Having Taiwan in Mind? The Principle of Non-Use of Force and the ‘Peacefully Established Status of Territories’

‘The nomos of the earth’ is changing again as US-China relations are spiralling downwards rapidly. The increasingly likely scenario of a hot war between China and the US appears to be on everyone’s mind. Here Taiwan finds itself everywhere in the conversations of various international fora (here, here, and here, for example), despite its continued exclusion from international organizations and diplomatic isolation. To international lawyers, this seems to be just another moment in the history of international law when the calling for the maintenance of peace through law is put to test. Answering such a momentous call, most would concur that the prohibition of the use of force as codified in the UN Charter article 2(4) must be observed.

Yet, the application of article 2(4) is not so clear in the case of the Taiwan question. In the imagined Battle for Taiwan, the prior question to the invocation of the peremptory norm above remains to be satisfactorily answered: Would China’s use of force against Taiwan constitute a use of force in ‘international relations’, bringing it within the prohibition in article 2(4)? Answering in the affirmative is likely to backfire as it would be seen by China as transforming the actual acceptance of the Republic of China (Taiwan) government as a de facto regime into formal recognition of Taiwan as an independent State by Taiwan’s international allies and partners. A negative reply from international law would instead effectively give China free rein when its policy towards the island democracy of Taiwan is getting more and more aggressive. Neither choice seems to be acceptable.

Against this backdrop, the recent G7 Hiroshima Leaders’ Communiqué (hereinafter the Hiroshima Communiqué)—which is as much of a hotchpotch as its predecessors and equally non-binding in the same way as any political statements emerging from summits and ministerial gatherings—stands out, meriting international lawyers’ close attention. Pronouncing the ‘international principles and shared values’ of the Group of Seven (G7), it states, inter alia, ‘[we] strongly oppose any unilateral attempts to change the peacefully established status of territories by force or coercion anywhere in the world and reaffirm … that the acquisition of territory by force is prohibited’ (Paragraph 2 (second point), emphasis added).

In this contribution, I aim to show that, despite its status as a political declaration, the pronouncement above nevertheless suggests a sensible, balanced normative foundation for the maintenance of peace and stability across the Taiwan Strait in terms of international law. Compared to other attempts to extend the scope of the prohibition of the use of force beyond international relations, the principle of non-use of force would apply to ‘the peacefully established status of territories’ in general without risking recognition of Taiwan’s sovereignty claim or acceptance of China’s position that international law has no role to play in the cross-Strait relations between China and Taiwan.

Extending the Prohibition of the Use of Force by Stealth?

As noted above, the Hiroshima Communiqué sets out its position on the use of force vis-à-vis ‘the peacefully established status of territories’ in relation to the ‘international principles and shared values’. Notably, the G7’s opposition to ‘unilateral attempts to change the peacefully established status of territories by force or coercion’ was first declared in the G7 foreign ministers meeting in April 2023 in Japan. It also bears mention that the G7’s opposition above as confirmed in the Hiroshima Communiqué is not the only stipulation included in the Group’s statement as to how to ‘champion international principles and shared values’. In championing international principles and shared values, the G7 leaders first pronounce ‘upholding and reinforcing the free and open international order based on the rule of law, respecting the UN Charter to the benefit of countries, large and small’. The generic reference to the UN Charter notwithstanding, this first pronouncement apparently has in mind the fundamental principles under the UN Charter article 2, including the prohibition of the use of force against the territorial integrity or political independence of any sovereign State, and the principle of sovereign equality. In other words, relating the upholding and reinforcing of international borders to the UN Charter, the first pronouncement indirectly reiterates the prohibition of the use of force in international relations as stipulated in the UN Charter article 2(4) and its legal implications to the acquisition of territories.

