Wed, Nov 22, 2023 page8

• China lacks legal basis to attack

  • By Samuel Ng
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  Amid growing US-China geopolitical competition, the question of whether the People’s Republic of China (PRC) can legally use force against Taiwan is increasingly relevant. Taiwan’s status in international law remains uncertain, contributing to a legal gray area exacerbated by Beijing’s growing military intimidation.

  The state-centric nature of international law creates a perplexing situation for Taiwan. As a nation with limited recognition, yet possessing tenets of a de facto independent country, how does international law apply to a potential PRC invasion?

  Central to this dilemma is Article 2(4) of the UN Charter, a cornerstone of international law prohibiting the use of force. It directs that “all members shall refrain from the threat or use of force against the territorial integrity and political independence of any state, or in any manner inconsistent with the purposes of the United Nations.”

  The article can be broken down into key elements. First, “all members” unmistakably includes the PRC, which joined the UN in 1972 after replacing the Republic of China as China’s representation. The terms “territorial integrity and political independence” have been interpreted by legal academics to encompass Taiwan, considering its de facto independence and separation from China.

  Applying Article 2(4) becomes convoluted when considering “any other manner inconsistent with the purposes of the United Nations.” Article 1(1) lays out the “maintenance of international peace and security” as a paramount purpose, with an underlying obligation on UN members not to “breach the peace.”

  In interpreting the UN Charter, the International Court of Justice and legal academics have adopted a broader reading. This approach enables the charter to retain necessary fluidity to adapt to emerging challenges in international peace and security, especially those that extend beyond strictly international contexts, such as potential forcible action against Taiwan by the PRC.

  The UN Security Council has also broadly interpreted “threats” to “international peace and security” to encompass non-international armed conflicts, particularly important to the PRC-Taiwan situation. Examples include the Korean War where both Koreas were unrecognized states, and the conflicts in Rwanda, Bosnia and Herzegovina, Somalia and Libya — all of which were internal. These were identified by the council as “threats to international peace and security.”

  The Security Council says that the obligation not to “breach the peace” extends into non-international scenarios. Taiwan has experienced largely peaceful cross-strait relations with China, even concluding several agreements. Any PRC-initiated forcible action disrupting this “status quo” would undoubtedly constitute a “breach of the peace,” constituting a direct infringement on the UN’s purpose outlined in Article 1(1).

  Considering Taiwan’s extensive unofficial international connections and decades of self-governance, together with the UN Charter’s provisions and interpretations, such a breach would categorically prohibit any PRC use of force.

  The right to self-determination, a stated UN purpose in Article 1(2) of the charter, maintains that all “peoples” are free to decide and pursue their social, economic, cultural and political development. This right is also confirmed by the International Court of Justice and UN resolutions.

  Geographic and political separation from China since 1895, coupled with shared colonial Japanese and authoritarian Chinese National Party (KMT) experiences, have shaped a distinctive Taiwanese identity marked by niche cultural idiosyncrasies. Moreover, Taiwan’s democratic governance since the 1990s, in sharp contrast with the PRC, has solidified cultural, economic and political distinctions, contributing to the formation of a distinct Taiwanese “people” and identity.

  Forcible action against a “people” whether they are inside or outside of a state equates to a denial of self-determination. Meaning that even if Taiwan is stated to be legally a part of China, the PRC cannot justify using force against Taiwanese “people.”

  Although the PRC cannot legally use force, the international legal framework is unclear. The ambiguity surrounding the PRC-Taiwan situation not only encapsulates a geopolitical challenge, but also a litmus test for the adaptability and relevance of international law in the face of evolving global dynamics.

  To stay relevant and reflective of evolving geopolitical and legal realities, Article 2(4) needs to be clarified to embrace the broad interpretation and extend its application to non-state entities. This clarification would empower Taiwan, despite lacking full state recognition, to leverage its state-like characteristics to accord it certain protections.

  Taiwan is protected under the prohibition through a patchwork application of Article 2(4), the UN purposes and the right to self-determination. If Taiwan is acknowledged as a separate state from China, the PRC is barred from using force under Article 2(4). Conversely, if Taiwan is deemed part of China, PRC’s use of force still contravenes Article 2(4), constituting a “breach of the peace,” contravening UN purposes and infringing on Taiwanese’s right to self-determination. Despite the PRC’s claims, any forcible action is unequivocally prohibited under international law.

  Samuel Ng, who holds a Bachelor of Laws (Hons) and Bachelor of International Business from Queensland University of Technology, is a Westpac Asian Scholar for Taiwan. He also studied Taiwanese international relations, diplomacy and political history at National Chengchi University. His research interests include cross-strait relations and East Asian politics.
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