The 2022 Sino-Russian Statement: A Legal Justification for War?
On February 4th, 2022, as the Beijing Winter Olympics opened, Vladimir Putin and Xi Jinping declared a “no limits” partnership between their two nations. [1] Their Joint Statement proclaiming a new global era affirmed support for Russian and Chinese territorial ambitions in Ukraine and Taiwan, respectively, and promised to strengthen collaboration between the two nations against the West. The Joint Statement underscored their ambition to collaborate on a wide variety of issues—from climate change to cybersecurity. Less than three weeks later, the world watched as Russia unilaterally invaded Ukraine—overlooking its international obligations under the United Nations (UN) Charter Article 2(4) which states that “all members shall refrain from the threat or use of force against the territorial integrity or political independence of any state.” [2] Russia and China's claim of “no forbidden areas of cooperation” and their endorsement of each other’s territorial ambitions may be indications that Russia’s use of force serves as an implicit threat against international law. [3] By claiming a “New Era” for global affairs, the Joint Statement poses an unprecedented challenge to the existing world order and disrupts the legally binding standards of the UN international system.
Integration of the Joint Statement into the UN International System?
The “Joint Statement of the Russian Federation and the People’s Republic of China on the International Relations Entering a New Era and the Global Sustainable Development” asserts:
The sides note that the Charter of the United Nations and the Universal Declaration of Human Rights set noble goals in the area of universal human rights, set forth fundamental principles, which all the States must comply with and observe in deeds. At the same time, as every nation has its own unique national features, history, culture, social system and level of social and economic development, 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. [4]
By equating the UN Charter with the Universal Declaration of Human Rights (UDHR) and defining the Charter as a collection of "noble goals," the Joint Statement seems to undermine the legally binding nature of the UN Charter under international law by reducing it to the non-binding UDHR. While the Charter creates legal obligations and accountability under the International Court of Justice (ICJ), the latter is a form of soft law with more leeway for interpretation and less mechanisms for accountability. Furthermore, the Joint Statement emphasizes that both the Charter and the Declaration should be filtered through the prism of each country’s specific situation, entering into a quasi-cultural-relativist argument that curbs the reach of these international legal instruments.
This instance of undermining the power of the UN Charter gestures to a movement towards a world in which it would be permissible to deviate from the core tenets of international law laid out in Article 2(4) of the Charter. Under Article 51 of the Charter, which enumerates exceptions to Article 2, the use of force against another state can be justified for the defense of a state’s “right of individual or collective self-defense if an armed attack occurs.” [5] Nonetheless, it is evident to the international community today that Ukraine did not threaten or use force against Russia or any other UN Member State. Thus, for Russia to justify its illegal actions in Ukraine, it must deviate from international law. [6]
The Sino-Russian Pact is also worthy of consideration from a symbolic standpoint. Having been announced at the onset of the Beijing Olympics, the Pact appears to clearly demarcate Russia and China as separate from the so-called West, especially because these Olympic Games were subjected to a diplomatic boycott by the United States. This Joint Statement thus becomes the “most detailed and assertive” declaration expressing a desire to move away from the current existing international legal system in order to build a “new international order based on [these countries’] view of human rights and democracy.” [7]
Aftermath of the Joint Statement: Questioning Ukraine’s Sovereignty
Since state sovereignty is the centerpiece of modern international law, territorial and sovereignty changes can only occur by consent, never by force. This Rule of Territorial Stability is a fundamental tenet of international law, reinforced by the positive law Article 2(4) of the UN Charter. [8] The Joint Statement’s territorial claims challenge this very concept. On the one hand, Russia explicitly “reaffirms its support for the One-China principle” when confirming that “Taiwan is an inalienable part of China” [9]. On the other hand, while China does not challenge the sovereignty of Ukraine in the pact, both states firmly “stand against attempts […] to undermine security and stability in their common adjacent regions”. [10] The language used in this third part of the pact is particularly important, as Putin’s actions in Ukraine were justified as missions to “keep the peace” in Russia's adjacent regions. [11]
Prior to the outset of the conflict in 2022, tensions between Russia and Ukraine were rising. In the immediate aftermath of the Joint Statement, Putin recognized the independence of Ukrainian territories Donetsk and Luhansk, further blurring the settled territorial borders of the country. [12] Since the war broke out on February 24th, the relevance of the Joint Statement to current events in Eastern Europe is clear: Putin announced a “special military operation” in Ukraine to ensure security in the region by undermining a “serious threat” to Russia’s very existence. [13] The discourse used to justify the war greatly resembles the affirmations in the Sino-Russian Joint Statement, as both insinuate the legal permissibility of Russia’s military actions under the Pact. Nevertheless, since there was no consensual exchange of sovereignty, Russia’s territorial ambitions to Ukraine constitute forceful coercion and a violation of international law. Hence, under Article 51 of the UN Charter, Ukraine has an inherent right to self-defense against Russia’s external aggression. [14]
Since the February invasion, Ukraine has filed a Request for Provisional Measures to the ICJ to further contend that Russia has violated its international legal obligations. On March 16th, the Court indicated three provisional measures concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), ordering the Russian Federation to “(1) immediately suspend the military operations that it commenced on February 24th in the territory of Ukraine, “(2) ensure that any military or irregular armed units… take no steps in furtherance of the military operations referred to in point (1),” and “(3) that both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” [15] It is important to bear in mind that, unlike the third order of the Court, the first two provisional measures were not unanimously issued: by thirteen votes to two, the Moscow-born Vice-President Gevorgian and Chinese Judge Xue voted against these measures. [16] Notably, these votes seem to mirror the Chinese and Russian claims on the Joint Statement, exemplifying the ramifications of the pact in the current international legal system.
