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The legal framework of the Shanghai Cooperation Organization: An architecture of authoritarianism

Article by Professor Thomas Ambrosio

May 24, 2016

The Shanghai Cooperation Organization (SCO) purports to be a broad-based international organisation formally tasked with promoting multilateral cooperation within Central Asia. However, a deeper look at this organisation illustrates that it is dedicated, at a fundamental level, to preserving the authoritarian status quo in Central Asia under the guise of combating the ‘Three Evils’ of terrorism, separatism and extremism. This essay utilises social network analysis to depict the legal framework which has emerged since the SCO’s formation in 2001 and identifies those multilateral agreements which are most central to this framework. Policymakers wishing to promote democracy within Central Asia must understand that they are not only confronting state-level, domestic impediments to liberalisation, but also a complex, interconnected and self-reinforcing interstate structure which is antithetical to such aims. Consequently, political change is going to be very difficult to achieve in the short-to-medium term.

 

The Shanghai Cooperation Organization (SCO) has emerged as one of the most important multilateral organisations in the former Soviet Union and the most important in Central Asia, serving as a key means for promoting cooperation amongst Kazakhstan, Uzbekistan, Tajikistan, Kyrgyzstan, Russia and an external, regional power, China. It began as a series of meetings to resolve border issues and produced two treaties on confidence-building and reducing forces along their mutual borders in 1996 and 1997 respectively. This grouping came to be known as the ‘Shanghai Five’ after the city of the talks and its number of members.[1] Subsequent meetings led to the formation of a formal international organisation in 2001 and the signing of the SCO Charter in 2002. Since then, the organisation has grown, serving as a forum for the discussion of mutual concerns, as well as an umbrella for cooperation in a variety of areas.

 

Like most international organisations of this type, its member states have many shared interests and the organisation itself purports to serve many functions. However, one function has stood out: the SCO’s role in advancing a regional agenda which runs counter to promoting democratic political development and human rights by prioritising regime stability over political change. This has been examined from a broad perspective,[2] but systematic, data-driven analysis which reveal the mechanisms of this role, is lacking. This essay attempts to fill this gap.

 

The Sharing Worst Practice project of the Foreign Policy Centre seeks to investigate how authoritarian practices are shared or replicated in the former Soviet Union by exploring the legal frameworks which facilitate these processes. This essay contributes to this project through an application of the ‘treaty nestedness’ analysis to the SCO. This approach focuses on the links between international agreements and other important documents to identify which are the most central to a legal framework and how they form an interconnected network of treaties. This essay examines a unique database of 48 SCO documents from 2001 to 2015 to illustrate how these authoritarian practices are deeply embedded in the structures of the SCO through a treaty network which places combatting the so-called ‘three evils’ of terrorism, separatism and extremism, as well as the Regional Anti-Terrorist Structure (RATS), at the very heart of this organisation.

 

Treaty nestedness analysis

International agreements are the cornerstones of international law and international relations. They serve as primary vehicles of interstate cooperation, as well as for the transmission and strengthening of international norms. This can occur bilaterally or multilaterally, with the latter most likely happening within the context of an international organisation. However, these agreements do not exist within a vacuum, but rather occur within a broader legal framework which binds states together. One only needs to consider the core treaties of the European Union, and how they in turn led to a whole host of additional agreements, to understand how such a legal framework has institutionalised cooperation amongst the EU member states. Similarly, the values of democracy and human rights identified in these earlier EU documents have been strengthened by subsequent agreements.

 

These legal frameworks can be understood by utilising an approach which focuses on how treaties and other key documents connect to one another through references to prior treaties and documents. This is called ‘treaty nestedness’ analysis,[3] since a treaty which references a prior treaty is said to be ’embedded’ or ‘nested’ within that earlier document. These references buttress the earlier agreements through a reaffirmation of both the obligations and norms expressed in these earlier documents. As this process continues, an increasingly complex, interconnected and self-reinforcing legal structure is created in the form of a ‘treaty network’ – a web of obligations and norms. The documents which are the most referenced serve as the foundations of this network and are referred to as ‘lodestones’.

