This a pre-print of Chapter 11 by Dr Constantinos Yiallourides, ‘International law, Force and Coercion in

the South China Sea’ in L Buszynski and D T Hai (eds) The South China Sea: From a Regional Maritime
Dispute to Geo-Strategic Competition (Routledge Security in Asia Pacific Series 2019) pp.169-182

11 International law, force,

and coercion in the South
China Sea
Constantinos Yiallourides

Introduction
Few issues have become the focus of such heated contestation and conflict
amongst states than the determination of disputed claims of territorial sov-
ereignty (generically referred to in this chapter as “territorial disputes”).1
In international law, sovereignty constitutes the ultimate authority over a
territory, be it continental or island.2 The notion of territory is a concom-
itant of a state’s sovereignty, namely those geographical areas over which
sovereign authority may be exercised to the exclusion of all other states.3
The fundamental norms of sovereignty and territorial integrity enable a
state with sovereignty over a given territory to act freely over that territory
and to prevent other states from acting upon it. The same norms protect
the sovereign state from unilateral territorial incursions and violations of
its territory by other states.4 But what if that state’s territory is disputed by
another state and there is no clear answer as to which state has sovereignty
over the territory in question? In practice, states might often disagree over
the definition of the course of a land boundary (i.e. delimitation) or over the
way it is positioned on the ground (i.e. demarcation). However, not all terri-
torial disputes are mere boundary problems relating to the delimitation or
demarcation of a land boundary line. Territorial disputes can involve much
wider issues than just the location of a land boundary. For instance, a ter-
ritorial dispute may involve competing claims of sovereignty over an island
and parallel disputes over the exercise of sovereign rights in surrounding
ocean space and the exploitation of offshore natural resources. The South
China Sea is an illustrative example of such multidimensional territorial
dispute with several states claiming both territorial and maritime areas as
well as underlying natural resources.
At some point, the sovereignty status of the disputed territorial features
has to be settled for the territory in question and surrounding ocean space
(e.g. territorial sea) to be attributed; until then the essential basis for the
protection of sovereignty, namely a title to territory, remains obscure.5 This
raises several important legal questions, the chief among which, and indeed
the crux of the South China Sea territorial disputes, is whether or not, a

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170  Constantinos Yiallourides
claimant state can lawfully establish a military presence on disputed territo-
rial features to the exclusion of other claimant states and what other claim-
ant states can do in response? Whichever way it is addressed, this question
has far-reaching practical implications for a number of areas of interna-
tional law, extending beyond the possibility of self-defence, to the possibility
of countermeasures and the law relating to state responsibility. This chapter
combines an examination of international jurisprudence and state practice
in addressing three separate legal issues that have arisen in the context of
disputes over territory with a special focus on the South China Sea: (1) the
applicability of the rules on the use of force to territorial disputes; (2) the
legality, or illegality, of establishing a military presence on a disputed terri-
tory as a means of coercion; and (3) the implications, as a matter of law, of
characterizing such coercive conduct as a prohibited use of force.

The applicability of the rules on the use of force

to territorial disputes
The principle that force must not be used or threatened to be used to set-
tle international disputes, including territorial disputes, is well established
under both treaty law and customary international law. It is embodied in
Article 2(4) of the UN Charter, which provides that

All Members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence
of any State, or in any other manner inconsistent with the purposes of
the United Nations6

The obligation in Article 2(4) supplements Article 2(3) of the UN Charter,

which requires states to settle their disputes through peaceful means.7 The
rules of international law on the use of force make no exception in respect of
disputed territories and territories not subject to dispute. According to the
Eritrea-Ethiopia Claims Commission, recognizing such an exception would
significantly weaken the fundamental rule of international law prohibiting
the use of force.8 This finding was restated in the Guyana/Suriname arbitra-
tion of 2007.9 In this case, Surinamese naval vessels boats had threatened
Guyana’s concessionaires operating an oil rig in the disputed areas to “leave
the area in 12 hours” or “the consequences will be [theirs].”10 Suriname be-
lieved it had a valid claim to the area in question and, thus, that it had the
right to forcibly expel the operators of the rig as part of legitimate law en-
forcement measures.11 The Guyana/Suriname arbitral tribunal found that
the action by Surinamese Navy was more akin to a threat of force than a law
enforcement activity.12 While this is a law of the sea case, it is remarkable in
that a threat of force by Suriname within the maritime area it claimed, also
represented a breach of Article 2(4) of the UN Charter, which the Guyana/

