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Ukraine Symposium – Counternormativity and the International Order

Aspects of the shifting world order were recently addressed during The George Washington International Law Review’s 2022 Symposium, “The State of the Nation-State in International Law,” where many discussants noted the range of factors driving changes in the international order. This symposium took place in the shadow of Russia’s blatantly illegal invasion of Ukraine.

The world has watched in horror as a country with a permanent seat on the UN Security Council has disregarded basic norms of international law, invaded a peaceful country without provocation, and engaged in war crimes such as the deliberate targeting of civilians. Some observers view Russia’s war of aggression as a watershed moment (or “geopolitical earthquake”) that portends a new world order in which “great powers will rely more heavily on the use of force, and perhaps one in which wars will become more common.” Former U.S. Ambassador Ryan C. Crocker termed this potential next phase “the world of disorder.”

Commentators note that, as China and Russia ascend in power, “autocratic and illiberal projects [will] rival the U.S.-led liberal international system.” Authoritarian regimes will increasingly oppose rules and institutions that they view as potential constraints on their actions (such as international human rights) and will advance efforts that permit their governments to implement authoritarian policies without external hindrance. Such regimes will push to displace the United States and other liberal influences in order to shift power dynamics in a way that favors their respective geostrategic objectives. In this effort, international rules and institutions that cannot be coopted will be rejected or ignored, and such flagrant violations will be framed as “rejecting Western interference and defending each other’s security interests.”

This post focuses on what is best conceptualized as a counternormativity effort by Russia and China which seeks to undermine the current rules-based international order and drives toward a common, authoritarian telos. While this is most evident in the recent Russian invasion of Ukraine, one can also look to China’s infringement on fundamental freedoms in Hong Kong, Russian assassinations of political dissidents living overseas, etc. Two specific areas are especially illuminative of how the Sino-Russian counternormativity effort is undermining international legal norms are: (1) authoritarian territorial expansion efforts and (2) the deliberate undermining of the international regime to counter cybercrime.

Russian and Chinese Territorial Expansion

Russia and China have moved aggressively in recent years to expand their territorial claims in violation of a foundational rule of international law—the “territorial integrity norm”—which holds that that no State may take territory from another without its consent. This rule is reflected in Article 2(4) of the UN Charter which states, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Commentators note that “[the] ban on aggression, taken from Article 2(4) of the UN Charter, is regarded as the heart of the UN Charter and the basic rule of contemporary public international law.” Even these basic principles, however, have been challenged in the past decade as China and Russia have sought to advance their political objectives at the expense of the rules-based international order.

Russia has been actively using military force (and other means) to expand territorially for years. For example, in the 2008 Russo-Georgian War, Russia used military force to assert dominance over South Ossetia and Abkhazia—provinces that are officially part of Georgia but which have separate governments and are now recognized by Moscow as “independent.” Russia continues to effectively claim territory in Georgia through the practice of “encroaching occupation.”

Russia, likewise, has been illegally annexing Ukrainian territory for years. Prior to Russia’s recent invasion, Russia’s counternormative territorial expansion included the illegal seizure of the Crimean Peninsula in 2014. In response to what it claimed as threats to its interests, Russia launched a complex hybrid operation utilizing a web of political, intelligence, criminal, and military operatives, including the so-called “little green men,” who seized strategic locations on the Crimean Peninsula.

In March 2014, President Vladimir Putin signed a law formalizing Russia’s annexation of Crimea. In the words of then-Vice President Joseph Biden, “Russia has offered a variety of arguments to justify what is nothing more than a land-grab.” Indeed, as Daniel Treisman noted, “By annexing a neighboring country’s territory by force, Putin overturned in a single stroke the assumptions on which the post–Cold War European order had rested.”

Russia, however, was not done with Ukraine. In November 2021, Russia began amassing its armed forces—roughly 100,000 troops and an array of heavy weaponry—at the Ukrainian border. This provocative action was coupled with a range of irregular warfare activities, including information operations, sabotage, and aggressive diplomatic language, which portended the eventual invasion. At the time, U.S. National Security Advisor Jake Sullivan noted, “Russia is laying the groundwork to have the option of fabricating a pretext for an invasion, including through sabotage activities and information operations, by accusing Ukraine of preparing an imminent attack against Russian forces in eastern Ukraine.” Russia stymied diplomatic efforts to prevent the invasion with “maximalist and non-starter demands” such as “an end to NATO expansion, a rollback of previous expansion, a removal of American nuclear weapons from Europe, and a Russian sphere of influence.”

Russia’s threat of the use of military force against Ukraine to achieve unreasonable policy objectives was otherworldly. In fact, it was the echo of what Oona Hathaway and Scott Shapiro have termed the “old world order”—a world before the Kellogg-Briand Pact when nations renounced the use of war as an instrument of policy. Not surprisingly, Russia’s threats were widely condemned. For instance, the G-7 countries—Canada, France, Germany, Italy, Japan, the United Kingdom, the United States—and the European Union issued a joint statement declaring, “Any use of force to change borders is strictly prohibited under international law. Russia should be in no doubt that further military aggression against Ukraine would have massive consequences and severe cost in response.” Such warnings, however, proved ineffective and no international rule or institution was capable of chaining the dogs of war. On February 24, 2022, Russia launched a full-scale military invasion of Ukraine. Other violations of the law of armed conflict by Russian forces shortly followed, such as indiscriminate attacks, deliberately targeting civilians, and “other atrocities.”

China, similarly, has undertaken a range of efforts to expand territorially. Notably, since 2012, China has been building military bases in the South China Sea—a valuable trade passage and fishing ground—even though Brunei, the Philippines, Malaysia, Vietnam, and Japan also have competing territorial claims. To support its expansion effort, China established “Sansha City” to “administer the Paracel and Spratly islands, Macclesfield Bank, Scarborough Shoal, and their surrounding waters,” and has artificially added thousands of acres of land to existing maritime features.

In 2013, the Philippines brought the issue before the Permanent Court of Arbitration at The Hague. The claims by the Philippines were based on the 1982 U.N. Convention on the Law of the Sea to which both the Philippines and China are parties. In 2016, the Permanent Court of Arbitration ruled in favor of the Philippines and emphasized that China’s activities infringed on Philippine sovereignty through various activities, including its building of artificial islands within the exclusive economic zone (EEZ) of the Philippines. The effect of this ruling was to reject China’s claims to the areas determined to be part of the Philippines’ EEZ and continental shelf.

China, however, immediately disavowed the ruling of the Permanent Court of Arbitration and continued to militarily reinforce its strategic positions in the South China Sea. Recent reports indicate that China has now “fully militarized at least three of several islands it built in the disputed South China Sea, arming them with anti-ship and anti-aircraft missile systems, laser and jamming equipment, and fighter jets in an increasingly aggressive move that threatens all nations operating nearby.”

Relatedly, in January 2022, the U.S. State Department released a Limits in the Seas study which examines China’s expansive maritime claims in the South China Sea. The study concludes that China’s claims “are inconsistent with international law as reflected in the 1982 United Nations Convention on the Law of the Sea” and “undermine the rule of law in the oceans and numerous universally recognized provisions of international law reflected in the Convention.”

Similar Chinese efforts to claim territory on its land borders have also created international tension. In 2020, China deployed troops to areas around the Line of Actual Control (LAC)—the ill-defined and contested demarcation that separates Indian and Chinese-controlled territory that has been the situs of border clashes for decades. The history and sensitivity of the LAC makes the 2020 Chinese activity even more noteworthy as it also involved various incursions into Indian territory. Subsequent fighting in the region resulted in the deaths of at least four Chinese soldiers and twenty Indian soldiers. High level talks resulted in an agreement to disengage troops in February 2021, but tensions remain high in the region.

Cyber Convention

Another example of how an asymmetrically multipolar world may impact international law can be seen in Russian and Chinese efforts to shape the norms governing cyberspace, and notably the regime of international law governing the investigation and prosecution of cybercrime. At the international level, China and Russia have advocated for norms that favor “a more authoritarian model with expanded state control” in contrast to liberal democracies which “have historically supported an open, free, and secure internet.” Specifically, China and Russia seek to undermine the Convention on Cybercrime of the Council of Europe (the “Budapest Convention”), which “lays out common standards on cybercrime investigations and aims to boost cooperation among criminal justice systems around the globe.”

The Budapest Convention facilitates a free and open internet in a number of ways, including by requiring governments to provide for conditions and safeguards in cybercrime investigations that are adequate for protection of human rights, by specifying both the substantive offenses and the procedural tools which law enforcement may employ, by permitting a party to the convention to refuse a request for mutual legal assistance where the request violates domestic law or is related to a political offense, and by emphasizing lawful process through warrants and court orders. Such provisions amalgamate foundational aspects of the liberal world order with the international law governing cyberspace. For instance, Article 15 of the Budapest Convention reads:

Each Party shall ensure that the establishment, implementation and application of the powers and procedures provided for in this Section are subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations it has undertaken under the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which shall incorporate the principle of proportionality.

On the other side, China and Russia have been actively pressing for a new global cybercrime treaty at the UN that reflects their opposing vision. In essence, China and Russia—adopting a “data sovereigntist” or “technoauthoritarian” approach—seek to replace “the only global treaty that exists with a common vision for trying to facilitate international cooperation on cybercrime that also aims to protect the rule of law and an open internet” with an alternative treaty that “would allow countries to solidify their hold over information and communications technology within their borders.” This alternative treaty would “enabl[e] some countries to further restrict activities and speech on the internet, while also stressing governments’ sovereignty in cybercrime investigations.” It is notable that the Sino-Russian counter-effort would likely dilute effective international cooperation into cybercrime—a result that would be consistent with Russia’s prolific role in facilitating State-backed illegal cyber intrusions.

U.S. efforts to counter this initiative have not met with great success. Russia (with support from China) has successfully advanced toward the objective of legitimizing an alternative to the Budapest Convention in both the Security Council and the General Assembly. In May 2021, the General Assembly formed an Ad Hoc Committee for the purposes of creating and submitting a draft convention on countering cybercrime to the General Assembly in 2023. A State Department press release noted that during the negotiating sessions, “The United States will press for its priority cybercrime policy and legal objectives during these negotiations, including advancing efforts towards a fair, rights-respecting, criminal justice instrument focused on addressing cybercrime that is built on consensus and informed by experts.”

Conclusion

If the existing world order is to survive in this new environment, those seeking to preserve it must find viable mechanisms for countering this negative, illiberal momentum. This will require cooperation as well as confrontation. Liberal democracies will need to band together and adopt policies expressly aimed at preserving an open, multilateral, and rules-based world order. This should include reaching out to democracies beyond the Western horizon to enhance close partnerships with key emerging powers in Asia and Africa that are inclined to share liberal values.

This, however, does not mean abandoning existing international institutions. Defenders of the liberal world order must work in a coordinated fashion to save the existing international institutional architecture from corruption by authoritarian regimes. This means viewing robust engagement and investment in international organizations as a national security imperative, including the empowerment of international courts so that they are able to take action against those who would commit “core crimes” such as war crimes, crimes against humanity, aggression, and genocide.

In is worth noting that the outcome of the conflict in Ukraine will likely be a lynchpin in the defense of the liberal international order. Whether it’s China (with its stated goal of reunification with Taiwan) or another authoritarian regime with the desire to annex neighboring territory, the illiberal forces of the world are watching—and the lessons of Ukraine will be influential in their decision-making. If Ukraine is protected, the outcome of Russia’s illegal war of aggression will be a degraded Russia that wields less power in global affairs, a revitalized NATO alliance, and recalibration of global power in favor of the liberal international order. If Ukraine falls or is effectively severed, however, then the outcome will be bleak.

The future, therefore, depends on how liberal democracies choose to counter the challenges that now confront the liberal world order. Defenders of the international order may either recognize the crisis and energize coalitions of like-minded countries to counter the “illiberal drift,” or risk further regression to a world characterized by a less constrained model of sovereignty—one akin to that which was known in earlier, more conflict-prone eras. The world for which many generations fought and struggled to build—a world of democracy, human rights, and open markets—is by no means predestined. It must be earned.

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Dan E. Stigall is an attorney with the National Security Division of the U.S. Department of Justice (DOJ). Any opinion expressed is solely that of the author.

 

 

Photo credit: Sebastian Meyer, Voice of America