By KJ Hsu
In recent years, Taiwanese people have almost become accustomed to Chinese military aircraft and naval vessels operating around Taiwan. In addition, there have been more incidents such as the Kinmen boat accident on February 14 and a Chinese speedboat entering Taipei Harbor on June 10.
Facing China’s increasingly aggressive tactics aimed at undermining peace across the Taiwan Strait, both Taiwan and its allies should shift from a reactive stance to a proactive one. Otherwise, they risk being disadvantaged as a result of China’s legal and strategic pressures and the actions by the Chinese Communist Party (CCP, 中國共產黨) in the “gray zone” might soon become actions in the “red-zone.” This article argues that there are at least three reasons why Taiwan and its allies should establish a specialized legal national security framework and team to address China’s aggressive legal warfare (or law warfare) and gray zone activities.
China has intensified its legal warfare efforts in recent years
Since the introduction of the Anti-Secession Law in 2005, and with the enactment of the People’s Republic of China’s (PRC) new rules in 2024 targeting Taiwan’s “diehard independence” activists, China has strengthened its legal narrative that Taiwan is part of China. Additionally, China has increasingly emphasized that United Nations Resolution 2758 asserts that “China” includes all Chinese territory, including Taiwan, and reaffirms the “One-China Principle.” These actions indicate China’s ongoing use of domestic systems and international organizations to establish and reinforce the narrative that Taiwan belongs to China, and to persuade the international community of this claim.
In recent years, China has also taken various actions to bolster its legal warfare strategy. At sea, China often uses the activities of research vessels to conceal aggressive military actions, or employs civilian ships to intrude into Taiwan’s territorial waters, thereby obscuring its intentions. In the air, China uses aircraft, ships, and emerging technologies to conduct gray zone operations in the Taiwan Strait, such as missile flights over Taiwanese airspace, aircraft crossing the Taiwan Strait median line, and spy balloons or drones flying into Taiwanese airspace.
In the face of these dual threats, Taiwan and its allies should adopt a more proactive stance. Balancing the need to defend Taiwan without provoking the CCP is challenging. Too much unilateral support for Taiwan increases the risk of conflict, while too little undermines Taiwan’s ability to exercise autonomy. Finding an appropriate strategy is crucial, as the long-term consequences could be profound.
Taiwan and its allies have compelling reasons to establish a legal warfare framework and team
The Taiwanese government should prioritize the importance of legal warfare for at least three key objectives:
(1) Avoiding Legal Missteps: In the face of China’s numerous gray zone tactics, Taiwan must be vigilant to avoid making errors that could give China a pretext to start a conflict, which would undermine Taiwan’s legitimacy in seeking support from its allies.
(2) Deterring China: Taiwan should seek to strengthen its policies by aligning them with international legal principles. This would not only bolster Taiwan’s position but also attract greater assistance from its allies, thereby deterring Chinese aggression.
(3) Guiding Defense Actions: By establishing clear legal standards, Taiwan’s defense agencies would be better equipped to take necessary actions when needed, thus preventing China from exploiting any perceived weaknesses or ambiguities.
- Avoiding mistakes under international law
Although Taiwan is not a member of the United Nations, it actively participates in numerous international collaborations and upholds universal values. Taiwan has demonstrated its commitment by incorporating international conventions into domestic law, and showcasing its determination to “voluntarily comply” with international standards. This approach has garnered praise and support from UN human rights experts, who have been invited to Taiwan to conduct reviews based on UN standards and processes. Taiwan’s “local international review” model, where national reports on human rights conventions are examined in Taiwan, further highlights its role as a model member of the international community. Given this exemplary status, Taiwan must be cautious not to give China a pretext for war by making a legal misstep. A single error at a crucial moment could result in Taiwan being isolated internationally, losing the support of other countries, and becoming vulnerable to Chinese aggression.
- Deterring China
Beyond avoiding mistakes, Taiwan must actively create favorable conditions to ensure its security. The most effective way to prevent China from initiating a conflict is to make Beijing fear the consequences of a military action that fails. If China believes that a military defeat could lead to the permanent loss of Taiwan and any possibility of peaceful unification through legal means, it might hesitate to take aggressive actions.
For example, in Taiwan’s context, it is possible to collaborate with the United States under the framework of the Taiwan Relations Act (TRA) to jointly lead the discourse. The common Chinese rhetoric is that “if Taiwan declares independence, China will attack.” Taiwan could counter the argument with “if China attacks Taiwan, Taiwan will declare independence.” This reframing removes the concern that Taiwan’s declaration of independence would make Taiwan be seen as a troublemaker and instead positions the declaration as a response to aggression. Following this reframing, if China were to directly use force against Taiwan, Taiwan could consider declaring independence based on the justification of responding to the invasion.
