Abstract
The 2023 ‘Law on Foreign Relations of the People's Republic of China’ (FRL) represents China's most comprehensive attempt to date to articulate a legal framework for its international engagement. The stated purpose of the FRL is foremost functional, setting up a legal architecture for foreign policy, yet also serves diplomatic functions of explaining China's vision for international legal and political order. The following comments are concerned with this latter objective and the reception of the FRL by a global audience, including how it fits into existing discourses about the future of international law. Here, advocacy of alternative ‘political frames’ for international law emerges as a principal form of contestation, with China consistently claiming that Western invocations of the ‘rules-based order’ derogate from international law. Yet the FRL contains corresponding forms of political framing, in which the drafters cite ‘international law’ exclusively when paired with the concept of ‘fundamental norms governing international relations’. Interdependency between the terms suggests that the political commitment is increasingly necessary to understand China's interpretation of international legal norms in contentious cases. Comparative analysis emphasises the need for transnational dialogue, to promote better understanding of how emergent political frames are constructing competing meanings of international legal order.
Keywords
INTRODUCTION
China has entered a new era in its foreign policy approach towards international legal order, in which it seeks to implement a suite of national legislation that formalises its strategic perspectives and objectives. Foremost in this project is the Law on Foreign Relations of the People's Republic of China (‘FRL’), passed by the Standing Committee of the National People's Congress on 28 June 2023 and coming into effect on 1 July 2023. 1 The FRL's legislative history and substantive provisions reflect an era of rising contestation, in which states assert different perspectives not merely on the interpretation of legal norms, but more fundamentally on what structures of global power are necessary to the integrity of international law. This article offers the perspective of a non-Chinese scholar on these dynamics, reading the FRL as a statement of the ‘international legal policy’ of China. 2 The FRL is foremost directed at constructing a more favourable legal environment for China's material and strategic interests, with the first stated objective in Article 1 being to ‘safeguard China's sovereignty, national security and development interests’. 3 Yet the law fulfils important diplomacy functions, with Article 2 directing the law at ‘diplomatic relations with other countries’ including its ‘exchanges and cooperation with them’. 4 These comments focus on this secondary concern of how the FRL might be received by a global audience, including particularly how it fits into existing discourses about the future of international political and legal order.
The article begins by situating analysis of the FRL within the field of ‘comparative international law’, which Roberts et al. have defined as scholarship concerned with ‘identifying, analyzing, and explaining similarities and differences in how actors in different legal systems understand, interpret, apply, and approach international law’. 5 In that context, the article introduces the concept of ‘political framing’, drawn from literature on political communication, which offers an instructive approach to understanding the most consequential global discourses over different approaches towards the international legal order. Political frames involve the ‘selection and salience’ of information in contested cases, for the purpose of promoting a preferred diagnosis of a problem and associated remedy. 6 The most contentious of these frames for international law is advocacy for the ‘rules-based order’ (RBO) by especially Western voices and allies, which has both a ‘positivist’ meaning, merely denoting the legal and non-legal rules of global order, as well as a ‘comparative’ meaning, intended to shape the political interpretation and development of law. 7 China has led global critics of the RBO, claiming it derogates from international law, while aligning itself with alternative political frames that include advocating for a ‘multipolar international order’ (MIO). 8 The MIO emerges as a comparable concept to the RBO in that it has both a descriptive meaning, merely denoting a particular balance of global power, and a secondary comparative international law meaning, as a political frame for the evolving international legal order. 9
The second half of the article applies this political framing analysis to the FRL and its concept of ‘fundamental norms governing international relations’ (‘fundamental norms’), which accompanies each of the four references to ‘international law’ in the legislation. 10 Notably, this pairing of the terms is not novel to the FRL, with the recurrence of the formulation across official policy statements demonstrating its wider importance to China's international legal policy. 11 Moreover, whereas core Chinese concepts such as ‘community of common destiny of humankind’ are the object of serious scholarly attention, 12 the increasingly prominent fundamental norms concept has received almost no equivalent examination to date. The literature shows the fundamental norms concept to be fixed on but not limited by the ‘Five Principles of Peaceful Co-Existence’ (‘Five Principles’), 13 which serves as a political frame for China's preferred conceptions of international law. The significance of this framing is traced through Chinese statements on the ongoing Russo-Ukrainian War, in which ‘fundamental norms governing international relations’ appear to be privileged over ‘fundamental legal norms’ when attributing responsibility for this globally consequential military and geopolitical conflict. The article concludes that transnational dialogue between geopolitically diverse legal communities is imperative for improving comparative understanding of alternative political frames for international law, both in the case of the 2023 FRL and in China's broader project of legalising foreign relations. 14
POLITICAL FRAMING AND INTERNATIONAL LEGAL ORDER
In the inaugural editorial for the Chinese Journal of Transnational Law (CJTL), Co-Editor in Chief Ignacio de la Rasilla notes the journal's aim to ‘further enable dialogue and in-depth debates among members of the transnational “invisible college” with an ability to inspire policies and increasingly also to shape the law’.
