Deterrence Lawfare to Save Taiwan
from Diamonstein-Spielvogel Project on the Future of Democracy and International Institutions and Global Governance Program

Deterrence Lawfare to Save Taiwan

Chinese warship Luyang III sails past U.S. destroyer USS Chung-Hoon in the Taiwan Strait on June 3, 2023.
Chinese warship Luyang III sails past U.S. destroyer USS Chung-Hoon in the Taiwan Strait on June 3, 2023. U.S. Navy/Mass Communications Specialist 1st Class Andre T. Richard/Handout via Reuters

Originally published at Just Security

August 9, 2023 10:41 am (EST)

Chinese warship Luyang III sails past U.S. destroyer USS Chung-Hoon in the Taiwan Strait on June 3, 2023.
Chinese warship Luyang III sails past U.S. destroyer USS Chung-Hoon in the Taiwan Strait on June 3, 2023. U.S. Navy/Mass Communications Specialist 1st Class Andre T. Richard/Handout via Reuters
Article
Current political and economic issues succinctly explained.

A recent Council on Foreign Relations task force report about “U.S.-Taiwan Relations in a New Era” warns that “deterrence is steadily eroding in the Taiwan Strait and is at risk of failing, increasing the likelihood of Chinese aggression.” The report provides a pragmatic road map for managing this looming threat and counsels “that any future arrangement between China and Taiwan be arrived at peacefully and with the assent of the Taiwanese people.”  

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But diplomacy sometimes requires a hard counterpunch. If China invades Taiwan, the United States should recognize the Republic of China (Taiwan) as a sovereign state while maintaining its long-standing recognition of the People’s Republic of China (PRC) and without severing diplomatic relations. The recognition card would be a powerful diplomatic weapon for Washington to deploy in the event Beijing abandons a peaceful means to resolve the governance of Taiwan.  

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There is no appetite for the United States to legally recognize Taiwan in the absence of aggression by China, and the Council report rightly criticizes any such move as “irresponsible and ill-advised.” As the U.S. executive branch has consistently held, such an extreme initiative would needlessly inflame tensions and accelerate the military conflagration diplomats have long prevented. But without changing this sensible policy, American officials nevertheless should make clear as a deterrent warning that the worst-case scenario—military aggression against Taiwan and its people—would eviscerate the “one China” policy that has stabilized China’s relations with the United States for decades.

Recognition History in U.S.-Taiwan-PRC Relations

To understand why this is the right policy today, we must look back to how we got here. There was a recognition black hole between the Communist government of mainland China and the United States for three decades after World War II while Washington recognized the anti-Communist Republic of China that actually governed only Taiwan after losing control of the mainland in the Chinese civil war. As a predicate to a future flip in recognition policy, the Shanghai Communique of 1972, during the Richard Nixon administration, stated that the United States 

“acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position. It reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves.”  

No agreement, no affirmation, no endorsement of one China—just an acknowledgment of the views of others, namely “all Chinese,” that is explicitly left unchallenged by Washington. The American aim, though, is clearly stated: to peacefully resolve the Taiwan question.

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In conjunction with the determination of the Jimmy Carter administration in December 1978 to terminate America’s mutual defense treaty with Taiwan, de-recognize the Republic of China, and officially recognize the People’s Republic of China, a second communique reiterated the U.S. acknowledgement of “the Chinese position that there is but one China and Taiwan is part of China.”  The third communique negotiated by the Ronald Reagan administration with China in 1982 expressed the U.S. intention to reduce its arms sales to Taiwan and stated for the first time that the United States “has no intention of…pursuing a policy of ‘two Chinas’ or ‘one China, one Taiwan.’”  But as the Council report notes, Reagan circulated an internal memorandum stating that “the U.S. willingness to reduce its arms sales to Taiwan is conditioned absolutely upon the continued commitment of China to the peaceful solution of the Taiwan-PRC differences. It should be clearly understood that the linkage between these two matters is a permanent imperative of U.S. foreign policy.”  

