I. Non-Western Imperialism and International Law: You Better Believe It

In the past thirty years, scholars affiliated with the TWAIL movement have brought questions of imperialism to the center of theoretical debates about international law.Footnote ¹ Their work focused heavily on Western imperialism because of its undeniable centrality in shaping not only the field but also the world that we inhabit today. In particular, the ascendence of TWAIL scholarship in the early 2000s coincided with what we now know was the peak of global U.S. hegemony and with the most aggressive phases of the war on terror. TWAIL scholars distinguished themselves from liberal critics of empire by showing that international law was not the polar opposite of imperialism, but rather one of its central modalities. In fact, much of TWAIL work relies on the implicit or explicit assumption that Western imperialism has historically been a distinctly legalistic one.Footnote ² More recently, scholarship has addressed non-Western engagements with international law often foregrounding the anti-imperialist ambitions of such creative uses by actors who were initially excluded from the field.Footnote ³

However, as Robert Knox has argued, the centrality of inter-imperialist rivalry in the making of modern international law has been generally absent from these accounts.Footnote ⁴ These rivalries included both imperialist tensions among Western powers and, after the late nineteenth century, emerging non-Western powers, notably Japan. For example, imperial Japan used, more or less successfully, Eurocentric international law in order to establish itself as a sovereign equal and to justify its own colonial projects in East Asia.Footnote ⁵ Seen in this light, its failed attempt to introduce a racial equality clause into the League Covenant had little to do with racial egalitarianism, but rather with its ambition to establish a non-white empire in Asia.Footnote ⁶ In fact, Japan was able to temporarily exploit local opposition to Western imperialism in order to gain support for its rapid expansion during World War II. TWAIL scholars have recently retrieved the legacy of the Indian justice, Radhabinod Pal, whose dissenting opinion in the Tokyo trials condemned Western hypocrisy and selectivity in pursuing justice against Japanese aggression.Footnote ⁷ Simultaneously, from a TWAIL perspective, it is also worth preserving the legacy of non-Western resistance (legalized or not) against Japanese imperialism. In Vietnam, Ho Chi Minh first rose to national prominence thanks to the communist insistence that the Japanese were the “number one” enemy of Vietnamese people during World War II. The purpose of recovering this legacy of radical resistance against non-Western imperialism at the present moment is dual. First, it enables us to move beyond a culturalist or racialist understanding of empire, inquiring instead into its material underpinnings. Second, by acknowledging the importance of non-Western imperialisms, we have the opportunity to decipher their exact relationship with international law.

Here, we want to understand how non-Western imperialisms engage with a field that has historically developed to serve the specific modalities of Western imperialism, or—at times—of resistance to such imperialism. In recent years, scholars have recovered ways in which domestic ruling classes in the Global South have used—amongst other tools—international legal arguments and techniques in order to justify both imperial projects abroad and processes of colonization and expansion at (what subsequently became) home. From Tibet to Ethiopia and from Siam's north to Korea, non-Western engagements with Eurocentric international law have enabled imperial and colonial projects well beyond Western imperialism,Footnote ⁸ a fact often neglected by celebratory engagements with (semi-)peripheral international lawyers in contemporary international legal scholarship. This engagement of non-Western imperial powers with international law has been a process that combines repudiation, adoption, and adaptation. With the idiom of international law having become factually—if not morally—universal,Footnote ⁹ non-engagement is not an option for states, even in instances where the plausibility of the advanced arguments is questionable.

The decline of U.S. power has also invited such creative uses of the field by non-Western powers. Examples include conduct not only by Russia but also by China. If anything, the latter's unwillingness to engage with dispute-settlement mechanisms has been expressed in heavily legalized language, mobilizing an unprecedented number of international law experts.Footnote ¹⁰ This is not a process of simple mimicry or strategic appropriation. In the realm of international economic law, China appears to be developing its own, unique forms of legal ordering that rely on soft law and transnational lawyer networks much more than on direct legal exports and binding and judicialized legal instruments favored by Western capital-exporters.Footnote ¹¹ This dissimilarity of forms does not automatically negate the imperialist nature of Chinese economic expansion nor does it make that expansion intrinsically “lawless.” Rather, such dissimilarity speaks to diverging legal arrangements as encapsulations of different modes of imperialism and different legal cultures. For instance, Matthew Erie has argued that, for Chinese economic expansion, the lack of the “hard” enforcement tools of U.S. military supremacy and the status of the dollar as a global currency renders ongoing negotiations (under unequal material conditions) a preferable solution.Footnote ¹² In addition, China presents itself as an actor leading by example amongst Global South states, which in turn may render open embrace of controversial institutions such as investor-state dispute settlement bodies politically unwise.Footnote ¹³ Here we do not wish to compare these two different paradigms of economic imperialism and their juridical infrastructures, nor can we evaluate the extent to which each offers opportunities for subversion and resistance. We simply want to draw attention to the fact that non-Western empire-building can be institutionally and argumentatively distinct, while replicating the basic patterns of extraction, exploitation, and violence. As we will show below, Russia has not generally put forward arguments—let alone legal structures—of the novelty and strength that China has. Amongst other things, this speaks to the vastly different levels of material and ideological power between the two: Russia is, at best, a regional imperial power, that has seen its political and economic influence—let alone ability to produce hegemony—decline sharply over the past forty years. In comparison, China's global aspirations are backed by a rise of material-economic power, resulting in the ability to produce (at least partially) persuasive ideological and legal justifications. Given Russia's relative weakness, its arguments do not aspire to create wholly novel justifications for force and occupation. Rather, they operate as distorted reflections of Western legal arguments.