The Joint Statement and the conflict arising in its aftermath are both a legal and political matter. In addition to the legal ramifications, it is important to consider China’s involvement in the conflict in light of the abovementioned pact. Most notably, when voting on the February 25th UN Security Council Resolution on Ukraine, Russia vetoed the action while China abstained. [17] The abstention on a vote deploring Moscow’s invasion of Ukraine was viewed by Western countries “as a win for showing Russia’s international isolation,” particularly in contrast with China’s expressed support for Russia’s territorial ambitions in Joint Statement. [18] Yet, China did not remain entirely neutral as it decided to send economic aid to Russia and is likely to deepen its military relationship with Russia as the war progresses. [19]
The International Criminal Court (ICC) opened an investigation into possible war crimes quickly after the outset of the conflict. This investigation will start with events dating back to 2013 and will investigate the potential occurrences of war crimes, crimes against humanity, and genocide. [20] Depending on the results of such investigation, Russia’s actions on Ukraine could be determined to violate both international human rights and international humanitarian law, and Russian officials may be prosecuted for committing international crimes—the most serious and egregious human rights and jus cogens norms violations. As courts assess whether Putin’s current attempts to enforce that Russians and Ukrainians are “one people” are in violation of various international laws and conventions, the Sino-Russian Joint Statement itself will be indirectly tried. [21] As these courtrooms reaffirm the pre-established legal order of the United Nations and the sovereignty of threatened nations, they will indirectly refute the “New Era” proclaimed in the 2022 Sino-Russian Pact.
edited by Stephanie Chan
Sources:
[1] Joint Statement of the Russian Federation and the People’s Republic of China on the International Relations Entering a New Era and the Global Sustainable Development, Kremlin.ru (2022), online at http://en.kremlin.ru/supplement/5770 (accessed February 22, 2022).
[2] U.N. Charter art.2, para.4.
[3] Joint Statement of.
[4] Id.
[5] U.N. Charter art.51.
[6] John B. Bellinger III, “How Russia's Attack on Ukraine Violates International Law,” PBS (March 4, 2022), https://www.pbs.org/newshour/world/how-russias-attack-on-ukraine-violates-international-law.
[7] Tony Munroe et al, “China, Russia Partner up against West at Olympics Summit," Reuters (February 4, 2022), https://www.reuters.com/world/europe/russia-china-tell-nato-stop-expansion-moscow-backs-beijing-taiwan-2022-02-04/.
[8] Thomas Grant, “Russia's Invasion of Ukraine: What Does International Law Have to Say?” Lawfare (August 25, 2015), https://www.lawfareblog.com/russias-invasion-ukraine-what-does-international-law-have-say.
[9] Joint Statement of.
[10] Id.
[11] Madeline Fitzgerald, “A Timeline of the Russia-Ukraine Conflict,” US News (February 25, 2022), https://www.usnews.com/news/best-countries/slideshows/a-timeline-of-the-russia-ukraine-conflict.
[12] Id.
[13] Andrew Osborn and Polina Nikolskaya, “Russia's Putin Authorises 'Special Military Operation' against Ukraine,” Reuters (February 24, 2022), https://www.reuters.com/world/europe/russias-putin-authorises-military-operations-donbass-domestic-media-2022-02-24/.
[14] Grant, “Russia's Invasion of.”
[15] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), International Court of Justice Press Release (2022), online at https://www.icj-cij.org/public/files/case-related/182/182-20220316-PRE-01-00-EN.pdf (visited April 22, 2022).
[16] Id.
[17] Michelle Nichols and Humeyra Pamuk, “Russia Vetoes U.N. Security Action on Ukraine as China Abstains.” Reuters (February 26, 2022), https://www.reuters.com/world/russia-vetoes-un-security-action-ukraine-china-abstains-2022-02-25/.
[18] Julian Borger, “China Has Already Decided to Send Economic Aid to Russia in Ukraine Conflict, US Officials Fear,” The Guardian (March 15, 2022), https://www.theguardian.com/world/2022/mar/15/china-has-already-decided-to-send-economic-aid-to-russia-in-ukraine-conflict-us-officials-fear.
[19] Christian Shepard, “China and Russia's Military Relationship Likely to Deepen with Ukraine War,” The Washington Post (March 21, 2022), https://www.washingtonpost.com/world/2022/03/21/china-russia-military-arms-drones/.
[20] “International Criminal Court Opens Investigation into Possible War Crimes in Ukraine.” PBS (March 2, 2022), https://www.pbs.org/newshour/world/international-criminal-court-opens-investigation-into-possible-war-crimes-in-ukraine.
[21] Fitzgerald, “A Timeline of the.”