Political Framing in China's Foreign Relations Law: International Law and ‘Fundamental Norms Governing International Relations’

A. ‘Rules-Based Order’

The RBO is a notoriously vague concept, which owes much to its origins as a forensic construction of a previously assumed global order – an attempt to fortify structures of hegemonic power and legal principles against current disruptions and change. ²⁶ The term is employed almost exclusively in policy and political contexts, while being largely rejected by international lawyers for eroding categorical distinctions between legal and political norms. ²⁷ Examples of such uses include North Atlantic Treaty Organization (‘NATO’) Secretary General Jens Stoltenberg's 2023 statement that ‘China is increasingly challenging the rules-based international order’ – citing China's refusal to condemn Russia's war against Ukraine, its relations with Taiwan, and its ‘carrying out a substantial military build-up’. ²⁸ US Secretary of State Anthony Blinken has identified almost identical concerns in arguing that ‘[e]ach of these actions threaten the rules-based order that maintains global stability’. ²⁹ Neither case explicitly appeals to ‘international law’ and yet law is deeply implicated, with the most authoritative rules of international order being those agreed between states to be legally binding. International legal scholarship can thus ascribe at least two meanings to the RBO, with the most straightforward ‘positivist’ meaning simply denoting the totality of legal and non-legal rules of global governance. ³⁰ This is the declared interpretation of the German Federal Foreign Office, which identifies international law and ‘the rules-based international order’ as ‘complementary’ in the following terms:

International law refers to the legally binding rules on the relations between subjects of international law such as states. The political term rules-based order encompasses the legally binding rules of international law, but extends also to non-binding norms, standards and procedures in various international fora and negotiating processes. ³¹

A second ‘comparative’ meaning has thus emerged, in which the RBO denotes a particularistic conception of international law informed by primarily Western and liberal notions of global governance. ³³ In these conceptions, normative commitments to human rights and democracy have become key political frames for international law and, moreover, with Western liberal democracies cast as the primary guarantors of associated legal and political order. ³⁴ This is effectively a claim that the maintenance of established power hierarchies, in which Western states dominate international law making, are a necessary condition for the integrity of international legal order. ³⁵ Advocates accepting this premise may thus argue in good faith that the RBO offers a ‘better’ vision for global order when compared to alternatives, even as it obscures forms of hegemonic power in international relations. Raul Pedrozo's analysis of the FRL demonstrates such assumptions, in his characterisation of the law as ‘transforming the rules based international order with Chinese characteristics’. ³⁶ Pedrozo critiques the FRL as an example of the Chinese government's ‘goal of supplanting the existing rules-based international order, which has promoted cooperation and development and has benefited all nations since the end of the Second World War’. ³⁷ In its place, China is said to be transforming the RBO into ‘a new sovereignty-based order that better reflects its domestic and global interests’. ³⁸ What is especially relevant here is that Pedrozo does not assert the RBO as an alternative to law, but rather sees it as encapsulating ‘the existing order based on the rule of law, international agreements, principles, and institutions’. ³⁹ This thus exemplifies the RBO as a political frame, which here defines disruption to global order as a problem, diagnoses the cause in China's legal policies, makes a moral judgement between the alternative visions and suggests the remedy of greater fidelity to the RBO – understood as a comparative construction of international legal order.

The specific RBO terminology emerged in part as an attempt to escape the conspicuously ideological ‘liberal international order’ (LIO) and its associations with American exceptionalism. ⁴⁰ A recent account accordingly characterises the RBO as a ‘narrative in support of a western-centric international order that espouses liberal values’, with ‘departure from the LIO terminology rhetorically sweep[ing] some of its western-centric baggage under the rug’. ⁴¹ Yet few outside of the West have been fooled by the distinction, with Russian and Chinese critiques placing the RBO at the centre of what Dugard labels a ‘jurisprudential debate’. ⁴² Russian Foreign Minister Sergey Lavrov has long recognised the RBO's role as a political frame which, in his view, aims ‘to counter the natural process of the forming of new independent development centres that objectively embody multilateralism’. ⁴³ China has likewise declared that the

‘rules-based international order’ championed by the US is in fact another version of power politics. This is an attempt to impose one's own will and standards on others, and to replace the commonly accepted international laws and norms with the house rules of a few countries. ⁴⁴