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 International law, force, and coercion  171
Suriname arbitral tribunal found remains applicable in the context of both
territorial and maritime boundary disputes.13
That the prohibition of the use of force applies to territorial disputes is
also supported by state practice, as shown in the following indicative ex-
amples. The UN Security Council Resolutions 242 (1967)14 and 298 (1971),15
adopted in response to the Israeli-Palestinian conflict, stressed the inadmis-
sibility of acquiring territory by force whilst calling for the “[w]ithdrawal
of Israel armed forces from territories occupied in the recent conflict” and
“[t]ermination of all claims or states of belligerency.”16 The majority of the
members of the Security Council strongly condemned Argentina’s 1982
military invasion of the Falkland Islands, to recover them from the United
Kingdom, whose title over the Falklands Argentina rejected.17 In relation
to the military conflict in the former Yugoslavia, the UN Security Council
also restated the inadmissibility of the alteration of international bounda-
ries through the use force.18 In connection to the armed conflict between
Eritrea and Ethiopia over the disputed town of Badme, the Security Council
passed Resolution 1177 (1998) expressing its “grave concern at the conflict”
and stressing that “the use of armed force was not acceptable as a means
of addressing territorial disputes or changing circumstances on the ground
[emphasis added].”19 In 1999, after the conflict escalated to a full-scale war,
the Security Council, in Resolution 1227 (1999), condemned the recourse
to force by Ethiopia and Eritrea and demanded an immediate end to the
hostilities.20
That the use of force as a means of acquiring territory and settling inter-
national disputes, including disputes over territory, is contrary to interna-
tional law, is stipulated in the “Declaration on Principles of International
Law concerning Friendly Relations and Cooperation among States in ac-
cordance with the Charter of the United Nations” (“Declaration on Friendly
Relations”). This provides that

Every State has the duty to refrain from the threat or use of force to vio-
late the existing international boundaries of another State or as a means
of solving international disputes, including territorial disputes and prob-
lems concerning frontiers of States.
[emphasis added].21

Therefore, a threat or use of force by one state against another would not
escape the scope of Article 2(4) of the UN Charter simply because it takes
place in, or is directed at, a disputed territory. As the Eritrea-Ethiopia
Claims Commission and the Guyana/Suriname arbitral tribunal respec-
tively confirmed, the legal status of the territory in question (delimited or
undelimited, demarcated or not clearly demarcated, disputed or not subject
to a dispute) does not affect the characterization of a certain conduct as a
threat or use of force in the sense of Article 2(4) of the UN Charter.22

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172  Constantinos Yiallourides
Last but not least, the Association of Southeast Asian Nations (ASEAN)
issued a Declaration on 22 July 1992 calling for the “resolution of all sov-
ereignty and jurisdictional issues pertaining to the South China Sea by
peaceful means, without resort to force.”23 Furthermore, in the “ASEAN
Declaration on the Conduct of Parties in the South China Sea,” adopted
on 4 November 2002, both ASEAN and China underscored their commit-
ment “to resolve their territorial and jurisdictional disputes by peaceful
means, without resorting to the threat or use of force.”24 Although these
are non-legally binding declarations in the sense that they do not produce
legally enforceable obligations, nonetheless they are important evidence of
the parties’ general opinion and legal perception of the existence of territo-
rial and jurisdictional disputes in the South China Sea and the applicability
of the rules of international law on the use of force to those disputes.
Moreover, the legally binding “Treaty of Amity and Cooperation in
Southeast Asia,” adopted on 24 February 1976 and entered into force on 26
April 2012, provides

The High Contracting Parties shall have the determination and good
faith to prevent disputes from arising. In case disputes on matters di-
rectly affecting them should arise, especially disputes likely to disturb
regional peace and harmony, they shall refrain from the threat or use
of force and shall at all times settle such disputes among themselves
through friendly negotiations.25

It is clear, therefore, that both ASEAN members and China have under-
taken legally binding commitments to refrain from the threat or use of force
in relation to “disputes likely to disturb regional peace and harmony,” in-
cluding ostensibly the South China Sea territorial disputes.26

Military deployment in a disputed territory

as a means of coercion
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 military facilities, equipped with airstrips, electronic
warfare equipment, and long-range anti-ship and anti-air missiles.27 In re-
sponse to the placement of weapons systems on the disputed features, the
Defense Ministers of Australia, Japan, and the United States issued a joint
statement on 3 June 2018, conveying their governments’ “strong opposition
to the use of force or coercion as well as unilateral action to alter the sta-
tus quo, and to the use of disputed features for military purposes in the
South China Sea.”28 Moreover, US 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.29 According
to ­Mattis, “[d]espite China’s claims to the contrary, the placement of these

