Peace Consulting

The Status of Taiwan: The Legality of a Potential War Between China and Taiwan

By <b><br>Dr Marta Katz-Turi</b>

Dr Marta Katz-Turi

President Biden, unlike his predecessors, has made some major policy changes that have resulted in a firm commitment towards Taiwan. On October 21, 2021, he stated that if China attacked Taiwan, the United States would defend Taiwan from Chinese military action. This is a clear departure from a long-held U.S. foreign policy position. This is the first time in U.S. history that a U.S. President has made a military commitment to defend Taiwan against China. The Taiwan Relationship Act, adopted by Congress in 1979, only gave the option to do so.

President Biden also brokered the AUKUS Alliance on 15 September 2021, offering nuclear-powered submarines to Australia, and probably even more countries in the future, which is going to fundamentally alter the power in the Indio-Pacific region against China.

(Read my article about the AUKUS Alliance here:

China, in response, has increased its military threats against Taiwan and entered into Taiwan’s territory several times in recent weeks. In response, U.S. Admiral John Aqualino, Head of the Pentagon’s Indo-Pacific command, said that “a Chinese invasion of Taiwan is much closer to us than most think.”

It is getting clear to us that a war in the Indio-Pacific region, more particularly, between China and Taiwan, is not a question of if, but a question of when. Would a war over Taiwan be legal? In order to examine the situation, the priority is to understand the status of Taiwan and its relationship with China.

I am going to write more articles about Taiwan and China on this blog ( in the future.

The History of Taiwan

Historically, Taiwan used to be known as Formosa (“beautiful island”). The island was discovered in the South-China Sea by Portuguese sailors in the 15th century. Later the Qing dynasty integrated Taiwan into the Qing Empire, under Chinese rule, that lasted 200 years until the 19th century when China lost it to Japan during the Sino-Japanese War.

In 1895, Taiwan (Formosa) was legally ceded to Japan by China, by the Sino-Japanese Peace Treaty. From 1895 to 1945, Taiwan was a Japanese colony. After the Japanese surrender to the Allied Powers in 1945, General MacArthur instructed Chiang Kai-shek, then Generalissimo of the Republic of China to administer Taiwan. Thus, Chiang’s Kuomintang regime acquired de facto control of the island in a form of military occupation.

Several significant events happened afterwards, including Chiang Kai-shek’s exile to Taiwan after being expelled from the Chinese mainland as a result of the establishment of the People’s Republic of China in 1949, and the drastic increase in the strategic importance of Taiwan for the United States in the Western Pacific after the outbreak of the Korean War in June 1950.

The Allied Powers concluded the San Francisco Peace Treaty with Japan in 1951. The Peace Treaty made Japan renounce all of its rights, titles and claims to Taiwan and this treaty was the authoritative instrument that formally terminated Taiwan’s status as a colony of Japan. There are views whether Taiwan was given back to China by this Peace Agreement or not. Taiwan is of the view that it was not and its status was “to be dealt with later”. (This is however not the most important argument against Taiwan’s independence as we will see later).

The Republic of China’s (Taiwan) constitution still claims Taiwan, China, Mongolia, and the entire China Sea as its territory, reflecting Chiang’s desire to restore control over areas the Qing Dynasty ruled or claimed at its height.

Taiwan was internationally recognized as representing all of China at the United Nations until 1971. However, then there was a shift in foreign policy. As a consequence, in October 1971, the United Nations General Assembly, by Resolution 2758, voted to seat the People’s Republic of China and to “expel” the Representative of the Republic of China (Taiwan). To sum up, the UN General Assembly decided to seat the People’s Republic of China in place of the Republic of China (Taiwan). Taiwan has never been admitted to the United Nations as a separate state, not even as an observer. The United States established diplomatic relations with the People’s Republic of China in 1979 and de-recognized Taiwan, and the Taiwan-U.S. relationship changed from an official to a non-official relationship.

After Chiang’s death, in 1975, his son maintained the delusion that the Republic of China (Taiwan) would retake mainland China. In 1981, Chiang Ching-kuo’s government rejected the International Olympic Committee’s suggestion of competing in the Olympics under the name Taiwan, insisting on a new connection with China, settling on the one that Taiwanese athletes still compete under today: Chinese Taipei.

According to the People’s Republic of China “there is only one China” and “Taiwan is an integral part of China”.

Why is that?

Because, Taiwan has never claimed a formal declaration of independence as we can see in the development of events. Therefore, it remains de jure an integral part of China, even if de facto it has all the characteristics of an independent state. A formal declaration of independence would have been the first step towards independence, and this never happened.

