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.

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).

https://thediplomat.com/2018/07/is-china-using-force-or-coercion-in-the-south-china-sea/