Taiwan: What Happens When the US Can No Longer be “Strategically Ambiguous”?

According to the 1933 Montevideo Convention, the requirements of statehood are 1) a permanent population, 2) a defined territory, 3) a government, and 4) the capacity to enter into relations with other states.[1]  Taiwan clearly meets the first three criteria.  There is debate about whether Taiwan has the capacity to enter into relations with other states, given that most states do not have diplomatic relations with Taiwan.[2] 

            Under the declaratory theory of statehood, a state may still exist without being recognized by other states.[3]  Taiwan, while not diplomatically recognized, has entered into agreements with other states.  While the US dropped diplomatic relations with Taiwan in 1979, they entered into the Taiwan Relations Act in that same year, to help maintain peace and security in the region and to continue relations with Taiwan.[4] 

            The US continues to have close relations with Taiwan, providing Taiwan with over $23 billion in military armaments since 2010.[5]  On April 5th 2022, the US approved a sale worth $95 million to bolster Taiwan’s air defense system.[6] 

Although the US has consistently provided Taiwan with weapons for self-defense in order to maintain peace and security, the US’s stated policy in Taiwan has been one of “strategic ambiguity”.[7]  However, back in October 2021, President Biden stated that the US has a commitment to defend Taiwan if China attacks.[8]  The Biden administration walked back these comments, clarifying that there had not been a change to US policy, and that the US continues to recognize China’s sovereign right over Taiwan under the “One China” policy.[9]  With that said, the US understanding of the “One China” policy is different than Chinas.  The US recognizes that the People's Republic of China is the only legal government that represents all Chinese citizens, but is passive to the idea that there is only one China in the world and that Taiwan is part of China.[10]

In March 2022, President Xi of China told President Biden that “[s]ome individuals in the United States are sending the wrong signals to pro-independence forces in Taiwan, and that’s very dangerous.”[11]  President Xi went further, stating that the situation with Taiwan needs to be handled properly by the US to avoid damaging China’s relationship with the US.[12]  President Xi has called the “reunification” between Taiwan and China to be “inevitable”.[13]

Taiwan’s status of statehood raises important questions of international law if China were to attack.  If Taiwan is not a state, they would not have the right to self-defense under Article 51 of the UN Charter.[14]  Further, in order for collective action to be taken to maintain peace and security, the Security Council would have to vote to intervene in the conflict.[15]  However, China is on the Security Council, and would certainly veto any such vote. 

China will almost certainly use force in order to reunify with Taiwan, and when that day comes, the US will have a very difficult decision to make; let China use force to take over Taiwan, or use force to protect Taiwan, likely violating international law and causing a potential war with China.  While the latter option is will disrupt the peace and security in the region,[16] the US should stand by Taiwan in the event that China violates international law and uses force to take over Taiwan.[17] 

Grant Engel is a staff member of Fordham International Law Journal Volume XLV.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.
—

[1] See Convention on the Rights and Duties of States, Dec. 26, 1933, art. 1, 49 Stat. 3097, T.S. No. 881, 165 L.N.T.S. 19 (entered into force Dec. 26, 1934). 

[2] See Li Kua-teng, What Is Taiwan’s Legal Status According to International Law, Japan, and the US?, The News Lens (Dec. 2, 2019), https://international.thenewslens.com/feature/taiwan-for-sale-2020/128242. 

[3] See David J. Scheffer, Does Taiwan Have the Right of Self-Defense?, CFR (Nov. 23, 2021 12:54 PM), https://www.cfr.org/article/does-taiwan-have-right-self-defense.

[4] See Taiwan Relations Act Pub. L. No. 96-8, 93 Stat. 14 (1979) (codified at 22 U.S.C. §§ 3301-3316 (1982)). 

[5] See David J. Scheffer, Does Taiwan Have the Right of Self-Defense?, CFR (Nov. 23, 2021 12:54 PM), https://www.cfr.org/article/does-taiwan-have-right-self-defense.

[6] See U.S. approves $95 mln boost to Taiwan's air defense system, Reuters (Apr. 5, 2022), https://www.reuters.com/business/aerospace-defense/us-state-dept-approves-potential-sale-air-defense-support-taiwan-pentagon-2022-04-05/.

[7] See Kevin Liptak, Biden vows to protect Taiwan in event of Chinese attack, cnn (Oct. 22, 2021), https://www.cnn.com/2021/10/21/politics/taiwan-china-biden-town-hall/index.html.

[8] See id.

[9] See id.

[10] See Li Kua-teng, What Is Taiwan’s Legal Status According to International Law, Japan, and the US?, The News Lens (Dec. 2, 2019), https://international.thenewslens.com/feature/taiwan-for-sale-2020/128242. 

[11] See Xi tells US to handle Taiwan ‘properly’ to avoid damaging ties, Al Jazeera (Mar. 19, 2022), https://www.aljazeera.com/news/2022/3/19/xi-warns-us-over-taiwan-impact-on-relations

[12] See id.

[13] See Kevin Liptak, Biden vows to protect Taiwan in event of Chinese attack, cnn (Oct. 22, 2021), https://www.cnn.com/2021/10/21/politics/taiwan-china-biden-town-hall/index.html.

[14] See UN Charter, art. 51.

[15] UN Charter, art. 41 & 42.

[16] See Lee His-min. The threat of China invading Taiwan is growing every day. What the U.S. can do to stop it, nbc, (Jul. 9, 2021), https://www.nbcnews.com/think/opinion/threat-china-invading-taiwan-growing-every-day-what-u-s-ncna1273386. 

[17] See supra note 15.