B. ‘Multipolar International Order’

It has thus never been the literal terminology that matters to the discourse, with even critics of the RBO acknowledging that scholars might also employ the term benignly, intending that ‘what it opposes is the “power-based international order”’. ⁵⁰ Rather, the true meaning of the RBO ‘is its use’, ⁵¹ as a particularistic political frame for law. From this perspective, however, it can be observed that the discourse amongst RBO opponents has not itself dispensed with political frames, but rather can be seen to promote alternative concepts serving comparable functions. Commitments to a ‘MIO’ in particular have emerged as the claimed foundation for legal integrity, with China recognising in the 2022 joint statement the ‘significance of the efforts taken by the Russian side to establish a just multipolar system of international relations’. ⁵² Certainly, ‘multipolarity’ has an analytical meaning in international relations, denoting a structure of global order with ‘relatively equal distribution of capabilities’ between ‘three or more consequential powers’. ⁵³ That meaning of the ‘MIO’ carries no particular normative content on its face – albeit with certain normative implications associated with a more balanced distribution of global power. ⁵⁴ Yet, as with the RBO, the analytical concept now exists side by side with a normative meaning that has emerged through political use. ⁵⁵ Writing in the Cold-War era, Schachter observed that ‘the balance of power would generally be compatible with and supportive of international law’, yet complex questions arose when ‘the achievement of power equilibrium becomes a ground for illegal use of coercion’. Such claims would entail ‘an element of paradox’, since they effectively justify ‘violations of the law because it is a necessary condition for a viable legal system’. ⁵⁶ Schachter resolutely rejected the legality of any such ‘“balance of power” exception’, notwithstanding that powerful states did in practice carve out ‘rules of the game’ within their own sphere of influence, contrary to UN Charter prohibitions. ⁵⁷ Yet Schachter's references to a ‘multipolar’ power equilibrium ⁵⁸ foreshadowed the perspectives of scholars who now explicitly advocate for multipolarity as ‘a necessary, though not sufficient, condition for the existence of international law’. ⁵⁹ Perceiving MIO as necessary to the integrity of international law leads Rein Müllerson to argue, for example, that because post-Cold War NATO expansion threatens multipolarity, it thereby threatens international law even if no legal rule has been breached. ⁶⁰ Through this framing Müllerson justifies the 2014 Russian annexation of Crimea, on the basis that it ‘was meant to counter the further unfavourable change of balance of power that had already become threatening for Russia’. ⁶¹ That claim becomes the crucial context for understanding Russian appeals to MIO as the basis for normative integrity in international law.

Speaking at the ‘World Online Conference on Multipolarity’, Lavrov endorsed President Vladimir Putin's statement that the ‘trend towards multipolarity in the world is inevitable’, while ‘Washington and its satellites’ efforts to reverse the course of history and make the international community live according to the “rules-based order” they invented are failing’. ⁶² The Russian Government's 2023 foreign policy concept articulates the contours of its alternative political framing, in which it identifies itself as ‘one of the sovereign centres of global development performing a historically unique mission aimed at maintaining global balance of power and building a multipolar international system’, which in turn informs the ‘rule of international law’. ⁶³ Yet the application of this framing to justify Russia's illegal uses of force in the former Soviet sphere of influence, including in the ongoing Russo-Ukrainian War, ultimately limits broader acceptance of the MIO discourse as a more normatively desirable or even neutral frame for law. ⁶⁴ It should thus be unsurprising that Western scepticism towards the MIO mirrors critiques of partisanship in the RBO construct, with Jörg Lau arguing that ‘the “multipolar world order” is an anti-Western project – against universal values and international law’. ⁶⁵

