Introduction
Western states have frequently employed the “economic instrument”—“the granting or withholding of [economic] indulgences or deprivations” in order to “induce another actor or a group of actors to change a policy”—and they have long resisted calls for its international regulation. Yet the United States and the EU, and states aligned with them, responding to China’s recent application of its economic leverage, have increasingly questioned economic coercion’s use. In May 2023, at the G7 Summit in Hiroshima, the leaders noted the “disturbing rise in incidents of economic coercion that seek to exploit economic vulnerabilities and dependencies;” “express[ed] serious concern” regarding such coercion; and “call[ed] on all countries to refrain from its use.” Shortly thereafter, the EU-US Trade and Technology Council expressed the “concern” of the EU and the United States “with the continued use of economic coercion.” In early June, the governments of Australia, Canada, Japan, New Zealand, the UK, and the United States endorsed a Joint Declaration Against Trade-Related Economic Coercion and Non-Market Policies and Practices that “express[ed] . . . shared concern [regarding economic coercion] and affirm[ed] [a] commitment to enhance international cooperation in order to effectively deter and address” it. A couple of weeks later, the European Commission and the EU High Representative for Foreign Affairs identified “weaponisation of economic dependencies or economic coercion” as one of four “categories of risks to economic security” in the European Economic Security Strategy. In December 2023, an EU regulation on “the protection of the Union and its Member States from economic coercion by third countries”—known as the “Anti-Coercion Instrument” (ACI)—entered into force.
Though the United States and other states have for years expressed concern about Chinese economic coercion, these recent statements, remarkable for those who made them, were all carefully worded to omit direct accusations against China (indeed, China went unnamed), to avoid assertions of legality and illegality, to implicitly delineate Chinese actions (improper) from those of the United States (permissible), and to obscure differences between the EU’s broader understanding of economic coercion (which may in fact implicate U.S. actions as much as China’s) and the United States’s narrower construction. China itself denies the (indirect) accusations leveled against it, and asserts that it is instead U.S. actions that constitute “economic coercion and bullying.”
In light of this recent U.S. and EU practice asserting new claims concerning economic coercion, and the charges of hypocrisy leveled by China against the United States and its allies, this Essay will revisit a topic about which Michael Reisman has given considerable thought. It will seek to identify the content and bounds of these new claims, as well as related ones that appear in recent resolutions of the Security Council and Human Rights Council, and assess and evaluate their contributions. This recent practice reflects different views of the proper role and use of power in international relations, which in the context of economic coercion is manifested in two distinct approaches: regulatory and abolitionist.
I. U.S., EU, and Chinese Understandings of “Economic Coercion”
China has leveraged its economic power in various ways to express displeasure with, and alter the policies of, other states. China restricted the export of rare-earth metals to Japan in a dispute over the East China Sea, and it restricted imports of Philippine bananas over a disputed shoal in the South China Sea. China targeted South Korean retailer Lotte Group when the company leased one of its golf courses for the site of an American anti-ballistic missile defense system. It issued tariffs on Australian barley, coal, and wine in response to the Australian prime minister’s call for an investigation into COVID’s origins. China blocked Lithuanian imports when Taiwan was permitted to open a representative office in Vilnius as “Taiwan” instead of “Taipei.” China stopped buying Canadian canola oil after authorities arrested a Huawei Technologies executive. It took actions last year against American companies—conducting a cybersecurity review of Micron; questioning Bain’s staff in Shanghai; and raiding the Beijing offices of the due-diligence firm Mintz Group and detaining its staff members—in apparent response to U.S. restrictions on high-tech exports to China.
Though expressing serious concern with “economic coercion,” the G7 Leaders’ Statement on “Economic Resilience and Economic Security” did not define the term. It instead described economic coercion’s consequences, stating that it “undermines the functioning of and trust in the multilateral trading system” and “infringes upon the international order centered on respect for sovereignty and the rule of law, and ultimately undermines global security and stability.” The statement then focused on measures to fight economic coercion. Domestically, the statement declared, G7 members “will use [their] existing tools, review their effectiveness and develop new ones as needed to deter and counter the use of coercive economic measures.” Together, the leaders promised, their countries will launch the Coordination Platform on Economic Coercion “to increase [their] collective assessment, preparedness, deterrence and response.” This new mechanism, they explained, “will [allow the G7 to] use early warning and rapid information sharing, regularly consult each other, collaboratively assess situations, explore coordinated responses, deter and, where appropriate, counter economic coercion, in accordance with our respective legal systems.” In addition, the G7 members indicated that they will “support targeted states, economies and entities as a demonstration of solidarity and resolve to uphold the rule of law.”