 

Although the legal framework of the SCO pales in comparison to that of the European Union, over thirty international agreements have been signed under its auspices, from which the core functions and purposes of the SCO can be discerned. Moreover, the SCO is not meant to be a supranational organisation, like the EU. Instead, “…the SCO organization model is less legalistic and more normative in nature than a Western democratic undertaking.”[4] Consequently, the political statements by its heads of state, released as annual declarations, play a very important role in elaborating these functions and purposes. Thus, in addition to the formal legal documents, these declarations need to be included in any analysis of the SCO’s legal framework.

 

From these agreements and annual declarations, a network analysis of the SCO has been conducted and a visual representation of this legal framework created. This process codes each document by year and number — with the most prominent and relevant (such as the SCO Charter and the agreements on combating the ‘three evils’ and creating the RATS[5]) specified by name. Each is represented in Figure 1 below as a ‘node’ which links to other documents.[6] Nodes are symbolised by two shapes: squares and circles. Squares represent documents that are primarily referenced by other documents; circles represent agreements which primarily reference other documents. Nodes are sized in accordance with the number of agreements which reference them or the number which they themselves reference – the larger the node, the more it serves as a lodestone of the legal framework. Thus, the SCO Charter (in the centre of the network) is the largest square since it is the most mentioned document in the network.

 

The SCO legal framework

Figure 1 depicts the SCO network of forty-eight documents: thirty-three agreements and fifteen declarations. Although this means that there are a lot of nodes and connections between them – hence, the web imagery identified above – a clear pattern emerges. In the centre of the network are four key documents, sized in regard to how many times they are referenced:  the SCO Charter, the UN Charter, the Shanghai Convention on Combating Terrorism, Separatism and Extremism (‘Three Evils Conv’), and the Agreement on the Regional Anti-Terrorist Structure (‘RATS’).[7] These four agreements constitute the lodestones of the SCO’s legal framework.

 

Figure 1 – SCO legal network

 

It should be expected that the SCO Charter would be the most referenced document since it serves as the foundation upon which the entire organisation is based. It is wide-ranging and not only establishes the organisation’s institutional structure, but also outlines its founding principles. Beyond conflict avoidance and promoting general cooperation amongst its members, a central theme which emerges is the organisation’s mission in fighting what Chinese officials have referred to as the ‘three evils’ of terrorism, separatism and extremism. This is reflected in the organisation’s list of ‘goals and objectives’, its ‘areas of cooperation’, and the inclusion of the Regional Anti-Terrorist Structure as one of the organisations’ two permanent bodies. It is also reflected in the content of the documents which were adopted under the auspices of the SCO between 2001-2015, as seen in Figure 2. Of the thirty-three SCO agreements, thirteen (nearly forty percent) dealt specifically with the issue of combatting the ‘three evils’, compared with fifteen which covered a variety of single-issue agreements.[8] Clearly, this is a priority for the SCO – more so when one considers that that some of the single-issue and organisational structure agreements also reference this anti-terrorism mission.

 

Figure 2 — Content of SCO Agreements

 