Perhaps the most even-handed observation that can be offered in relation to both advocates and critics of the RBO is that all powerful states, Western and non-Western, make varying appeals to the authority of international law in global disputes, yet these appeals are inevitably encased in political frames, with ‘competing understandings of power constituting multiple meanings of the rule of law’. ⁶⁶ Setting aside subjective judgements about the superiority of competing frames, it can be observed that each has developed to serve comparable functions in relation to international law. Cai acknowledges, for example, that his alternative advocacy for an ‘international law based international order’ can, like the RBO, ‘include the role of other rules that do not violate international law’, ⁶⁷ while increasing complexity in international relations has necessitated reliance on ‘soft law’ approaches in lieu of treaties. ⁶⁸ Most significantly for present purposes, Cai's concept, and China's broader project of legalising foreign relations in turn, is justified by the recognised ‘incompleteness of international law’, meaning that ‘under the premise of respecting the purposes and principles established in the UN Charter, domestic law can and should play a certain role in shaping the international order’. ⁶⁹ These elaborations thus mirror key rationales offered by RBO advocates, who likewise appeal to norms beyond international law to address gaps and indeterminacies.

Whether international law is interpreted in terms of the RBO, MIO or some alternative framing, is ultimately likely to be determined by geopolitical spheres of influence. The consequences for international law may include the emergence of parallel ‘geolegal’ orders, in which preponderant power is used to uphold preferred interpretations as effective political norms, by informing the rational incentives for state interactions at the regional level independently of coherence with the broader legal system. ⁷⁰ Edward Luttwak is credited with first describing geopolitical forces operating in the economic sphere as ‘geoeconomics’, which followed his observation that, so long as states and blocs of states compete, activity in the economic sphere cannot merely follow a commercial logic ‘without regard to frontiers’. ⁷¹ Paraphrasing Luttwak in an era when leading states are promoting alternative political frames for international law, as ‘territorial entities, spatially rather than functionally defined, states cannot follow a legal logic that would ignore their own boundaries’. ⁷² States falling within the respective spheres of influence of the West, China or other centres of power, may increasingly be compelled to take account of the conceptions of political order that compete to frame their international legal rights and duties. Moving beyond mere terminological debate will require a more contextual examination of the substantively different constellations of legal and non-legal norms that actually comprise each claimed order. What matters foremost in the present context is the common function of political framings, with the RBO and MIO each able to be analysed in comparative terms as particularistic interpretations of international law and associated structures of global power. Turning to the case of China and the 2023 FRL, the concept of ‘fundamental norms governing international relations’ now emerges as a further and overlapping political frame for international law.

A. Defining ‘Fundamental Norms Governing International Relations’

The first significant question raised is how ‘fundamental norms governing international relations’ should be defined, drawing upon legislative, policy and academic statements. As a preliminary matter, the term ‘fundamental norms’ can be treated as equivalent to terms that include ‘basic norms’ and fundamental/basic ‘principles’ governing international relations, which not only feature more commonly in the literature but have been used interchangeably in reporting on the FRL. ⁷⁹ Turning first to the FRL itself, Chapter I sets out its ‘General Principles’, with Article 4 relevantly declaring core normative commitments that include a version of the Five Principles, which have long formed a cornerstone of China's foreign relations. ⁸⁰ The Five Principles are replicated in the FRL as ‘mutual respect for sovereignty and territorial integrity, mutual non-aggression, mutual non-interference in internal affairs, equality and mutual benefit, and peaceful coexistence’. ⁸¹ This emerges as the most significant interpretation, with both scholarly and policy statements arguing that ‘the Five Principles of Peaceful Co-existence have become fundamental norms governing international relations’. ⁸² Gao Xiang cites former Chinese Premier Li Peng's words that ‘the Five Principles of Peaceful Coexistence embody the most fundamental norms governing international relations’, ⁸³ while Chen Xiaodong, US ambassador to South Africa, more recently observed that: ‘Sovereign equality and non-interference in internal affairs are important principles enshrined in the UN Charter and fundamental norms governing international relations’. ⁸⁴ The complex overlaps between the Five Principles and international law are evident in the account of Li Zhaojie:

In Chinese eyes, the [Five Principles] possess a higher degree of normative strength and flexibility because (1) they are the core principles of international law; (2) they are identical with the purposes expressed in the UN Charter and compatible with other principles of international law; (3) they have stood the test of time since their initiation in the mid 1950s; (4) they represent a new development in the fundamental principles of international law. ⁸⁵