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 International law, force, and coercion  173
weapons systems is tied directly to military use for the purposes of intimida-
tion and coercion.”30 On 23 February 2019, Taiwan’s President Tsai Ing-wen
went a step further to issue a warning about “China’s aggression and ambi-
tions” towards Taiwan, the region, and worldwide.31 She noted that “[a]ny
country in the region - if it no longer wants to submit to the will of China,
they would face similar military threats.”
The choice of this particular language, particularly the use of word “co-
ercion” in relation to China’s militarization and placement of weapon sys-
tems on the Spratlys is important and may carry far-reaching implications
in international law. “Coercion” 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. As
a matter of law, the essential feature which characterizes the prohibition
of the use of force is the “application of military force as a means of coer-
cion [emphasis added].”32 Coercion 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.33 Identifying
the element of “coercion” becomes particularly relevant in situations where
troop deployment in, and occupation of, a disputed territory is not accom-
panied by the use of non-violent armed force, such as the “swift” takeover
of Goa by India in 1961,34 the annexation of Crimea by Russia in 2014,35 and
the United Arab Emirates’ non-violent military deployment and occupation
of the Yemeni Island of Socotra in 2018.36 This is largely because, even in
situations where no shots are fired and no damage is inflicted to people or
property (often referred to as “bloodless invasions”), the deployment of mil-
itary forces in the disputed territory by one claimant is likely to create a fait
accompli that coerces the other claimants into accepting the new situation
on the ground and, as Mikanagi explains, “makes it materially impossible
for other claimants to restore the status quo ante without risking human
injury or damage to property.”37
As an example, in its 2004 advisory opinion on the Israeli Wall case, the
International Court of Justice (ICJ) found, by 14 votes to 1, that the con-
struction of the wall by Israel “in the Occupied Palestinian Territory, includ-
ing in and around East Jerusalem” was an acquisition of territory through
force, in contravention of Article 2(4) of the UN Charter. In spite of the as-
surance 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.”38 The ICJ found that Israel was under
a duty to cease construction of the wall and dismantle the parts that extend
past the Green Line into the West Bank, including East Jerusalem.39 Whilst
the Israeli Wall advisory opinion has no binding force on the parties,40 it
does nonetheless provide an authoritative and a legally reasoned exposition
which makes it clear that an “occupying state does not acquire sovereignty
over the occupied territory but is, rather, subject in its administration of the

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174  Constantinos Yiallourides
territory to a number of substantial limitations upon its power and author-
ity imposed by international law.”41 According to Sir Arthur Watts, while
Israel and a handful of other states rejected the advisory opinion, “the great
majority of the international community accepted it as a valuable statement
of the legal position.”42
As another relevant example, although in 2015 the ICJ avoided ruling
on whether Nicaragua had used force in sending and deploying troops in
a territory disputed with Costa Rica,43 Judge Robinson provided a sepa-
rate opinion on this question and said, “[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.”44 He also 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).45 In
that particular case, the combination of the “prolonged presence” of Nic-
aragua’s military camps and personnel in the disputed territory, its refusal
to withdraw its troops from the disputed territory, and the “pointing of
weapons” at the Costa Rican aircraft clearly signalled Nicaragua’s “coer-
cive purpose,” namely its “readiness to apply force, whenever Nicaragua
considered it necessary” as a means “to challenge Costa Rica’s sovereign
rights.”46 According to Judge Robinson, Nicaragua’s conduct warranted
a finding of use of force in breach of Article 2(4) of the UN Charter.47
Judge Owada opined, likewise, that “it would have been more appropriate
for the Court to have gone further by declaring that these internationally
wrongful acts by Nicaraguan authorities constituted an unlawful use of
force under Article 2(4) of the United Nations Charter” because the action
of Nicaragua sought to “alter the existing status quo through unilateral
means.”48
Therefore, for these reasons it is possible to argue that despite China’s
assurances that it “will not resort to the use of force” to resolve its territorial
disputes,49 its unilateral land reclamation activities and continuous military
build-up in the disputed territories necessarily create a fait accompli on the
ground and coerce the other claimant parties into accepting the new status
quo. Indeed, by militarizing the disputed islands, China presents its oppo-
nents 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.50 Even after an international tribunal, constituted under ­UNCLOS,
invalidated China’s maritime entitlements in the South China Sea through
an award in 2016, China has continued to steadily and progressively expand
its military assets in the region.51
According to leading political scientist Professor M. Taylor Fravel, Chi-
na’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.”52
This reputational logic fits nicely in the South China Sea context where

