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Defending Taiwan from invasion is a must

Argument that defending Taiwan would breach international law fundamentally flawed

Two F-16V are flying over the sky in Taipei City during the National Day Parade. 

Two F-16V are flying over the sky in Taipei City during the National Day Parade.  (CNA photo)

KAOHSIUNG (Taiwan News) — It feels right now as if international support for Taiwan has never been so strong.

President Joe Biden recently said at a town hall meeting that the United States “have a commitment” to help Taiwan if China seeks to invade. Meanwhile, U.S. Secretary of State Antony Blinken has called for Taiwan to be allowed to participate meaningfully in the U.N.

At the same time, Taiwanese Foreign Minister Joseph Wu (吳釗燮) has been visiting Slovakia and the Czech Republic. Also, a European Parliament delegation is expected in Taiwan soon, despite Chinese threats of repercussions if they come, while former Australian Prime Minister Tony Abbott has visited Taiwan and called for solidarity from democratic allies.

These are all positive developments of course, but every positive development of this type irks the Chinese Communist Party (CCP) a little more and ratchets up the risk of invasion. Biden saying the U.S. will come to Taiwan’s aid in the event of an invasion is one thing, but his words translating into meaningful actions against the forces of a global superpower with nuclear capabilities is another matter entirely.

War remains a very real possibility, and how Taiwan would be defended is open for debate. One question that shouldn’t really be up for debate is whether such a war over Taiwan would be legal or not.

State or not?

Most would assume that a Chinese invasion of a sovereign, democratic nation-state would be illegal, while international efforts to defend that nation would be perfectly legitimate. Even so, a remarkable article in the Lowy Interpreter this week asked the opposite question: Would U.S. involvement in a war over Taiwan be legal?

The article is by Ben Saul, a respected academic at the University of Sydney and the Chatham House Institute in London and formerly of Harvard and the U.N. The crux of the argument is that ambiguities in the legal status of Taiwan create legal difficulties for any country that might be inclined to defend it.

He draws a bizarre comparison with the Iraq War in 2003 and then leans heavily on the CCP’s "one China" policy to make an extremely fragile argument around Taiwan’s statehood. This, he claims, matters when it comes to the rules of war.

Saul notes that international law defines a nation-state as an entity with “a permanent population, a defined territory, a government, and a capacity to enter into relations with other states." He then argues that Taiwan fails the last point because most countries choose not to recognize it.

A state is defined in international law under the Montevideo Convention, which explicitly states that a lack of recognition has no bearing on whether a country meets the criteria for statehood or not. Taiwan has diplomatic relations with 15 states and while it would like more, this proves that, contrary to Saul’s argument, the capacity to enter into relations with other countries is there.

This flawed argument undermines Saul’s next point, which is “only a state has the right to use military force in self-defense against an armed attack by another state — and to ask other states to help it to defend itself.”

Real sovereignty

Taiwan clearly meets the definition of statehood under international law, so it is therefore perfectly legal for it to defend itself from invasion and for others to assist. Much of the rest of Saul’s article reads like it could have been lifted from a Global Times op-ed, arguing that China has the right to maintain its territory.

Saul conveniently ignores or overlooks the crucial point that sovereignty over Taiwan was not handed back to either the People’s Republic of China (China) or the Republic of China (Taiwan) by Japan after World War II.

The 1952 Treaty of San Francisco, which is the dominant international treaty, clearly shows Japan relinquished sovereignty over Formosa (Taiwan) but not to any specific country. It can therefore be argued that Taiwan gained its independence in 1952, regardless of what the CCP, the Kuomintang (KMT), or anyone else might claim.

It is reassuring to note recent developments and see that world leaders clearly are not on the same page as Saul when it comes to the legality of defending Taiwan.

For all the flaws in his article, he does finish on a very pertinent point.

He says Ukraine is a state and that no one defended it from Russia’s invasion. Palestine is probably a state, and no “coalition of the willing” is expelling Israel. A “rules-based international order” is really anarchic if no one is willing to enforce the rules.

The U.S. is closer to saying it will enforce the rules when it comes to Taiwan than it ever has been. However, it has not explicitly said so yet, and until it does, no one in Taiwan will be wanting the CCP to put this to the test.