China Forging International Law: The SCO Experience

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China Forging International Law: The SCO Experience

The rules adopted for the SCO are revealing of Beijing’s attitude towards international law in general.

China Forging International Law: The SCO Experience
Credit: Presidential Press and Information Office, Kremlin

Previous articles in The Diplomat have explored the limited realpolitik results of the Shanghai Cooperation Organization (SCO) (see here, here, here, here, here and here). But the SCO also functions as a testing ground for China in international rule setting. A closer look at adopted SCO documents has the potential to shed some light on China’s attitude towards international law in general.

At first glance, the SCO is as good an international organization as any. Like the United Nations (UN), it has a Charter stating that it is a subject of international law endowed with international legal personality. Adopted in 2002, the SCO Charter also creates the necessary organs: a Secretariat and a Regional Anti-Terrorist Structure (SCO RATS) as the permanent organs, and a Council of Heads of State (HoS), Heads of Government (HoG), Foreign Ministers, National Coordinators (NC), and Meetings of the Heads of Department as the meeting organs. The institutional set-up of the SCO was further fleshed out with a 2002 SCO RATS Agreement, a Budget Agreement, various internal regulations adopted in 2003, and a 2004 Immunities Convention.

However, closer analysis reveals a significant lack of substance behind this presentable façade. The 2004 SCO Immunities Convention is more or less a copy of the 1946 UN General Convention on Privileges and Immunities, with the crucial difference that the SCO is not a party in its own right to this instrument. The SCO has therefore no standing in disputes where its own immunity or the immunity of its personnel is at stake. Also, the permanent organs of the SCO have no right to invite their own guests who would then enjoy free entry and immunity during their visit (the so-called jus missionis). As a result, guests invited to the SCO Secretariat in Beijing are by default also the guests of the People’s Republic. The same holds true for the SCO RATS in Uzbekistan.

The development of the SCO is further curtailed by its meager budget. Available figures do not exceed $5 million per year. This sum is mainly to cover the wages of the approximately 60 staff working in the Secretariat and in the SCO RATS. As a result, the most prominent appearances of the SCO, the annual HoS summits and joint military anti-terrorist operations, are paid for by the member states directly. The organization enjoys no meaningful financial autonomy vis-à-vis its member states.

Further, the powers of the SCO Secretariat and its Secretary-General face clear legal boundaries. The SCO Secretary-General is subordinate to the – nationally appointed – NC Council and supervised by permanent representatives dispatched by member states. The Secretary-General is not allowed to choose his or her own staff, and is not permitted to make political statements that go beyond the established practice of the organization. And because the post rotates among the member states every three years with no re-election possible, no SCO secretary-general can be expected to ever develop a meaningful profile in the international community.

Also interesting is the origin of the various meeting organs. The HoS met as early as 1996 and 1997 to conclude two bilateral agreements on trust building and disarmament measures, respectively, in the border regions of China and its ex-Soviet neighbors. Truly multilateral cooperation came into play only in 1998. The five HoS met again in Almaty and concluded a statement already envisaging occasional meetings among their HoG, foreign ministers, and experts. Two follow-up summits in 1999 and 2000 further spurred institutionalization at various levels, included Uzbekistan as a guest, and erected a NC Council, albeit not yet with a view to establishing the SCO. Especially advanced was cooperation in security issues through a “Bishkek Group” formed in late 1999 among the law-enforcing departments of the five states. Chinese leader Jiang Zemin appears to have been the major driving force throughout that process.

When the founding of the SCO was declared in 2001, nothing more than these loosely agreed-upon meeting mechanisms were in place. The 2002 SCO Charter also preserved the option for the member states to launch bilateral cooperation projects, thereby preventing the communitarization of any field of cooperation. This half-hearted multilateralism marked but a small step, especially for China, which had already established similar meeting mechanisms on the bilateral plane at that time. The SCO became operational only in 2004 when its permanent organs were created and a first annual budget was adopted.

Ensuing new channels of multilateral cooperation, such as the meetings of the Security Secretaries of the SCO member states initiated in 2004, the SCO Interbank Consortium and the SCO Business Club established in 2005, an SCO Forum, an SCO Youth Club, and the abortive SCO Energy Club all evolved under the SCO umbrella but were never formally incorporated as “organs” into the SCO Charter.

Meanwhile, the 2001 Declaration to erect the SCO rather represented continuity more than it did innovation. Nevertheless, China in particular played an active part in ensuring international recognition for the SCO, despite its mainly bilateral cooperation. Chinese delegates presented the founding documents of 2001 at the UN and also initiated the procedure to grant the SCO observer status in the UN General Assembly  in 2004. In 2009, the General Assembly adopted a first resolution on UN-SCO cooperation, envisaging regular follow-up resolutions (see A/Res/65/124 and A/RES/67/15). The SCO has further concluded documents on cooperation with various UN organs and agencies and is uncritically received by the UN Secretary-General.

In sum, the purpose of SCO institutional law is not to enhance the authority of the organization over its member states but rather to secure the freedom of the member states from the SCO, and to even expand their freedom to act by providing possible, but not compulsory, venues for bilateral and multilateral cooperation. At the same time, the adopted institutional documents provide for a presentable façade enhancing the status, legitimacy, and acceptance of the SCO in an uncritical international community.