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 International law, force, and coercion  175
several states compete over a host of issues, thus, a powerful state like China
might choose to apply force in a territorial dispute with a rival not necessar-
ily to strengthen its position in the territorial dispute but to coerce that rival,
and other rivals, over other issues, such as trade and energy resources. The
territorial dispute becomes, in essence, “a proxy for the broader rivalry.”53
China’s decision to attack and to seize Vietnamese-held hilltops on the
­China-Vietnam border in 1979 and China’s occupation of all of the disputed
Paracels features since the 1974 clash with South Vietnam are ample exam-
ples of China’s coercive purpose especially since Vietnam lacks the means
to challenge China militarily.54

Legal implications
Having outlined the specific contours of the prohibition on the use of force
in the particular context of the South China Sea territorial disputes, it is
important to ascertain 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 military actions in the Spratlys as
a use of force under international law opens up the possibility that forcible
action in self-defence may be taken in response to it. However, self-defence 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” and which would have to be distinguished from
other “less grave forms.”55 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 military actions and activities which lead
cumulatively to a strategic territorial transformation in China’s favour.56
Thus, even if each single military 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 doctrine).57 A com-
mentator notes that very few states have expressly endorsed this doctrine
but in the Oil Platforms case, the ICJ seemed inclined to accept it, hence,
its statement, that “even taken cumulatively” a series of incidents did not
qualify as an armed attack on the United States.58 Thus, there seems to be
a trend towards the recognition of the “accumulation doctrine.”59 Indeed,
an armed attack can be effected, not only when a full-scale, “all-out” type
of armed attack has been initiated on the disputed territory, but also when
smaller units of a claimant state’s military forces take over the territory in
question, and strategically position themselves in key locations and, thus,
gain an important strategic advantage vis-à-vis another claimant state. In
such a case, as Dinstein suggests, it would be fallacious to deny the right of
the victim state to take forcible action in self-defence that complies with the
conditions of necessity and proportionality.60

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176  Constantinos Yiallourides
Second, a breach of the obligation enshrined in Article 2(4) of the UN
Charter gives rise to state responsibility and imposes the duty on the vio-
lator to cease the unlawful behaviour and guarantee non-repetition.61 The
rules concerning the law of state responsibility are codified in the Interna-
tional Law Commission’s (ILC) Articles on State Responsibility (adopted
in 2001)62 and endorsed by consensus by the General Assembly Resolution
56/83 2002).63 According to a commentator, “the 2001 ILC Articles repre-
sent the starting point for a discussion on the application of the law of state
responsibility to territorial disputes.”64 It is instructive that among the ex-
amples of continuing wrongful acts given by the ILC is that of the “unlaw-
ful occupation of part of the territory of another state or stationing armed
forces in another state without its consent.”65
Third, a violation of the prohibition of the use of force might open the door
for third-party countermeasures. There is a wide consensus that the prohibi-
tion on the use of force is an obligation erga omnes (i.e. an obligation under
general international law which a state owes to the “international commu-
nity as a whole”).66 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.67 There are various examples in state practice demonstrating that
states can respond to breaches of obligations erga omnes by resorting to law-
ful 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 in
198168; the sanctions imposed by the European community against Argen-
tina following its armed invasion of the Falkland Islands in 1982, which
was condemned as a “breach of the peace” by the UN ­Security Council69;
and the sanctions imposed by the European Union and the United States
against Russia for annexing Crimea and intervening in Eastern Ukraine in
2014.70 Accordingly, if China’s unilateral deployment of military forces in
the Spratlys qualifies 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. This 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 pre-
pared to take such countermeasures remains to be seen.

Conclusion and recommendations

Territorial disputes are more prone to escalation and armed conflict that
any other type of international dispute; their resolution, or at least contain-
ment, is essential to international peace and security. Under the UN Charter
and customary international law, the resort to force is never an acceptable
means of altering an existing territorial status quo, including in situations

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 International law, force, and coercion  177
of disputed territories. The UN Charter system prohibits the use of force
for territorial expansion on the ground.71 Forcible means cannot be used to
gain control over a disputed territory or to alter in any way the existing fac-
tual situation on the ground in the aggressor state’s favour, pending the full
and final resolution of the territorial dispute. This obligation applies to the
South China Sea territorial disputes. Island reclamation and an advanced
military build-up on disputed territorial features is likely to create a fait
accompli that could well become permanent since it makes it materially im-
possible for other claimants to restore the status quo ante without themselves
engaging in forcible means. Overall, this chapter strengthens the idea that
states involved in territorial disputes must exercise maximum restraint and
refrain from any unilateral military action aimed at changing the character
of the disputed territory through coercion. Preserving the existing territo-
rial status quo also helps to preserve the integrity and effectiveness of the
final resolution of the territorial dispute, whether through judicial or dip-
lomatic means. The duty to exercise restraint has featured prominently in
recent jurisprudence featuring border and cross-border military activities
or the actual use of force between states. State practice also confirms that
parties to a territorial dispute, expressly or impliedly, recognize the require-
ment to exercise restraint in the disputed area pending the final settlement
of the dispute.72

