Australia should do all it can to foster a long-term, peaceful resolution of the acute, multi-decade dispute spanning the Taiwan Strait. But Chey and Keating are unmistakeably correct on this issue: Australia should never become involved in any war over Taiwan.
The former senior Australian diplomat, Jocelyn Chey, concluded a recent open letter to the US Secretary of State, Antony Blinken, with the acute observation that: We do not want there to be war over Taiwan. If such were threatened, we could never be involved.
In late 2021, the former Prime Minister, Paul Keating argued with customary force that: Taiwan is not a vital Australian interest. We do not recognise it as a sovereign state. Which means that Australia should not be drawn, in my view, into a military engagement over Taiwan – US-sponsored or otherwise” He restated the essence of this standpoint in March of this year.
I recently discussed how, prior to its retreat to Taiwan after defeat in the Chinese Civil War, the Kuomintang (KMT) Government of the Republic of China (ROC) promulgated a new ROC Constitution in 1947. This ROC Constitution – which provides the fundamental law that underpins the enduring governance of Taiwan – still purports to cover all of China, including Taiwan. This instrument confirms the remarkable One China constitutional consensus, which continues to apply across the Taiwan Strait.
One consequence is that, for the 13 jurisdictions that still recognise the ROC based in Taiwan as the sole legitimate government of China, it follows that each is a party to the very firm view, embodied in the ROC Constitution, that there is only One China, which includes Taiwan. Therefore, bearing in mind that this is the view shared by all of those many other jurisdictions recognising Beijing diplomatically, the One China principle continues, in essence, to be universally endorsed.
In an enlightening article in August last year, Professor Ben Saul from Sydney University, provided a detailed review of: the complex question of Taiwanese independence. This article is well worth re-reading.
Professor Saul sets out three questions to be answered:
- Does China have a legal right to restore control over its own territory by force?
- Do Taiwan and its allies have a legal right to resist such an attack?
- Might Taiwan even have a right to declare independence?
He begins by noting the cross-strait, One China constitutional consensus outlined above. Next, he argues that the relevant international (and local) legal factors weigh in favour of Taiwan being part of China. He notes how the late James Crawford, a distinguished Australian former Judge of the International Court of Justice, also concluded that Taiwan was Chinese territory with governance disputed.
Saul reviews the factors which tend to support the argument that Taiwan is no longer a part of China. These rely on more contemporary but legally controversial arguments, including those which seek to establish a special “remedial” form of the right to self-determination, previously reserved for use by former colonies. Taiwan was a Japanese colony from 1895 to 1945 but it is plainly not a colony of China in any sense. The fact that it has enjoyed de facto independence for over 70 years does not alter this reality.
The reasonable conclusion that follows from this analysis, in my view, is that, although it is centrally important that everything should be done to encourage an agreed resolution of this pivotal dispute without resort to the use of military force:
- There is very strong legal support, at international law, backing the view that Taiwan has long been and remains part of China.
- This view is mirrored in the separate constitutional instrument under which the government in Taipei operates – and in all Beijing’s officially expressed views.
- It follows that the Taiwan dispute, notwithstanding all the geopolitical attention, remains, fundamentally, an entrenched exceptionally challenging, internal dispute within China.
- Beijing may enjoy a right supported by international law, to secure unification (internally) by the use of force as a last resort.
- Notwithstanding certain innovative countervailing arguments, international law, on balance, casts very grave doubt on the legality of any military intervention by any party outside of China, into any ultimate resolving, within China, of the dispute over Taiwan.
So far, we have been primarily concerned with these pivotal local-constitutional and international law issues. But there are other conspicuously important factors that must also be considered. These include, briefly:
- The catastrophic economic, social and political impact bound to result from going to war against the most important trading partner in Australia’s post-war history.
- The intensified, destabilising, China Threat warmongering posture adopted by so much of the Mainstream Media, which has significantly displaced rational public debate with hysteria-based hectoring.
- The brazen, self-serving role of the Austral-American, military-linked think-tanks and their media and security service devotees: these people come to – and dominate – the debate with fixed Manichean views and scant concern about history, balanced geopolitical understanding, or maintaining the essence of Australian autonomy.
- The fact that any military moves made against China by the US – related to Taiwan – will be advanced, not to prioritise Taiwanese interests (still less Australian interests) but to prioritise and advance American hegemonic interests. with customary, unabashed zeal.
Finally, there is a more fundamental concern about America. Has such a superpower ever before looked so much like an extremely dangerous loose cannon? Antony Blinken, after cancelling a Beijing trip and then moping over the lack of second invitation finally was reinvited. He returned to China very recently where he prioritised watchful, Sino-American fence-mending. But within the shortest time, his boss, President Biden put a verbal torch to that mending endeavour with an incendiary, highly personal attack on President Xi. The leading US commentator, Fareed Zakaria aptly classified US China-policy as being driven by hysteria and paranoia in March this year. Several months later it is looking even more unhinged. As someone recently observed, no one could have imagined 40 years ago that America would find itself acting like this, today.
A recent Reuters/IPSOS poll found that 73% of Americans consider that Joe Biden is too old to work in government. Other polls have found large majorities worried about Joe Biden’s intellectual and physical fitness to continue as President. And his paramount competitor in the approaching 2024 electoral race remains former President Donald Trump. To mend the shrinking capacity of the US to engage collectively – at the highest levels – in rational public discourse and decision-making about China is steadily looking like a project for the Mission Impossible team.
When we square the ledger, taking the fundamental legal factors set out above into account – combined with other pivotal considerations – it is abundantly clear why Chey and Keating contend that to become involved in an internal war over Taiwan (if it ever comes to that) is geopolitically unthinkable for Australia.
You may also be interested to read this article from Richard Cullen published in Fridayeveryday.com
The untold truth about Taiwan’s real legal position
Richard Cullen is an Adjunct Professor in the Faculty of Law at the University of Hong Kong. He was previously a Professor in the Department of Business Law and Taxation at Monash University in Melbourne, Australia.
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