Read in this light, the pronouncement regarding ‘the peacefully established status of territories’ in the first half of the ‘second point’ must refer to circumstances—as opposed to consequences—other than those falling under article 2(4). In this way, the Hiroshima Communiqué implicitly extends the scope of the prohibition of the use of force in international relations to territories whose status is peacefully established. Whether this should be welcomed as contributing to the project to maintain peace through law or treated with heightened caution in terms of its hegemonic roots cannot be answered without looking into the underlying concern about the prohibition of the use of force against the peacefully established status of territories.

Examining ‘the Peacefully Established Status of Territories’ with Care

Before delving into what undergirds ‘the peacefully established status of territories’ as an interest falling under the principle of non-use of force in international law, we should note that this peremptory norm as codified in the UN Charter has been further expanded on in the post-Charter development of international law. Not only international lines of demarcation—vis-à-vis internationally recognized borders—but also the status quo of unlawfully-occupied territories falls under the prohibition against the use of force.  Even so, such expansion remains centred on international disputes. Of more pertinence to the present discussion is State practice regarding the use of force vis-à-vis ‘territorial self-determination unit[s] under international law’ beyond international relations proper. What sets ‘the peacefully established status of territories’ and ‘territorial self-determination unit[s] under international law’ apart, as an interest falling under the principle of non-use of force in international law, is that the former appeals to the telos of international law—peace—while the latter is to apply the UN Charter article 2(4) mutatis mutandis in light of the jus cogens norm of self-determination.  Thus, unmoored from such norms other than the telos of the international legal order, ‘the peacefully established status of territories’ as an interest justifying the application of the principle of non-use of force thereto must not be turned into the pretext for a new interventionism disguised as peace-keeping missions. Rather, such an interest only materializes when the following conditions are satisfied.

Obviously, the status of territories concerned must be ‘peacefully established’. Specifically, the requirement ‘peacefully established’ itself consists of two elements. First, the means to create the territorial status must be peaceful in the sense that the status quo of relevant territories was not created by the use of force. Thus, the status quo of Northern Cyprus that resulted from the Turkish military intervention in 1974, for example, does not fall into this category.  Second, the status that has evolved from the peaceful means must be established. As will be further discussed, ‘the peacefully established status of territories’ as an interest falling under the principle of non-use of force evokes the effectiveness principle. Thus, the territorial status that falls under the principle of non-use of force as a protected interest in international law must be one of stable existence for a substantial period of time.  Under this criterion, Catalonia’s self-declared independence in 2017 would not be considered to have achieved the peacefully established status, even if the self-declared independence came out of peaceful democratic processes.

Apart from the two elements above, the ‘peacefully established’ requirement itself further entails the territory concerned being actually in a peacefully established status. This is crucial since ‘the peacefully established status of territories’ as an interest falling under the principle of non-use of force in international law is pivoted to the telos of international law—peace. Thus, what is to be protected under the concept of ‘the peacefully established status of territories’ is such territories’ actual status of established peace, not their putative legal status or other legal claims as inferred from the peacefully established status. In other words, under the foregoing conditions, applying the principle of non-use of force beyond international relations to territories whose status is peacefully established does not imply recognizing their self-declared legal status as the application itself takes no stance on the legal dispute concerning such territories. And this must not be forgotten when peace is at stake as plays out across the Taiwan Strait.

Assessing Taiwan’s Current Condition under ‘the Peacefully Established Status of Territories’ Criteria

To apply the principle of non-use of force to ‘the peacefully established status of territories’ must fulfil the requirements as discussed above. Now let us consider the current condition of Taiwan. It should help to set out the key facts about the status of Taiwan in the first place. Assuming the official title ‘the Republic of China (ROC)’, Taiwan exists as a self-governing entity that has no legal connection to the Chinese central government seated in Beijing, with its current democratic government finding constitutional continuity with the authoritarian predecessor. Is Taiwan a territory whose status is peacefully established and thus falls under the principle of non-use of force as discussed above?