Notes
1 ‘A territorial dispute can be defined as a legal dispute between two or more states
over the acquisition or attribution of territory (continental or island), or to the
creation, location and effect of territorial boundaries’, see Yiallourides, Gehring
and Gauci (2018) 3–4; On the distinction between ‘boundary disputes’, ‘delimi-
tation disputes’, and ‘territorial disputes’ more broadly, see Victor Prescott and
Gillian Triggs, International Frontiers and Boundaries (BRILL 2008) 138–140;
Anthony Oye Chukwurah, The Settlement of Boundary Disputes in International
Law (Manchester University Press 1967) 6; Norman Hill, Claims to Territory
in International Law and Relations (Oxford University Press 1945) 25; Surya
Prakash, Territorial Acquisition, Disputes and International Law (Springer 1997)
21–8; Hugh Thirlway, ‘Territorial Disputes and Their Resolution in the Recent
Jurisprudence of the International Court of Justice’ (2018) 31(1) Leiden Journal
of International Law 117–146.
2 Besson defines sovereignty as the ‘supreme authority within a territory’ pursu-
ant to which states can enjoy ‘the plenitude of internal jurisdiction, their im-
munity from other states’ own jurisdiction and their freedom from other states’
intervention on their territory (Art. 2 (4) and (7) UN Charter), but also their
equal rank to other sovereign states’, Samantha Besson, ‘Sovereignty’ in Max
Planck Encyclopedia of Public International Law (online edition, updated
2011) paras 1–2 http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/
law-9780199231690-e1472?prd=EPIL.
3 ‘[O]ne of the essential elements of sovereignty is that it is to be exercised within
territorial limits, and that, failing proof to the contrary, the territory is co-­
terminous with the Sovereignty’, North Atlantic Coast Fisheries Case (1910) 948;
see also Malcolm Shaw, Title to Territory in Africa (Clarendon Press 1986) 1–11.

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178  Constantinos Yiallourides
4 Island of Palmas Case (or Miangas) (United States v Netherlands) (Award) (1928)
II Reports of International Arbitral Awards 829; Santiago Torres Bernárdez,
‘Territorial Sovereignty’ in Encyclopedia of Public International Law Vol 10
(North Holland 1987) 487–494; Territorial integrity constitutes, according to
the ICJ, ‘an essential foundation of international relations’ and ‘an important
part of the international legal order’, Corfu Channel [1949] para 35; Accordance
with International Law of the Unilateral Declaration of Independence in Respect
of Kosovo (Advisory Opinion) [2010] ICJ Rep 403.
5 Yiallourides, Gehring and Gauci (2018) 3–4.
6 Charter of the United Nations (signed 26 June 1945; entered into force 1 August
1965) (1945) 1 United Nations Treaty Series XVI [hereafter, UN Charter].
7 It is worth mentioning here that Art 279 of UNCLOS provides that ‘States
Parties shall settle any dispute between them concerning the interpretation or
application of this Convention by peaceful means in accordance with Article 2,
paragraph 3, of the Charter of the United Nations [emphasis added]’.
8 Eritrea-Ethiopia Claims Commission, Partial Award, Jus ad Bellum: Ethiopia’s
Claims 1–8 (19 December 2005) para 10.
9 Guyana/Suriname Arbitration (Annex VII Tribunal) (Award) (2007) 47 Interna-
tional Law Reports 166 para 423.
10 Ibid., paras 433, 445.
11 Ibid., para 433.
12 Ibid., paras 433, 445.
13 Ibid., paras 423, 483–484.
14 Security Council Resolution 242 (1967) (22 November 1967) – adopted unani-
mously, https://unispal.un.org/unispal.nsf/0/7D35E1F729DF491C85256EE7006
86136
15 Security Council Resolution 298 (1971) (25 September 1971) – only Syria ab-
stained, https://unispal.un.org/DPA/DPR/unispal.nsf/0/441329A958089EAA852
560C4004EE74D
16 Security Council Resolutions 242 (1967) (22 November 1967) and 298 (1971) (25
September 1971).
17 Security Council Official Records S/PV 2345 (1 April 1982); Security Council
Official Records S/PV 2346 (2 April 1982); Security Council Resolution 502
(3 April 1982) noted that the ‘invasion on 1982 by armed forces of Argentina’
and demanded Argentina to withdraw its forces from the Falklands; Security
Council Resolution 505 (26 May 1982), noting ‘with the deepest concern that
the situation in the region of the Falkland Islands (Islas Malvinas) has seriously
deteriorated’.
18 Security Council Resolutions 752 (15 May 1992) and 757 (30 May 1992), ‘no ter-
ritorial gains or changes brought about by violence are acceptable’.
19 Security Council Resolution 1177 (26 June 1998).
20 Security Council Resolution 1227 (10 February 1999).
21 ‘Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United
Nations’ 2625 (XXV) (24 October 1970).
22 Eritrea-Ethiopia Claims Commission, Partial Award, Jus ad Bellum: Ethiopia’s
Claims 1–8 (19 December 2005) para 10; Guyana v Suriname (2007) para 423.
23 ASEAN Declaration on the South China Sea (adopted 22 July 1992) https://
cil.nus.edu.sg/wp-content/uploads/formidable/18/1992-ASEAN-Declaration-
on-the-South-China-Sea.pdf; for a discussion, see R C Severino, ‘ASEAN and
the South China Sea’ (2010) 6(2) Security Challenges 37–47.
24 ASEAN Declaration on the Conduct of Parties in the South China Sea (adopted
4 November 2002) https://asean.org/?static_post=declaration-on-the-conduct-
of-parties-in-the-south-china-sea-2.

