Taiwan’s Counter-Lawfare Strategy

by | Feb 3, 2025

Taiwan's Counter-Lawfare

In his 2025 New Year address, President of the People’s Republic of China (PRC) Xi Jinping reiterated his commitment to the reunification of Taiwan. He stated, “no one can ever stop China’s reunification, a trend of the times.” One would hope that he meant peaceful consultation or engagement toward reunification, but military pressure continues to mount against Taiwan.

In December last year, the PRC reportedly deployed nearly 90 Navy and Coast Guard vessels near Taiwan in what appeared to be military drills across a broad swathe of waters in the region. Later in the month, three frigates and three heavily-armed Coast Guard vessels sailed from the Pacific Ocean side to the East China Sea side of the Miyako Strait after circling Taiwan and the Sakishima Islands counterclockwise, a move anticipated when the PRC initiates a naval blockade in the event of an invasion of Taiwan.

The prospect of forcible reunification has heightened regional security concerns in recent years. Taiwan has scrambled to strengthen its relationship with other countries in the region, such as Australia, Japan, and the Philippines, to build a network of support in the event of a war. The United States, for its part, supports Taiwan through arms sales to buttress its self-defense capabilities within the framework of the 1979 Taiwan Relations Act, Three Joint Communiqués, and President Reagan’s Six Assurances to Taiwan. Understandably, much of these efforts focuses on defense capabilities and diplomatic engagement. International law, as a normative framework for managing international relations, fades into the background.

International law is impotent to manage cross-Strait relations between the PRC and Taiwan. Or, at the very least, this is the prevailing sentiment shared among policymakers. Taiwan’s contested sovereign status inevitably makes an application of international law difficult, conditional, and vulnerable to challenges. For this reason, a long lineage of international law literature on Taiwan has an almost exclusive focus on its sovereignty question and, to a lesser extent, its capacity to engage in international trade.

However, even setting aside Taiwan’s sovereignty question, international law has a broader role to play in the interest of maintaining international peace and security across the Taiwan Strait. This broader perspective is what I bring to the table in a recent article I have published with the Chinese (Taiwan) Yearbook of International Law and Affairs.

In the article, I explore the strategic value that international law might have to offer for the defense of Taiwan’s national interests. As the article is open access, interested readers are encouraged to read my argument in full. This post does not intend to summarize or repeat my argument. Instead, I recount the sources of inspiration for this strategic perspective to international law and share my thoughts on a future agenda for further international law research in the context of cross-Strait relations.

Sources of Inspiration

Does international law govern cross-Strait relations? One may say the answer depends on Taiwan’s sovereign status. But in reality, many States invariably maintain a “one China policy” and refrain from recognizing Taiwan de jure as an independent State. The PRC has a strong basis under international law to claim that its relationship with Taiwan is a domestic affair in which no other States may intervene. The political, economic, and social or cultural choices they make are their own and must be respected as an exercise of self-determination.

However, “they” refers to both the PRC and Taiwanese people. Neither side can impose a solution on the other by unilateral, forcible means. Indeed, concerns expressed by other States (para. 2), such as the United States and the United Kingdom (p. 31), are directed toward any unilateral attempts to change the status quo.

Within the framework of international law, the issue turns into a question as to whether the PRC’s military action against Taiwan would constitute a use of force in “international relations” prohibited under Article 2(4) of the U.N. Charter or its equivalent under customary international law. In the article, I outline legal arguments in the affirmative, with a cautionary note, as a strategic option available for Taiwan. But I can find equally strong rebuttals to deny the application of international law frameworks. The debate simply remains unsettled until and unless both parties agree to refer the matter to third-party adjudication, a prospect that is highly unlikely to materialize in the foreseeable future.

In the absence of any prospect for an authoritative ruling, international law assumes a strategic role as an instrument to advance national policies. The PRC, for example, openly employs legal vocabularies to bolster its position over Taiwan by proclaiming the “one-China principle” as a “universally recognized basic norm governing international relations.” The PRC’s strategy to exploit legal vocabularies can be seen as a form of “lawfare,” the “strategy of using – or misusing – law as a substitute for traditional military means to achieve a warfighting objective” according to the definition that Major General (ret.) Charles Dunlap Jr. originally suggested when he introduced the concept for modern usage. The term is nowadays so widely used that it has gained currency even outside the strictly military context.

However, instrumentalizing international law without restraint purely in pursuit of national interests risks undermining its normative foundation. In fact, many States consider the PRC’s lawfare campaigns as a threat to the rules-based international order. U.S. Indo-Pacific Command (INDOPACOM) is spearheading regional counter-lawfare efforts, presenting its own interpretation of international law rules applicable to the PRC’s provocative conduct. Suggesting that Taiwan should engage in equally inflaming lawfare to advance its own position has little appeal.

A strategic perspective nonetheless can find a useful application by characterizing cross-Strait disputes in terms of international law while setting aside Taiwan’s sovereignty question. The idea is akin to David Kennedy’s reconceptualization of international humanitarian law as a strategic vocabulary. In his seminal work, Of Law and War, Kennedy observes that international humanitarian law has served its role as a strategic vocabulary that stakeholders use to express their professional commitments and to influence other professionals in the struggles for winning the political legitimacy of wartime actions. In a similar way, Taiwan could strategize its counter-lawfare efforts by reimagining the role of international law as a strategic vocabulary to communicate its causes in the global discourse of political legitimacy.

Assuming that Taiwan aspires to frame its position in the global discourse of political legitimacy, its counter-lawfare strategy must be based on a reasoned argument that can be justified through the established methods of international law, as opposed to an arbitrary use of legal vocabularies. This way, Taiwan will be able to distinguish its strategic use of international law from lawfare that invites condemnation. Differences exist, in my view, in the degree of reasonableness in the interpretation and application of international law, though caution must be exercised against an overly legalistic approach that diminishes room for political settlement.

Future Agenda

Since its initial publication in 1981, the Chinese (Taiwan) Yearbook of International Law and Affairs has served its dual purposes: documenting Taiwan’s participation in international relations; and providing a forum for scholarly debate on international law issues in the Asia-Pacific region, such as cross-Strait relations. It has produced rich literature on international law issues uniquely confronting Taiwan, such as the criteria for statehood, recognition of States and governments, State immunity, and succession. As the danger of armed confrontation over Taiwan continues to grow, it is time to consider a broader range of international law tools available for Taiwan from a strategic perspective for the defense of its own security and future prosperity.

It is with this hope in mind that I offer three illustrations how strategic considerations toward stronger commitments to international law would help Taiwan advance its national interests in the global discourse of political legitimacy even without resolution to its sovereignty question. These illustrations are only a few of many ways Taiwan can garner wide support for its appeal to international law as a reasoned response to aggressive behaviors exhibited by the PRC.

More work needs to be done, especially clarifying how the law of armed conflict might operate in the event of an armed conflict. Taiwan appears to be elevating its legal readiness for armed resistance by developing and refining its military’s rules of engagement. Strategic considerations are also warranted in this field – for example, on the applicability of Geneva Conventions’ reciprocity clause and the legal protection afforded to Taiwanese troops when captured. More conversations like these would help build greater awareness of the legal quagmire that the PRC will find itself in should it seek to impose a unilateral solution to the cross-Strait dispute.

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Hitoshi Nasu is a Professor of Law in the Department of Law at the United States Military Academy.

 

 

 

 

 

Photo credit: Jitcji via Wikimedia Commons

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