How Authoritarians Use International Law

Westphalian Prehistory

To understand how we got to this point, some history is helpful. International law has traditionally been characterized as “Westphalian”: It recognizes the equal sovereignty of all states, which have autonomy in deciding their forms of government. From the doctrinal point of view, this means that international law exhibits no strong preference for either democracy or dictatorship. It is true that human-rights treaties protect the freedoms of speech and assembly, along with other key elements of democracy. Article 25 of the International Covenant on Civil and Political Rights, for example, guarantees citizens the right to participate in public affairs, and to vote in genuine and periodic elections. But authoritarian signatories to these treaties have successfully deflected attempts at enforcement, arguing that forms and modalities of public participation vary across systems. And despite some scholarly argument that international law contains a “right” to democratic government, this position has never won the day.²

Notwithstanding this formal neutrality of international law with regard to regime type, democracies have been the main driving force in the crafting of international legal norms since the Second World War. Democracies are famously unlikely to go to war with each other, but they are also more likely to cooperate in areas from trade and investment to environmental and criminal law. They sign more treaties, adjudicate disputes more frequently, and have produced the grandest legal achievements of the era, including European integration and the development of the global trade regime. The regional human-rights covenants that exist in Latin America and Europe were designed explicitly to protect democracy, and significant bodies of case law reinforcing this bent have since accumulated. These institutions in turn have underpinned the global liberal order.

To be sure, during the Cold War, nondemocracies articulated their own preferences regarding the content of international law. Despite theoretical arguments that the international legal system had been formed largely to protect the interests of capital,³ the Soviets eventually participated in this system, sending judges to the International Court of Justice as well as representatives to the International Law Commission, International Law Association, and other organizations. The People’s Republic [End Page 45] of China (PRC) followed suit after it joined the UN in 1971. And various other nondemocracies articulated forceful positions, especially on issues of expropriation of investments and control over natural resources.

With the end of the Cold War, a new era for international law seemed to open up. The 1990s saw reinvigorated international cooperation and the creation of new global entities such as the World Trade Organization (WTO) and International Criminal Court (ICC), as well as regional bodies such as the Economic Community of West African States. The Montreal Protocol, which came into force in 1989, helped states to coordinate the phaseout of ozone-depleting gases. The African Union became more institutionalized, articulating prodemocratic norms against unconstitutional changes of government and deploying enforcement mechanisms on more than one occasion. There was hope that the European project of integration through law would lead to an ever-closer union. And there was a burst of treaty-making in human rights, international investment law, and security, with global antiterrorism efforts gaining new urgency in the aftermath of the September 11 attacks. The so-called Responsibility to Protect doctrine, proposed by Canada, received cautious blessing at the UN, potentially legitimating humanitarian interventions in the case of severe human-rights abuses. All these changes prompted a new theory of international law and international relations: liberalism, which posited that international cooperation was more likely to be effective among democratic states.⁴

The United States played an ambivalent role in these developments. While promoting many of the abovementioned advances in international legal cooperation, Washington proved reluctant to have the rules apply to itself. During the second Bush administration, the United States began to turn away from international legal norms, most notably with the 2003 invasion of Iraq. The U.S. government also began seeking to ensure that U.S. servicemen would not be subject to the jurisdiction of the ICC. Scholars began to describe the U.S. approach as one of “hegemonic” international law, in which international constraints were for others only.⁵ This somewhat hypocritical attitude undermined U.S. efforts to advance democracy and human rights in multilateral fora.

Around the same time, the “third wave” of global democratization crested. Alarm at the color revolutions in Georgia, Ukraine, and Kyrgyzstan prompted Moscow to build up its capacities for undermining democracy abroad and tipping the scales in favor of its preferred candidates. [End Page 46] Due to China’s growing economic weight and the “rise of the rest,” the leverage of Western democracies dropped off from its high point in the 1990s. The open defection of the United States from the liberal order under Donald Trump has accelerated these trends, but the forces underlying them have been in play for some time.

International Law as Shield and Sword

Confronted with an expansive liberal view of international law and its applications, authoritarians have begun to craft their own approach. Autocrats and democrats alike deploy international legal argumentation defensively, using it to justify their actions and to insulate themselves from foreign criticism. Authoritarians have sought to buttress this “shielding” role of international law by reasserting the centrality of state sovereignty.