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 International law, force, and coercion  179
25 Art 13, Treaty of Amity and Cooperation in Southeast Asia (signed 24 Febru-
ary 1976; entered into force 26 April 2012) http://ec.europa.eu/world/agreements/
prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&redirect=
true&treatyId=9261. At the time of writing this paper, contracting parties to the
Treaty of Amity are the following: the European Union, Australia, Bangladesh,
Brunei, Cambodia, China, Democratic People’s Republic of Korea, East Ti-
mor, France, India, Indonesia, Japan, Laos, Malaysia, Mongolia, New Z ­ ealand,
­Pakistan, Papua New Guinea, the Philippines, Republic of Korea, Russia, Sin-
gapore, Sri Lanka, Thailand, Turkey, the United States, and Vietnam.
26 Tomohiro Mikanagi, ‘Establishing a Military Presence in a Disputed Territory:
Interpretation of Article 2(3) and (4) of the UN Charter’ 67(4) (2018) Interna-
tional and Comparative Law Quarterly 1021–1034.
27 Oliver Holmes, ‘South China Sea Images Reveal Impact on Coral of Beijing’s
Military Bases’ (The Guardian 2018) www.theguardian.com/world/ng-interactive/
2015/sep/17/south-china-sea-images-reveal-impact-on-coral-of-beijings-
military-­b ases; Daniel Bishton, ‘Spratly Islands Military Bases Revealed
(Spatial Source 2018) www.spatialsource.com.au/gis-data/satellite-images-reveal-­
completed-military-bases-spratly-islands; Ankit Panda, ‘South China Sea:
China Deploys Jamming Equipment’ (The Diplomat 2018) https://thediplomat.
com/2018/04/south-china-sea-china-deploys-jamming-equipment/; Steven Stash-
wick, ‘China Deploys Long-Range Anti-Ship and Anti-Air Missiles to Spratly
Islands For First Time: Missiles Are Unambiguous ‘Militarization’ of Disputed
Islands’ (The Diplomat 2018) https://thediplomat.com/2018/05/china-deploys-
long-range-anti-ship-and-anti-air-missiles-to-spratly-islands-for-first-time/;
Hannah Beech, ‘China’s Sea Control Is a Done Deal, ‘Short of War with
the U.S.’ (The New York Times 2018) www.nytimes.com/2018/09/20/world/
asia/south-china-sea-navy.html?smprod=nytcore-ipad&smid=nytcore-ipad-
share.
28 Joint Statement—Australia–Japan–United States Defence Ministers Meeting
(3 June 2018) www.minister.defence.gov.au/minister/marise-payne/statements/
joint-statement-australia-japan-united-states-defence-ministers.
29 The Telegraph, ‘US Defense Secretary Mattis accuses China of “intimidation and
coercion” in South China Sea’ (12 June 2018) www.telegraph.co.uk/news/2018/
06/02/us-defense-secretary-mattis-accuses-china-intimidation-coercion/.
30 Ibid.
31 Matt Rivers, Steven Jiang and Ben Westcott, ‘Facing an Aggressive Beijing,
­Taiwan’s President Issues a Warning to the World’ (CCN, 21 February 2019).
32 O Dörr, ‘Use of Force, Prohibition of’, in Rüdiger Wolfrum (ed), The Max
Planck Encyclopedia of Public International Law (Oxford University Press 2012)
607; see also C Tomuschat ‘Purposes and Principles, Article 2 (3)’ in B Simma
and others (eds), The Charter of the United Nations: A Commentary, Volume I
(3rd edn, Oxford University Press 2012) para 19.
33 Olivier Corten, The Law Against War: The Prohibition on the Use of Force in
Contemporary International Law (Bloomsbury Publishing 2010) 76–77.
34 Keesing’s Record of World Events (formerly Keesing’s Contemporary Archives),
Volume 8, 1962: 18623.
35 Jeffrey Mankoff, ‘Russia’s Latest Land Grab’ (Foreign Affairs, 2014) www.foreign
affairs.com/articles/russian-federation/2014-04-17/russias-latest-land-grab; for
a legal analysis, see Mary Ellen O’Connell, ‘The Crisis in Ukraine 2014-’ in Oliv-
ier Corten and Tom Ruys (eds) International Law and the Use of Force: A Case-
Based Approach (Oxford University Press 2018).
36 Al-Jazeera News, ‘UAE Forces Occupy Sea and Airports on Yemen’s Socotra’
(5 May 2018) www.aljazeera.com/news/2018/05/uae-forces-occupy-sea-airports-
yemen-socotra-180504181423573.html.

