How can Countries Respond to a Taiwan Straits Conflict under UN Auspices?
Covering Chinese chatters (discourses, narratives, policies and rhetoric) on external events and actors, military and security issues, economy and technology, and bilateral relations with India.
Guarding the Great Wall: A Politico-Legal Toolkit to Respond to a Taiwan Straits Conflict under a UN Framework
By Anushka Saxena
This past week, China has been in celebration mode. And so, in this edition, I won’t be doing a breakdown of any recent security or foreign policy-related issues. However, I would like to take the opportunity to share with you some thoughts from my latest Discussion Document for the Takshashila Institution, titled ‘A Politico-Legal Toolkit to Respond to a Taiwan Straits Conflict under a UN Framework’.
Below are a few excerpts from the paper. If they pique your interest, please check out the complete document!
The Executive Summary:
The Taiwan question, referring to the status of the island of Taiwan or ‘Republic of China’, has been a source of political contestation since the founding of the People’s Republic of China (PRC) in 1949.
This discussion document explores the grounds for Taiwan’s right of self-defence tied with its ability to exercise sovereignty under United Nations-led legal frameworks, in a conflict scenario in the Taiwan Straits. Such an exploration looks at the recent history of the ‘One China’ principle and arguments on the status of the Republic of China, as well as the United Nations’ and United States’ policies on the issue. Further, the document proposes a toolkit of options available to States under UN auspices to respond to such a conflict scenario based on historical stances and contemporary international legal ambiguities and frameworks.
The goal behind proposing such a toolkit is to explain the significance of multilateral law to achieve peace and stability in the Straits, especially when the benefits of its use may supersede unilateral, bilateral or minilateral efforts against a particular party (in this case, the People’s Republic of China).
The suggestions of the document are broad and applicable to most countries willing to act under a UN-led international legal framework to mobilise support for Taiwan (whether or not they recognise it). The politico-legal recourses hence discussed are foreign policy agnostic but diplomatic prowess-dependent.
A Short Note on the Significance of this Exercise:
Cross-Straits dynamics are of great significance to regional and global peace and stability, as well as economic security. As per a recent ‘Bloomberg Economics’ report which deploys quantitative modelling to study the estimated impact of a war over Taiwan, such a war will deliver a $10 trillion shock to the global economy, which is larger than the economic shocks witnessed during the COVID-19 Pandemic or the 2008 global financial crisis.
This can be explained by a host of reasons – that 88 per cent of the world’s largest ships by tonnage pass through the Taiwan Straits, thereby making the passageway critical to global maritime trade, or that the island itself fulfils 90 per cent of the world’s advanced semiconductor chip requirement, and 60 per cent of the overall requirement of such chips.
In this regard, any conflict in the Straits engenders the risk of the quarantining of Taiwan’s exports and the blockade of a crucial maritime trade passageway.
Moreover, results from tabletop wargame exercises such as those conducted by Washington D.C-based think tank Center for Strategic and International Studies show that in protracted conflict, lives of hundreds of thousands of American, Chinese and Taiwanese servicemen will be lost. Further, as the Russia-Ukraine and Israel-Gaza wars have demonstrated, no war is just the participating parties’ business, and due to the above-mentioned implications, a study of cross-Straits dynamics and potential responses to a conflict becomes essential.
The Toolkit itself:
The document proposes five multilateral political and legal options available to countries to express support to Taiwan, despite its status as a non-member of the UN.
1. Debating the merits of China’s claim of ‘Non-Interference’ based on the assumption that the Taiwan question is “purely an internal matter”
Customary international law on the determination of statehood for any territory flows largely from state practice as well as the criteria for statehood enshrined in the 1933 Montevideo Convention.
Article 1 of the Convention states: The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.
It is undisputed that the case of Taiwan’s statehood aligns with the first three criteria, i.e. possessing 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, and it has currently done so with 12 partners. In the past, Taiwan has had many more diplomatic partners, indicating capacity. Moreover, as per the Taiwan Relations Act of the US, Taiwan maintains “extensive, close, and friendly commercial, cultural, and other relations between the people of the United States” (in other words, an “unofficial relationship with the US government”).
