In the past few years, the China-Taiwan cross-Straits relationship has witnessed rising tensions. There now exist fundamental faultlines in the cross-Straits relationship, which may create an escalatory ladder leading to an eventual conflict scenario. Such a scenario shall endanger the interests of not just parties directly involved, such as the US, China and Taiwan, but also other countries around the world.
In this regard, what are the politico-legal options available to concerned States at multilateral forums like the United Nations to voice their interests in the event of a conflict? A three-part solution may provide some answers.
1. Is Taiwan A ‘State’?
We need to debate the merits of China’s claim of ‘Non-Interference’ based on the assumption that the Taiwan question is “purely an internal matter”. A basic reading of the 1933 ‘Montevideo Convention on the Rights and Duties of States’ indicates that Taiwan’s case unwaveringly aligns with three criteria of possessing statehood – a defined territory, a permanent population of about 23 million people, and a government elected by said people. In its most simplest interpretation, Taiwan also fulfils the fourth criterion, in that it has the capacity to enter into relations with other States. Taiwan has 12 current diplomatic partners, and has had many more in the past, indicating such “capacity.”
It is important to also note in the matter of rights of contested states, political will based on national interest plays a key role. For example, since the Russian invasion of Ukraine began, Putin has argued that Ukraine has no historical basis for independent statehood. On the other hand, Putin signed a decree recognising the independent statehood of “breakaway provinces” of Ukraine — Donetsk and Luhansk. Similarly, most countries do not agree with Russia’s interpretation of statehood, and do recognise Ukraine as a sovereign, independent State, accordingly taking action to internationalise the war and aid Ukraine. Hence, the issue of statehood is not only legally contested, but also geopolitically determined.
In this regard, in the event of a cross-Straits conflict, it will be most opportune for a country to express at the international stage the political view that their sovereign interpretation allows room for Taiwan to consider itself a ‘State’, thereby possessing rights to defend itself. Further, provisions of the Cairo Declaration of 1943 as well as the Potsdam Declaration of 1945 can also be interpreted to support the legal claim that in the aftermath of Japan’s defeat in the second World War, the island of ‘Formosa’/Taiwan was to be returned to ‘ROC’ and not PRC.
2. Legality of Operating in the Taiwan Straits
If in the event of a conflict, Chinese operations in the Taiwan Straits disrupt a foreign State’s right of passage, it can be contested under Article 56 of the UNCLOS, which gives China the right to only explore, exploit, manage living and non-living resources, and conduct scientific research in its Exclusive Economic Zone. None of these rights, despite the existence of relevant conflict-related laws in mainland China, prevent foreign States’ vessels from navigation or overflight in the EEZ.
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3. An ICJ Advisory Opinion on ‘The Taiwan Question’
The International Court of Justice, the law-administering and justice-dispensing arm of the UN, issues by special provision ‘Advisory Opinions’ on controversial and contested questions of international law, thereby clarifying unsettled questions. Even though they are non-binding in nature, over time, they gain significant legal weight.
In this regard, one of the options available for any country to use in a cross-Straits conflict scenario is to request the UNGA by letter to seek an ICJ advisory opinion on ‘the Taiwan question’ and a contested State’s right to self or collective defence.
A country may also file a letter of request with noted agencies and bodies to mobilise the UNGA and the ICJ for an advisory opinion on specific issues of a Taiwan Straits conflict, such as the legality of China’s information warfare or cybersecurity-related disruptions (filed potentially by the International Telecommunications Union), or on the preservation of the human rights and identity of the Taiwanese people in the context of its absence from UN-led frameworks on human rights (filed potentially by the UN Human Rights Council).
Conclusion
The inconsistency of Taiwan’s status in international law, as well as the disputed nature of opinions on Taiwan’s rights as a contested State between powerful stakeholders such as China and the US, create both hurdles and opportunities for any country.
In this regard, some UN-led measures can provide remedy. For the ICJ to issue an Advisory Opinion may take months, while measures such as the condemnation of Chinese aggression through UNGA or UNHRC resolutions are more immediate, but may not gather enough steam.
Either way, these measures collectively contribute to the de-legitimation of a Chinese campaign in Taiwan, and further the cause of Taiwan’s self or collective defence.
This piece is a short excerpt from the author’s latest research paper for the Takshashila Institution, entitled ‘A Politico-Legal Toolkit to Respond to a Taiwan Straits Conflict under a UN Framework’.
Anushka Saxena is a China Studies Research Analyst with the Indo-Pacific Studies Programme at the Takshashila Institution, Bengaluru, India. Views are personal, and do not represent the stand of this publication.
