The Diplomat: Julian Ku argues PRC Murder of Taiwanese is Legal, US defense of Taiwan is not

The wreckage of Ku's arguments.

No one seems to know from what deliberations this declaration [Cairo] issued, it was apparently drafted, at the moment, by Harry Hopkins, after consultation only with the President and the Chinese visitors. Of all the acts of American statesman- ship in this unhappy chapter, the issuance of this declaration, which is so rarely criticized, seems to me to have been the most unfortunate in its consequences. The other direct results of this phase of American statesmanship have either been erased by subsequent events or seem to have produced, at least, no wholly calamitous after effects to date; but this thoughtless tossing to China of a heavily inhabited and strategically important island which had not belonged to it in recent decades, and particularly the taking of this step before we had any idea of what the future China was going to be like, and without any consultation of the wishes of the inhabitants of the island, produced a situation which today represents a major embarrassment to United States policy, and constitutes one of the great danger spots of the postwar world. G Kennan, Russia and the West under Lenin and Stalin (cited in Chen and Reisman below).

Today brought Julian Ku's airy, inept piece on Why Japan Would Violate International Law If It Militarily Intervened to Defend Taiwan which appeared at The Diplomat and his blog. Because the only other post I had seen from Ku was an equally uninformed, pro-PRC piece on the Chinese ADIZ over the Senkaku Islands, like many I initially assumed Ku was some kind of bog-standard PRC shill, for which I apologize. I changed my mind after I read a number of his other posts. Onward, but sadly, not upward.

Ku scribes in a key paragraph of his case:

I think this could be right as a matter of Japanese constitutional law if an invasion of Taiwan could be plausibly construed as a threat to Japan, but there is a strange international law flaw to this argument. Under black-letter international law, Japan cannot use military force in Taiwan absent China’s consent, even if the Taiwan government requests its assistance. Why? Because the UN Charter’s Article 51 only authorizes an act of “collective self-defense if an armed attack occurs against a Member of the United Nations.” Taiwan is not a member of the United Nations, and to make matters worse from Taiwan’s perspective, Japan recognizes the government in Beijing as the rightful government of China, and Japan further recognizes that Taiwan is part of China.

There's a lot here to unpack. J Michael Cole was first with a rapid response over at Thinking Taiwan. He identifies the major error of Ku's in this passage: he doesn't know what Japanese policy is...

If we look closely, Tokyo’s position regarding Taiwan isn’t that Japan recognizes, as Wu claims, that Taiwan is part of China. Rather, it understands and respects this contention by Beijing, much like many governments worldwide, in constructs of superb diplomatic vagueness, “take note of” or “acknowledge” the PRC’s contention

Japanese policy is thus exactly the same as US policy: the status of Taiwan remains undetermined. Ku got that completely wrong. Cole then turns to a discussion of the Cairo and Potsdam Declarations:

Furthermore, Article 8 of the Potdsam Proclamation (raised in point 3 of the communiqué) clearly states that the terms of the Cairo Declaration (signed on November 27, 1943) shall be carried out, meaning that “All territories Japan has stolen from China, including Manchuria, Taiwan, and the Pescadores, shall be restored to the Republic of China.” Restored to the Republic of China (ROC), not the PRC, which at the time of the communiqué, issued July 26, 1945, and the Declaration simply did not exist (it wouldn’t until 1949). It is therefore easy to see why Ku’s argument that China would be using force against secessionists within its own territory if it attacked Taiwan (akin to Ukraine, he writes) defies logic, as Taiwan cannot secede from a body of which it never was part — in this case, the PRC. 

Of course, Cairo has no legal weight. As I noted ages ago, President Truman defined US policy on Cairo in 1950, twice. First, announcing intervention in Korea -- haha, wait til we get below on Korea:

[June] ....Accordingly I have ordered the 7th Fleet to prevent any attack on Formosa. As a corollary of this action I am calling upon the Chinese Government on Formosa to cease all air and sea operations against the mainland. The 7th Fleet will see that this is done. The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations.

On Dec 27, 1950, Truman articulated the formal US position, which has never varied from that moment.

The Cairo Declaration of 1943 stated the purpose to restore "Manchuria, Formosa and the Pescadores to the Republic of China." That Declaration, like other wartime declarations such as those of Yalta and Potsdam, was in the opinion of the United States Government subject to any final peace settlement where all relevant factors should be considered. The United States cannot accept the view, apparently put forward by the Soviet government, that the views of other Allies not represented at Cairo must be wholly ignored. Also, the United States believes that declarations such as that issued at Cairo must necessarily be considered in the light of the United Nations Charter, the obligations of which prevail over any other international agreement.

