China and Russia in frontal assault on U.N. Charter and International Law

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Torsten Krauel (Meinung), “Putin spielt mit dem Feuer,” Die Welt, 4. April 2021 (16:21 Uhr),

While Americans are lost in a domestic communications silo, in which questions of race, sexual impropriety, mass shootings, and the January 6, 2021 Insurrection and its aftermath, together with Covid-19 and Biden’s domestic initiatives, eclipse any sustained consideration of what is going on in the world, America’s principal adversaries–Russia and China–are on the move.

Biden has made three huge foreign policy mistakes in recent weeks.

In rapid succession, he called Vladimir Putin a “killer” on national television, in an ill-considered response to a TV interviewer’s question aimed at generating a headline.  In doing so, Biden needlessly converted the U.S. conflict with Russia into something deeply personal, involving deep personal enmity on Putin’s part. Observers may recall how Putin’s personal enmity toward Hillary Clinton appears to have been a factor in Russian intervention in the 2016 presidential election.

Second, he used the first bi-lateral meeting at the foreign minister level, in Anchorage, Alaska, to publicly confront Chinese leadership in a highly embarrassing and culturally insensitive way,  in exchange for absolutely no benefit.

More wisely, Biden and Secretary of State Anthony Blinken might have used the bilateral ministerial meeting to set up working groups and processes aimed at identifying common interests and areas of cooperation (North Korea, global warming, controlling coronavirus and other pandemic risks), on the one hand, and seeking to narrow differences in areas of contention (South China Sea, Hong Kong, Taiwan), on the other.

These were two huge rookie errors.

Biden’s calling Putin a “killer” simply showed the enormous risks involved whenever Biden’s team allows him to go off script, and to simply answer reporters’ questions with whatever unvetted idea pops into his head.  The same risk appears whenever Biden is set free to just say whatever occurs to him, as at a town hall meeting.

It was a ” rookie error” with huge consequences.

With respect to China, Biden and Blinken may simply have reinforced the voices in China, and in Xi Jinpeng’s head, that China has nothing to lose by opposing the West’s interests.  In all probability, Donald Trump’s tariff war and undisguised hostility to China convinced Xi and the Chinese leadership that they had nothing to lose by taking over Hong Kong (in flagrant violation of the 1997 U.K.-China Cession agreement, which is in force until 2047).

Both the weak response of the U.S. and its allies to the Hong Kong takeover, and missed opportunities such as the foreign minister bilateral meeting in Anchorage, appear to have contributed to an increasingly assertive policy by China to seize control of the South China Sea by actions on the ground, potentially including military force if necessary.

Russian Foreign Minister Sergey Lavrov, an astute diplomat, lost no time after the Anchorage bilateral in jumping on a plane to Beijing and securing a bilateral agreement with Cina to jointly oppose the West.

The third mistake was more subtle.  Following the Anchorage ministerial meeting,  there was a  meeting between France, Germany, and Russia in the so-called Normandy Format, established to oversee compliance with the 1915 Minsk II Agreement to halt Russian intervention in the Eastern Ukraine (the Dunbass region, comprised of Donetsk and Luhansk provinces).

The United States should never have let those three countries meet without the participation of the Ukraine, a Russian demand to which Germany and France acceded. This suggests that Blinken’s State Department has not yet developed the ability to pay attention to everything at the same time, and to identify significant actions and policy moves in time to take effective action to protect U.S. interests.

For the last week, Russia has been mobilizing its forces along the entire Ukrainian border, in a clear threat of the use of force in violation of Article 2 paragraph 4 of the United Nations Charter.

Zooming out, one can see the big game unfolding here. Russia and China are now joined in a common assault on the most important pillar of the United Nations Charter, the international law provision embodied in Article 2 (4) prohibiting the threat or use of force against the territorial integrity or political independence of another state.

In an authentic interpretation of Article 2(4), the U.N. General Assembly unanimously reaffirmed, in the 1970 “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (Res. 2625 of October 24, 1970), the following:

Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States. Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect.

At bottom, what China and Russia are trying to do is to overthrow the United Nations Charter and the Peace and Security Sysrem it has established since 1945.

The twin pillars of that system are the peremptory norm of international law (jus cogens) that prohibits the threat or use of force across international frontiers, and the corollary principle (also jus cogens) that territory can not be acquired by the illegal use of force.

What these principles mean is that under the United Nations Charter and peremptory norms of international law (from which no exception or derogation may be made):

1) The Russian invasion of the Crimea in February 2014 was a flagrant violation of Article 2(4); and the purported Russian “annexation” of the Crimea in March 2014 is without legal effect under international law, and may never be recognized by other states;

2) The Russian military intervention in the Eastern Ukraine in the spring and summer of 2014 violated Article 2(4) of the UN Charter; and no agreement that does not respect the territorial integrity of the Ukraine will have any effect under international law;

3) China’s takeover of Hong Kong by force in violation of the 1997 Cession agreement with the U.K. violates Art. 2(4) of the Charter and is not effective under international law;

3) China’s militarization of the South China Sea violates Article 2(4) of the UN Charter; it cannot lead to the acquisition of territory under international law, and any asserted acquisition of territory cannot be recognized by other states under international law, even by agreement.  That is what peremptory law, or jus cogens, means.

Indeed, an authoritative international arbitral decision, held under provisions of the Law of the Sea Convention (to which China is a party), decided, after an exhaustive review of the international legal arguments, that the Chinese claims in the South China Sea lacked any merit (South China Sea Arbitration, 2016); and

4) Any use of force against Taiwan would violate Article 2(4) of the UN Charter; and any asserted acquisition of territory by such means could not be recognized by other states under international law.

Because they are pursuing objectives prohibited by the U.N. Charter and international law, China and Russia are now engaged in a frontal assault on the U.N. Charter and international law and institutions.

Every country in the world must resist this assault.  If these collapse, we will be back at the “Might makes Right” stage of international relations which existed prior to World War I.

To avoid “the ravages of war, which twice in our lifetimes have brought untold suffering to mankind” (UN Charter, Preamble), the nations of the world founded the United Nations in December, 1945, and the system for the maintenance of international peace and security it established.

They must now act vigorously to uphold it.

James Rowles

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