The absence of a definition of “economic coercion” from the G7 Leaders’ Statement is explicable in light of positions taken in the EU-US Joint Statement and the six-party Joint Declaration that followed. Those texts revealed a divide between the G7’s EU members and non-EU members. The Joint Declaration—signed by the G7’s four non-EU members and Australia and New Zealand—defined economic coercion narrowly as a combination of two elements: improper means (focusing on rule of law criteria) and improper goals (interfering with a government’s decision-making authority). Thus, the Declaration’s signatories stated that they “oppose[d] . . . trade-related economic coercion that uses, or uses the threat of, measures affecting trade and investment in an abusive, arbitrary, or pretextual manner to pressure, induce or influence a foreign government into taking, or not taking, a decision or action in order to achieve a strategic political or policy objective, or prevent or interfere with the foreign government’s exercise of its legitimate sovereign rights or choices.” (emphasis added). Trade-related coercion, the declaration explained, focusing on improper means, “is frequently disguised as a legitimate government regulatory or public policy measure unrelated to the strategic objective that it is intended to advance” and can “occur indirectly through government entrustment or direction given to state-owned, state-controlled, or private enterprises.” The Declaration contrasted such improper means with government acts that, “in light of relevant international rules and norms[,] . . . are adopted and maintained in a transparent manner, in good faith, and for the purpose of a legitimate public policy objective.” These appropriate measures, impliedly referring to U.S. economic actions, include “health and safety regulations, environmental regulations, trade remedies, national security measures and sanctions, and measures to protect the integrity and stability of financial systems and financial institutions from abuse.” Accordingly, a U.S. Trade Representative official reportedly rejected any comparison between China’s measures and those undertaken by the United States. “US sanctions,” the official said, “occurred in accordance with US laws and procedures, and in light of relevant rules and norms.”
In contrast to the Joint Declaration, the EU-US Joint Statement’s definition focused almost entirely on economic coercion’s improper goals and not on its improper means. According to the Statement, economic coercion “attempts to undermine other governments’ legitimate policy decisions through the use, or threat of use, of targeting of foreign firms and individuals to prevent or interfere with the foreign government’s exercise of its legitimate sovereign right or choices, such as through opaque regulatory and cybersecurity reviews.” This focus on goals instead of means follows the approach to economic coercion taken by the EU’s ACI. That document defines economic coercion broadly as “where a third country interferes in the legitimate sovereign choices of the Union or a Member State by seeking to prevent or obtain the cessation, modification or adoption of a particular act by the Union or a Member State by applying or threatening to apply measures affecting trade or investment.” The United States, it seems, was willing to accede to (though not adopt) the EU’s position on economic coercion within the particular framework of the EU-US Trade and Technology Council statement but not in the G7 Leaders’ Statement. As a state that employs economic measures, the United States maintains a narrow definition of economic coercion that permits its actions, whereas the EU, more often the victim of coercion, takes a broader view.
Focusing on their common opponent (China), instead of differences in their approaches, the signatories to the Joint Statement and the Joint Declaration agreed on the importance of taking measures to counter economic coercion. The Joint Declaration’s parties committed to “identify, prevent, deter, and address trade-related economic coercion and non-market policies and practices, including through multilateral institutions, such as the WTO” and to share “information, data and analysis concerning these policies and practices as well as exploring the development of new diplomatic and economic tools that support and reinforce the rules-based multilateral trading system in responding to these challenges.” The Joint Statement’s signatories undertook to use the “G7 Coordination Platform on Economic Coercion, and to strengthen coordination with each other and other likeminded partners to improve our preparedness, resilience, deterrence, assessment and responses to economic coercion.” “For that purpose,” the statement continued, “we intend to make full use of our respective tools to counter economic coercion. We will coordinate, as appropriate, to support targeted states, economies and entities as a demonstration of solidarity and resolve to uphold the rule of law.”