II. Russian Legal Arguments Through the Looking Glass

Inter-imperialist rivalries of today are shaped by the ways the previous major inter-imperialist rivalries were resolved. International law is one aspect or “terrain” of inter-imperial rivalry and its outcomes are contingent but structurally constrained. Modern international law, in particular, is co-produced by and reproduces the set of ideas and practices revolving around statehood and sovereignty, violence, internal affairs, and human rights that are part and parcel of the hegemonic domination of the Western capitalist core.Footnote ¹⁴ Therefore, a crucial reason why international legal arguments advanced by some imperial powers (by Russia in the case of Russian-Ukrainian war) are rejected more readily than those by others (for example, by the United States in justifying the invasion of Iraq) is that the United States and the Western European states have been more successful in making their international legal practices and ideologies hegemonic. They have thus cultivated generalized professional acquiescence with respect to both their factual and legal claims. Their success is aided by the fact that those very claims were articulated through conceptual categories of international law that Western imperial powers crafted and spread worldwide. In other words, the ideological and material power of an actor who articulates a legal argument, as well as the degree of participation of international lawyers in the imperial rivalries of their national states, at least partially determine what ultimately counts as a persuasive international legal argument.

In seeking to justify the aggression against the Ukrainian state, Russia claims that its intervention aims at “denazifying” Ukraine.Footnote ¹⁵ Russian officials allege that the Ukrainian government perpetrated genocide in the DonbassFootnote ¹⁶ and even tie the “special military operation” in UkraineFootnote ¹⁷ to the resistance against Western neocolonial oppression.Footnote ¹⁸ Similarly, Ukraine was accused of producing weapons of mass destruction, including chemical and biological weaponsFootnote ¹⁹—an accusation that is reminiscent of the U.S. rhetoric to justify the invasion of Iraq. In addition, the Russian government at least partially relies on humanitarian intervention to assert the legality of its military action in Ukraine—a doctrine articulated by the UK prior to the NATO military operation in Kosovo and subsequently promoted by U.S. and European scholars.Footnote ²⁰ However, Russia's particular political history also leads to adaptation and partial divergence. The “creative reworking” of humanitarian intervention into “denazification” seems designed to generate legitimacy both domestically and internationally by invoking the role of the Soviet Union in the defeat of Nazi Germany in World War II. Invoking denazification could be understood as selective positioning of one inheritor of the USSR to the direct exclusion of other post-Soviet peoples and republics that also participated actively in the anti-Nazi struggle. However, invoking the specters of World War II and Nazism is neither a novelty in international law, nor a uniquely Russian prerogative. Rather, invocations of “Munich” and denazification have been repeatedly mobilized to justify both the use of force and comprehensive post-war reform, notably in Iraq. Reaching beyond jus ad bellum, Russia appears to also use “denazification” as an argument for circumventing the “conservationist principle” of the laws of occupation, in ways that are also reminiscent of U.S. arguments that the United States was entitled to reform Iraq's law along neoliberal lines in an effort to wipe out the influence of the Ba’ath, a process that the occupying powers often analogized with “denazification.”Footnote ²¹

Despite vocal opposition to the doctrine of humanitarian intervention in years past,Footnote ²² the Russian government has more recently relied on it, for instance during its invasion of South Ossetia in 2008.Footnote ²³ As Knox argues, the reaction of the U.S. government was premised on the implicit assumption that humanitarian intervention was simply not available to Russia.Footnote ²⁴ Reaching its rhetorical apogee in the midst of post-Cold War U.S. hegemony, the doctrine of humanitarian intervention implicitly relied on the idea that only the United States and its allies could authoritatively articulate and defend the interest of humanity as a whole.

