Taiwan Statehood (or not) and its Ramification for Armed Conflict
As outlined in a previous Articles of War post, the recent 2024 Lieber Workshop focused on international law and the future of multi-domain operations in the Indo-Pacific. One of the workshop’s panels featured rich discussions on the military and political situation in Taiwan (Republic of China, or ROC). The United States’ on-going “pivot” to and focus on the Indo-Pacific region has brought Taiwan into even sharper focus, both as to its status and role in the international community, and its defense against potential military operations by the People’s Republic of China (PRC).
The panel and subsequent discussion focused on three major points: 1) whether Taiwan can claim the status of a State; 2) Taiwan’s right to self-defense and collective self-defense; and 3) classification of any conflict involving Taiwan and treatment of persons within that conflict. Drawing on papers that will be published in a forthcoming volume in the Lieber Studies book series, edited by Professors Douglas Guilfoyle and Jennifer Maddocks, this post summarizes the key points from the papers, presentations, and discussion.
Taiwan Statehood
Often the discussion about statehood begins with an analysis of the 1936 Montevideo Convention. This lays out four criteria of statehood known as the declarative theory: 1) a permanent population, 2) a defined territory, 3) a government, and 4) the capacity to enter into relations with other States.
The Declarative theory of statehood contrasts with the constitutive theory, which also requires recognition by other states. This stands for the point that “[it] is not just the presence of raw authority exerting control over a region and a people that make a state; it is also more importantly the collective and communal recognition that said authority is the rightful and legal one” (p. 27). This view is often supported by Oppenheim’s famous maxim that “A State is, and becomes, an International Person through recognition only and exclusively” (International law: A Treatise by L. Oppenheim, (8th ed.), Vol. I, Peace, p. 118-119, para. 64).
However, during the workshop, one of this post’s authors (Peter Dutton), highlighted that Oppenheim recognized the existence of “not-full sovereign States” that are also “in some way or another International Persons and subjects of International Law” (International law: A Treatise, p. 119, para. 65). Today there are “first-tier” (fully sovereign) and “second-tier” (not fully sovereign) states, with one key factor between the two levels being recognition. Recognition under Article 4 of the UN Charter requires a two-thirds majority vote by the General Assembly, after receiving a favorable recommendation from the Security Council. Three second-tier States are currently blocked from progressing through the UN process by a permanent member of the Security Council: Kosovo by Russia, Palestine by the United States, and Taiwan by the PRC.
To assess Taiwan’s statehood, it is pertinent to examine the history of Taiwan from its modern emergence to its current status. Since 1949, the PRC governing mainland China and the ROC governing the island of Taiwan both claimed to represent the State of China at the international level. The ROC government represented China in the United Nations until 1971, including in both the General Assembly and Security Council, when that place transitioned to the PRC regime as a result of the adoption of UN General Assembly Resolution 2758.
There are several additional bases for the claim to sovereignty by either the PRC or ROC. These include sovereignty by 1) moral right, 2) retrocession, 3) Second World War era declarations such as at Cairo and Potsdam, 4) conquest or victory, 5) abrogation by treaty, 6) UN General Assembly action, and 7) bi-lateral recognition treaties. Consideration of these various bases leads to a conclusion that the sovereign status of Taiwan remains undetermined and that the government of Taiwan meets the requirements for declarative statehood, but falls short of constitutive statehood.
Workshop participants noted that the ROC has not openly declared its status as a State independent from the rest of China. Professor D.P O’Connell famously claimed that “a government is only recognized for what it claims to be” (p. 211). One reasonable basis for Taiwan’s reluctance to do so may be, as Professor Hungdah Chiu observed, that “the PRC has made it clear that force will be used against Taiwan if the latter declares independence” (p. 9, footnote 26). Notwithstanding its failure to declare independence, Taiwan has never recognized the PRC’s claim to sovereignty or conceded any territorial or jurisdictional rights claimed by the PRC.
Supporting that view, one of this post’s authors drew attention to more recent actions by the ROC and PRC. These include the statements by President Xi of the PRC, reiterating the PRC’s insistence on the “one-China” principle, and that “resolving the question of Taiwan and complete national unification” is a fundamental interest of the PRC. The PRC is using increasing military and political, as well as cognitive, legal, and psychological operations and tactics, to deter Taiwan independence, including by denying the legal validity of the “medium line” in the Taiwan strait (ROC National Defense Report 2023). Given the PRC’s unwavering claim of its right to integrate Taiwan into the PRC, including via the potential use of force, PRC’s invasion of Taiwan is possibly no longer a question of “whether or not,” but of “when” and “how.”
Taiwan’s Right to Self-Defense and Collective Self-Defense
The discussion on Taiwan’s statehood and the potential of PRC action to assert its sovereignty over Taiwan led easily into a discussion of Taiwan’s right to claim individual and collective self-defense.