The Status of Taiwan: A State to Be or Not To Be

In order to be qualified as a state under international law, four criteria are necessary, which are cumulative. (1) the entity must have a permanent population, (2), a defined territory, (3) an elected government, (4) it must be recognized by other states. The first three criteria have been fulfilled in Taiwan’s case. Taiwan is an island with a defined territory; it has an elected government and a population of 22 million people. It is the last criterion that is missing in Taiwan’s case. Recognition is a requirement for a country to become a member of the international community. However, Taiwan has only been recognized by 17 countries in the world, even though the country has been doing everything it can, and used “dollar diplomacy”, basically buying international recognition, whenever possible in the 1980’s. It is interesting to note that in the case of Palestine, it is the defined territory that is missing, even if Palestine is recognized by 113 countries in the world, unlike Taiwan.

Now we can answer the question that even though Taiwan is acting de facto as a state, de jure it is not. Therefore, it is not protected under the International Convention on Civil and Political Rights (ICCPR), which grants states the right to self-proclamation (Article 1) and the right to use military force in self-defense against an armed attack by another state, as well as to ask other states to help defend itself. Since Taiwan is not a state, it has no right to defend itself from China or ask to its allies to help it. It is also controversial to apply self-determination outside colonial territories and to extend it to sub-national groups within an independent state such as China. Ukraine is a state, and no-one defended it from Russia’s invasion.

Without recognition, all self-proclaimed states could enter the international community. For example, after the collapse of the Soviet Union, four countries, South-Ossetia, Abkhazia, Transnistria, and Artsakh, claimed independence and recognized each other diplomatically. But no other countries have done so.

Taiwan is different, however. The United States has not recognized the Republic of China (Taiwan) de jure, yet Taiwan is the United States’ 11th largest trading partner, and the world’s 22nd largest economy.

According to China, Taiwan is an integral part of its territory. I believe this is right. Taiwan is not a sovereign state de jure.

Difference between ‘One China Policy’ and ‘One China Principle’

Taiwan was not recognized as a state because of the “One China Principle”, which means that no country can recognize the People’s Republic of China and the Republic of China at the same time, as China (Beijing) considers it as an integral part of its territory and would sever relationships with any third states that approached Taiwan. And since this is the one of the biggest markets in the world, no country can economically and politically afford the loss of such a powerful partnership.

However, there is a striking difference between China’s “One China Principle”, and the “One China Policy” adopted by the U.S.

China has stated its “One China Principle” with the following three conclusions:

  1. There is only one China in the world.
  2. Taiwan is part of China.
  3. The People’s Republic of China is the only legal government that represents all Chinese citizens.

It is interesting to note that the U.S. has only recognized the last statement of China’s “One China Principle”, according to which “the People’s Republic of China is the sole government that represents all Chinese citizens” but acknowledged the first two. There are three U.S.-Chinese diplomatic communiqués on this issue, due to the fact that the words recognized and acknowledged have been translated into Mandarin by the same word (recognized), but the U.S. has only endorsed the English version. As Deputy Secretary of State, Warren Christopher told a Senate hearing at that time “we regard the English text being the binding text. We regard the world ‘acknowledge’ as being the word that is determinative for the U.S.”

As a conclusion, there is a fundamental difference between the “One China Principle” of China and the “One China Policy” endorsed by the U.S. As a consequence, the U.S. recognizes that the Chinese Communist Party is the sole government of China, but only acknowledges the Chinese position that Taiwan is part of China. Therefore, the U.S. maintains formal relations with China and has unofficial relations with Taiwan.

The Pentagon made it clear once again on October 12, 2021 that it supported the “One China Policy” but not China’s “One China Principle” and stressed a rock-solid commitment to Taiwan.

The Pentagon’s spokesperson, John Kirby, said that as part of the “One China Policy”, the U.S. does not take a stance on the sovereignty of Taiwan but does seek a peaceful resolution to cross-strait issues “consistent with the wishes and best interests of the people of Taiwan”.


The Chinese Communist Party’s legitimacy is linked to its pledge that no Chinese leader could remain in power if he allowed Taiwan to separate from China and be recognized by the international community as an independent sovereign state. This will not happen. China will not compromise on its core interest.

This trend has been reconfirmed by the adoption of the Anti-Secession Law, adopted by Beijing in 2005, which sets forth three conditions under which China would be justified in using “non-peaceful means and other necessary measures to protect China’s sovereignty and territorial integrity”. 1) Taiwan independence forces cause Taiwan’s secession from China. 2) Major incidents entailing Taiwan’s secession from China occur. 3) Possibilities for peaceful reunification are completely exhausted.

Now we have seen that China is ready to go to the extreme, to use non-peaceful means, to restore and defend its territorial interest when the need arises. There is only one China in the world and Taiwan is an inalienable part of China, and according to China, neither power nor events will change this fact. Adherence to the “One China Principle” is the political foundation for China to establish, maintain and develop diplomatic relations with all other countries. In a nutshell, the One China Principle is a touchstone for China’s relations with other countries. It is non-negotiable.

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