Russia and China, two permanent members of the UN Security Council, have led the way, each taking its own distinct approach. China’s economic liberalization since the 1980s has been accompanied by major investment in legal institutions. Historical legacies—from the unequal treaties between China and various Western powers in the nineteenth century to the UN’s refusal to admit the PRC until 1971—had left Beijing justifiably suspicious of international law. But in recent decades, the country’s growing confidence has led it to seek a larger role in international legal institutions and the UN. In a 1996 speech, Jiang Zemin called for using international law as a weapon in the national interest.⁶ Even when holding a losing hand, as with efforts to extend its maritime boundaries in the South China Sea, China has made sophisticated legal arguments.⁷

China has also invested heavily in international institutions, filling a void left by the United States on issues such as climate change, anticorruption, and global health.⁸ Of UN member states, the PRC now makes the second-largest contribution to the organization’s budget.⁹ Four out of seventeen heads of specialized UN agencies are PRC nationals, as compared with one from the United States. In this way, China has worked to build its image as a responsible anchor of the international community. This gives it leverage over the structuring of regional and global institutions, an arena in which Beijing has increasingly pushed its own interests and concepts. For example, in negotiations over the UN Convention Against Corruption, China strongly resisted the idea of setting out a role for independent bodies in enforcing norms.¹⁰ China has also wielded its influence in the International Telecommunications Union—currently headed by a Chinese official—to mold standards for emerging technologies such as facial-recognition systems. And it has used initiatives such as the UN Environment Programme and the Sustainable Development Goals to add a stamp of legitimacy to the Belt and [End Page 47] Road Initiative (BRI), a PRC infrastructure and economic-development program spanning three continents.¹¹

By its very nature, the BRI will bring China into contact with the complex internal politics of dozens of nations—and Beijing is ready to leverage these contacts. China frequently obtains support for its initiatives from small democracies that are recipients of investment funds. It appears to have succeeded in convincing the Greek and Hungarian governments to block EU condemnations of PRC human-rights abuses.

China is not alone. Under Vladimir Putin, who himself has a legal education, Russia’s government has also placed great rhetorical emphasis on international law. When it comes to the principles of interaction among states, Russia frames itself as the defender of traditional international values—in contrast with the “rules-based order” promoted by Western foreign policy since the end of the Cold War. Moscow presents its goal as the “democratization of international relations,” by which it means a shift in power away from the United States. Its approach, however, is decidedly statist.¹²

At the same time, in defining its interests, Russia singles out what it considers to be a natural sphere of influence comprising its fellow former Soviet republics. Russia’s boldest initiative for regional integration is the Eurasian Economic Union (EAEU), which mimics the European Union (EU) in form and is designed to serve as something of a counterweight to that body. Russia has pressured neighboring countries to sign up for this association rather than drawing closer to the EU. (Indeed, it was the decision of Ukraine’s President Viktor Yanukovych to turn away from a planned EU association agreement and pivot toward the Moscow-led bloc that triggered the 2013–14 popular uprising against him.) Like the EU, the EAEU has a Council, a Commission, and a Court to resolve disputes, though its bureaucratic apparatus is much less institutionalized than that of Brussels. Notably, the EAEU involves significant economic integration, including a customs union and “Single Economic Space,” at a time when the United States is turning its back on free trade.

Russia and China have both been active in the UN, and they have worked together to articulate a joint vision of international law, captured in a 2016 joint statement on the promotion of international law. It emphasizes classic sources for doctrines of sovereignty and nonintervention, including the UN Charter, and invokes the “Five Principles of Peaceful Coexistence” first articulated in the China-India Treaty of 1954 and reaffirmed at the 1954 Bandung Conference of the Non-Aligned Movement. These stress mutual respect by states for one another’s territorial integrity and sovereignty; nonaggression; and noninterference in internal affairs. More broadly, the statement gives priority to consent, good faith, and sovereignty, along with the “rights and legitimate interests of States Parties.” States, then, are the central actors. The statement also [End Page 48] condemns unilateral sanctions and coercive measures enacted outside the UN Security Council process.¹³ This restatement of the traditional Westphalian position is a key touchstone for authoritarian international law.

