Does Taiwan Have the Right of Self-Defense?

How did the China-Taiwan rift start?

Its origins can be traced back to China’s civil war, which pitted the communist forces of Mao Zedong against the government of the Republic of China (ROC), then led by the Kuomintang party. After more than two decades of intermittent fighting, the communist army defeated the ROC in 1949, forcing the latter to retreat from the mainland to the island of Taiwan, where it made Taipei its capital. The communists established the People’s Republic of China (PRC) in Beijing the same year.

What is Taiwan’s international legal status?

The international legal status of Taiwan is fraught with controversy. Today, the government in Taiwan describes the ROC as “a sovereign and independent state that maintains its own national defense and conducts its own foreign affairs.” A political evolution in recent decades has created a vibrant democracy on the island, which functions as a de facto independent entity. For now, most Taiwanese people support maintaining the status quo. But opinion polls asking about Taiwan’s future show that sentiment among the Taiwanese people spans the spectrum between favoring independence and preferring unification with the mainland. Indeed, without the threat of a PRC military invasion, both the government and people of Taiwan would likely opt for independence as an economically dynamic island nation with cultural and trade ties to the mainland.

Supporters of independence maintain that Taiwan exhibits the attributes of a sovereign state as required by customary international law, which was codified by the United States and other Western Hemisphere nations in the 1933 Montevideo Convention. Taiwan has a permanent population, defined territory, one government, and the capacity to enter into relations with states. This view, known as the “declarative theory of statehood,” identifies Taiwan as an independent nation regardless of diplomatic recognition from other states.

In contrast, the “constitutive theory of statehood” requires diplomatic recognition by other governments to achieve statehood under international law. Taiwan could qualify for statehood under both theories, as fifteen relatively small countries recognize it today. To its detriment, however, the ROC lost its seat at the United Nations in 1971, when the General Assembly awarded the seat to the PRC. It suffered another diplomatic blow in 1979, when the Jimmy Carter administration flipped U.S. recognition from the ROC to the PRC; Carter later acknowledged (but did not recognize) the PRC’s “one China policy.”

For its part, the PRC claims that Taiwan is a province of China and that the communist government has always had full authority over the island. For other governments to contend or act otherwise, Beijing argues, is to illegally interfere in the internal affairs of the PRC.

What is China’s current stance on reunification and the potential use of force?

At the November 15, 2021, virtual summit with U.S. President Joe Biden, Chinese leader Xi Jinping was quoted as saying, “We have the patience and are willing to strive for the prospect of peaceful reunification. But if the separatist forces of ‘Taiwan independence’ continue to provoke and cross the red line, we will have no choice but to take drastic measures.”

Exactly what would constitute provocation and the red line in Beijing’s view is unclear, but could be defined by the PRC’s Anti-Succession Law of 2005, which provides enormous latitude for a military takeover of Taiwan. But Xi’s recent words at least avoid pronouncing an unqualified right to invade and occupy Taiwan.

Would Taiwan have a legal right to defend itself against a Chinese military offensive?

The inherent right of individual and collective self-defense is well established in international law and codified in Article 51 of the UN Charter. But in Taiwan’s case, the issue is legally complicated. If Taiwan has the personality of a state under international law, it will have an unassailable right of self-defense. If, however, the PRC and Taiwan are regarded as one state, a military conflict between them could be categorized either as an internal insurrection (Beijing’s likely position) or as a civil war (which Taiwan could claim). Each side in a civil war would be a belligerent power required to comply with the law of war.

Under international law, Taiwan could make a convincing case that its nonbelligerency and respect for the peaceful status quo prior to a Chinese armed assault would entitle it to respond in self-defense. Taiwan could point to its full-fledged democracy, its long history of de facto territorial and economic independence, and the fact that it has demonstrated no military threat to the mainland.

Moreover, Chinese aggression across the Taiwan Strait would undeniably threaten international peace and security in contravention of the UN Charter, thereby permitting Taiwan to act in self-defense. That few governments officially recognize Taiwan as a state would not diminish the illegality of a Chinese attack that disrupts international peace and security and challenges the principle of self-determination deeply embedded in international law.

How does the United States view Taiwan’s right of self-defense?

The United States dropped formal diplomatic recognition of Taiwan in 1979, but the U.S. government reaffirmed the ROC’s right of collective self-defense via the Taiwan Relations Act enacted the same year. Under the act, the United States considers any effort to determine the future of Taiwan by non-peaceful means a threat to the peace and security of the Western Pacific and a grave concern to the United States. Consequently, the act confirms that the United States will resist any resort to force or coercion that jeopardizes the security, or the social or economic system, of the people of Taiwan. The law requires the president and Congress to decide on appropriate action in response to any danger to U.S. interests or the people of Taiwan.

The act also stipulates that the United States will provide Taiwan with defense articles and services “in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capability.” Since 2010, the United States has provided Taiwan about $23 billion in military armaments, and in August 2021, the Biden administration approved its first arms sale to Taiwan, worth $750 million.

Still, the United States has long pressed for the maintenance of the status quo and for a circumstance in which Taiwan’s future is determined by peaceful means. Any offensive military action or provocative independence initiative by Taiwan would run the risk of triggering a Chinese assault premised on the claim of a Taiwanese insurrection. This explains why the White House walked back a seemingly off-the-cuff statement Biden made on October 21 about defending Taiwan and why it reasserted the long-standing U.S. policy of strategic ambiguity about whether the United States would intervene militarily if Taiwan were attacked.

How would U.S. allies respond if China attacked Taiwan?

On November 10, U.S. Secretary of State Antony Blinken emphasized the collective interest in Taiwan’s defense: “[The United States is] not alone in this determination to make sure that we preserve peace and stability in that part of the world. There are many countries, both in the region and beyond, that would see any unilateral action to use force to disrupt the status quo as a significant threat to peace and security, and they too would take action in the event that that happened.” A few days later, the Australian defense minister, Peter Dutton, said, “It would be inconceivable that [Australia] wouldn’t support the U.S. in an action if the U.S. chose to take that action.” Then Japan’s deputy prime minister, Taro Aso, stated in July that Japan, joined with the United States, “would have to defend Taiwan” if the island were invaded by China, adding that “it would not be too much to say that it could relate to a survival-threatening situation” for Japan. The country has focused even more on its own self-defense in recent years, so edging closer to a protective shield for Taiwan, which is in Japan’s neighborhood, can make strategic sense.