Why Defending Taiwan is Not IllegalA response to Julian Ku’s interpretation of international law and history
Whenever I come across facile — or worse, self-serving — justifications as to why the international community should just give up Taiwan and cede it to the authoritarian People’s Republic of China (PRC), I’m always tempted to quote good old Charles Dickens for rejoinder. “All I want is, facts.”
Facts is what is lacking in a recent piece by Julian Ku, a law professor at Hofstra University, first published over at Opinio Juris, and then reproduced by The Diplomat. Ku, who is spending the summer in Taipei on a Taiwan Fellowship sponsored by the Ministry of Foreign Affairs, was responding to an earlier article in The Diplomat by Zachary Kech, in which the latter argued that the scenario of a PRC invasion of Taiwan figured largely in Tokyo’s “reinterpretation” of Article 9 of the Japanese constitution. As it is understood, the reinterpretation would allow Tokyo to legally come to the defense of allies if doing so could be tied directly to Japan’s defense.
However According to Ku, collective defense on behalf of Taiwan by Japan and the U.S., Taiwan’s principal security guarantor, would be in violation of international law. His argument rests on two pillars. First, citing Article 51 of the U.N. Charter, he points out that acts of collective defense can only be authorized if an attack occurs against a member of the U.N. Ku then reminds us that Taiwan in not a member of the global body and that U.N. members could therefore not legally summon collective defense to come to Taipei’s succor. Following on this logic, Ku argues that, “Japan cannot use military force in Taiwan absent China’s consent, even if the Taiwan government requests its assistance.”
What can we make, then, of the 1999 NATO intervention in Kosovo, in which collective security was invoked to intervene on the behalf of Serbia, which at the time was neither a recognized state nor a U.N. member? NATO certainly did not request, let alone secure, permission from Slobodan Milosevic, before launching military operations to protect Kosovars. At the heart of this admittedly not uncontroversial intervention by the international community was the fledging concept of Responsibility to Protect. This idea, also known as R2P, stemmed from the moral, ethical, and political questions raised by war and sovereignty in the modern age. In September the following year, the Government of Canada announced to the U.N. General Assembly the establishment of the International Commission on Intervention and State Sovereignty (ICISS). Among the foundational elements of R2P we can find clauses such as:
(1) specific legal obligations under human rights and human protection declarations, covenants and treaties, international humanitarian law and national law;
(2) the developing practice of states, regional organizations and the Security Council itself.
Of course, Beijing, which dreads external humanitarian interventions into what it considers to be its sovereign territory, has systematically opposed concepts, such as R2P, that transcend sovereignty. This includes Taiwan. The fact remains, however, that a PRC invasion of Taiwan would have serious repercussions for regional and international security, not to mention the humanitarian catastrophe that could ensue (to his credit, Ku does mention humanitarianism, but then calls it “very difficult argument”). As such, collective intervention to ensure regional stability would supersede Article 51 of the U.N. Charter, which we must point out is somewhat vague on attacks by military coalitions of several states, but adamant on the illegality of unprovoked attacks by one member state against another. The assumption is that a group of state, or regional coalitions, would take action based on regional security imperatives rather than the narrow interests of a single state.
Evidently, this discussion would be unnecessary if Taiwan were a U.N. member. But Beijing won’t allow that. And as Ku writes, “good luck, Taiwan, getting U.N. membership.” By Ku’s Article 51 logic, a neighbor would have to seek permission from a tyrannical husband to prevent the latter from beating up his innocent wife in public and perhaps destroying half the neighborhood in the process.
Ku’s second argument focuses on sovereignty. He writes, “to make matters worse from Taiwan’s perspective, Japan recognizes the government in Beijing as the rightful government of China, and Japan further recognizes that Taiwan is part of China.” Inherent in this argument is that Tokyo has no right to intervene in a Taiwan contingency because it agrees that Taiwan is part of China.
The problem with this — and this should be readily apparent to anyone who pays attention to the language of international pacts — is that Ku’s interpretation of the Joint Communique of the Government of Japan and the Government of the People’s Republic of China is misleading. The key points in the Communiqué:
2. The Government of Japan recognizes [the] Government of the People’s Republic of China as the sole legal Government of China.
3. The Government of the People’s Republic of China reiterates that Taiwan is an inalienable part of the territory of the People’s Republic of China. The Government of Japan fully understands and respects this stand of the Government of the People’s Republic of China, and it firmly maintains its stand under Article 8 of the Postsdam Proclamation. [italics added]
If we look closely, Tokyo’s position regarding Taiwan isn’t that Japan recognizes, as Wu claims, that Taiwan is part of China. Rather, it understands and respects this contention by Beijing, much like many governments worldwide, in constructs of superb diplomatic vagueness, “take note of” or “acknowledge” the PRC’s contention.
Furthermore, Article 8 of the Potdsam Proclamation (raised in point 3 of the communiqué) clearly states that the terms of the Cairo Declaration (signed on November 27, 1943) shall be carried out, meaning that “All territories Japan has stolen from China, including Manchuria, Taiwan, and the Pescadores, shall be restored to the Republic of China.” Restored to the Republic of China (ROC), not the PRC, which at the time of the communiqué, issued July 26, 1945, and the Declaration simply did not exist (it wouldn’t until 1949). It is therefore easy to see why Ku’s argument that China would be using force against secessionists within its own territory if it attacked Taiwan (akin to Ukraine, he writes) defies logic, as Taiwan cannot secede from a body of which it never was part — in this case, the PRC.
While Beijing counters that the PRC is the successor of the ROC, there is no doubt that the Republic of China still exists today as a legal entity. It has its own elected government; the ability to conduct foreign relations; its own currency; a standing army; defined territory; a constitution and — a fact that is often ignored — a population of 23 million beating hearts. Taipei moreover has official diplomatic relations with 21 U.N. member states, and enjoys customary relations with pretty much the entire international community, including Japan and the U.S.
Taiwan is therefore either legally part of the ROC, in which case it would be illegal under international law for the PRC to attack it, or is in a legal limbo, part of neither, in which case new laws such as those implied under R2P and the ICISS, are necessary. In neither of those two cases does raising international law or the UN Charter (not to mention misinterpreting historical documents) to illegalize Japanese or U.S. efforts to defend Taiwan make a legitimate case. In fact, doing so takes our attention away from the problem of defining Taiwan and determining the conditions under which external aggression would warrant intervention by the international community.
Taiwan’s geographical existence and its proximity to Japan make questions on the uses of force by a regional collective to prevent an invasion by the PRC both legitimate and essential. Leaving humanitarian and moral considerations aside, Taiwan is situated at the nexus of the South China Sea, the East China Sea and the West Pacific, and is therefore key to such matters as freedom of navigation, or continuity in the global supply chain. Given the importance of stability to regional economies, intervention by a regional coalition to prevent the kind of disruptions that a Chinese attack on Taiwan would engender would be perfectly legal, regardless of one’s position on Article 51 of the UN Charter or sovereignty as defined by Beijing.
J. Michael Cole is editor in chief of Thinking Taiwan, a senior non-resident fellow at the China Policy Institute, University of Nottingham, and an Associate researcher at the French Center for Research on Contemporary China (CEFC) in Taipei.