These complexities notwithstanding, calls to uphold fundamental/basic norms/principles in conjunction with international law are included in the most significant of China's international statements, including in its much publicised 2023 position on the political settlement of the Russo-Ukrainian War. ⁸⁷ The term has also taken on contextually specific meanings, including especially that the ‘one-China principle’ constitutes a ‘widely accepted basic norm in international relations’, ⁸⁸ and in defending sovereignty claims in the South China Sea. ⁸⁹ These are all credible interpretations of the concept, and yet so observing only emphasises the barriers facing non-Chinese scholars and practitioners, who must engage in extensive interpretation of China's intended meanings in the FRL, thereby undermining its ability to clearly communicate China's global intentions. It becomes relevant that China has been relatively transparent in defining the problem to be addressed by the FRL, which is touted as a ‘key step to enrich [the] legal toolbox against Western hegemony’. ⁹⁰ Articles 32, 33 and 34 of the FRL offer remedies aimed at ‘protecting the rights and interests of Chinese citizens and organizations overseas, as well as guarding China's overseas interests against “threats and infringements”’. ⁹¹ More generally, China's purposive interpretation of the Five Principles, and therefore fundamental political norms, is in furtherance of its claimed moral commitment ‘to the fairer and more equitable international order that the Global South has long been calling for’. ⁹² It may accordingly be the case that the meaning and interrelationship between these categories of norms is sufficiently clear and coherent from China's perspective, as embodying the structures of political power necessary to remedy perceived threats to international law. However, observing this framing only reinforces that the meaning of ‘fundamental norms’ in the FRL is likely to raise political questions for a global audience as much as it might communicate China's approach to international law.

B. Defining the Relationship Between Legal and Non-Legal Norms

The second significant and more complicated question is how to define the associated relationship between legal and non-legal norms in the FRL. From a legal scholar's perspective, the norms of international law are generally binding because they are founded in the recognised sources of law – foremost that states consent to be bound by positive rules of treaties or customary law. ⁹³ The primary significance of these categories of rules is to offer forms of accountability through determinate rules and methods of interpretation, while breaches engage international state responsibility, up to and including sanctions and/or third-party dispute settlement mechanisms under specific legal regimes. ⁹⁴

Official pronouncements are complicated in this regards, with President Xi Jinping himself stating that the ‘Five Principles of Peaceful Coexistence have become the basic norms governing international relations as well as basic principles of international law’, thereby consolidating political and legal norms into a single category. ⁹⁵ Xi's formulation is cited by legal scholars as an example of ‘China's attitude towards international law’, ⁹⁶ yet it raises elemental questions about the relationship between legal and non-legal norms. Under no orthodox interpretation could the principles in question be said to constitute legally binding norms in the sense of treaty, customary or general rules of international law. The defining principle of ‘sovereignty’ ⁹⁷ lacks juridical determinacy in specific disputes, by virtue of ‘its attendant legal and political dimensions’, which thereby ‘allows China to use it to widen or narrow the space between politics and law’. ⁹⁸ Indeed, some recent scholarship argues that the Five Principles are interpreted to challenge the LIO by promoting ‘authoritarian international law’, which only accentuates the lack of interpretive consensus. ⁹⁹ The Five Principles, at most, might express political values and principles that reflect and frame properly constituted rules of international law. Likewise, repeated claims that the Five Principles ‘by and large reiterate the fundamental principles of international law’ ¹⁰⁰ and are ‘based on the purposes and principles of the UN Charter’ ¹⁰¹ does not equate to them having the authority of legally binding norms. Even if legal and non-legal rules were entirely consistent, this would not alter the categorical distinction between them – irrespective of how laudable the latter norms are claimed to be.

This first interpretation, of the fundamental norms being legal norms, can be contrasted with more radical statements that, not only do ‘the Five Principles of Peaceful Coexistence contain the basic norms governing international relations’ but indeed

being a whole set of standards governing behavior of countries, the Five Principles of Peaceful Coexistence are more comprehensive and more reasonable than other laws that are international or regional in nature. Deng Xiaoping said: ‘After all, the Five Principles of Peaceful Coexistence are the best principles to pursue. They are well defined, clear and concise. We should take the Five Principles of Peaceful Coexistence as norms to handle relations among countries’. ¹⁰²