While centered on the principle that the internal affairs of states are not a proper subject of international concern, this vision also emphasizes the “rule of international law.” This phrase captures a stress on existing institutions—especially the Security Council, where both the PRC and Russia have a veto—as the authoritative framework for legitimate action when it comes to the use of force and coercion. Russia has become the chief wielder of veto power within the Security Council, often to the benefit of authoritarian allies such as Syria’s Bashar al-Assad.¹⁴ Through engagement, the large authoritarian powers are trying to shift the orientation of the UN away from liberal human-rights principles and toward a defense of sovereignty. And because there are a growing number of authoritarian regimes in the UN, these powers are finding a receptive audience.

Yet the two giants’ renewed emphasis on sovereignty has come accompanied by increasingly aggressive strategies for interfering in the domestic affairs of other states. Exhibit A is Russian election interference, which reflects Moscow’s broader cultivation of an increasingly sophisticated brand of autocracy promotion. China, while far less overt in this regard, has also put its weight behind favorite candidates in foreign elections. For example, in 2015, the PRC ambassador endorsed Mahinda Rajapaksa’s failed reelection bid in Sri Lanka. (Rajapaksa’s faction did eventually return to power with the 2019 presidential-election victory of his brother, Gotabaya.) Beijing also funded the Hambantota port in Rajapaksa’s home district, and acquired a 99-year lease on the property when Sri Lanka could not service the debt on that investment. This prompted a good deal of concern among other BRI participant countries, but in fact China has generally been generous in renegotiating debt deals. Beijing’s open campaigning for the politician behind Sri Lanka’s democratic back-sliding may be the more worrying harbinger. China behaved similarly in the Maldives, betting in 2018 on then-president Abdulla Yameen, but as in Sri Lanka, its candidate lost. In 2019, Beijing sought to undermine Taiwanese president Tsai Ing-wen’s reelection bid; this PRC effort, however, produced a backlash that helped to ensure her victory. China’s influence-buying efforts also extend to the West; in Australia, PRC-linked political donations and other influence activities have been at the center of multiple scandals.¹⁵

Authoritarian governments are also using tools of transnational litigation and law enforcement to advance their interests. Proxies of Vladimir Putin’s regime in Russia, for example, have filed a series of claims in an effort to harass his opponents in the United States.¹⁶ Turkey’s Recep [End Page 49] Tayyip Erdoğan has facilitated suits against his nemesis Fethullah Gülen, who lives in Pennsylvania. And China’s new national-security law for Hong Kong promises extraterritorial enforcement in response to subversive actions wherever they occur.

Authoritarian International Organizations

In addition to strengthening their sway within existing global bodies, authoritarians are advancing their interests by managing and creating their own international organizations. These bodies tend to demand less of their members than do the organizations established by democracies, but they still offer opportunities for mutual support and cooperation.¹⁷

Sometimes the support can be material in nature. In 2004, Venezuela’s Hugo Chávez and Cuba’s Fidel Castro initiated the Bolivarian Alliance for the Peoples of Our America (ALBA) to facilitate economic cooperation and mutual assistance among the region’s leftist and socialist governments. The organization began with an agreement under which Venezuela shipped oil to Cuba on favorable terms and some twenty-thousand Cuban doctors came to Venezuela. A media initiative called Telesur followed, broadcasting throughout the bloc and providing a boost to Nicaragua’s Daniel Ortega in his 2011 presidential reelection bid. Bolivia, Nicaragua, and Ecuador also joined the bloc, though Bolivia withdrew after leftist president Evo Morales lost power in 2019. In Venezuela, Cuban advisors have become a pillar of the regime of Chávez’s successor Nicolás Maduro.