Article 51 of the UN Charter is the modern statement on the exercise of the right of self-defense, applying only to member States of the UN. Workshop participants, however, also recognized the “inherent” rights to individual and collective self-defense as a matter of customary law, which exist outside the Charter.
In support of this claim of self-defense being made by a “contested” State, the International Court of Justice recognized that Bosnia and Herzegovina possessed rights under the Genocide Convention that were opposable to the Republic of Yugoslavia even before Yugoslavia recognized Bosnia as an independent sovereign (p. 613). The Court found the requirements of declarative sovereignty to be sufficient to merit the protection of some aspects of international law. These arguably include the right to use force in self-defense and for other States to act in collective self-defense.
ROC might choose to claim these rights if needed. In this situation, Taiwan’s request for assistance could be “open” in nature rather than directed toward a specific nation. Second, there is no required format or formalities for such a request. And third, the request can be made privately or publicly (see Green, Chapter 6).
Therefore, neither PRC’s non-recognition of the ROC nor the ROC’s potential position as a “second-tier” or not fully-sovereign State prevents the ROC from claiming self-defense rights and requesting assistance from other States.
Classification of Conflict and Treatment of Persons Within that Conflict
Regarding the third discussion point, the panel considered some of the legal implications if the PRC were to launch a military attack directed against Taiwan. These include the classification of the armed conflict and how that classification would impact the treatment of persons.
The status of Taiwan is critical to the question of classification. If Taiwan is a separate State, even a “second-tier” State, as the declarative theory suggests, any attack by the PRC would be considered an international armed conflict (IAC) and trigger all the protections of the Geneva Conventions. On the other hand, if Taiwan is not a separate State, which is likely the case under the constitutive theory of statehood, the conflict would be considered an internal armed conflict to China. Conflicts not of an international character (NIAC) trigger only lesser protections under the law of armed conflict (LOAC).
With regard to China’s view on the question of classification, PRC President Xi recently stated that “The one-China principle is a generally recognized norm in international relations, and it represents a general consensus of the international community … [the] Taiwan question is an internal affair that involves China’s core interests … and no external interference in this issue will be tolerated.” In other words, from the PRC’s perspective, Taiwan has no claim to statehood under any theory and a cross-Strait conflict would absolutely be a NIAC.
Even though time has drawn these two bodies of LOAC much closer together, applying the vast majority of IAC provisions to NIACs, several conspicuous and significant exceptions to that merger remain: the existence of prisoners of war, the law of occupation, and the doctrine of neutrality. Of these three, the law concerning the treatment of prisoners of war and the question of how the PRC would treat captured Taiwanese armed forces was discussed in the most detail.
China is a party to Additional Protocol II to the 1949 Geneva Conventions. As such, if the conflict is considered a NIAC, Taiwanese armed forces would not be treated as prisoners of war, but rather as dissident armed forces, giving them the appropriate treatment protections. Of course, these protections do not reach the level of those afforded to prisoners of war but they do provide more protections than those afforded to common criminals, which might be an alternate categorization by China.
Even accepting China’s original classification of the conflict as a NIAC, there are two ways in which the conflict might be transformed into an IAC. The first is if the international community—or members of it—decide to accept Taiwan as an independent State. Though this recognition would not necessarily be binding on China, it might influence China’s determination of how to apply LOAC. Second, the conflict might be internationalized through the exercise of overall control over the Taiwanese armed forces by another State, such as the United States. In either of these scenarios, the full LOAC protections would apply. Nonetheless, China might still claim that since it considers the Taiwanese armed forces to be its own citizens, it would not have to provide prisoner of war status and treatment to any such personnel who were captured (Public Prosecutor v. Oie Hee Koi).
Conclusion
Given the 2024 Lieber Workshop’s overall focus on international law and the future of multi-domain operations in the Indo-Pacific, the discussion of Taiwan’s status and its potential impact on any armed conflict between Taiwan and the PRC was a timely and interesting topic. Much hinges on the determination of Taiwan’s statehood, a point that is currently still contested. Although China denies statehood for Taiwan under any theory and would conduct any armed conflict as a NIAC, the potential involvement of other States, both before and during the armed conflict, might result in Taiwan’s recognition as an independent State or at least result in support for the full application of LOAC.
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Eric Talbot Jensen is a Professor of Law at Brigham Young University.
Emily Crawford is a Professor at the University of Sydney Law School
Peter Dutton is a Senior Research Scholar in Law and Senior Fellow in the Paul Tsai China Center at Yale Law School.
Hsiu-An Hsiao is Associate Research Fellow at the Institute of International Relations, National Chengchi University in Taipei, Taiwan.
Photo credit: 玄史生
