Let Me Be Clear: Taiwan Should Be Defended, Even Though the Defense is Illegal

by Julian Ku

So I managed to anger lots of folks (mostly on twitter) with my post Friday (republished in the Diplomat and RealClearWorld yesterday) on the international legal problems created by any Japanese intervention to defend Taiwan from an attack by China.  I don’t mind angering people (especially on twitter), but I do want to make sure they are angry with me for the right reasons. Many readers seem to think I want China to invade Taiwan, which is in fact the complete opposite of my policy goal.   So let me offer some clarifications of my position on policy, and a few rebuttals of legal responses to my arguments.

1) Policy: I am squarely in favor of U.S. military intervention to defend Taiwan against any PRC military attack. I am even in favor of intervention in the case of a declaration of independence by Taiwan as long as Taiwan acts in a responsible way so as not to threaten China’s national security.(My only hesitation on this is the cost to the US, but not on the merits of Taiwan’s case). Given how strong China is these days, I am pretty sure Taiwan could not be a real military threat to China (nor would it want to be).  Whether the US would actually protect Taiwan is the zillion dollar policy question that I don’t have the answer to.  I hope it does, but I don’t know if it will.

2) Law: However, my favored US policy is in deep tension with, or even direct conflict with, traditional understandings of the international law governing the use of force.  For those of us who love and cherish Taiwan, it is no use pretending as if the law supports a US or Japanese military intervention to defend Taiwan. It doesn’t. It would be better for all concerned if we faced this legal problem head-on rather than try to come up with complicated not-very-persuasive workarounds.  Here are the two most obvious workarounds, raised in this very angry and excited post by Taiwan-expert J. Michael Cole:

a) Responsibility to Protect and Humanitarian Intervention
Here is a simple response: R2P are non-binding principles that, even if they were binding, seems to require Security Council consent.  Humanitarian intervention remains deeply contested and doubtful in international law, and would not apply to Taiwan in any case until it was probably too late. Kosovo is a great example of how contested this doctrine is. Syria is another.

b) The ROC is a separate legal entity.
I get that this is a complicated issue, but I don’t think I am “misreading” historical documents when I write that i) the US recognizes the PRC as the government of China and that the US accepts that Taiwan is part of China; 2) Japan recognizes the PRC as the government of China, and Japan accepts that Taiwan is a part of China.  Sure, neither country recognizes that Taiwan is a part of the PRC, but both the US and Japan have made clear that China is a single legal entity that includes Taiwan, and that the PRC is the sole government in charge of this entity. We can futz around the details, but there is a reason why neither the US nor Japan (nor almost anyone else) have diplomatic relations with Taiwan.

Here is one interesting and unexpected policy consequence of Taiwan’s current legal position: it would be safer from a legal perspective for Taiwan to declare independence, since that would protect it from this legal problem I’ve identified. Of course, that legal position would probably be the least safe from a policy perspective, since it is the mostly likely to spark a Chinese attack.

Which brings me to my real point: the increasing irrelevance of Article 51 of the UN Charter to decisions by major powers on whether to use military force. The decision on whether to defend Taiwan should not depend on workarounds for Article 51. It should depend on the combination of moral values and national interests the US and Japan consider worth protecting here in Taiwan. I think Taiwan is worth protecting, but it is important to recognize that the law is not on Taiwan’s side.

http://opiniojuris.org/2014/07/13/fallout-take-legality-defense-taiwan/

6 Responses

  1. ///but I don’t think I am “misreading” historical documents when I write that i) the US recognizes the PRC as the government of China and that the US accepts that Taiwan is part of China; 2) Japan recognizes the PRC as the government of China, and Japan accepts that Taiwan is a part of China”””///

    Haha. Julian, your position is totally wrong. Here is the Apr 22, 2014, Congressional Research Service report by two experts in US policy to US Congress.
    http://fas.org/sgp/crs/row/R41952.pdf

    +++
    The United States has its own “one China” policy (vs. the PRC’s “one China” principle) and
    position on Taiwan’s status. Not recognizing the PRC’s claim over Taiwan nor Taiwan as a
    sovereign state, U.S. policy has considered Taiwan’s status as unsettled.
    +++

    So actually, yes, you have that completely wrong. Your position on Japan is also wrong. Hence your whole argument is wrong.

    Michael Turton
    The View from Taiwan

  2. You are dead wrong. It would be entirely legal. There is absolutely no legal basis for China to claim sovereignty over Taiwan.

    The United States does NOT accept China’s statements that China is sovereign over Taiwan. It has constantly said from 1946 that the status of Taiwan is undetermined and in those communiques from the 70s and 80s, the US expressed acknowledgement that it knows the Chinese argument, but never accepted it. Those are Chinese lies. This is also true for most other Allied Powers.

    In modern international law, the primary way territory is transferred from one state to another is by a treaty that is signed and ratified. There is none here. Japan relinquished sovereignty, but there is no transfer mechanism. Some argue Aquisitive Prescription (e.g. Goa) but that fails here as there is considerable objection to any Chinese claim to Taiwan, which precludes Aquisitive Prescription.

    US defense of Taiwan would not only be legal, but justice and consistent with US values. My concern is that Obama is such a weak president that the US might just sit on the sidelines.

  3. Again, if the point is “the increasing irrelevance of Article 51 of the UN Charter to decisions by major powers on whether to use military force”, this seems because, in this case, we are talking about a subject of international law (Taiwan) that is not a UN member state. So of course the UN Charter would be largely irrelevant. It would be like asking what is the relevance of the UN Charter for any annexation of the Vatican by Italy – almost nil, of course. But this does not mean that the ordinary rules about use of force under custom would not apply. I simply do not think that the two issues are linked, and I do not see how the example of Taiwan is telling about the general situation – it is a rather specific case, as there are not many subjects of international law ruling over a specific territory and population not UN member states today.

  4. Then there is the matter that the UN has no enforcement mechanism, nor is there any enforcement mechanism for “international law”. International law is only as legal as adherents to the particular instrument of international law say it is, which is why China can claim ridiculously that its claims in the South China Sea are justified under the UN Convention of the Law of the Sea when a reading of the convention certainly doesn’t support China’s assertions.

    So even if your assertions on the policies of the UN, the US and Japan were correct (they are not), any one of those parties could do what they wanted and claim that their actions were perfectly legal. This means that the article that provoked this reaction is rather pointless.

  5. Brian and I have a response in The Diplomat that shows how Ku has everything wrong.

    http://thediplomat.com/2014/07/us-policy-and-international-law-taiwans-friend/

    Michael

Trackbacks and Pingbacks

  1. […] [Thanks to Zachary Keck and the Diplomat for hosting this interesting and useful discussion of the legality of Taiwan’s defense by the U.S. and Japan.  This post is an amended and longer version of a post first published on Opinio Juris]. […]

Leave a Response    * indicates required information

Name *


email (will not be published) *


Website



three × 4 =

Comments will be closed on July 27, 2014.