the internal affairs of other States with the aim of forging change of legitimate governments.” On the other hand, perhaps “legitimate” leaves the question open. In any event, the Joint Declaration’s emphasis on stability and sovereign equality, and against the equal role of all states in the development of international law, cuts against the grain of humanitarian intervention and responsibility to protect.