Reagan coupled the 1982 communique with “Six Assurances” to the government in Taipei stating in part that the United States would not take any position regarding sovereignty over Taiwan and would not mediate between Taipei and Beijing or pressure Taipei to enter negotiations with the PRC.

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Meanwhile, back on Capitol Hill an angered Congress lodged several powerful kickers in the Taiwan Relations Act of 1979, which remains in force. The law requires the provision of defensive arms to Taiwan and maintenance of the U.S. capacity “to resist any resort to force or other forms of coercion that would jeopardize the security, or the social or economic system, of the people of Taiwan.” It is these words that likely inspire President Joe Biden, who voted for the legislation as a senator, to state repeatedly that the United States would defend Taiwan if it were attacked (while reaffirming the one China policy under present circumstances).  Biden used the Presidential Drawdown Authority on July 28 to provide $345 million of military assistance to Taiwan, invoking that power for the first time for Taiwan following his frequent reliance on it for Ukraine. He also reportedly intends to fold more military funding for Taiwan into a supplemental budget request for Ukraine. 

The Taiwan Relations Act echoes the Shanghai Communique by making “clear that the United States’ decision to establish diplomatic relations with the PRC rests upon the expectation that the future of Taiwan will be determined by peaceful means.” If that future is not “determined by peaceful means” because China has invaded Taiwan, then there is nothing in America’s longstanding one China policy or the Taiwan Relations Act that would prevent United States recognition of the democratically elected Taiwan government, even if its officials must govern the more than 23 million inhabitants of Taiwan in exile.  

Just as American intentions regarding arms sales to Taiwan are influenced by China’s conduct against Taiwan, so too should such conduct influence American intentions regarding its recognition policy. Chinese aggression against Taiwan would egregiously violate the entire premise of the one China policy—a peaceful resolution of the Taiwan question—and no longer would that policy be entitled to American subservience.  

How the Recognition Card Would Work

Unlike the situation from the 1950s onward, in which the United States saw a choice between recognizing either the PRC or the government in Taiwan as representing the entire population on both sides of the strait, today the question is not one of governmental recognition, but of State recognition – i.e., whether to recognize Taiwan as a new, self-governing State (but not, as compared to the historical recognition issue, as the legitimate seat of government for the entirety of China).  

That means the United States would not need to de-recognize the People’s Republic of China if Washington recognizes Taiwan as a State. Taiwan easily meets the international law test for statehood. The decision is strictly America’s choice to make, but the decision is both simple and imperative. Governmental recognition would not be at issue on the mainland. Clearly the United States must continue to recognize the government of the second most populous country in the world as a political, economic, and military power.  Despite the punitive sanctions that doubtless would be imposed by the United States and a good number of European and Indo-Pacific nations were China to attack Taiwan, Washington would need to maintain diplomatic relations with Beijing to deal with the existential challenges of our era, including climate change, clean energy, public health, and, yes, aggressive war. 

Like Kosovo, which the United States and 100 other nations recognize as an independent State despite the fierce resistance of Serbia, Taiwan would not gain admission to the United Nations because China and Russia would prohibit that. Taiwan, like Kosovo, would continue to be locked out of many other international organizations. Those realities, though, are manageable.  

An infuriated President Xi Jinping might retaliate and foolishly break diplomatic relations with the United States, but he would do so at China’s dire economic and political peril. If China seeks isolation from broad swaths of the globe, military aggression against Taiwan and a diplomatic break with the United States would achieve that self-destructive objective. Historians would ask, just as they do today of Russian President Vladimir Putin mired in his aggressive war against Ukraine, what was Xi thinking?

Beijing’s smarter policy would refrain from aggression against its island neighbor and try to peacefully coax Taiwan into its sphere of influence. Meanwhile, Washington should employ now a powerful lawfare deterrent—the threat of recognizing the statehood of a vibrant democracy and its people if they fall under the heel of an invading authoritarian power.

This publication is part of the Diamonstein-Spielvogel Project on the Future of Democracy.

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