From the perspective of this paper, Taiwan fulfils the Montevideo criteria and more, which indicates that it also possesses the right to defend itself based on its government’s understanding of self-sovereignty. This allows for internationalisation of the Taiwan issue.
2. Supporting collective endeavours on Taiwan’s defence
States can provide diplomatic support for collective endeavours on Taiwan’s defence, including by proposing to co-sponsor a resolution in the UN General Assembly as well as the UN Human Rights Council on the Taiwan question. Such a resolution may seek cooperation from UN member States on aiding Taiwan to defend itself, to urge China to respect human rights of the Taiwanese people as well as the principles of ‘distinction’ and ‘necessity’ enshrined in international humanitarian law, and to refrain from disrupting peace and stability in contravention to the provisions of the UN Charter.
This section also covers in brief why under international law, support of Taiwan’s defence, such as through arms sales, is not a violation of Chinese sovereignty and territorial integrity.
3. Urging an ICJ Advisory Opinion on ‘The Taiwan Question’
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.
The legal force advisory opinions carry is time-sensitive, in that they can settle contested issues of international law at critical junctures. Preceding a conflict or in the midst of it, a UNGA resolution requesting the advisory opinion on the Taiwan issue can carry the word “urgently” in it, as it did when the UNGA resolution 49/75 K was adopted on 15 December 1994 to seek the ICJ’s advisory opinion on the legality of the threat or use of nuclear weapons.
4. Emphasising 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 in the Straits, it can be contested under the above-mentioned provisions of the UNCLOS. In such a scenario, China may attempt to seek refuge under the provisions of Article 58(3) of the Convention. China’s sovereign rights in its EEZ are confined only to exploring and exploiting, conserving and managing the natural resources, and marine research and conservation. None of these rights, despite the existence of relevant conflict-related laws in the land of the coastal State, prevent foreign States’ vessels from navigation or overflight in the EEZ.
5. Pointing to the Business Angle
A country may adopt a recourse for seeking remedy for atrocities committed by Chinese SOEs and businesses by supporting China’s war against Taiwan, from the UN Office of the High Commissioner for Human Rights (OHCHR), under the mandate of its Working Group on Business and Human Rights.
Seeking such a report for Chinese defence and commercial SOEs involved in human rights violations in Taiwan directly or indirectly can be fundamental in a country’s diplomatic campaign.
The key argument of the document, overall, is that the inconsistency of Taiwan’s status in international law, as well as the disputed nature of opinion 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 of the above-mentioned UN-led measures can provide remedy for an otherwise flawed international legal framework. Measures such as the issuance of an advisory opinion by the ICJ or the publication of a report on Chinese SOEs by the OHCHR may take months, while other measures such as condemnation of Chinese activities through resolutions UNGA and UNHRC are more immediate. 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.
Please do consider perusing the document by clicking on the button below, and your comments and feedback are deeply appreciated.
[More of the] Latest from the Indo-Pacific Studies Team:
The IPSP team has had an eventful week.
To begin with, in this report from the Center for Strategic and International Studies, entitled ‘Building International Support for Taiwan’ and authored by Jude Blanchette, Ryan Hass, and Lily McElwee, Manoj Kewalramani, IPSP Chairperson and China Studies Fellow at Takshashila, discusses India’s approach to the Taiwan issue.
Manoj also appeared on a video webinar with CSIS on the subject:
Next, in this piece for the Defence & Security Alert magazine, IPSP Research Analyst Rakshith Shetty discusses ‘Navigating Personnel Costs and Capital Expenditure in the Indian Defence Budget’.
In this podcast episode on ‘All Things Policy’, Takshashila’s daily public policy podcast, IPSP Research Analyst Bharat Sharma quizzes Dr. Arzan Tarapore, a Research Scholar at Stanford's Center for International Security and Cooperation, on what binds the Quad together, where the Quad countries stand in relation to China, and the Quad's prospects in the Indian Ocean Region. Tune in below:
In another podcast episode on ‘All Things Policy’, IPSP Research Analysts Amit Kumar and Anushka Saxena attempt to answer the question, “Why does China Dominate Solar Photo-Voltaics (PVs) Supply Chains?” Hear more about their discussion below: