By Jyun-Yi Lee

Since Russia’s invasion of Ukraine on 24 February 2022, concerns over possible military action by China against Taiwan have been raised by security experts, commentators, and decision makers in the democratic world. The debates center around whether and how the Russia-Ukraine war may have changed China’s calculations, Taiwan’s military capability and readiness, and the credibility of US security commitments to the island. Less noticed, however, is that in addition to their military build-up and tactics, both Russia and China are also attempting to advance a version of international (legal) order that favours them. Currently the two countries’ aims are reflected in their Joint Statement on International Relations Entering a New Era and Global Sustainable Development (hereafter, the Joint Statement) released on 4 February and Xi Jinping’s Global Security Initiative (GSI) put forth on 21 April 2022.[1] The latter, in particular, has been eagerly promoted by the Chinese government in the past year. China issued “The Global Security Initiative Concept Paper” on 21 February 2023 and, on the 24th, “China’s Position on the Political Settlement of the Ukraine Crisis.” The former streamlines Xi’s original speech on GSI, while the latter echoes several ideas or principles in GSI, such as respecting state sovereignty, abandoning the Cold War mentality, prioritizing dialogue and negotiation to resolve an international issue, and emphasizing the role of the United Nations.[2] In early March 2023, China brokered a resumption of diplomatic relations between Saudi Arabia and Iran, which was hailed by both the Chinese government and media as a successful implementation of GSI.[3] These show that GSI has become a strategic paper that guides China’s external behaviour in some important areas.

Currently the Joint Statement and GSI have been taken by many as mere rhetoric. This paper contends that if left unchecked, there is a risk that the meaning of jus ad bellum, which considers the grounds on which states may resort to war or to the use of force,[4] may be changed to the advantage of the revisionist powers. It is for this reason the two texts should be investigated in greater detail.

The concept of “lawfare” originates from the acknowledgement that international law is an integral part of international politics. Even if it is accepted that international politics is “power politics” by nature, for an international order to be said to exist, there must be certain rules, institutions, laws and norms, which provide the international community with a sense of regularity, continuity and predictability, and without which international politics would not be possible. Consequently, states tend to preserve or alter that order according to their interests and are likely to instrumentalize international law for strategic purposes. As a commentator suggests, “law is but a continuation of politics by other means.”[5]

The concept of lawfare is then a logical extension of the instrumental use of international law. The term is believed to have been first coined by former US Major General Charles Dunlap, Jr., in 2001. Throughout his work on the theme several slightly different definitions are offered, and now the most common usage of the term defines lawfare as “the strategy of using—or misusing—law as a substitute for traditional military means to achieve a warfighting objective.”[6]

The definition carries a value-neutral connotation, suggesting that both the status quo and revisionist powers may engage in lawfare. In practice, however, it is the revisionist powers’ lawfare that catches more attention. The discussion following suggests that both the Russia-China Joint Statement and China’s GSI are instances of lawfare, as international law is used in a peculiar way that advances Russia’s and China’s interests.

While Putin’s television address on 24 February aimed at justifying Russia’s invasion of Ukraine, the Russia-China Joint Statement and Xi Jinping’s Global Security Initiative further showed the two revisionist powers’ ambition to re-shape the current international (legal) order.

The central tenet of the Russia-China Joint Statement is “the democratization of international relations,” and the arguments are as follows. First, both Russia and China affirm that democracy is a universal value and claim that both “have long- standing traditions of democracy.” This is so, because here democracy is redefined as “a means of citizens’ participation in the government of their country with the view to improving the well-being of population and implementing the principle of popular government.” This definition says nothing about checks and balances, the rule of law, procedural justice, among others. Consequently, any government that asserts that it represents a population can claim to be a democracy, even if that state is in fact an authoritarian or autocratic system. The Joint Statement in appearance adheres to the value of democracy, but effectively empties democracy of any substance.

Second, by establishing a democratic identity for Russia and China, the two powers can advocate for democratizing international relations. Here the implementation of democratic principles at the global level does not refer to a system of equal representation, e.g., each and every state has an equal say in international organizations or international affairs more generally,[7] but a relativist notion that each state has its own culture, civilization and path to development. Therefore, both insist that no standards can be imposed unilaterally by some states on others. The Joint Statement acknowledges that “the Charter of the United Nations and the Universal Declaration of Human Rights set noble goals…which all the States must comply with and observe in deeds,” but simultaneously claims that the “universal nature of human rights should be seen through the prism of the real situation in every particular country, and human rights should be protected in accordance with the specific situation in each country and the needs of its population.” This strategy of accepting the universality of the principles enshrined in the UN Charter but insisting that they can be implemented differently creates a situation where Russia and China will never violate UN values and principles. On this moral ground, the two states vow to “defend the authority of the United Nations and justice in international relations,” while denouncing those states that criticize their performance in democracy and human rights as “attempts at hegemony” that “undermine the stability of the world order.”