China has accused the United States and its co-signers of hypocrisy, alleging that the United States itself actively engages in economic coercion (or what China calls “coercive diplomacy”). Following the G7 summit, a Chinese Foreign Ministry spokesperson commented: “As for ‘economic coercion,’ the massive unilateral sanctions and acts of ‘decoupling’ and disrupting industrial and supply chains make the U.S. the real coercer that politicizes and weaponizes economic and trade relations. We urge the G7 not to become an accomplice in economic coercion.” Responding to the Joint Declaration, Wang Wenbin, then-deputy director of information at the Foreign Ministry, said: “The statement is made by the US together with its Five Eyes allies and Japan, but every sentence in it reads like a description of the US itself.” “As the US attempts to project its deplorable image onto others,” he continued, “the world gets a chance to see clearly what the US really is—a country that tramples on market economy principles and international trade rules.” “We suggest,” he concluded, “the UK and the other countries use this statement as a checklist and call on the US to correct its economic coercion, unilateral sanctions, long-arm jurisdiction, and other non-market practices.” “When national sovereignty and dignity [are] under coercion or violation,” then-Foreign Ministry Spokesperson Zhao Lijian said in response to statements made regarding Chinese economic coercion by Secretary of State Antony Blinken, “China responds with reasonable and lawful countermeasures to defend its legitimate rights and interests and uphold international equity and justice.” He continued: “China never threatens other countries with force. We never form military coalition or export ideology. We never make provocations at others’ doorstep or reach our hands into others’ homes. We never wage trade wars or groundlessly hobble foreign companies. And we never bully, sanction or carry out long-arm jurisdiction.” For China, sovereignty protective actions—the ones it takes—constitute legitimate exercises of power; sovereignty infringing actions—those taken by the United States—breach international norms.
Legislation, pending and recently enacted, in the United States and the EU, reflect the different understandings of each to economic coercion. The EU’s ACI focuses on the improper goal of interference in member state or EU decision-making. The ACI is intended to deter coercion, but it allows for the adoption of retaliatory measures, including the imposition of customs duties; restrictions on the import and export of goods and services, intellectual property rights, and foreign direct investment; and limits on participation in public procurement. In Congress, matching bipartisan bills introduced in the House and the Senate—the Countering Economic Coercion Act of 2023—focus on both means and goals, defining economic coercion as “actions, practices, or threats undertaken by a foreign adversary to unreasonably restrain, obstruct, or manipulate trade, foreign aid, investment, or commerce in an arbitrary, capricious, or non-transparent manner with the intention to cause economic harm to achieve strategic political objectives or influence sovereign political actions.” The bills would “provide the president with specific tools to offer rapid economic support to foreign partners targeted by economic coercion and to punish perpetrators of economic coercion.” “Countries like China and Russia are increasingly abusing their economic power to bully smaller countries and punish sovereign political decisions,” said Senator Chris Coons. “This economic coercion,” he continued, “hurts these nations, threatens U.S. economic security, and undermines the democratic, rules-based international system that has underpinned decades of global growth.” The House version of the bill was voted out of the Foreign Affairs Committee in December 2023, though no further action on that or the Senate bill has since been taken.
II. The Regulatory and Abolitionist Modes
Economic coercion involves the leveraging of economic power by a state against another state, non-state actors, or individuals to advance a particular policy. The economic act may or may not stem from the collective decision of an international organization; it may or may not be applied unilaterally or multilaterally. Necessarily, though, because economic coercion is founded on relative power, some states are better situated to make use of the technique, and hence some states are more able to induce others to accede to their policy preferences, either through the threat of coercion or by its actual application. Objections to economic coercion derive, in part, from its basis in unequal power relations, including how those power relations were established and built over time. But calls for its regulation also relate to the harm caused by economic coercion to individuals and groups as well as (at least in regard to trade sanctions) its ineffectiveness. Like warfare, to which it is often analogized, critiques of economic coercion are typically abolitionist or regulatory.
The regulatory mode seeks to reduce the humanitarian harm caused by economic coercion to acceptable levels. Reisman, for example, proposes to assess the uses of the “economic instrument” through the criteria of the law of armed conflict. In a 2009 article, for example, he argued that, “in the twenty-first century, all intense uses of coercion should be subjected mutatis mutandis, for purposes of the evaluation of their prospective lawfulness, to the same [military necessity, proportionality, and differentiation] tests which until now have been confined to appraisal of military action.” “The reason,” he continued, “is that the economic instrument can be very destructive and can be applied in ways that do not differentiate between those who are responsible, who make decisions, and those who are not.” Depending on the facts of particular cases, Reisman wrote, the “application of [these rules] may lead either to a refashioning of the planned economic measures or a decision not to apply it at all.” The economic instrument must be tempered, he concluded, to ensure “the preservation and enhancement of human dignity.” Others have also advocated a human rights approach to establish limits on economic coercion.