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These words draw upon Oscar Schachter's well-known vision of an invisible college of international lawyers ‘dispersed throughout the world’, yet ‘engaged in a continuous process of communication and collaboration’.
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The meaning of the ‘invisible college’ has become the subject of some attention in the re-emerging field of ‘comparative international law’,
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with Anthea Roberts’ influential work suggesting that it might be better to understand the transnational field of international law as comprising a divisible college of international lawyers… Rather than a single community, the field consists of separate, though overlapping, communities, often demonstrating distinct approaches, reference points, hierarchies, areas of expertise, and spheres of influence.
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By adopting a comparative international law lens in the present article, attention is focused on developing an account that encompasses both legal and non-legal variables as they shape distinctive ‘approaches’ towards international legal order.
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It is here that introducing the concept of ‘political framing’ can improve legal scholarship's understanding of systemic contestation between leading states and political groupings. Analysis of political framing has long served as a major theory of political communication, with an influence that extends across the social sciences and humanities.
23
Robert Entman's classic definition emphasises the ‘selection and salience’ of information in the following sense: To frame is to select some aspects of a perceived reality and make them more salient in a communicating text, in such a way as to promote a particular problem definition, causal interpretation, moral evaluation, and/or treatment recommendation for the item described.
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Frames, then, define problems – determine what a causal agent is doing with what costs and benefits, usually measured in terms of common cultural values; diagnose causes – identify the forces creating the problem; make moral judgments – evaluate causal agents and their effects; and suggest remedies – offer and justify treatments for the problems and predict their likely effects.
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‘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.
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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.
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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’.
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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’.
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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.
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Charitably it may be seen as an order comprising values of a liberal order. Less charitably it may be seen as a competing order advocated by some Western states, particularly the United States, which seeks to impose the interpretation of international law that best advances the interests of the West.
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‘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.
CHINA'S 2023 FOREIGN RELATIONS LAW
The 2023 FRL can be interpreted from both a legal perspective, as legislation enshrining rights and duties, and from a political perspective, as a statement of China's distinctive international legal policy. This much was clear at the adoption of the legislation, with Foreign Minister Wang Yi announcing that: The Foreign Relations Law is the first comprehensive law in the field since the establishment of the People's Republic of China which expounds on the major policies, principles, and institutional framework of our country's foreign engagement. It provides an overall regulation for our country's development of foreign relations.
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The FRL enshrines four commitments to ‘international law’, each of which is paired with and framed by the concept of ‘fundamental norms governing international relations’. Article 19 includes the most substantive references to international law in the FRL, declaring relevantly for present purposes that China upholds the international system with the United Nations at its core, the international order underpinned by international law, and the fundamental norms governing international relations based on the purposes and principles of the Charter of the United Nations.
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… …
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.
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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.
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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’.
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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’.
