“Ukraine War, August 2, 2022 (II): China and Taiwan in Putin’s new world order,” The Trenchant Observer, August 2, 2022.
Article 2 of the U.N. Charter provides, in relevant part:
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.
Nonetheless, there are powerful legal arguments that may counter China’s position.
Whether Taiwan has attained the status in international law of a state is not an open and closed case. Taiwan certainly appears to have attained the characteristics of a state for the limited purpose of deciding whether Article 2 (4) prohibits the “threat or use of foce” against Taiwan.
Moreover, the issue of whether Taiwan is a state for purposes of Article 2 (4) is not the only question relating to whether China may threaten or use force against Taiwan. See the discussion of the relevance of the 1970 U.N. General Assembly “Declaration on Friendly Relations” in the Trenchant Observer article cited above.
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.
Moreover, a very strong argument may 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 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.
The United States need not, and should not, abandon its “one-China” policy which it has maintained since the Shanghai Communique 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, 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.
The Trenchant Observer