Paradoxically, the United States never claimed for itself the right to unilateral humanitarian intervention. Rather, as Christine Gray has also observed in regards to jus ad bellum in general, it has been academic writers (with or without past, present and future links to governments) that have been at the forefront of the efforts to establish such a right.Footnote ²⁵ A crucial component of the argument in favor of unilateral humanitarian intervention is that a state or a coalition of states are bound to act on behalf of international community to stop atrocities or restore peace because the international community as a whole is prevented from acting by “selfish” or “irresponsible” states that happen to have veto powers on the United Nations Security Council (UNSC). In addition, Knox points out how the doctrine of humanitarian intervention deploys racialized portrayals of both the societies in periphery in which an empire seeks to intervene (Iraq, Serbia, and Afghanistan) and of the imperial rivals (Russia and China).Footnote ²⁶ While deploying racialized tropes against peripheral states is intended to justify the need for intervention as such, racialization of the imperial rivals of the Western powers, namely by pointing out their supposedly inherent irresponsibility and irrationality, is instrumental in doing two things: firstly, it attempts to justify the unilateral character of such intervention, the need to use alternative arrangements instead of “the normal channels of the international legal order,”Footnote ²⁷ and secondly, it seeks to deny recourse to the same arguments to imperial rivals. Although the tables turned in the Russian-Ukrainian war, both U.S. and European international lawyers similarly frame their qualification of the Russian aggression in terms of Russia being an irresponsible international actor in a way that aims to preclude any comparison with other acts of imperial aggression.Footnote ²⁸

The use of such racialized tropes has been facilitated by the transformations in the international system following the dissolution of the Soviet Union and Eastern bloc. The end of the Cold War also meant the end of the hegemonic contestation, characterizing the period. The declared “end of history” allowed for the ideological tenets of neoliberalism—market economy, liberal representative democracy, and globalization under the dominance of financial capital—to become hegemonic without contestation. As the ideology of the global capitalist core came unprecedentedly close to becoming true common sense, the ideology of Russia as former Cold War rival became dismissible without any need of engagement or disproving.

The attempted monopolization of certain international legal arguments by the West is not the only reason that Russia's invocations of humanitarian intervention ring so hollow. Rather, even Western uses of force in the past decade have relied less and less on humanitarian justifications, whether unilateral humanitarian intervention or the “responsibility to protect.”Footnote ²⁹ Despite widespread rhetoric against Assad's government in Syria, actual uses of force were justified either through the language of self-defense, in the case of Western powers and Turkey, or under the banner of intervention by governmental invitation by Russia.Footnote ³⁰ Even though aspects of these arguments were controversial,Footnote ³¹ the categories of arguments themselves are relatively conventional. Importantly, both self-defense and intervention by invitation abandon the idea of a universal humanity and instead adopt a less universalizing view of the world, one that implicitly admits the absence of a global hegemon who can claim to speak in the name of humanity. The Russian resurrection of humanitarian rhetoric, just as the solidification of competing power blocs negates its very ideological underpinnings, can be better understood as directed to domestic audiences rather than to the international community.

The diminished purchase of humanitarianism and the shift toward self-defense is also present in Russia's argumentation.Footnote ³² Russia has relied on arguments of self-defense, including its (purported) individual right to self-defense against NATO and Ukraine and the (alleged) right of collective self-defense in support of Donetsk and Luhansk “people's republics,” Russian puppet states in the Eastern Ukraine.Footnote ³³ Arguments of collective self-defense are efforts to combine different rationales for using force. On the one hand, they rely on the sovereign equality-based justifications that underlie self-defense. These reflect Russia's sovereigntist approach to international law and demonstrate certain continuity with its traditional insistence on the strict interpretation of jus ad bellum, enshrined in the UN Charter, under which self-defense and UNSC authorization are the only two legal bases for the use of force.Footnote ³⁴ On the other hand, the ongoing Russian rhetoric about a Nazi takeover in Ukraine means that the purported support offered to these self-proclaimed anti-fascist republics is based on the universalist ideology of self-determination and anti-fascism that animated Soviet rhetoric (if not always policy). This eclectic mix of arguments could be read as symptomatic of Russia's overall indifference toward the international legal order and the lack of a solid, coherent justification. This interpretation is not entirely untrue, but it tends to exceptionalize and pathologize Russia's engagement with the field while also failing to recognize its unique engagement with and understanding of international law. Russia has long insisted that the international legal order is in crisis, placing the blame squarely on the United States and its allies that eroded the UN Charter principles.Footnote ³⁵ This stance sets the ground for the recourse to a tu quoque type of argument, that dates back at least to the annexation of Crimea, which was often presented by Russia as an imperial analogue of NATO's intervention in Kosovo.Footnote ³⁶ In a paradigmatic display of using international law as a terrain for the inter-imperialist rivalry, “[r]ather than pursuing a firm ideology of international law in its own right, Moscow first of all responded to Western claims and arguments in international law, i.e. symmetry with the West became part of its ideology of international law.”Footnote ³⁷

