Asia Pacific: communication key to avoid Taiwan miscalculation

Stephen MulrenanWednesday 26 January 2022

In November, China announced it would hold ‘Taiwan secessionists’ criminally liable for life, amid continuing tension between Beijing and Taipei. When a list of advocates of Taiwanese independence was first drafted in late 2020, Li Zhenguang, Deputy Director of Beijing Union University’s Institute of Taiwan Studies, said the list would ‘conceptualise China’s Anti-Secession Law’ – legislation from 2005 that claims Taiwan is part of China.

Crucially, in Article 8 of the Anti-Secession Law China outlines the circumstances in which it would regard itself as justified in pursuing ‘non-peaceful’ action to prevent Taiwan’s ‘separation’ from China. Taiwan regards itself as a sovereign state.

Under Hong Kong’s national security law, secession is one of four distinct categories of offence, leading to suggestions that the special administrative region’s experiences since the law entered force in summer 2020 may indicate how China’s Anti-Secession Law might be applied to so-called Taiwanese secessionists. The legality of the latter law has been queried, given that Taiwan has never been under China’s jurisdiction – despite Beijing’s claims to the contrary.

Daryl Lai, a partner at JTJB-Taipei in Taiwan, believes that pro-independence officials and their supporters are not concerned. ‘This is because they are not physically present in territories that are under the control of China and do not believe that Taiwan would one day fall under Chinese dominance’, he says. ‘This is completely different from the Hong Kong scenario where the territory is directly held by the Chinese.’

Bonnie S Glaser, Director of the Asia Program at the German Marshall Fund in Washington, DC, agrees that while there are some implications for Taiwan from the Hong Kong experience, there are also important differences. ‘China is able to use law against individuals and organisations in Hong Kong in ways that it cannot do in Taiwan,’ she says. ‘It was very easy for Beijing to pass national security legislation and impose it on Hong Kong to arrest people and put them in jail.’

Fears that China could invade Taiwan have increased in recent years, in part due to the deteriorating relationship between Beijing and Washington, DC, as well as the former’s increased assertiveness and willingness to risk external backlash to pursue its core interests. For example, China has recently increased its military posturing, with daily sorties flown by Chinese warplanes into Taiwanese airspace.

China is able to use law against individuals and organisations in Hong Kong in ways that it cannot do in Taiwan

Bonnie S Glaser
Director of the Asia Program, German Marshall Fund

‘This is a worrying long-term trend because clearly Taiwan is a major area where the US and China want to signal immovable resolve,’ says Andrew Gilholm, Director of the analysis practice for Greater China and North Asia at Control Risks, Seoul. ‘So, there’s less room for compromise and more risk of escalatory posturing – or real escalation – than on, say, trade issues, or disputes further from China’s doorstep.’

The main cause of increased speculation about conflict risks is the theory that Chinese President Xi Jinping has put a timeframe on achieving reunification. Yet Xi has always talked about peaceful reunification when referencing Taiwan, and has continued to pursue the guideline policy of peaceful development of relations across the Taiwan Strait inherited from his predecessor, Hu Jintao.

Another worry is that China’s military capabilities have evolved so quickly in recent years as to give China a conventional advantage over the US in the region. Glaser says defence experts worry about the ‘window of vulnerability’ while the US catches up.

Despite the risk, Gilholm says Xi is highly unlikely to invade or deliberately initiate a major conflict, despite the importance of the Taiwan issue to Xi and Beijing. ‘It is just one of many core interests, many of which would be put at enormous risk by a war over Taiwan.’

Taiwan’s population is not overly worried about the prospect of attack for several reasons. Firstly, the Taiwanese have grown used to cross-strait tensions ever since the China missile crisis during the 1990s; secondly, because of the involvement of the US and Japan as military strategic partners; thirdly, due to the uncontrollable cost of war to China; and finally, due to commercial interdependence between the two lands.

Nico Ooijevaar, at the time of writing the Vice-Chair of the IBA International Trade and Customs Law Committee, and a partner at McMan Ooijevaar in Amsterdam, agrees an attack is unlikely. ‘Concerns by neighbouring states of China are strange because, as far as I know, any territorial disputes have always been resolved in the past […] Why would such a dispute lead to anything worse?’

Although China has outstanding territorial/maritime disputes with several countries, Glaser says the risk of a major military conflict is low in part because China’s People’s Liberation Army (PLA) has factored in US intervention.

Glaser says the PLA have focused more on anti-intervention capabilities over the past few decades, ‘what we call China’s “anti-access/area denial” (A2/AD) strategy – to impose costs on the US […] and postponed things like amphibious landing capability and transport capability to bring larger numbers of troops over to Taiwan’.

‘It appears Beijing’s aim is to prevent American and allied military forces from operating freely in the A2/AD airspace and maritime “bubble” around China’s coastline’, she adds.

Since the Taiwan Act 1979, the US ‘One China’ policy has focused on maintaining the status quo, helping avoid escalation while deterring any Beijing-driven change to Taiwan’s situation.

Gilholm says the US approach, which has been termed as ‘strategic ambiguity’, has always been a tough balancing act but is getting tougher. ‘Unfortunately, within strategic ambiguity and various longstanding US and Chinese policy positions, there’s a lot of semantics and scope for different interpretations’, he explains.

There’s concern that a miscalculation scenario – be it a mid-air or at-sea collision or stand-off – could now be harder to manage and could easily get out of hand. ‘There will always be a risk during every standoff involving the military from both sides where something could go wrong that could accidentally trigger war’, says Lai.

Glaser says a significant danger for conflict comes from a combination of factors. ‘Firstly, reunification becoming a higher priority for Xi going forward. We don’t know that, but it could happen. Secondly, we could get a leader in Taiwan who is more pro-independence and is willing to push China’s buttons and be provocative.’

Lastly, the US might inadvertently cross China’s red lines if it begins conducting joint military exercises with Taiwan’s navy, for example.

‘China’s leadership decision-making process is a black box. We should be careful to not be too certain about understanding how China is going to react to the moves that we take, or Taiwan takes,’ says Glaser, adding that this creates significant uncertainty.

Xi and US President Joe Biden engaged in a virtual summit in November to discuss the ‘Taiwan issue’. In its wake, US and Chinese officials agreed to intensify their engagement on Taiwan at multiple levels to prevent miscalculation. Glaser says it’s good leaders are engaging and that the two nations need to talk more about Taiwan.

Citing tensions that developed during the administration of Chen Shui-bian – Taiwan’s first Democratic Progressive President from 2000–2008 – she says: ‘The US and China were talking a lot about Taiwan then, and the fact that we were talking, that we understood each other’s perspectives, and of course that we had a better bilateral relationship, enabled us to manage what could have been a very dangerous period.’

There’s a caveat, however. ‘China and the US had a very similar assessment of Taiwan’s president at that time,’ says Glaser. ‘Today, we have completely diametrically opposed assessments of Taiwan’s president. So, the situation is very volatile now and the potential for misunderstanding and miscalculation is, as a result, higher.’

Image: China Taiwan Relations 3d illustration: Thomas Makowski/Shutterstock.com

Download the IBA Global Insight app

Access expert analysis on international rule of law, business and human rights