In other cases, authoritarian regional bodies serve to facilitate cross-border repression. The ten-nation Association of Southeast Asian Nations (ASEAN) was an authoritarian international organization from its founding in 1967, in the sense that of the five original members, only the Philippines could be considered even partly democratic at that time. Today, even as it incrementally advances economic-integration programs, ASEAN has provided a network for the mutual extradition of dissidents. After Cambodia’s Hun Sen banned the country’s main opposition party, the Cambodian National Rescue Party (CNRP), in 2017, Thailand and Malaysia invoked the ASEAN principle of noninterference to bar the travel of CNRP leaders.¹⁸ Thai dissidents have been “disappeared” in Cambodia, Laos, and Vietnam, and cross-border extradition seems to be more frequent. Southeast Asian nations have also extradited hundreds of Uyghurs to China, where they face extreme repression. In some cases, these extraditions have taken place in the absence of criminal charges.¹⁹

As compared to other international organizations, those spearheaded by authoritarians tend to be less institutionalized and less willing to infringe on sovereignty. This makes them somewhat brittle, and easily discarded once their purpose is served. The Gulf Cooperation Council [End Page 50] (GCC) is an intergovernmental organization established in 1981 among six Persian Gulf states: Saudi Arabia, Kuwait, the United Arab Emirates (UAE), Bahrain, Oman, and Qatar.²⁰ The GCC Charter speaks of integration, but the organization’s structure decidedly reflects statist and Westphalian principles. With a council composed of the heads of member states as its primary governance structure, the organization is perhaps best characterized as an arena for negotiations among regional partners, rather than as a robust institution in its own right. The organization has more or less fallen dormant since rising tensions led Saudi Arabia, Egypt, and the UAE in 2017 to sever diplomatic relations with Qatar, which has pursued a more Islamist line in its foreign policy than have its neighbors. Qatar fought back using international legal mechanisms, bringing complaints against some of its partners in the GCC before the International Court of Justice, the WTO, and the Committee on the Elimination of Racial Discrimination. Authoritarian states are turning to international law as a tool with which to fight not only against democracies, but also against one another.

Muddying the Waters, Crafting Norms

A core strategy of autocracy promotion entails using disinformation, pseudodemocratic organizations, and alternate concepts to “dilute” the information and evaluations that democratic institutions provide, thereby dampening their impact. One example is the deployment of alternative election monitoring. From an international legal perspective, outside actors have an important role to play in monitoring democratic activity and thus ensuring the integrity of exercises in self-determination. This is especially true in votes that determine the structure of political systems, such as referendums on constitutions; and indeed, foreign election monitoring dates back to decolonization-era independence referendums. Election observation accelerated in the 1990s in tandem with the third wave of democratization. Recently, authoritarian international organizations have responded by sponsoring their own “election monitors,” who have a habit of certifying dubious elections.²¹ The “nongovernmental” election-monitoring organization of the Moscow-dominated Commonwealth of Independent States, for instance, stresses the importance of “country-specific” variables in election management and unsurprisingly labels most elections that it observes as “free and fair.” This means that these monitors, as well as observers from the PRC-led Shanghai Cooperation Organization (SCO), at times issue conclusions that contradict those of election monitors from groups such as the Organization for Security and Co-operation in Europe (OSCE).²² These so-called “zombie” election monitors create confusion that weakens the impact of evaluations released by prodemocratic election monitors.²³

Another way in which authoritarians are muddying the waters is by [End Page 51] blurring concepts associated with democracy. China has actively sought to articulate its own understanding of human rights, even as it has engaged with broader global discourses. In 1993, when the global Vienna Declaration and Programme of Action was adopted, China joined, recognizing the universality of human rights for the first time.²⁴ China subsequently sought without success to keep the UN Human Rights Committee (an independent expert body that reviews human-rights practices) from adopting country-specific resolutions. In the past few years, however, China has had better luck with its increasingly frequent efforts to embed preferred concepts in UN resolutions. For example, in keeping with its emphasis on poverty reduction as a mechanism of rights protection, the PRC successfully sponsored its first resolution on “The Contribution of Development to the Enjoyment of All Human Rights” in 2017, followed by a resolution on “Promoting Mutually Beneficial Cooperation in the Field of Human Rights.”²⁵ The former document introduced into the UN corpus Xi Jinping’s concepts of “a community of shared future for human beings” and “win-win outcomes.” China has also sought to move away from “naming and shaming” in favor of dialogue and assistance as the mechanism of human-rights protection. Neutering the Human Rights Committee is a goal seen as desirable by many UN member states, and so China has a good deal of company in these endeavors.

Another recent innovation by authoritarians is the crafting of new norms of international law. Some of these norms in turn flow from authoritarian experimentation with new models of international organization. The SCO, founded in 2001, was an early example of China’s activity in this area. It is a loose, weakly institutionalized organization that demands little of member states. Nonetheless, it has served as a vehicle not only for regular head-of-state meetings, but also for developing treaties aimed at shoring up the domestic rule of its authoritarian members.