The Security Council adopted the regulatory approach when it established a humanitarian carveout for its asset freezes in Resolution 2664 in 2022. The resolution permitted “the provision, processing or payment of funds, other financial assets, or economic resources, or the provision of goods and services necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs by” a broad range of UN-affiliated agencies and organizations and their employees and partners. While seeking to mitigate “second order” humanitarian consequences of is sanctions, the Council still emphasized that “sanctions are an important tool under the Charter of the United Nations in the maintenance and restoration of international peace and security.”
The abolitionist mode, in contrast, rejects economic coercion, particularly when applied through unilateral acts. Thus, the Human Rights Council, in a broad resolution adopted in April 2023 introduced on behalf of the Movement of Non-Aligned Countries, “[u]rge[d] all States to stop adopting, maintaining, implementing or complying with unilateral coercive measures not in accordance with international law, international humanitarian law, the Charter of the United Nations and the norms and principles governing peaceful relations among States, in particular those of a coercive nature with extraterritorial effects.” Further, the Council “[s]trongly condemn[ed] the continued unilateral application and enforcement by certain powers of such measures as tools of pressure, including political and economic pressure, against any country, particularly against least developed and developing countries, with a view to preventing these countries from exercising their right to decide, of their own free will, their own political, economic and social systems.”
The abolitionist and regulatory modes approach the role of power in international relations differently. The regulatory mode assumes that power is an inherent part of international relations and that one of the ways in which power is invoked by states is through the economic instrument. Given that states will use their economic leverage, the goal is to ensure that the instrument’s uses are consonant with international policies regarding the protection of human dignity. Some versions of the regulatory approach go beyond a realist acceptance of economic power’s existence and inevitability and argue that the application of such power, under certain circumstances, can be affirmatively beneficial and thus regulation can be used to legitimatize that power. The United States’s and the EU’s recent interventions—though mutually distinct—both operate within the regulatory mode as they both seek to set out proper from improper uses of economic power.
The abolitionist mode, instead, categorically rejects economic power as a legitimate technique of international relations. Economic power is inherently illegitimate—its historical sources are tainted, its effects are unequally felt, its consequences are inescapably violent, and its undermining of national self-determination prioritizes the policies of powerful countries, thus discounting certain perspectives and voices (particularly those of the Global South) and perpetuating hierarchy and inequality in international relations. In this view, the regulatory mode, which is reformist in nature, acts as cover for the harms—current and historical—caused by economic coercion, which cannot be remedied or redeemed. China and many formerly colonized countries operate within the abolitionist mode, and that mode’s perspective was well-elaborated in a recent symposium published by this Journal.
Conclusion
The abolitionist mode is sovereignty reinforcing, and its long pedigree is non-interventionist and anti-imperialist. This sovereigntist conception of international law limits the means of achieving community goals even through collective means because it largely disdains the role of power in the attainment of those goals. To the extent power is accepted outside of collective decision-making, it is for the limited purpose of protecting national sovereignty from perceived interventionist measures and not for its generative possibilities. Under this theory, China’s actions that the United States describes as economic coercion are in fact justified since their claimed purpose is sovereignty protective.
In contrast, the regulatory mode accepts, sanguinely or grudgingly, a broader role for power in international law, one that can exist beyond the processes of collective decision. Nonetheless, as it has developed in recent years, this mode has begun to acknowledge the harms of coercion and gradually has sought to limit, though not prohibit, the uses of power that underlie it.
The two approaches to economic coercion are therefore two different ways of conceptualizing the roles of states, their powers, and their relations within the international system. Similar to other areas of international law, the two approaches represent an ongoing and unresolved “conflict between contending normative orders.”
* Jacob Katz Cogen is the Judge Joseph P. Kinneary Professor of Law, University of Cincinnati College of Law. This Essay was presented at the Yale Journal of International Law’s 50th Anniversary Conference: Celebrating the Work of W. Michael Reisman. Parts were previously published by the author in the Contemporary Practice section of the American Journal of International Law.