The most coherent explanation of the relationship between legal and non-legal norms in the FRL emerges in more general observations by Müllerson, on what he terms ‘fundamental principles of international law’ – meaning norms that reflect the structure of ‘international society and of the state’. ¹⁰⁶ For Müllerson, these are not legal rules in the usual sense, but rather norms of international relations distilled from key documents such as the UN Charter and the 1970 UN General Assembly ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States’. ¹⁰⁷ Such principles are ‘fundamental’ in the sense that they define the very meaning of concepts such as sovereignty that, being necessary to co-existence between states, foreground more specific rules of international law. These emerge as the principles necessary to ‘the very existence of international law as a coherent normative system’. ¹⁰⁸ Müllerson notably relies on Schachter's distinction between legal ‘rules’, which ‘dictate a specific result’, and legal ‘principles’, which ‘lack this element of definiteness…leaving room for varying interpretation with respect to many situations’. ¹⁰⁹ This is a coherent account of how different levels of increasingly ‘fundamental’ norms may be related, yet it simultaneously reveals the wide scope to depart from ideals of legal determinacy. Schachter's own explanation noted the challenge that ‘particular situations are covered by more than one principle…Indeed, it has often been observed that principles like proverbs can be paired off into opposites’. ¹¹⁰ Reflecting on this claim, Müllerson acknowledges that situations might emerge where: ‘Fundamental principles of international law clash since they reflect the characteristics, values and interests of different international societies that have merged into one where the old co-exists with the possible future’. ¹¹¹ This observation is especially apposite in interpreting the FRL, which has emerged in the context of China's perceived rise in the international system.

Müllerson recognises that even fundamental principles are not ‘immutable’, but rather may evolve with a ‘change of the polarity of international society’ ¹¹² – echoing precisely the kind of structural changes sought by advocates for a more ‘multipolar’ order. Ascertaining China's interpretation of international legal rules thereby requires a more contextual examination of the substantive meanings of ‘fundamental norms/principles’, as a political frame for international law. Müllerson's aforementioned scholarly criticisms of NATO expansion ¹¹³ foreshadowed the justifications now proffered for Russia's full scale invasion of Ukraine, in which indeterminate ‘fundamental norms’ appear to prevail over determinate legal prohibitions against achieving territorial change through military force. International law already places the rules governing use of force in a category of norms ‘that are of fundamental importance to the international community’ in the form of peremptory or jus cogens legal norms. ¹¹⁴ A recent statement submitted by China to the International Court of Justice, for example, cites the principles of ‘self-determination of peoples’ and ‘respect for State sovereignty and territorial integrity’ as each constituting a ‘fundamental principle of international law’. ¹¹⁵ These are confirmed under Article 53 of the Vienna Convention on the Law of Treaties as being any ‘norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’. ¹¹⁶ Among these, the prohibition on the use of force enshrined in Article 2(4) of the UN Charter is arguably the ‘fundamental legal norm’ of international relations. ¹¹⁷

These are thus exacting legal prohibitions that permit derogation by neither political nor legal norms. Yet external observers may already detect examples of such norm erosion in China's policy of not explicitly condemning international law breaches in the Russo-Ukrainian War. China has endorsed Russia's position that ‘NATO's eastward expansion is the root cause of the ongoing conflict’, ¹¹⁸ which exemplifies China's general position against ‘strengthening or expanding military blocs’. ¹¹⁹ Here, NATO is criticised for ‘asking other countries to abide by the basic norms governing international relations’, while itself stoking ‘a new Cold War of bloc confrontation’ across both Europe and the Asia Pacific. ¹²⁰ China thus clearly calls out NATO actions where they are perceived to contravene norms such as those expressed in the Five Principles, while declining to equally call out Russia's violation of Article 2(4) of the UN Charter – as the most fundamental of legal norms. ¹²¹ To be clear, this is not a suggestion that China merely disregards international law in the Ukraine case, but rather that political framing appears to yield a distinctive interpretation of international law in practice. The confrontation may be conceived as one between evolving geolegal orders, with the military conflict determining not merely state borders but more fundamentally the geographical borders for competing interpretations of international legal order. If ‘fundamental norms governing international relations’ are treated as interdependent with the integrity of ‘international law’, then they risk being ranked as prior to legal norms in even the most contentious of global political and military conflicts.