For the first time, the Chinese Communist Party’s (CCP) constitution stipulates its intention to oppose and deter separatists seeking Taiwanese independence. The revised charter takes a more aggressive stance than the language adopted at the 19th National Congress in 2017, which set out to strengthen the unity among all groups within China “to facilitate national unification.” However, the language from the 20th National Congress is arguably nothing new. In March 2005, the 10th National Congress enacted the Anti-Secession Law of which Article 8 states that the People’s Republic of China (PRC) “shall employ non-peaceful means and other necessary measures…” in the event that

“Taiwan independence” secessionist forces should act under any name or by any means to cause the fact of Taiwan’s secession from China, or that major incidents entailing Taiwan’s secession from China should occur, or that possibilities for a peaceful reunification should be completely exhausted.

Revisions to the CCP’s constitution have happened at every party congress since 1982. Amendments to the charter gesture toward the policy direction the PRC will strive to implement for the next five years but the addition of the anti-independence amendment raises questions about whether the PRC believes one of the three conditions in the Anti-Secession Law is likely to be satisfied in the near future.

Notwithstanding the PRC’s territorial claim, Taiwan and Penghu, as well as the offshore islands of Kinmen and Matsu, exist as a self-governing entity under the name of the Republic of China (ROC). There has been no attempt by the PRC to invade these territories since 1971. Yet, over the next five years, the PRC will exploit the uncertainty of Taiwan’s international status and ramp up its gray zone activities, or measures short of war, in combination with the rhetoric of international law, to deter foreign interference and exert pressure on Taiwan to accept the PRC’s proposal for peaceful reunification.

China Vies for a New Normal

Public attitudes in Taiwan often downplay the prospect of a cross-strait war as an unknowable future question or simply impossible due to global economic interdependence. In other words, the public’s understanding of how war will break out is that the PRC will eventually launch a full-scale invasion, but with no consensus as to when this might happen, or that the status quo will prevail. However, such binary thinking ignores that measures short of war are a means for the PRC to achieve its goals when the option of a full-scale invasion is neither militarily nor politically feasible.

Domestically, Chinese leader Xi Jinping has to consider three interconnected factors before launching a full-scale invasion: time, internal coordination between the Politburo Standing Committee (PSC) and Central Military Commission (CMC), and the People’s Liberation Army’s (PLA) fighting capacity. If Xi lacked time, the impulsion to set the record once and for all through a full-scale invasion would be tempting, as measures short of war take time to deliver an outcome. However, the risks associated with defeat are also exponentially higher. Luckily for Xi, the time factor has been alleviated after his appointment to a third term as the CCP’s general secretary.

A second consideration is that while the PSC decides on any Taiwan action, the CMC is ultimately responsible for planning and executing the assault. For a Taiwan contingency, Xi would need to streamline the chain of command between the PSC-CMC without obstruction. Precisely, Xi’s new generals after the 20th National Congress show that the gap for this prerequisite is closing through the promotion of Gen. Li Shangfu, an expert in electronic, cyber, and space warfare, and Gen. He Weidong, who is responsible for the PRC’s Eastern Theater Command, which includes Taiwan-related operations. However, unlike their American counterparts, few Chinese generals have combat experience. This is a consideration for Xi when he has to decide whether the PLA is fully-prepared to launch an invasion against Taiwan.

Third, the feasibility of executing the assault on Taiwan is also an open question. The most prominent and aggressive operational concepts of large-scale amphibious invasion are complex operations requiring air and maritime superiority. It would require the PLA to mechanize, informatize, and intelligentize its armed forces before Beijing could employ credible military options for a Taiwan scenario. This is expected to materialize no sooner than 2027. Additionally, the possibility of a U.S. intervention during a Taiwan contingency and ongoing border conflicts with Vietnam and India poses significant constraints on PLA resources and manpower.

Acknowledging that Xi is no longer on borrowed time, there is no reason for him to incur domestic and international backlash that may hurt his position of power. Moreover, he does not have to gamble on the prematurity of the other two variables, in which a military failure could have unintended consequences such as significantly weakening China or leading Taiwan to formally declare independence. Thus, the practical solution for Xi is to continue restructuring the PCS-CMS chain of command and modernizing the PLA to remake the status quo in the PRC’s favor. At present, measures short of war are the best military option for Xi’s Taiwan strategy.