Third, following the same pattern, the Joint Statement seeks to present their individual or particularistic security interests in a universalist fashion. The universalist aspect is reflected in the notion of “universal, comprehensive, indivisible and lasting security,” especially the view that “no state can or should ensure its own security separately from the security of the rest of the world and at the expense of the security of other states.” The individual or particularistic aspect lies in the two states’ mutual support for “the protection of their core interests” and “state sovereignty and territorial integrity,” as well as their opposition to “interference by external forces in their internal affairs” and “attempts by external forces to undermine security and stability in their common adjacent regions.” It is worth pointing out that while territorial integrity, political independence and non-intervention are principles of the UN Charter, the ideas of “core interests” and “common adjacent regions” are terminologies not used in the Charter. There is a possibility that by linking these notions together, Russia and China are expanding the scope in which they can claim legitimate threat or use of force.

A further problem is that the Joint Statement’s universalist vision of international security may contradict the two states’ particularistic security interests. One may ask, for instance, whether a state can use force against another in the name of protecting its “core interests” or safeguarding “territorial integrity” in a situation where the right to self-defense is not applicable. To maintain the logical order of the Joint Statement, the answer must be no, or the offender is seeking its own security at the expense of others. In reality, however, China’s behaviour in both the South China Sea and along the Sino-Indian border, its constant military threats against Taiwan, and Russia’s invasion of Ukraine all suggest that “comprehensive, indivisible and lasting security” is subordinate to the two powers’ own interests.

On 21 April 2022, Chinese President Xi Jinping proposed a Global Security Initiative (hereafter, the GSI) in his opening speech at the 2022 Boao Forum.[8] The GSI consists of six “commitments”:

1. The vision of common, comprehensive, cooperative and sustainable security, and working together to maintain world peace and security.

2. Respecting the sovereignty and territorial integrity of all countries, upholding non-interference in internal affairs, and respecting the independent choices of development paths and social systems made by people in different countries.

3. Abiding by the purposes and principles of the UN Charter, rejecting the Cold War mentality, opposing unilateralism, and saying no to group politics and bloc confrontation.

4. Taking the legitimate security concerns of all countries seriously, upholding the principle of indivisible security, building a balanced, effective and sustainable security architecture, and opposing the pursuit of one’s own security at the cost of others’ security.

5. Peacefully resolving differences and disputes between countries through dialogue and consultation, supporting all efforts conducive to the peaceful settlement of crises, rejecting double standards, and opposing the wanton use of unilateral sanctions and long-arm jurisdiction.

6. Maintaining security in both traditional and non-traditional domains, and working together on regional disputes and global challenges such as terrorism, climate change, cybersecurity and biosecurity.

In essence, GSI argues that peace and security is a common good for all states (no.1 and 6), and to achieve this, mutual respect is key (no. 2 & 4), which is enshrined in the UN Charter (no. 3) and supported by international norms (no. 5). Any state practice deviating from this ideal world order is due to “Cold War mentality” and an instance of group politics and bloc confrontation (no. 3), unilateralism, or long-arm jurisdiction (no. 5).[9]

There are several problems with GSI’s discourse. First, like the Joint Statement, GSI attempts to link principles and values generally accepted in international law with China’s own assertions. For instance, state sovereignty and territorial integrity as well as non-intervention are principles of the UN Charter, but a state’s choice of development paths and social systems is not (no. 2). By linking these together, China seeks to present the latter in a universalist fashion. One political effect of this move is that China seeks to shield itself from external criticism of its human right records in Xinjiang, Tibet, and Hong Kong, and of its domestic misconduct more generally. In addition, following the purposes and principles of the UN Charter does not necessarily lead to the conclusion that unilateralism, alliance formation, and grouping of the states are either prohibited or morally wrong. GSI however seems to make that conflation. Consequently, this linkage strategy renders it difficult to reject China’s arguments in entirety. As a commentator notes, “if countries don’t agree wholeheartedly, at least they can’t fully oppose it. Then, bit by bit, they use the framework to chip away at the U.S.”[10]

Second, GSI instrumentalizes the UN. GSI opposes unilateralism, group politics and bloc confrontation (no. 5), referring implicitly to the US-led security architects such as the NATO, QUAD, AUKUS, and other bilateral security treaties. What is left for dealing with international security issues is the UN. As a permanent member in the UN Security Council and with its influence in the third world countries, however, China can effectively block unfavourable moves within the UN. GSI therefore is a strategy that defends the principles and values of the UN Charter in appearance but weakens the UN’s functions and, in effect, speaks for revisionist powers.

Third, GSI may seek to expand China’s stance on jus ad bellum. This can be illustrated by China’s stance on the Russia-Ukraine war and the territorial disputes with its neighbouring countries. On the Russia-Ukraine war, China has been confronting a paradox in that it has been sympathetic with Russia’s concern over NATO’s expansion on the one hand, but supporting Russia amounts to violating Ukraine’s sovereign and territorial integration, which contradicts China’s policies on Taiwan, the Diaoyutai (Senkaku) islands or the South China Sea, on the other hand.[11] China addresses this paradox by adopting a “pro-Russian neutrality” stance, calling for taking Russia’s “legitimate security concern.” seriously[12] In so doing, China seems to accept, at least implicitly, that self-defined “legitimate security concerns” constitute jus ad bellum.