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 180  Constantinos Yiallourides
37 On the definition and meaning of ‘coercion’ in the context of territorial disputes,
see Mikanagi (2018) 1–13.
38 Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (Advisory Opinion) [2004] ICJ Rep 136 paras 87, 121.
39 Ibid., paras 149–151; for a commentary, see Geoffrey R Watson, ‘The “Wall”
Decisions in Legal and Political Context’ (2005) 99 American Journal of Interna-
tional Law 6–26.
40 Hugh Thirlway, ‘Advisory Opinions’ in in Max Planck Encyclopedia of Pub-
lic International Law (online edition, updated 2006) http://opil.ouplaw.com/
abstract/10.1093/law:epil/9780199231690/law-9780199231690-e4?rskey=lXEuxp
41 Sir Arthur Watts, ‘Israeli Wall Advisory Opinion (Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory)’ in in Max
Planck Encyclopedia of Public International Law (online edition, updated
2007) para 44 http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-
9780199231690-e150?rskey=bEdPo4&result=32&prd=OPIL
42 Ibid., para 43.
43 For a brief factual background, see Thomas Escritt, ‘Nicaragua Must Com-
pensate Costa Rica for Territory Violations’ (Reuters 2015) www.reuters.com/
article/us-costa-rica-nicaragua-court-idUSKBN0TZ2D420151216.
44 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v
Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nic-
aragua v Costa Rica) (Judgment) (Sep Op Judge Robinson), paras 43, 58–59.
45 Ibid.
46 Ibid., para 62.
47 Judge Robinson criticized the Court for not making an express and discrete find-
ing on the claim that the prohibition of the use of force had been breached as
a result of Nicaragua’s ‘army encampment’ and presence of military personnel
within the disputed territory, ibid para 63.
48 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v
Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nic-
aragua v Costa Rica) (Judgment) (Sep Op Judge Owada) paras 10–12.
49 BBC News Asia Pacific, ‘China “Will Not Use Force” in South China Sea Dis-
putes’ (14 June 2011) www.bbc.co.uk/news/world-asia-pacific-13759253; see also
Andrew Chubb, ‘The South China Sea: Defining the “Status Quo”’ (The Dip-
lomat 2015) https://thediplomat.com/2015/06/the-south-china-sea-defining-the-
status-quo/.
50 Brahma Chellaney, ‘Camouflaging Stealth Aggression as Defence’ (The Na-
tional 2018) www.thenational.ae/opinion/comment/by-camouflaging-stealth-­
aggression-as-defence-china-offers-a-hobson-s-choice-of-suffering-territorial-
loss-or-facing-a-costly-war-1.742608.
51 The South China Sea Arbitration (Philippines v China) (Merits) (Award of 12 July
2016); because of China’s declaration under Article 298 of UNCLOS, the South
China Sea Arbitral Tribunal had no jurisdiction to deal with military-related
activities and so the Philippines refrained from raising the issue of the use of
force in the proceedings.
52 M. Taylor Fravel, ‘Power Shifts and Escalation: Explaining China’s Use of
Force in Territorial Disputes’ (2008) 32(3) International Security 44, 79–81.
53 Ibid.
54 Ibid.
55 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United
States of America) (Judgment) [1986] ICJ Rep 14 para 228; see also Armed Activi-
ties on the Territory of the Congo (Congo v Uganda) (Judgment) [2005] ICJ Rep 168
para 191; for a commentary, see Karl Zemanek, ‘Armed Attack’ in Max Planck
Encyclopedia of Public International Law (online edition, updated 2013) http://
opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e241.