Since Taiwan has never unequivocally declared independence and is currently represented by the government of the ROC, the uncertainty of Taiwanese statehood has implications for the legality of the PRC’s coercive measures. While the PLA ceased all military operations targeting the ROC territories in 1979 (when the PRC normalized relations with the United States), there is no official armistice between the two entities. The PRC could argue that, without a formal peaceful settlement, the non-international armed conflict between the PRC and the ROC has continued from 1947 until today. Also, in the absence of an agreed armistice line, any violation of Taiwanese airspace and water is arguably not a violation of international law. The process of challenging Taiwan’s effective control of its neighboring airspace has already begun. Military aircraft of the People’s Liberation Army Air Force (PLAAF) recently crossed the median line of the Taiwan strait, the de facto boundary between Taiwan and the PRC.

A pyramid of measures could be drawn based on the gravity of the potential violation of international law by the PRC. Possible responses by the international society would depend on the legality and perceived acceptability of each action by the PRC. Below, we have listed various measures short of war that the PLA could employ by order of severity. Ideally, as the PLA moves down the pyramid, it changes the status quo in favor of its civil war narrative.

The ambiguity of Taiwan’s international status and the overlap of Chinese government representation could be exploited by the PRC to undermine the legitimacy of any assistance to Taiwan. The uncertainty of whether Taiwan, as a de facto territorial entity short of a widely recognized state, is protected by international law is intertwined with the debate over Taiwanese statehood. In conjunction with adopting harsher measures, the rhetoric of the PRC would shift from the language of domestic law enforcement to military operations in the context of the unfinished Chinese Civil War. At the top of the pyramid is a full-scale naval blockade that would otherwise be considered an act of war if Taiwan was recognized as a state. Since the PRC enjoys veto power at the United Nations Security Council (UNSC), it is unlikely that the UNSC could adequately react in such a scenario. Thus, most of the international responses discussed in this article focus on countermeasures and interventions from third states.

The Legality of PRC Measures Short of War

Since the PRC views Taiwan and its surrounding waters as its sovereign territory, the PRC could increase pressure by exerting maritime enforcement jurisdiction in Taiwan’s Exclusive Economic Zone (EEZ) under the pretexts of protecting Chinese fisheries or maritime environment in accordance with the United Nations Convention on the Law of the Sea (UNCLOS). The PRC’s recent statement that the Taiwan Strait is not an international waterway signifies an increasing willingness of the PRC to reassert this claim. One implication for Taiwan’s lack of recognized statehood is that Tapei is unable to utilize the International Tribunal for the Law of the Seas (ITLOS) to secure the release of detained crews and vessels. One possible response is to redesignate Taiwanese shipping under foreign registration, following the precedent of Kuwaiti oil tankers flying the U.S. flag from 1987 to 1989. This presupposes the willingness and availability of other states to establish “genuine links”, including the exercise of jurisdiction and control over Taiwanese ships.

Subsequently, the PRC could begin to stop, search, and visit Taiwanese and foreign ships on the high sea to seize contraband. The definition of contraband could be widely interpreted by the PRC as being strategic materials destined for ROC-controlled territories. Foreign ships destined for Taiwan could also be diverted to Chinese ports for search and visit. The legality of such operations rests on the premise that any cross-trait conflict is a “civil war” and that the PRC is entitled to prevent foreign states from arming “the rebels” (be it the ROC or Taiwanese separatists) against “the legitimate government of China.” The International Court of Justice (ICJ) decided in the famous Nicaragua case that U.S. funding of the contras during the Nicaraguan civil war constituted an unlawful intervention in its internal affairs. Arming and training rebel groups could even constitute an unlawful use of force. The PRC would undoubtedly frame any of its measures against Taiwan as countering unlawful foreign intervention in Chinese internal affairs. The PRC could shape regional and international discourse with the use of the nonintervention principle, which has been traditionally well-received by the Third World.

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.