The 2001 declaration which transformed the informal Shanghai grouping into a formal international organisation and the Shanghai Convention on Combating Terrorism, Separatism and Extremism were signed the same day, fundamentally linking this mission with the SCO itself. This convention and its principles are therefore unsurprisingly the second-most referenced amongst the SCO documents. Although the definitions of these three concepts all include some sort of use of violence by its perpetrators, in practice these definitions have been criticised by human rights groups[9] for being overly broad and utilised to cover any political threat to the SCO governments, all of which are rated ‘not free’ by Freedom House, with the exception of Kyrgyzstan, which is rated ‘partly free’.[10] Threats to the government are portrayed as threats to the state itself and therefore the labels of terrorist, separatist and extremist have been applied quite liberally to place non-violent political opponents under their umbrella: ‘These definitions offer significant scope…to act preemptively to nullify any threat to the integrity of their nation-states or regimes. This provides legitimacy to act with force to defend their position against any opposition that can be defined as representing a violent challenge to their authority’.[11] This agreement commits the SCO states to ‘cooperate in the prevention, detection and suppression’ of these activities, to provide legal assistance to their fellow SCO governments, and to exchange information on individuals and groups. Possibly the most controversial section of this agreement is the requirement to extradite suspects, ensuring that there is no safe haven for political dissidents within the region as long as one member of the Convention deems a suspect. Cooley referred to this Convention as creating ‘the legal and cooperative framework’ for a ‘wave of renditions’ which has ensured that the governments of the region are not challenged.[12] Cooley cited numerous cases of multilateral cooperation amongst security officials in the transfer of Uighurs from several SCO countries to China, Uzbeks living in Russia to Uzbekistan, and the leader of the opposition Democratic Party of Tajikistan to Tajikistan where he was sentenced to a prison term of twenty-three years. Even those with refugee status granted by the United Nations High Commissioner for Refugees are not immune to politically-motivated extraditions.

 

The primary mechanism for implementing this framework is the Regional Anti-Terrorism Structure (RATS), created through a 2002 treaty, which is the third most prominent agreement in the SCO legal network. Although the name would seem to suggest that it is focused on only one of the ‘three evils’, it is in fact charged with combatting all three – thus, seeking to delegitimise all political dissent with the label of terrorism. The primary function of the RATS is to amass and analyse information on groups and individuals suspected of taking part in terrorism, separatism or extremism and to compile an extensive database which can be accessed by its members. This database has been used as the basis of extradition requests, in accordance with the RATS’s role in carrying out the 2001 Shanghai Convention. It is unclear exactly how large the database is, but in 2010 it was reported that there were 42 groups and 1,100 individuals listed, reflecting a nearly three-fold increase since 2006.[13] The list is kept secret by the SCO and the RATS has not released the criteria by which groups are added. It is suspected that, in addition to clear terrorist groups such as al-Qaida and the Taliban, peaceful opposition groups have also been blacklisted. Since the events of the Arab Uprisings in 2011, the SCO members have intensified their crackdown against potential sources of opposition and the database is now most likely considerably larger. The RATS does not have enforcement powers of its own but instead coordinates activities amongst the internal security services of its member states and assists them in counterterrorism operations by providing expertise and organisational support. It also organises joint exercises to promote interstate cooperation on counterterrorism, holds training sessions to improve the technical practical aspects of these operations, and facilitates the ‘exchange of experiences’ amongst member states.[14] In short, the RATS serves as the central locus of the process of ‘sharing worst practices’ amongst the SCO member states.

 

The final lodestone agreement in the SCO legal network is the UN Charter. Obviously, this broad document contains many purposes and principles, some of which are contradictory. While many of the references by SCO documents to the UN Charter are vague expressions of general support for its ideals, a consistent theme which emerges is the UN’s foundation upon the principle of state sovereignty. This is particularly apparent in the SCO heads of state declarations beginning in 2012, coinciding with the Arab Uprisings and an increasing resistance by these states to democracy promotion. Statements are found in each of these declarations which link the principles of the UN to the ‘independent choice’ of states to their own path of ‘political and socio-economic development’.[15] This defence of state sovereignty over human rights and democracy should be read as justification for preserving the political status quo and rejecting external criticisms of authoritarianism. These statements aim to create a rhetorical defence of autocracy by presenting both the desire for political change as an infringement on state sovereignty and external criticisms as representing disrespect for the ‘historical background and national peculiarities of each State’.[16]

 

Conclusion

The SCO has many functions, such as fostering interstate cooperation, preventing regional conflict, and even advancing some geopolitical aspirations. However, Cooley is correct when he referred to the SCO as a ‘league of authoritarian gentlemen’, primarily interested in regime survival, rather than democracy or human rights.[17] This perspective is validated by the core SCO agreements and echoed by the SCO heads of state declarations. The interconnected and self-reinforcing web created since 2001 should therefore be seen as seeking to establish an ‘architecture of authoritarianism’ – a legal framework which promotes and strengthens non-democratic norms and practices within the region.

