Christian Richter teaches public international law at the Bundeswehr Command and Staff College in Hamburg and constitutional law at the University of Hamburg. The article only reflects the author’s opinion. This article has been published in German on Einspruch in the Frankfurter Allgemeine Zeitung.
China has announced that it will prevent the independence of Taiwan using military force, if need be. In doing so, the country has violated the prohibition of the use of force under international law.
At the beginning of August 2019, China conducted a large-scale military exercise in Taiwan’s coastal waters. Two weeks before, during the presentation of China’s new White Paper on national defence, Beijing had made it clear that the Chinese armed forces were ready to defeat anyone attempting to separate Taiwan from China. The message had been even more explicit in early January when China threatened to achieve reunification by military force. Maybe a change of mentality has taken place in Beijing with regard to the use of military force in contravention of international law. One thing is already certain: China has violated the prohibition of the use of force under international law, which includes the mere threat of force.
China’s sabre rattling
In January 2019, China’s head of state and party leader Xi Jinping stated that China would make no promise to renounce the use of force against Taiwan and would reserve the option of taking all necessary means in case of an emergency. His next sentence could be regarded as a relativization of the first statement, as Xi Jinping pointed out that his remarks were not targeted at his compatriots in Taiwan but at the interference of external forces and the very small number of Taiwanese independence activists. This went well with the affirmation that China was seeking peaceful reunification and that Chinese would not attack Chinese. However, there was no mistaking the meaning of the first sentence, which made the headlines in the British press: “‘All necessary means’: Xi Jinping reserves right to use force against Taiwan”. As far as international relations are concerned, the expression “use of force” unequivocally refers to the use of military force. “All necessary means” is the standard wording used in UN Security Council Resolutions to authorize member states to use military force in accordance with Chapter VII of the Charter of the United Nations. An example is Resolution 678 of 1990, which formed the legal basis for the liberation of Kuwait from Iraqi forces.
China’s new White Paper on national defence, which was issued in mid-July, is just as clear. It states: “China must be and will be reunited. […] We make no promise to renounce the use of force, and reserve the option of taking all necessary measures.” The exercise recently conducted in Taiwan’s coastal waters must certainly be seen in connection with these statements.
Even though this matter has not been given much attention by international jurisprudence so far, the fact remains that Article 2 (4) of the UN Charter does not only prohibit the use of military force but also the mere threat of force: “All Members shall refrain in their international relations from the threat or use of force.” Against this backdrop, the literature on international law has dubbed the prohibition of the threat of unlawful military force a ‘blind spot’.
Taiwan’s status under international law
Unlike the Kellogg-Briand Pact, the prohibition of the use of force laid down in Article 2 (4) of the UN Charter applies to both signatory and non-signatory states of the Charter. This includes, in principle, Taiwan, although the country is not (or, more precisely, is no longer) a member of the United Nations. After Mao’s troops had emerged victorious from the Chinese Civil War, the defeated members of the Kuomintang led by Chiang Kai-shek fled to the island of Taiwan in 1949. The island, also known as Formosa, had once been part of the Portuguese colonial empire and later under Japanese rule. Given that Chiang Kai-shek had represented China during World War II and that the country had been one of the United Nations against the Axis Powers, the Republic of China on Taiwan, despite the Kuomintang’s defeat in the Civil War, remained not only a member of the United Nations but also a permanent member of the UN Security Council.
Things changed, however, in 1971 when Resolution 2758 was adopted by the UN General Assembly with 76 votes in favour, 35 votes against and 17 abstentions, recognizing the People’s Republic of China as the only legitimate representative of China to the United Nations – and thus depriving the Republic of China of its right of representation for China in the UN. And so, in passing, Taiwan became a non-member of the United Nations, even though Resolution 2758 did not specify this. Later attempts by Taiwan to become a UN member state failed repeatedly. In 2007, for instance, the United Nations Secretariat never even forwarded Taiwan’s membership application to the Security Council but returned it immediately with reference to Resolution 2758, ignoring the fact that Resolution 2758 only determines who is to represent China in the United Nations organization, namely the People’s Republic of China and not Taiwan. Resolution 2758 does not say anything about who is to represent Taiwan and its 23 million inhabitants. Beijing’s point of view, according to which the entitlement to represent China includes the right to represent the people of Taiwan because Taiwan is merely a renegade province, is obviously wrong. At no point in time did Beijing ever exercise actual authority over the territory of the Republic of China on Taiwan. Not even the statement of the then UN Secretary General Ban Ki-Moon (“The position of the United Nations is that Taiwan is part of China”) can change that.
The prohibition of the use of force extends to states as much as to de-facto regimes
Taiwan is not a member of the United Nations, but this does not mean that the country is no longer protected by the prohibition of the use of force pursuant to Article 2(4) of the UN Charter. The absolute prohibition of the use of force in international customary law protects non-member states anyway. Taiwan’s status as a state, however, is called into question by some. Few and fewer countries recognize Taiwan as a state. Back in 2000, about 30 countries maintained diplomatic relations with the Republic of China on Taiwan; by now this number has decreased to only 17 states. Most recently, El Salvador gave in to Beijing’s pressure and cut off its diplomatic relations with Taiwan. Unlike the Vatican, for example, even the United States, Taiwan’s most powerful protecting power, does not maintain official relations with the Republic of China. In line with the prevailing opinion, however, the matter of the international community’s recognition of Taiwan’s statehood may be neglected here, and Taiwan may be regarded as a state on the basis of its other attributes.
Even if one were to share the minority viewpoint and deny that Taiwan is a state because of its lack of recognition by other countries, Taiwan would still not be without protection. After all, it is widely recognized that de-facto regimes have rights and obligations under international law. Thus, they are (partial) subjects of international law, which means they have at least a minimum number of rights under international law. In particular, these rights include the protection under the prohibition of the use of force, which, as a matter of fact, is also regarded as ius cogens. It is undisputed that de-facto regimes that are considered stabilized—and this is undoubtedly the case with Taiwan—are covered by this prohibition. So Taiwan is protected by the prohibition of the use of force in any case.
China’s threats must be taken seriously
Threatening to use force is only forbidden if the threat is unlawful. For example, announcing the intention to use military force claiming the right of self-defence is not covered by this prohibition and thus not unlawful. Moreover, the International Court of Justice stated that it depends on numerous factors whether a statement is actually considered a threat to use military force. Every case is different.
Xi Jinping’s verbal threat in January was reinforced a strong threat posture—Chinese warships in the Taiwan Strait. The statements in the new Chinese White Paper are also unveiled threats to use military force, if need be. Their seriousness is further confirmed by the recent exercises conducted in August. Article 8 of China’s Anti-Secession Law adopted in 2005 states that the government “shall employ non-peaceful means”, i.e. military force, in the event that “major incidents entailing Taiwan’s secession from China should occur”. A declaration of independence from Taipei would be such a major incident. The Anti-Secession Law only has domestic effect; however, it cannot be ignored in an overall assessment. Neither can we ignore the fact that China’s naval forces are currently growing by an equivalent of the UK’s Royal Navy every year.
As a matter of fact, Iraq tried to justify its invasion of Kuwait in 1990 among other things by claiming that Kuwait was a renegade province. Fortunately, the answer of the United Nations in this case was clear. Unlike Iraq, however, both the People’s Republic of China and Russia are permanent members of the UN Security Council. With regard to the prohibition of the use of force, China has so far been taking a different approach than Russia. Let us hope that China will not follow Russia’s example in Georgia and Ukraine and that its verbal violation of the prohibition of the use of force will not translate into deeds.