Tensions in the South China Sea have steadily increased in recent years in light of China’s enhanced island building activities, conducted to make room for what is now a string of fully fledged military bases, equipped with airstrips, electronic warfare equipment, and long-range anti-ship and anti-air missiles.
The defense ministers of Australia, Japan, and the United States issued a joint statement on June 3, 2018, conveying their governments’ “strong opposition to the use of force or coercion as well as unilateral action to alter the status quo, and to the use of disputed features for military purposes in the South China Sea.”
Most recently, U.S. Defense Secretary Jim Mattis accused China of using its military “for the purposes of intimidation and coercion” and warned there would be “consequences” if it continued.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
The choice of this particular language, particularly the use of the word “coercive,” to describe China’s actions in the Spratlys, is by no means accidental. On the contrary, “coercive intent” is one of the criteria by which the actions of a state can be deemed to be in violation of the prohibition on the use of force in international law, as laid out in Article 2(4) of the UN Charter.
Coercive intent reflects the objectively discernible aim or effect of “forcing the will of another state” to accept a new status quo, according to use of force specialist Professor Olivier Corten.
Coercive intent becomes particularly relevant in situations where troop deployment in, and occupation of, a disputed territory is not accompanied by hostilities, such as the “swift” takeover of Goa by India in 1961, the annexation of Crimea by Russia in 2014, and the United Arab Emirates’ nonviolent military deployment and occupation of the Yemeni Island of Socotra in 2018.
In the 2004 Israeli Wall case, the International Court of Justice (ICJ) found that the construction of the wall by Israel in the occupied Palestinian territory was an acquisition of territory through force, in contravention of Article 2(4) of the UN Charter. In spite of the assurance given by Israel that the wall was temporary, the ICJ found that “the construction of the wall created a ‘fait accompli’ on the ground that could well become permanent” – as has proved to be the case – which would be ‘tantamount to de facto annexation.”
Although in 2015, the ICJ did not rule on whether Nicaragua had used force in sending troops in to a waterway disputed with Costa Rica, Judge Patrick Robinson provided a separate opinion on this question.
Robinson considered the “[n]o shots need be fired, no heavy armaments need be used and certainly no one need be killed before a state can be said to have violated the prohibition.” He, nonetheless, posited that the “intention and purpose” and the “motivations” of the intruding state are amongst the relevant factors that may be considered when judging whether an unlawful incursion in the disputed area, even when not accompanied by an actual armed confrontation, falls within the scope of Article 2(4).
In that particular case, the combination of the “prolonged presence” of Nicaragua’s military camps and personnel, its refusal to withdraw its troops from the disputed territory, and the “pointing of weapons” at the Costa Rican aircraft clearly signaled Nicaragua’s “coercive purpose,” namely its “readiness to apply force, whenever Nicaragua considered it necessary” as a means “to challenge Costa Rica’s sovereign rights.” According to Robinson, Nicaragua’s conduct warranted a finding of use of force in breach of Article 2(4) of the UN Charter.
So, despite China’s assurances that it “will not resort to the use of force” to resolve its territorial disputes, its land reclamation activities, and continuous military buildup in the disputed territories, necessarily create a fait accompli on the ground and coerce the other claimant parties into accepting the new status quo. This arguably constitutes an illegal territorial expansion through force in contravention of international law. Indeed, by militarizing the disputed islands, China presents its opponents a Hobson’s choice of falling into line with the new territorial status quo, or facing a costly war with a powerful state, strategically positioned in the region.
Even after an international tribunal invalidated China’s maritime entitlements in the South China Sea through an award in 2016, China has continued to steadily and progressively expand its territorial assets in the region. According to leading political scientist Professor M. Taylor Fravel, China’s use of force in its territorial disputes aims “to create a reputation for toughness over territory and deter its opponents in all other disputes.”
So, why does this categorization matter in international law? What difference does it make, as a matter of law, to qualify China’s actions in the South China Sea as a use of force in the sense of Article 2(4) of the UN Charter?
First, qualifying China’s actions in the Spratlys as a use of force under international law opens up the possibility that forcible action in self-defense may be taken in response to it. However, self-defense is only justified in the face of an armed attack (Article 51 of the UN Charter), which is, as the ICJ stated in Nicaragua v United States, one of “the most grave forms of use of force,” which would have to distinguished from other “less grave forms.”
China’s use of force is, relatively speaking, of too small a scale to qualify as an armed attack in a legal sense, but is instead part of a pattern of progressive armed actions which lead cumulatively to a strategic territorial transformation in China’s favor. Thus, even if each single armed deployment alone is insufficiently grave to be regarded as an armed attack, when taken cumulatively, these actions may come within the scope of an armed attack envisaged in Article 51 of the UN Charter (the so-called “accumulation of events” theory).
Second, it might open the door for third-party countermeasures. There is a wide consensus that the prohibition of the use of force is an obligation erga omnes (i.e. an obligation under general international law which a state owes to the “international community as a whole”). Where a breach of an erga omnes obligation occurs, this means all other states are entitled to take non-forcible countermeasures to bring the breach to an end, just as if they were directly injured by that use of force.
There are various examples in state practice demonstrating that states can respond to breaches of obligations erga omnes by resorting to lawful countermeasures: the sanctions imposed by the United States against the Soviet Union because they regarded the latter as responsible for a threat to international peace by amassing its troops along the Polish border; the sanctions imposed by the European Community against Argentina following its armed invasion on the Falkland Islands, which was condemned as a “breach of the peace” by the UN Security Council; and the sanctions imposed by the European Union and the United States against Russia for annexing Crimea and intervening in Eastern Ukraine.
Accordingly, if China’s occupation and unilateral deployment of armed forces in the Spratlys qualify as a use of force against other claimant states, hence constituting a breach of an erga omnes norm, third-party states can, even if they are not specially affected by the breach, invoke China’s international responsibility. Such a breach would mean that states other than the South China Sea claimants (i.e. Vietnam, the Philippines, Malaysia, Brunei, and Taiwan) can also impose an array of sanctions on China. Whether any states are prepared to take such countermeasures, however, remains to be seen.
Dr. Constantinos Yiallourides (@ConstantinYiall) is the Arthur Watts Research Fellow on the International Law of Territorial Disputes at the British Institute of International and Comparative Law (BIICL) and principal author of the research report, “The Use of Force in Relation to Sovereignty Disputes over Land Territory,” published July 2018.
The views expressed here are solely those of the author in his individual capacity and do not necessarily reflect the views of any affiliated Institution.