Besides institutional SCO law, SCO documents on cooperation between the member states are also worth a closer look too. They form three main categories: formal international treaties, executive documents, and political documents.

The elements of an international treaty are laid down in the 1969 Vienna Convention on the Law of Treaties (VCLT). SCO document qualifying as “treaties” under the VCLT are confined to documents named “charter,” “convention,” “treaty,” “agreement,” “protocol” and “memorandum” or “memorandum of understanding.” This category of SCO documents is characterized by uniform conflict clauses, prohibition clauses, and dispute resolution clauses.

The conflict clause states that a certain SCO document shall not affect the rights and obligations the state parties assume under other international treaties. In other words, should an obligation of an SCO document conflict with a provision in another treaty, be it concluded before or after that SCO document, the provisions in that other treaty take precedence. Clearly, then, SCO member states are not willing to let SCO treaties affect their treaty-making capacity in their relations with third states. The conflict clause also serves as a lubricant, facilitating the adoption of international documents of questionable drafting quality.

To some extent, the prohibition clause provides a corrective to the conflict clause. It says that no party to the SCO document may conclude other international treaties on matters that are the subject of the document and run counter to its purposes and objects. The prohibition clause appears particularly in SCO treaties concerned with the fight against the “three forces” of terrorism, separatism and extremism, such as the two Conventions of 2001 (pp. 232–240) and 2009. Although the terms “purposes and objects” used in the prohibition clause are vaguer than the “obligations” used in the conflict clause, it is clear that the parties to these Conventions are not supposed to assume obligations that could inhibit effective cooperation against the “three forces.”

This sort of vagueness calls for robust dispute resolution mechanisms. However, the only means of dispute settlement foreseen in SCO treaties are “negotiations and consultations” between the parties directly involved. Crucially, this language also appears in the institutional SCO documents. It is quite conceivable that after the adoption of these documents, different interpretations among different SCO member states emerged, so that each had its own perspective on the SCO.

Executive documents may be more instrumental in spurring actual cooperation. Executive documents are given names such as program, scheme, plan, joint proposal, strategy, concept, list of measures, or similar. They do not show the peculiars of treaties as outlined above, are often in a tabular format, and detail which actor should do what in which timeframe. Sometimes they dwell on each other. In the economic realm, the cascade “memorandum – program – implementation plan” has appeared, and in the fight against the “three forces,” the cascade “concept – program – plan” can be observed, with cooperation being further narrowed down in each document. Executive documents may predate formal treaties concluded in the relevant area of cooperation, or they may detail their execution, such as the Implementation Program 2013–2017 to the 2007 Treaty on Long-Term Good-Neighborliness. Executive documents may have different sources of normativity: directed at SCO organs, they may be characterized as internal regulations of the organization; however, if action is to be taken on the national planes of the SCO member states, the personal authority of the issuing persons, usually the Heads of Department or even the HoG or HoS, vis-à-vis their subordinates on the national level may be more instrumental. In any case, the relationship between executive SCO documents and formal SCO treaties seems rather loose.

Joint declarations, statements, or communiqués issued after a bilateral state visit or SCO meeting are often dismissed as mere political documents. However, their normative function under the SCO framework is quite remarkable. Since the early 1990s, they provided the background noise for a “Shanghai Process,” luring China’s surrounding states. Albeit not binding in a strictly legal sense, they formulate general principles of inter-state relations for the parties. Language in these documents strongly alludes to resolutions and declarations adopted by the UN General Assembly during the Cold War era. For instance, they stress the right of each state to choose its internal order freely, prohibit and condemn hegemonism, and declare interference in internal affairs to be inadmissible. The last principle in particular was elaborated on in the “Shanghai Process,” thereby in fact exempting some state conduct from the notion of “internal affairs.” In addition, the Shanghai Process has brought about new principles in the SCO realm with no direct precursors in UN-GA resolutions. Many of these “old” and “new” principles were incorporated into the Treaty on Long-Term Good-Neighborliness, but bilateral statements of China with Nepal and Turkmenistan show that the Shanghai Process is by no means restricted to SCO member states.

Of course many of the features outlined above may also be attributed to the peculiarities of the Central Asian region from which the SCO emerged. But the use of law under the SCO umbrella is strikingly in line with Chinese positions declared in UN forums: International law-making should dwell on state practice and clarify, but not develop it. At the same time, adopted documents should not be spelled out in detail but should leave room to be fleshed out by subsequent state practice. Under this system, what the “law” is at a given point in time is never clear but is subject to constant political haggling; it loses its function to translate a reached consensus into binding rules, and it cannot reduce future transaction costs in mutual relations. Instead, SCO law provides a cloak of legality for political pressure and favors the party willing and able to invest the most diplomatic resources. This mode of continuous development is based on a precarious iterative consensus, exemplified in a statement of the SCO HoS at their 2013 summit: They “reaffirmed” that they would “launch coordination on the basis of abidance by the principles and rules of the SCO Charter and other SCO documents.”

Indeed, it would seem that regular confirmations such as these are needed to prevent the SCO from simply fading away.

David Suter recently finished a doctorate thesis analyzing the SCO and cooperation under its framework from an international law perspective.