On the territorial disputes between China and its neighbouring countries, there are instances where threat or use of force has taken place. The China-India border clash in May 2020, the People’s Liberation Army’s presence in the East Sea and South China Sea, and China’s constant military threats against Taiwan all suggest that China is willing to use force in the name of “sovereignty and territorial integrity.” These instances show that China is pursuing its own security and interest at the expense of others, and lead to a critique that GSI is blatant hypocrisy.[13] It may also be argued that for China to maintain consistency between words and actions, it indeed sees “sovereignty and territorial integrity” as a just cause of jus ad bellum.

The Russia-China Joint Statement and Xi Jinping’s GSI are instances of lawfare. Russia and China advocate a version of international (legal) order centered around the UN, creating a Self/Other relationship in which both are represented as safeguarding the UN principles, while others—in particular the US and its allies and partners—are described as living with an outdated and confrontational “Cold War mentality.” One consequence of this construct is an ontological assertion that “because Russia and China are democratic states and respect the UN principles, they don’t violate international law.”[14] It follows that those who criticize or oppose the two states are to be condemned for undermining the international (legal) order. If such a discourse is left unchecked and garners sufficient support, there is a risk that no clear criteria will be available to judge a state’s behaviour, as the revisionist powers’ provocative or aggressive actions can be justified as legal.

Legal resilience, the ability of a legal system to resist change and its capacity to adapt in response to disturbances, is called for.[15] Three steps are proposed here. First, knowing the tricks. The strategy of the Russia-China Joint Statement and GSI may be understood as one of the compliance-leverage disparity, by which one state gains “advantage from the greater influence that law and its process exert over [other states].” A typical example is the use of human shields by the Taliban to force NATO forces to refrain from opening fire and conducting airstrikes.[16] As discussed above, the Joint Statement and GSI link their particularistic claims with principles of the UN Charter, so as to create an impression that these claims have become international norms that should be followed. The idea of the “United Nations-based international order,” which has been particularly propagated by Chinese officials, is then used to compete against, and ultimately seeks to replace, the “rules-based international order” promoted by the US and its allies and partners.[17] In so doing, Russia and China instrumentalize the UN to shield themselves from external criticism, while legitimizing their current and future aggressions.

Second, learning from examples. In the two documents analyzed in this essay Russia and China seem to promote a view that a state’s “core interests,” “legitimate security concerns,” or “sovereignty and territorial integrity” constitute jus ad bellum. Indeed, as international politics is characterized as power politics where “might makes right,” it seems natural for great powers to find justification for their action. For instance, even the US resorted to self-defined “legitimate security concerns” to make Turkey’s military operations against the Kurds reasonable.18 State practices like this shake the international (legal) order and should not be taken for granted from a legal resilience perspective. To address this problem, one may find convincing and touching a speech delivered at the UN Security council by Kenya’s Permanent Representative to the United Nations Ambassador Martin Kimani before Russia’s invasion of Ukraine. Kimani stated that the modern border of “almost every African country was birthed by the ending of empire… Had we chosen to pursue states on the basis of ethnic, racial or religious homogeneity, we would still be waging bloody wars these many decades later.”[19] The speech as well as the experiences of many post-colonial countries show what a genuine commitment to seeking peace and security looks like, and how arbitrary the use of force on the basis of “core interests” or “legitimate security concerns” is.

Third, contesting universalism. Russia and China are now presenting themselves in a universalist fashion. Both subscribe to democracy, international peace and security, and an international order centered around the UN. This suggests that even though they distort the meaning of democracy and attempt to craft an international (legal) order in their favour, these ideas and values still exert a certain degree of influence on the two powers that leaves both needing to articulate a discourse to express their worldview and justify their course of action. As some commentators note, Russia invaded Ukraine alongside a lawfare, even though its arguments can be easily rejected.[20] The same also applies in China external behaviour.

This indicates the resilience of the current international (legal) order. The revisionist powers attempt to rework its meaning from within, rather than overthrow it. Consequently, it is imperative for others—the US and its allies and partners in particular—to engage in the meaning and function of the international (legal) order. This may not be able to deter the revisionists from aggression, but may deprive their malign behaviour of legitimacy, thereby negating their excessive jus ad bellum arguments and maintaining the integrity of the international (legal) order. It is reported that Russian Foreign Minister Sergey Lavrov has frequently criticized “the trend of our Western partners to make fewer references to international law or even remove it from the international lexicon altogether.”[21] Lavrov’s words suggest that Russia (and China) are seizing legal and moral ground which the democratic world once dominated and needs to recover now.

Dr. Jyun-Yi Lee is Associate Research Fellow at Division of National Security Research, INDSR. His research interests include Identity Politics, Hybrid Threats, Grey Zone Conflicts, and European Foreign and Security Policy.