This a pre-print of Chapter 11 by Dr Constantinos Yiallourides, ‘International law, Force and Coercion in
the South China Sea’ in L Buszynski and D T Hai (eds) The South China Sea: From a Regional Maritime
Dispute to Geo-Strategic Competition (Routledge Security in Asia Pacific Series 2019) pp.169-182

Electronic copy available at: https://ssrn.com/abstract=3523158

 International law, force, and coercion  181
56 According to Professor Alexander Vuving, ‘China’s militarization of the South
China Sea has been a gradual process, with several phases where alternative
actions by the US, as well as other countries, could have changed the course of
history’. Chief among these moments was ‘China’s takeover of Scarborough Shoal’,
see Hannah Beech, ‘China’s Sea Control Is a Done Deal, ‘Short of War with
the U.S.’ (The New York Times 2018) www.nytimes.com/2018/09/20/world/asia/
south-china-sea-navy.html?smprod=nytcore-ipad&smid=nytcore-ipad-share.
57 For a discussion, see Tarcisio Gazzini, The Changing Rules on the Use of Force
in International Law (Manchester University Press 2006) 144.
58 Christian J. Tams, ‘The Use of Force against Terrorists’ (2009) 20(2) European
Journal of International Law 359, 388; Case Concerning Oil Platforms (Islamic
Republic of Iran v United States of America) (Judgment) (Sep Op Simma) [2003]
ICJ Rep 161 paras 13–14.
59 Tams, ibid.
60 Yoram Dinstein, War, Aggression and Self-Defence (3rd edn, Cambridge Univer-
sity Press 2001) 174–175.
61 James R Crawford, ‘State Responsibility’ in Max Planck Encyclopedia of Pub-
lic International Law (online edition, updated 2006) http://opil.ouplaw.com/
view/10.1093/law:epil/9780199231690/law-9780199231690-e1093?rskey=aF3dkS&
result=1&prd=OPIL
62 James R Crawford, The International Law Commission’s Articles on State Re-
sponsibility: Introduction, Text and Commentaries (Cambridge University Press
2002) 96–197.
63 General Assembly Resolution 56/83 (28 January 2002) www.un.org/ga/search/
view_doc.asp?symbol=A/RES/56/83
64 Enrico Milano, ‘Territorial Disputes, Wrongful Occupations and State Respon-
sibility: Should the International Court of Justice Go the Extra Mile’ (2004) 3
Law and Practice of International Courts and Tribunals 509, 512.
65 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries (2001) 2(2) Yearbook of the International Law Commission 31, 60.
66 Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (Second Phase)
[1970] ICJ Rep 3; Jochen A Frowein, ‘Obligations Erga Omnes’ in Max Planck
Encyclopedia of Public International Law (online edition) paras 11–13 http://
opil.ouplaw.com/abstract/10.1093/law:epil/9780199231690/law-9780199231690-
e1400?prd=EPIL, citing Art 54, United Nations International Law Committee
‘Draft Articles on Responsibility of States for Internationally Wrongful Acts,
with Commentaries’ (2001) GAOR 56th Session Supp 10, 43; and Art 5, Institut
de Droit International ‘Resolution on Obligations Erga Omnes in International
Law’ (2005) 71(2) Annuaire de l’Institut de Droit International 286.
67 see Christian J Tams, Enforcing Obligations Erga Omnes in International Law
(Cambridge Studies in International and Comparative Law 2005).
68 Lee Lescaze, ‘Reagan Takes Economic Action Against Poland’ (The Washington
Post 1981) www.washingtonpost.com/archive/politics/1981/12/24/reagan-takes-
economic-action-against-poland/77d14879-cc44-4682-bc3f-5717c70bc845/?nore
direct=on&utm_term=.c4e999831e5e.
69 Raymond Walter Apple Jr., ‘Europeans Ending Argentine Imports in Falk-
land Crisis’ (The New York Times 1982) www.nytimes.com/1982/04/11/world/­
europeans-ending-argentine-imports-in-falkland-crisis.html.
70 BBC News, ‘Ukraine Crisis: Russia and Sanctions’ (19 December 2014) www.
bbc.co.uk/news/world-europe-26672800.
71 Myres S. McDougal and Florentino P. Feliciano, Law and Minimum World Pub-
lic Order: The Legal Regulation of International Coercion (Yale University Press
1961) 14–18.
72 On the obligation to exercise restraint in relation to territorial disputes, see
­Yiallourides, Gehring and Gauci (2018) 101–128.

Electronic copy available at: https://ssrn.com/abstract=3523158