China's military threats against Taiwan violate the United Nations Charter
Doctor of Juridical Science (SJD) in International Law, Harvard University
Adapted from The Trenchant Observer, April 9, 2022
Republican House Speaker Kevin McCarthy met in California last week with Taiwan’s President Tsai Ing-wen, following in the footsteps of Democratic House Speaker Nancy Pelosi and her ill-advised visit to Taiwan in August, 2022.1
After Pelosi’s visit, China retaliated with threatening military maneuvers around Taiwan. Following President Tsai’s ‘s visit with McCarthy, China reacted similarly with military maneuvers which simulated military action against Taiwan.2
These military maneuvers constituted a threat of the use of force against Taiwan. As such, they violated the most fundamental principles of the United Nations Charter.
Article 2 of the U.N. Charter provides:
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
…
China argues that Taiwan is not a state since it is a province of China, and that therefore Article 2 (4) does not apply.
Nonetheless, there are powerful legal arguments that may counter China’s position.3
Whether Taiwan has attained the status in international law of a state is not an open and shut question. Strong arguments can be made supporting the position that since 1949 the self-governing territory of Taiwan has attained the characteristics of a state.
Moreover, a very strong argument can be made that under Article 2 (4) a threat or use of force against Taiwan would be a threat or use of force “in any other manner inconsistent with the Purposes of the United Nations.”
The United Nations was created to prevent the use of force to settle international disputes. The prohibition of the use of force is the cornerstone of the Charter. Reading the Preamble and Articles 1 and 2 together, one can even say that the central purpose of the United Nations Charter was to prevent war and, in the words of the Charter, to maintain international peace and security.
Moreover, the issue of whether Taiwan is a state is not the only question relating to whether China may threaten or use force against Taiwan. The violation of international demarcation lines agreed to by the acting state or generally recognized as binding also violate Article 2 (4). See the discussion of the relevance of the language in the 1970 U.N. General Assembly “Declaration on Friendly Relations”, which is generally considered to be an “authentic interpretation” of the Charter, in “Ukraine War, August 2, 2022 (II): China and Taiwan in Putin’s new world order,” The Trenchant Observer, August 2, 2022.
China may argue that Article 2 (3) does not apply because the status of Taiwan is not an “international dispute”. But certainly there is an international dispute over whether China has the right under the U.N. Charter to invade Taiwan. And certainly China is obligated to settle the dispute by peaceful means. The dispute is one which, if not peacefully resolved, could lead to a large-scale war.
The key point here is that the U.S. and other countries should be working hard to develop these arguments, which should be made public, possibly in a U.N. Security Council meeting.
It is important that China’s legal arguments be publicly rebutted. Indeed, it is quite dangerous not to make the international legal arguments rebutting China’s claims.
These arguments need to be put out there to demonstrate to China that it would have an uphill battle in arguing its actions were justified under international law and the Charter were it to invade Taiwan. The legality of China invading Taiwan will not be settled by the World Court, nor many would argue should it be. Yet international law influences the behavior of states through perceptions of legitimacy and the anticipated reactions of other states. China, a Permament Member of the Security Council, could not credibly claim it was upholding the U.N. Charter and international law if it invaded Taiwan.
Such a claim would be about as credible as Vladimir Putin’s recent claim that Russia is acting in Ukraine to uphold the U.N. Charter.
As a practical matter, it is important that the U.S. act to lower tensions with China. The United States need not, and should not, abandon its “one-China” policy which it has maintained since the Shanghai Communique in 1972.
It should simply argue that its adoption of the “one China” policy was not intended to and did not create a right of China to use military force against Taiwan, which is clearly prohibited by the Purposes and Articles 1 and 2 of the United Nations Charter.
At the same time, acting pragmatically, the U.S. should strictly insist that no support be given to anyone or any organization that is pushing for the independence of Taiwan.
The important thing, right now, is to develop the legal arguments and put them on the table. Other countries, such as Germany, should assist the U.S. in this effort.
See,
“China and Taiwan: Before poking the Cyclops in the eye, think about the Party Congress and Ukraine, Trenchant Observations, August 18, 2022.
See, e.g., Chris Buckley and Amy Chang Chien, “China Brandishes Military Options in Exercises Around Taiwan; The People’s Liberation Army’s ships, planes and troops held three days of drills in a spectacle designed to warn Taiwan against challenging Beijing.,” New York Times, April 10, 2023.
See,
“Ukraine War, August 2, 2022 (II): China and Taiwan in Putin’s new world order,” The Trenchant Observer, August 2, 2022.
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Support the Author
There are two ways to support the author, so that he can continue to publish articles and books dealing with the war in Ukraine and other pressing international issues, including articles published here in the Trenchant Observations Newsletter and in The Trenchant Observer blog.
First, you may make a contribution to his Go Fund Me appeal by clicking on the last button and link below.
Second, you may order a paid subscription or upgrade to a Founding Member subscription to Trenchant Observations, by clicking on the “Subscribe” button below. (Substack takes 10% of the subscription amount.)
Finally, to help build the audience for Trenchant Observations, you can share aricles you like with your friends and colleagues, by clicking on the “Share” button.
See also “Why I care about the war in Ukraine,” Trenchant Observations, June 26, 2023,