We posit that this eclecticism is symptomatic of two realities: the existence of multiple audiences for international legal argumentation; and the unfolding of a hegemonic crisis both domestically in Russia and internationally. International legal arguments put forward by Russia may very well not primarily aim at the international community as their main audience—instead, this mixture of justification could be much more legible to a domestic audience. If Russia's engagement with jus ad bellum primarily targets a domestic audience, there is little sense in evaluating its success via persuasiveness to Western lawyers and diplomats. In addition, this multiplicity of justifications is a symptom of a hegemonic crisis experienced both by Russia and more broadly: at a time of geopolitical and ideological transition and instability neither ascending nor descending—to recall Martti Koskenniemi's typologyFootnote ³⁸—international legal arguments seem to be able to garner automatic and widespread support, or even plausibility. When humanitarian interventions of its imperial rivals were justified primarily through descending legal arguments based on universal values, Russia's opposition to such interventions could be credibly articulated in ascending ones, that emphasized sovereignty. Given the present-day lack of a clear preference for either of the modes of argumentation, Russia is compelled to combine a variety of justifications to cover more ground, which eventually leads to pronounced tensions.

While international legal argumentation of interventionism might be in flux, references to both humanitarianism and self-defense have had tangible effects other than providing plausible legal justification for the use of force. One such effect is the conditioning of sovereignty and the disciplining of weaker states by signaling the existence of requirements to be met so as to avoid coercive force.

For most polities, sovereignty has been both unequal and conditional for most of modern history.Footnote ³⁹ In fact, following a brief period of what seemed like a relaxation of requirements for recognizing/awarding sovereignty during the decolonization, post-Cold War decades have been characterized by the return of the requirement of “effective government” interpreted through the lens of “good governance.”Footnote ⁴⁰ Good governance, in turn, is understood primarily as the capacity to guarantee a specific subset of individual rights, conducive to free trade, investment,Footnote ⁴¹ and the establishment of capitalist modernity, or, more recently, neoliberalism.Footnote ⁴² In that sense, the role of jus ad bellum has been to demonstrate the potential consequences of reluctance to accept the conditioning of sovereignty.Footnote ⁴³ The conditionalities are substantially different when articulated by different imperial powers. Whether they assume the form of a bilateral investment treaty or a friendship and cooperation treaty (as in the case of the pseudo-republics in the Donbass),Footnote ⁴⁴ they are similarly intended to further the interests of the imperial ruling classes: the differences in the techniques of subjugation and exploitation correspond to the distinct varieties of capitalism (neoliberal capitalism in the West and Bonapartist state capitalism in Russia),Footnote ⁴⁵ adopted by the contemporary imperial powers, rather than moral or “civilizational” differences.

That the Ukrainian government and civil society are adamant in assuring the EU and the United States that it is the state deserving of sovereignty, by gesturing toward the success in the fight against corruption,Footnote ⁴⁶ the observance of human rights,Footnote ⁴⁷ and the endorsement of the “European values”Footnote ⁴⁸ demonstrates just how deeply the conditionalities of sovereignty have been internalized by the political communities outside the capitalist core. Otherwise put, disciplinary deployment of jus ad bellum appears to have been successful in the everyday operation of international law as a language of politics, if not in doctrinal terms. Notably, defending European values became the pretext for Ukraine's application for the EU candidate status with the view to eventually acquiring EU membership, i.e., to the aspired closer integration with the core.Footnote ⁴⁹ The statements of Ukrainian officials convey a clear understanding that Ukraine has earned its place in the EU by defending both European borders and European values.Footnote ⁵⁰

While Ukraine's reliance on the rhetoric of the European values and the belonging to the European civilization can be rightly criticized as an exercise in “the global privilege-making of the European race regime,”Footnote ⁵¹ we should recognize that if “international law [is] a bounded terrain of argumentation,”Footnote ⁵² the arguments available to peripheral and semi-peripheral states are even more constrained by hegemonies past and present. In this instance, decades of legal conditioning of peripheral sovereignty have left Ukraine with the limited choice to decide the terms of which imperialist block it will use to defend its sovereignty, those of the EU/United States or those of Russia. That a (semi-)peripheral state is bound to make such a choice inheres in its very condition of being in the periphery, in a world of the ongoing inter-imperial struggle. At the same time, albeit such tactical moves are unavoidable, especially in the midst of an invasion, it is likely that acceptance of the terms of this legal and political debate by weaker states will further restrict their sphere of legally and politically possible action and autonomy. The imperative to join imperial spheres and to do so through different ways of conditioning one's sovereignty considerably restricts a people's ability to exercise their right to self-determination in a substantive, rather than formal, manner.Footnote ⁵³ It is worth bearing in mind that the acceptance and re-enactment of such conditions of sovereignty by domestic ruling classes of (semi-)peripheral states often serve domestic programs of class formation/consolidation and state-building in ways that are hardly emancipatory for the vast majority of the population.