First, the status of Taiwan as a self-governing entity that exists independently of the Chinese government has been established since 1949 at the latest. It is established, not transient. Second, it is through the postwar arrangement under international law predating the outbreak of the Chinese civil war that laid the foundation for Taiwan’s self-governance. Since then, the ROC government, first as the administering power of Taiwan, has continuously governed Taiwan for over three-quarters of a century. Taiwan’s actual status as a self-governing entity was therefore peacefully established, though the vestiges of the Chinese civil war may complicate the applicable scope of the peacefully established status of Taiwan. Third, despite the continuing tension across the Taiwan Strait, peace has been maintained between China and Taiwan since the end of the Taiwan Strait crises in the 1950s. In sum, given Taiwan’s peacefully established status as a self-governing entity, the principle of non-use of force should see no difficulty applying to the cross-Strait relations between China and Taiwan.

Through the assessment of Taiwan’s current condition as ‘the peacefully established status of territories’, two features of applying the principle of non-use of force the way as discussed above become clear. First, ‘the peacefully established status of territories’ as a protected interest in international law speaks to the effectiveness principle in general—and the criterion of effective control of territory for Statehood in particular—in the sense that both give legal effect to the actual status of a territory. Yet, there is one fundamental difference: under the effectiveness principle, the claims the territory attaches to its actual status become legal rights as recognized in international law; in contrast, the legal effect incurred by ‘the peacefully established status of territories’ is limited to the protection of such territories’ actual status from the use of force. To illustrate, in the case of Taiwan, applying the effectiveness principle would imply confirming Taiwan’s putative Statehood claim, while ‘the peacefully established status of territories’ concept as discussed above would only establish the application of the principle of non-use of force to Taiwan without prejudicing the final settlement of Taiwan’s status in international law.

Second, as applying the principle of non-use of force to ‘the peacefully established status of territories’ does not imply recognizing their self-declared legal status, it would allow States to support the extension of the prohibition of the use of force to the cross-Strait relations without taking sides. Broadening international support beyond the G7 for the application of the principle of non-use of force to the relations between China and Taiwan is crucial in maintaining the peace and stability of the Taiwan Strait amid the US-China competition.

Conclusion

International law should serve the purpose of peace. This is what animated the establishment of the UN system when the end of World War II was in sight. The principle of non-use of force as codified in the UN Charter is the lynchpin of the legal design of the world order. Despite its constant breach, the prohibition of the use of force in international relations remains very relevant to debates surrounding war and peace. The Taiwan question that has been brought to the fore in the new geopolitical situation is one such example. Yet, as noted in the Introduction, to extend the prohibition of the use of force in international relations as stipulated in the UN Charter to Taiwan requires taking into account the implications of such good-willed extension to a nuclear-armed superpower (China) on the one hand and a vibrant democracy (Taiwan) on the other at the centre of the dispute. Applying the UN Charter article 2(4), without modification, to Taiwan would amount to the ‘internationalization’ of the cross-Strait relations, escalating the geopolitical tension surrounding Taiwan.

Drawing inspiration from the Hiroshima Communiqué, I have tried to show that ‘the peacefully established status of territories’ floated by the G7 suggests a sensible, balanced normative foundation for applying the principle of non-use of force to the Taiwan question. To bring my contribution to a close, I should bring to the fore the downside of extending the prohibition of the use of force to the ‘the peacefully established status of territories’. Obviously, it is a convenient solution for Taiwan’s guarantor powers de facto such as the US and its regional allies to build up broader international support around international law in the prevention of China’s attempt on Taiwan by the use of force. As its seeming beneficiary, however, Taiwan, whose putative Statehood rests on the Montevideo criteria, does not seem to have much agency in the extension of the prohibition of the use of force to the cross-Strait relations. Coming around to the notion of ‘the peacefully established status of territories’ that would allow relevant States to dodge issues concerning the character of the cross-Strait relations in international law, Taiwan would be seen as accepting such ambivalence about its putative Statehood. Taiwan may well thus see its sovereignty claim becoming faint while seeking refuge in ‘the peacefully established status of territories’ in the face of China’s increasingly aggressive policy. Neither peace nor its outside support is free.