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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’,
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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’.
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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.
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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.
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’.
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there is only one system in the world, that is the international system with the UN at its core; there is only one order, that is the international order based on international law; and there is only one set of rules, that is the basic norms governing international relations anchored in the purposes and principles of the UN Charter.
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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.
CONCLUSION
The process of legalising foreign relations is only the most tangible aspect of what a major new commentary characterises as a ‘new assertiveness of China in international law and global governance’ under the leadership of President Xi. 122 It should thus be unsurprising that there might emerge ‘a common anxiety in the West that the consolidation of China as a new great power may lead to a gradual erosion of the rules-based liberal international order’ – understood here as a political frame for international law. 123 The commentary reassures that such fears are ‘partly assuaged’ by China communicating its benign intentions, including through ‘its now constitutionally enshrined commitment to build a “community of shared future for mankind”’. 124 Yet what is decisive here is not how such particularistic concepts are understood by those expressing them but rather what they communicate globally. The challenge crystallises when concepts with otherwise positive connotations are ‘also so broad and open to interpretation that agreement on their importance masks disagreement on their content and implementation’. 125 Indeterminacy itself offers strategic advantages here, since it enhances China's ‘discourse power’ to frame and shape associated legal norms. 126 The expression of aspirational political concepts in the FRL thus more likely ‘contradicts the intention of the law to provide more legal certainty and clarity when engaging in foreign relations with the PRC’. 127 Decisive here will be recognition that ‘the degree to which China assimilates into international law, and how it may intend to put its stamp on it, remains shrouded in uncertainty for many in the West and other regions’. 128 The indeterminate meanings and uses of the concept of ‘fundamental norms governing international relations’ exemplify the challenges in alleviating that uncertainty.
Chinese critiques have aimed at ‘depriving the “rules-based” order of its legitimacy in terms of international rule of law’ 129 and yet, without effective redress, it can be expected that parallel critiques might increasingly be levelled against the fundamental norms concept. In Cai's terms, the threat posed by RBO advocates is that ‘these countries do not clarify the connotations, extension, and nature of these rules or the relationship between different “rules”’. Resulting ‘ambiguity’ translates into ‘a dangerous signal for the maintenance of the role of international law in the international order’. 130 The underlying problem here is the one inherent to any legal regime marked by indeterminacy or ambiguity, ‘thus enabling power and influence to determine where and when the rule applies’. 131 Such circumstances pose an ever-present risk of a ‘politicized approach to international law’, 132 which has been conspicuously evident in the Russo-Ukrainian War case. For purposes of internal discourse, China's legal scholars may well be satisfied to rest the integrity of the legal system upon a faith in the government's ‘rule by moral virtue’. 133 Yet, to the extent that the FRL aspires to foster better diplomatic relations, global counterparts cannot likewise rest their national security and interests on a ‘moral virtue-based order’. Even if China does perceive a determinate meaning to ‘fundamental norms governing international relations’, its appeals to the term are precisely the point at which it will not communicate the same assurances to global counterparts.
Recognising the contest over political framing is not to identify a systemic failure but rather to illuminate a feature of the contemporary international legal order borne of ‘complex social realities’. 134 When China declares an international legal policy of promoting ‘reform and development of the global governance system’, 135 what this means in practice cannot emerge from mechanical application of rules of law, but requires the negotiation of contestable positions – including differentiated global interpretations of the fundamental norms governing international relations. International law can be seen as ‘an open system’: it ‘shares functions and principles with other normative practices’. 136 Thus ‘justice – the ends law rightly pursues – is extrinsic to law itself. Law is an instrument for pursuing those goals, but does not produce them’. 137 Differently situated scholars and practitioners should ask in good faith what respective political frames substantively entail in terms of the interpretation and application of international legal norms. In this regards, it remains inherently valuable that scholars sustain transnational dialogue, to better understand how alternative and overlapping political framing might construct ideals of an ‘international law based order’.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.