Additionally, under these circumstances there might be opportunities for Taiwan to gain diplomatic recognition from other countries, allowing it to seek collective self-defense with third countries based on its status as a victim state in the international arena. This option might also serve to make China wary of not only the military consequences but also the risk of permanently losing Taiwan via international law. In the event of a conflict, Taiwan could declare a new international legal status, potentially gaining further diplomatic recognition from other countries by extending an olive branch, even if this declaration does not ultimately succeed. The primary concern – the outbreak of war – would already have occurred, leaving little to lose. This approach, while addressing the sensitive issue of Taiwanese independence, also aligns with the positions of various political actors:
(1) For the US government, according to the TRA, US policy toward Taiwan is based on the premise that Taiwan’s future should be decided through peaceful means, which was a condition for establishing diplomatic relations with the PRC. Therefore, for the United States, maintaining the status quo has been the policy in recent years. However, this does not mean that if the status quo were changed, the United States would not have other options. After all, under the framework of the Taiwan Relations Act, Taiwan’s future has not yet been determined.
(2) According to President Lai Ching-te (賴清德) of the Democratic Progressive Party (DPP, 民進黨), Taiwan currently does not need to declare independence, nor does it wish for a conflict in the Taiwan Strait. However, this does not mean that if the peaceful status quo is altered, the Taiwan government would not consider seeking a new international legal status within the framework of international law. For its part, the Kuomintang (KMT, 國民黨) adheres to the past policy of “no independence, no war,” a policy that rejects Taiwan’s independence and aims to maintain peace in the Taiwan Strait.
(3) For the CCP, this strategy reinforces that Taiwan seeks peace rather than independence, as Taiwan would only declare independence in response to the Chinese invasion. By managing the narrative effectively and aligning international and domestic strategies, Taiwan can better navigate the complexities of its relationship with China and its quest for international support.
On top of that, from the US perspective, the principles outlined in the three US-China Joint Communiqués and Section 2 of the TRA emphasize three core concepts in US policy toward Taiwan. These are: (1) The United States maintains diplomatic relations with the PRC, but holds that Taiwan’s sovereignty remains undecided; (2) Taiwan’s sovereignty must be resolved peacefully; and (3) The United States is committed to maintaining the security, social and economic system, and welfare of the Taiwanese people.
If China uses force to disrupt Taiwan’s peace, the United States would be compelled to intervene. By reiterating this stance to China, the United States could cause Beijing to hesitate between maintaining the status quo, which allows for strategic ambiguity, and taking military action, which would result in definitive and severe consequences.
- Guiding defense actions to prevent China from exploiting weaknesses
The Sanremo Handbook on the Rules of Engagement, published in 2009, provides practical explanations of the complex procedures and methodologies for implementing rules of engagement in conflict conditions. This handbook offers criteria for using the right of self-defense, and helps prevent adversaries like China from establishing new de facto legal conditions through incremental actions.
Taiwan’s “Standing Rules of Engagement,” issued by the Ministry of National Defense (MND, 國防部) in 2017 and revised in 2023, represent a positive step. However, practical implementation still faces challenges. Under the current system, frontline soldiers often struggle with the ambiguous nature of gray zone operations, leading them to seek approval from higher authorities, which can result in delays and potential misjudgments. Unlike the US system, where the inherent authority of commanders is well-established by US law and military regulations, Taiwan lacks a similar source of authority. Without clear legal authorization from the Legislative Yuan (LY, 立法院), rules of engagement become ambiguous. This ambiguity can lead to responsible agencies being hesitant to take responsibility and frequently seeking instructions from higher authorities.
To address these issues, Taiwan needs to establish a robust legal framework for its rules of engagement. This framework should involve legislative authorization, clear legal status, and defined responsibilities. The rules of engagement should be explicitly authorized through legislation enacted by the LY, ensuring that the MND is legally obligated to implement them. Additionally, the rules of engagement should be given a clear legal status by the legislative branch, with sensitive details defined at different levels – from national security decision-makers to individual military units (battalions, companies, platoons, squads, and soldiers).
Lastly, establishing a clear legal system will help define the duties of military personnel at all levels, ensuring they have full authorization and clear divisions of labor for effective execution. In addition, Taiwan can follow the example of the United States’ Rules of Engagement (ROE) planning cell, which includes judge advocate general attorneys participating in discussions with high-ranking officers, such as those from the Joint Chiefs of Staff. The entire ROE planning cell should establish an information exchange mechanism with Taiwan’s allies to ensure that these rules of engagement form a consensus among Taiwan and its allies, thereby creating a protective network to ensure the security of the Taiwan Strait.
The main point: At this critical juncture, Taiwan needs to establish a national security framework and joint staff with expertise in international law to effectively address China’s aggressive legal warfare. This will ensure that Taiwan can respond decisively and legally to any attempts by China to exploit weaknesses or create new de facto legal conditions.
