Coercive tactics: China, Turkey and International Law

The first incident concerns the unauthorized conduct of seismic exploration surveys by the Chinese Haiyang Dizhi 8 in the Vanguard Bank, an area well within Vietnam’s EEZ and far outside any potential Chinese maritime claims. China’s seismic survey vessel was accompanied by at least four China Coast Guard vessels, including a 12,000-tonne Haijing 3901 and a large number of anti-aircraft vessels, according to reports. The second incident concerns the conduct of drilling operations by Turkey in a maritime area well within Cyprus’ Exclusive Economic Zone (EEZ). Turkey’s drilling vessel was escorted by the Turkish Naval Forces Command, both on the surface and underwater.

The choice of this particular language, particularly the use of the word ‘coercive’ to describe the actions in question is important and may carry far-reaching implications in international law. Coercion through the application of military means is amongst the key criteria by which the actions of a state can be deemed to be in violation of the universally established non-use of force principle, as embodied in Article 2(4) of the United Nations (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…” The obligation in Article 2(4) supplements Article 2(3) of the UN Charter requires states to settle their disputes through peaceful means. The same obligation is also corollary to the principle of non-intervention which, as defined by the International Court of Justice (ICJ) in Nicaragua v United States, “involves the right of every sovereign State to conduct its affairs without outside interference.” Under this principle, a state is prohibited from interfering, either directly or indirectly, in the internal or external affairs of another state, whether through military, subversive, economic, or even diplomatic means. The ICJ noted in the same case that an intervention which uses military means would be wrongful in light of both principles of non-use of force and non-intervention. Thus, while coercion through military means (e.g. deployment of military forces in the territory of another state and threats of use of force against that state to refrain from pursuing its energy policy agenda; see report here and briefing by Prof Thayer here) would engage both the prohibition on the use of force and the principle of non-intervention; non-forcible coercive conduct (e.g. mere economic coercion) only runs counter to the latter. 

This position, and particularly the focus on coercion through military deployment, appears to be evident in the Costa Rica v Nicaragua case. Costa Rica asked the ICJ to find that by deploying military forces in the disputed territory Nicaragua breached the prohibition of the threat or use of force under Article 2(4) of the UN Charter. The ICJ said: “The fact that Nicaragua considered that its activities were taking place on its own territory does not exclude the possibility of characterizing them as an unlawful use of force.” Although the ICJ avoided an explicit ruling on whether Nicaragua had actually breached Article 2(4), in his separate opinion, Judge Robinson considered that “non-violent use of force” is not exempted from the prohibition according to the ICJ’s jurisprudence: “no 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”. In this 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 signalled 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 Judge Robinson, Nicaragua’s conduct warranted a finding of use of force in breach of Article 2(4) of the UN Charter.

Under international law, Vietnam and Cyprus exercise exclusive sovereign rights over the natural resources located within their EEZ and continental shelf. By virtue of these sovereign rights, they can authorize and regulate the conduct of geophysical surveys as well as construct, operate and use installations and any other structures necessary for the exploration and exploitation of their natural resources in order to determine whether there is sufficient quantity of hydrocarbons or other mineral resources in place and, based on these findings, design their national energy policy agenda, free from any foreign interference. By resorting to means of military nature, China and Turkey have steadily sought in each of these cases, to prevent their opponents from pursuing their legitimate energy policy agendas. Displaying a closely-mirrored modus operandi, Beijing and Ankara have taken considerable steps to place the maritime areas in question under their control and enforce their legal positions by: a) projecting excessive maritime claims based on arbitrary legal grounds; b) steadily militarizing the maritime areas in question; c) restricting other states’ freedoms, particularly those of their neighbours and d) creating a fait accompli which is very difficult to undo given that neither Vietnam nor Cyprus are able to militarily challenge their opponents in each case.

Collective action is possible and necessary

The consequence of determining that the constant acts of coercion through military deployment by China and Turkey in the waters of other states violate Article 2(4) of the UN Charter, which is that it would be a breach of an erga omnes norm (i.e. one owed to the international community as a whole) is that third states may invoke China’s and Turkey’s international responsibility. More importantly, such a violation would then permit third-party countermeasures as a matter of customary international law. This would mean that third states, other than the injured states, can seek to bring the breach to an end and are entitled to take non-forcible countermeasures against the transgressors, just as if they were directly injured by that violation. There are various examples of states responding to violations of obligations erga omnes by resorting to non-forcible 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 deploying its troops along the Polish border in 1981; the sanctions imposed by the European Community against Argentina following its forcible take-over of the Falkland Islands in 1982, 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 in 2014. While these sanctions were in response to acts of aggression, the prohibition of which has been recognized as jus cogens, it could be argued that the prohibition of the use of force is itself an erga omnes norm even if that prohibition standing on its own, as distinct from the prohibition of aggression, is not a jus cogens norm. Crucially - and perhaps more pertinently to the incidents reviewed in the present paper - after several warnings to Turkey to cease its provocative actions, the European Union has decided to impose a series of targeted, yet limited, sanctions on Turkey for unlawfully sending its military and commencing drilling operations within Cyprus’ EEZ, though it made no explicit reference to the UN Charter.

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 Visiting Scholar in International Law at the University of Tokyo, Japan. He is the principal author of the research report, “The Use of Force in relation to Sovereignty Disputes over Land Territory” (BIICL 2018) and the monograph, “Maritime Disputes and International Law: Disputed Waters and Seabed Resources in Asia and Europe” (Routledge 2019).

Opinions in the article are the author’s own.

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