One of the SCO’s contributions to international law has been the naming of new types of violations. Building on an established global infrastructure of international law on antiterrorism, the SCO has identified terrorism, extremism, and separatism as the “three evils,” targets for cross-border cooperation and repressions. Extremism and separatism have thus been named as new international wrongs, albeit on a regional level. Multiple SCO treaties define and refine these concepts, and place them high in the hierarchy of SCO norms. For example, as a general matter, the SCO does not significantly constrain the ability of its member states to join other international legal instruments and organizations. However, some SCO treaties, especially those on the abovementioned “three evils,” have clauses that explicitly trump outside treaties that run counter to them. This suggests that a treaty recognizing, for example, a territory’s claim of secession from another member state would be void under the terms of the SCO treaties. [End Page 52]

China has not been shy about deploying the separatism concept in its approach to Hong Kong. The Law on Safeguarding National Security in the Hong Kong Special Administrative Region, passed in Beijing in June 2020, criminalizes secessionist acts, whether or not they involve force (Article 20). It also introduces a new, vaguely defined crime of subversion and establishes punishment for terrorism (Article 27), as well as for vague concepts such as promoting hatred (Article 29). Notably, its provisions establishing crimes apply to individuals and organizations outside the territory of China and Hong Kong, including to those who are neither Chinese citizens nor permanent residents of Hong Kong (Articles 37 and 38). This suggests that China will be aggressively seeking to extradite suspects from wherever in the world they happen to be, and may bring criminal complaints against foreign actors. This is China’s boldest experiment yet in applying extraterritorial jurisdiction, and marks a new phase in authoritarian international law—one of “offense” as opposed to “defense”—for it seeks to chill speech everywhere. In applying its law extraterritorially, it should be noted, China is mimicking an approach developed by the United States, but the fact that the national-security law suspends the right to a jury trial that normally is enjoyed in Hong Kong and allows for prosecution in the PRC itself means that its extraterritorial reach has implications far more ominous than anything found in democratic countries. The law has already been at the center of a crackdown in Hong Kong itself, where those arrested range from prodemocracy media magnate Jimmy Lai, along with his sons and several company executives, to social-media posters and protesters caught holding the wrong banners. It has also served as the basis for a warrant against Samuel Chu, a U.S.-based émigré activist with longstanding U.S. citizenship.²⁶

Cyberspace as the New Battleground

Cyberspace is perhaps the terrain on which the contemporary battle between democracies and autocracies is playing out most starkly. The United States has pushed the notion of a free and open global internet, modeled on liberal values and the First Amendment to the U.S. Constitution. China and Russia, in contrast, have emphasized cybersovereignty, a framework that reserves greater control for governments. Of course, one state’s internal affairs are nearly impossible to wall off in the digital era, but this has not prevented governments from working toward this goal through firewalls, local laws governing content, and other techniques. These approaches are primarily defensive in nature.

At the same time, authoritarian countries have been agile in using cyber tools offensively to undermine democratic countries and practices. Russia’s “active measures” to disrupt elections and spread disinformation, and China’s systematic campaigns of industrial espionage, suggest [End Page 53] that neither country is unequivocally committed to respect for sovereignty in cyberspace.²⁷

Some have argued that foreign election interference constitutes a form of intervention that violates norms of self-determination.²⁸ Precisely which actions amount to such a violation is not clear, however, as democracies have long engaged in activities designed to influence elections abroad. In this context, one might even view Russia’s repeated efforts at interference as a form of “state practice,” contributing to the development of customary international law: As in the case of espionage, if all states engage in the activity, it is hard to see how it could be an international wrong. At the same time, the Mueller investigation into Russian election interference in the United States led to indictments of Russian nationals, suggesting that the legality of these activities has not been conceded. The current state of international law in this area is ambiguous, clearly delineating as an international offense only interventions that have physical consequences (for instance, a cyberattack that triggered an explosion or perhaps targeted a power grid).