This is the position of the UK as well. Cairo doesn't mean anything, it was just noise some nations made in wartime and any realization would have to await the end of the war and the subsequent treaty arrangements. It can't overthrow international law or the UN Charter, which requires that populations whose territories are being transferred get a vote on the transfer. It even required that in 1943 when Cairo was drafted. It certainly requires that now. China can't simply invade because to do so is a violation of the Charter (more below) and many decades of international law and practice.

I can't resist pointing out that Article 6 of the Joint Communique that Ku and Cole refer to says that both parties must refrain from force or the threat of force against each other. LOL.

I also can't resist pointing out that the language of Cairo refers to an impossible fantasy: Taiwan could not be "restored" to the ROC or PRC since neither owned it in 1895. Nor was it "stolen." Cairo's statements are Chinese propaganda. But that's a minor nitpick...

Ku then goes on to argue that it would be perfectly legal if the PRC murdered Taiwanese wholesale and annexed their territory:

If Taiwan keeps the status quo and does not declare independence, and China still invades, the U.S. has signaled that it would come to Taiwan’s defense. But that would be one state (China) using force within its own territory to put down secessionists (a la Ukraine) and almost certainly legal.

Taiwan's status, as defined by the San Francisco Peace Treaty, is undetermined. Period. It is a territory awaiting final determination of its status. Period. No internationally recognized treaty gives Taiwan to China (see Chen and Reisman for a full discussion of the innumerable problems with the Chinese claim). Hence the Taiwanese are not secessionists. Since Ku raised the UN issue, as a decolonized territory -- it was a Japanese colony, remember? -- what does the UN say about such territories? There's a declaration adopted in 1960... every article in it says any Chinese attack on Taiwan would be illegal, but the first will suffice:

1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.

Note also that Article 73 of the Charter obligates UN members to assist territories in attaining self-government. Just a taste:

to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement;

Invading and annexing Taiwan is hardly assisting it in getting self-government, which is what China in either its ROC (v1.0) or PRC (v2.0) is obligated to do under the UN Charter. Well, I suppose we will get our very own Beijing-approved satrap, like Hong Kong.

In fact, if you read the UN Charter itself, you will find that disturbances of the peace are a fundamental anathema to the UN. Start with Article 2, (3) and (4). Nowhere does the Charter say that the use of force is permissible against non-UN member states, as many commented. You don't get a mulligan if the state in question is not a UN member (the UN condemned the Indonesia attack on East Timor, for example and demanded Jakarta stop). An attack on an unincorporated territory is an breach of the peace whether the state in question is a UN member state or not; indeed the UN charter requires that states put every effort into peaceful solutions, which of course China has not done (the KMT-CCP negotiation represents talks between two versions of the same Chinese expansionism, much as Taiwanese land developers will have their employees purchase tiny plots of land or homes in an area they want to develop and join the homeowners association in negotiating with the company, so that such "negotiations" happen between the company and its agents. Basically the annexation of Taiwan is just a familiar Chinese construction company land grab, blown up to galactic scale).

In fact, as an acquaintance pointed out, the UN intervened in Korea in 1950 -- well, the US intervened and pulled the UN in as cover -- and neither Korea nor the PRC (which attacked the UN forces) were in the UN. What the Korean war shows is that the UN can legalize anything it can be cajoled or tricked into supporting. What it also shows is that even between non-UN states, war is a serious breach of the international regime and dealing with it is not illegal. In fact, it can be made legal by the magic wand of the UN. Hence Ku's whole argument is a non-starter from the beginning; whether such intervention is illegal will have to await the decision of the international community (but given China's clout in the UN....). Laudably, Ku says at the end it would be a good idea whether or not it is legal. Kind of him, eh?

Finally, I would like to point out how personal this kind of writing is. I had an exchange on Twitter with someone who just didn't get why this piece angered so many people. I'm not parachuting into Taiwan for a year with a MOFA fellowship (on my tax dollars!) like Ku is. I actually live here, and I actually have a son heading for the Army soon, as well as literally thousands of people I know and love here on this island filled with 23 million innocents, the vast majority of whom don't want to be annexed to China. The discussion of whether the PRC has the legal right to murder my children and annex their island is not a parlor game for those of us who live on this island. Pieces like Ku's are irresponsible at best, vile at worst, since not only are they likely to be cited by the PRC and its mouthpieces everywhere, but they are occurring at a time when the PRC is beginning to see what it can do with lawfare.

Please don't feed that monster.

UPDATED: Ku has reply here. Still ineptly and erroneously claims US and Japan think Taiwan is part of China. From CRS report below: "The United States has its own “one China” policy (vs. the PRC’s “one China” principle) and position on Taiwan’s status. Not recognizing the PRC’s claim over Taiwan nor Taiwan as a sovereign state, U.S. policy has considered Taiwan’s status as unsettled." Ku is wrong in every particular.
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