If the PRC interfered with neutral shipping around Taiwanese waters, Japan and South Korea would be seriously affected. As recognized flag states of the detained ships and crews, they could apply to the ITLOS for prompt release. However, Taiwan’s statehood and its capacity to secure its territorial seas and EEZs would undoubtedly become central issues of the judicial proceedings. It is highly doubtful that any international court or tribunal would be willing to rule on such controversial questions. Even if a ruling was rendered in favor of Taiwan, it is also possible that the PRC would boycott the judgment as it did in the South China Sea Arbitration. In the South China Sea, the United States conducted Freedom of Navigation (FON) operations to challenge the PRC’s excessive territorial claim. FON operations, with the participation of U.S. regional allies, could be a legitimate way to ensure the exercise of rights by all states transiting major waterways around Taiwan.

A full-scale naval blockade against another sovereign state has been widely recognized as unlawful. While Taiwan could no doubt treat any naval blockade as an act of aggression and resort to the inherent right to self-defense under Article 51 of the UN Charter, given Taiwan’s uncertain international status, the PLA could easily argue that the blockade is an action taken as part of the ongoing Chinese Civil War. The legality of a naval blockade during a civil war is heavily contested. While it is often argued that a blockade is only lawful in international armed conflict, others contend that there is an exception for the recognition of belligerency which arises when “the internal conflict is of such a high intensity similar to an international armed conflict.” Any conflict across the Taiwan Strait is very likely to meet the intensity threshold. However, this does not rule out the possibility of a full-scale naval blockade constituting a crime of starvation. In this regard, Taiwan could delegate its criminal jurisdiction to the International Criminal Court under Article 12(3) of the Rome Statute to investigate and adjudicate the commission of international crimes.

At the same time, Taiwan is heavily reliant on imports for basic commodities. In the event of a full-scale blockade, foreign support will be required to ensure the free passage of relief to the Taiwanese people. In the absence of a UNSC authorization of “enforcement measures” under Chapter VII (which is impossible because of the PRC’s veto power), NATO justified its intervention in Kosovo as a “humanitarian intervention,” a controversial doctrine widely disputed by states and scholars. Assuming that humanitarian intervention was accepted as a justifiable use of force, it would still require widespread human rights violations to trigger its application. Compared to the direct use of force against the PRC, escorting humanitarian convoys (see the Neutrality Patrol) or mine sweeping are easier to justify as necessary and proportionate means for providing humanitarian relief to Taiwan’s population. Finally, it is important to remember that in the past newly independent and communist states argued strongly in favor of extending the right to self-determination to a right to seek and receive foreign support. The PRC’s actions would appear inconsistent with the position of the Third World if it sought to deny such rights to the people of Taiwan. Of course, the PRC would never recognize Taiwanese “peoplehood,” however, if the focus of any debate on the legality of international responses could be directed to the humanitarian aspect and/or the needs of the “people of Taiwan,” the difficulties over Taiwan’s contested statehood could be circumvented.

Conclusion

The indeterminate status of Taiwan could potentially be exploited by the PRC to justify a range of measures short of war to exert pressure against Taipei to accept Beijing’s proposal for “reunification.” The absence of Taiwanese statehood also undermines the legitimacy of any international response. The legal ambiguity of “gray zone measures” coupled with lower organizational constraints make measures short of war more likely than a full-scale amphibious invasion. One way for the international community to counter the PRC’s narratives and justifications is to shift the focus away from “statehood” and to emphasize the needs, wishes, and rights of the Taiwanese “people,” including the freedom to determine Taiwan’s future without being subjected to coercion.

Sze Hong Lam is an internal Ph.D. candidate at the Grotius Center of International Legal Studies of Leiden University. He had formerly interned at the Legal Office of the Organisation for the Prohibition of Chemical Weapons (OPCW) and the Office of the Prosecutor of the United Nations International Residual Mechanism for Criminal Tribunals (IRMCT). He has written in the areas of international humanitarian law, international criminal law, the history of international law, and on the right to self-determination.

Wei Azim Hung is a part-time Research Assistant at the Institute of Sociology, Academia Sinica. He graduated International Studies, cum laude, from Leiden University and researches on uncovering the relationship between state discourse and nationalism.

Image: Reuters.