Writing the rules for cyberspace thus is critical. This mainly concerns technical standards, but international law also has a role to play. One arena of contestation has been the rules defining cybercrime. In 2001, the Council of Europe adopted the Budapest Convention on Cybercrime, which has sixty-five signatories as of this writing (including some outside Europe) and a number of other states that have used it as a model. But Russia and China have sought to develop alternative rules, pushing for the adoption of a global treaty that would supersede the Budapest Convention. In late 2019, the UN General Assembly adopted a resolution—originally sponsored by Belarus, Burma, Cambodia, China, Nicaragua, North Korea, Russia, and Venezuela—establishing a committee to draft the treaty. This passed by a final vote of 79 to 60, with 33 abstentions.²⁹ The large Western democracies voted against the resolution, but a number of smaller democracies voted for it, as did Indonesia and India. The abstentions came mainly from Latin American and African countries. Alexander Seger, the head of cybersecurity for the Council of Europe, suggested that China may have leveraged recent strategic investments to secure the resolution’s passage. ³⁰

This resolution followed the Russian-sponsored Draft UN Convention on Cooperation in Combating Cybercrime, which proposed creating a UN enforcement body to counter crime in the area of information and communications technologies. The Draft Convention closely mimics the Budapest Convention, but emphasizes sovereignty and noninterference over human rights. It omits mention of the need to balance law enforcement with human rights, and makes no reference to proportionality or due process. And it goes beyond the scope of the Budapest Convention to cover new offenses, such as “unauthorized access to electronic information.”³¹ Critics have charged that its definitions are vague, potentially [End Page 54] providing weapons for authoritarian governments to wield in the repression of political opponents. One European official opined that this treaty is “not about cybercrime,” but about “who controls the internet.”³²

Human-rights groups have also expressed concerns about the proposed treaty. In an open letter to the General Assembly, several dozen civil society organizations argued that the treaty “opens the door to criminalising ordinary online behaviour that is protected under international human rights law.” Noting the trend in some countries toward misusing cybercrime law to “criminalise legitimate forms of online expression, association and assembly,” the open letter urged the improvement of current legal frameworks rather than the creation of a new treaty.³³ Russian representatives, by contrast, have argued that it would be “illogical and contradictory” to draw upon international human-rights law to determine the appropriate cyberlaw regime.³⁴

In addition to potentially demonstrating “decreased support for an open internet,”³⁵ this treaty proposal is an example of “authoritarian multilateralism,” in which multilateral fora are utilized to incubate il-liberal projects. As a venue for such efforts, the UN has significant advantages. This body offers not only unique authority as a voice for the global community, but also a structure and procedures that privilege sovereign states; other stakeholders, such as private firms and civil society, do not have a seat directly at the table. While various UN fora do allow some form of civil society participation, authoritarians have sometimes succeeded in barring their critics from these venues. China, for example, can use its membership in the Economic and Social Council’s Committee on NGOs to block activists whom it dislikes. The recent cybersecurity initiatives may be just the opening gambit in a strategy of working through the UN to develop rules of the game that are favorable to dictators.

Where Do We Go from Here?

Newly assertive authoritarian regimes are revising the substance of international law. They are developing their own international organizations, which tend to be thinner than their democratic counterparts and sovereignty-reinforcing rather than sovereignty-eroding. Authoritarian regimes and these regional bodies are driving a move away from third-party dispute resolution, which in practice means fewer channels for wielding effective leverage vis-à-vis these regimes. Accompanying weaker dispute resolution is an emphasis on softer commitments and dialogue.

As the balance of global power continues to shift toward authoritarian countries, this thinner vision of international law will play a larger role. International law is becoming both a shield and a sword, insulating authoritarians from criticism while also increasingly allowing them [End Page 55] to affect developments beyond their borders. Democracies ought to be vigilant, and must contest these norms on the international plane or risk steepening the slope of democratic decline. The United States’ abdication of this role has already done damage both to the international order and to countless democratic aspirants in search of support.

To confront authoritarian international law, there is no substitute for active engagement by democracies, as democracies. The United States has belatedly recognized the threat posed by a rising China, but has done too little to regain its sway over smaller democratic states. These countries, frequently beneficiaries of largesse from authoritarian countries, are not ideologically committed to the project of authoritarian international law. But absent any encouragement to hold firm in defense of democratic principles, they may well acquiesce to that project.