 

Policymakers wishing to promote democracy within Central Asia must understand that they are not only confronting state-level, domestic impediments to liberalisation, but also a complex, interconnected, and self-reinforcing multilateral order which is antithetical to such aims. In order to change this dynamic, policymakers will need to put pressure on these governments to be more transparent about their intraregional extradition processes and the blacklisting of opposition groups through SCO institutions, as well as to challenge these governments’ expansive definitions of the ‘Three Evils’. Nonetheless, given that authoritarianism is reinforced at the state and regional levels, political change is going to be very difficult to achieve in the short-to-medium term.

[1] Uzbekistan had yet to join.

[2] Ambrosio, Thomas.  2008.  Catching the ‘Shanghai Spirit’:  How the Shanghai Cooperation Organization Promotes Authoritarian Norms in Central Asia.  Europe-Asia Studies 60(8):  1321-1344; Aris, Stephen.  2009.  The Shanghai Cooperation Organization:  ‘Tackling the Three Evils’.  Europe-Asia Studies 61(3):  457-482.

[3] Slobodchikoff, Michael.  2013.  Strategic Cooperation:  Overcoming the Barriers of Global Anarchy.  Lanham, Maryland, Lexington Books.

[4] Aris, p.477.

[5] In both cases, direct references found in these documents to combating the ‘three evils’ of terrorism, separatism, and extremism, as well as the functioning of the Regional Anti-Terrorist Structure, have also been included in the database, even if explicit references to these two treaties are not made. For example, the SCO Charter identifies the RATS as one of the most significant, permanent bodies of the organization – even listing it before the secretariat – but does not specifically reference the 2002 treaty which created it. This slightly looser definition of the embedded agreements is therefore more reflective of their actual importance to the SCO.

[6] Other, prominent, international agreements are also included in this database, as they are referenced by these documents. For example, the United Nations Charter figures prominently in SCO texts. For a full list of the database, see the following website:  https://www.ndsu.edu/pubweb/~ambrosio/sharing.html.

[7] There are two other things to note about this network:  there are three nuclear non-proliferation treaties found in the upper-left corner of the network (NPT, CANWFZ, and CZNWFZ_2) and the 2007 Treaty of Long-Term Good-Neighborliness, Friendship and Cooperation (2007-02), found in the upper-right corner of the network is repeatedly referenced as signifying one of the cornerstones of cooperation amongst the SCO member states.

[8] Each of the following is covered by a separate agreement:  economics, anti-drugs, emergency management, education, customs, military exercises, culture, information security (two), agriculture, crime, health, science/technology, transportation, borders.

[9] For example, Human Rights in China.  Counter-Terrorism and Human Rights:  The Impact of the Shanghai Cooperation Organization, 2011, http://www.hrichina.org/sites/default/files/publication_pdfs/2011-hric-sco-whitepaper-full.pdf p.3.

[10] Freedom House, Freedom in the World: 2015, https://freedomhouse.org/sites/default/files/01152015_FIW_2015_final.pdf

[11] Aris, p.467.

[12] Cooley, Alexander.  2012.  Great Games, Local Rules.  Oxford, UK:  Oxford University Press.  p.107.

[13] Human Rights in China, p.85.

[14] Regional Anti-Terrorist Structure.  Activities.  http://ecrats.org/ru/news/activity/.

[15] Dushanbe Declaration of Heads of State of the SCO.  2014.  http://mfa.tj/en/news-and-events/dushanbe-declaration-of-the-heads-of-sco-member-states.html

[16] As cited in the 2007 Treaty on Long-Term Good-Neighborliness, Friendship and Cooperation Between the Member States of the Shanghai Cooperation Organization.

[17] Cooley, Alexander, The League of Authoritarian Gentlemen, Foreign Policy, 30 January 2013,  http://foreignpolicy.com/2013/01/30/the-league-of-authoritarian-gentlemen/

Footnotes
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