China’s Legal War Over Taiwan

Introduction

In 2005, the People’s Republic of China (PRC) passed the Anti-Secession Law (ASL), a critical piece of domestic legislation that outlines Beijing’s approach to Taiwan and establishes a legal basis for it to force Taiwan’s unification through coercive and military means. Although the legislation was initially viewed as symbolic and mostly intended to constrain more hawkish tendencies within the PRC toward Taiwan, this has changed in the past two decades. In recent years, China has increasingly leveraged the ASL to legitimize its approach toward Taiwan and to dissuade foreign countries, organizations, and individuals from supporting and deepening ties with the island.

On June 21, 2024, the Chinese government cited the ASL in announcing a new and important interpretation of China’s Criminal Law that it had adopted in late May. It laid out the “Opinions on Punishing Crimes of Separatism and Inciting Separatism by ‘Taiwan Independence’ Diehards in Accordance with Law” (hereafter referred to as the “22 Articles”), which impose criminal punishment on leaders and advocates of Taiwan independence. Punishment in circumstances deemed severe includes the death penalty. This was a marked shift from the relatively vague ASL: China has now laid out precise crimes of secession that it will punish.

To assess these critical developments, the Center for Strategic and International Studies (CSIS) cohosted a conference with Taiwan’s Prospect Foundation in Taipei on August 6, 2024. The conference brought together leading international experts to analyze China’s legal warfare and the ASL, focusing on three main topics: (1) how China might use the ASL and the 22 Articles; (2) the legal basis and relevance of China’s ASL and the 22 Articles; and (3) how the international community should respond. This report compiles the expert analysis presented and shared at the international conference.

Main Themes and Lessons Learned

One important question that conference participants debated was whether the ASL should be viewed as more of a legal document or a policy document. Consisting of 10 articles, the law is relatively short and vague compared to other Chinese legislation. Yu-Jie Chen and Donald Clarke point out that the ASL does not constrain or expand China’s options because it does not authorize the Chinese government to do anything it could not do before; it also does not contain implementation guidelines, sanctions, enforcement mechanisms, or independent judicial oversight.

I-Chung Lai explains that the law stipulates a process for China to employ non-peaceful means against Taiwan in which the PRC Central Military Commission and State Council must agree on a course of action and then report the decision to the National People’s Congress Standing Committee. This process may have slowed down the desire of hardline PRC actors to use force against Taiwan during the Hu Jintao era, but it is unlikely to constrain Xi Jinping given the concentration of power within his hands. Jacques deLisle is also skeptical that the ASL could durably or reliably constrain PRC activities toward Taiwan now or if both sides were to engage in unification negotiations and Taiwan were to unify with China.

However, if the ASL is viewed as a legal document, there are five main themes and findings experts highlighted:

• China violates its own ASL and does not uphold some of the articles within the legislation that promote peaceful unification. Article 5 specifically states that China should do its utmost to ensure peaceful unification, and Article 6 details the activities China should engage in to induce this. Furthermore, Article 7 mentions that consultations and negotiations on unification should be conducted on “an equal footing” between both sides of the Taiwan Strait. I-Chung Lai, Bonny Lin, and Wen-Hsuan Tsai observe that China has been far from abiding by these articles in recent years and has opted for a more coercive implementation of the ASL. Chi-Ting Tsai adds that China’s recurring threats and military actions around Taiwan undermine the principles outlined in these ASL articles.

• The legal language used in the ASL and the 22 Articles is vague and inconsistent. The ASL rests on China’s claims over Taiwan and not the de facto reality that Taiwan is not governed by China. Jacques deLisle argues that China deliberately framed the ASL in terms of “anti-secession” as opposed to “reunification” to create ambiguity in timelines and future actions while still being able to insist on the PRC’s broad claim over Taiwan’s sovereignty. Yeh-chung Lu observes that the ASL sets a vaguer set of conditions for the use of non-peaceful measures than what China had set forward before 2000, leaving room for unilateral interpretation. Margaret Lewis explains that the 22 Articles impose more severe punishment on those who are ringleaders and “die-hard” Taiwan “separatists” but does not provide any clear criteria for how to judge who falls into either category. Eric Poon furthers that the ambiguity of the ASL and the 22 Articles violated multiple fundamental parameters of the rule of law.

• The ASL has been used in PRC domestic litigation and provides a legal foundation upon which Beijing has passed additional legislation and interpretations. Donald Clarke points out that although the ASL’s impact on domestic litigation to date has been very slight, there was one case in which Chinese domestic courts cited the ASL to fine a PRC company, which could set a precedent for broader application of the ASL. The law also provided a basis for the 22 Articles released in May 2024 that impose punishment for not only what Beijing views as major acts leading to Taiwan’s independence but also any minor efforts Beijing perceives as Taiwan “salami slicing” its way toward independence.

• Compared with how other countries deal with questions about secession, China’s ASL and the 22 Articles are repressive and do not consider the obligations states have under international human rights law. Conference participants viewed the 22 Articles as representing a major escalation of PRC intimidation against Taiwan. Julian Ku highlights that the ASL and 22 Articles’ criminalization of secession activities is far more punitive and expansive in scope compared with most countries in that it bans even nonviolent support for Taiwan’s independence. Margaret Lewis suggests that the political nature of the new guidelines proposed in the 22 Articles would mean that the court is unlikely to rule “not guilty” for any secession-related acts. Furthermore, Raymond Sung and Donald Clarke argue that the 22 Articles’ linkage of the ASL and the PRC Criminal Law allows Beijing to persecute secession-related acts not just by Taiwan citizens in Taiwan, but by anyone of any nationality anywhere in the world. Sung flags that even scholars who provide a historical narrative that contradicts the PRC position on the island could be punished by Beijing.

Many conference participants argued that China is far from a country governed by the rule of law and that existing legislation can be interpreted and applied differently over time. Instead, China passes legislation to rule by law and attempt to legitimize its policy. As a policy document, Beijing uses the ASL in several ways:

• The ASL legitimizes China’s overarching stance on — and relationship with — Taiwan. Jacques deLisle and Vincent Chao explain that the ASL and and the 22 Articles provide Beijing’s legal basis for its position that Taiwan is part of PRC territory and reflects China’s master narrative on Taiwan. As Chao notes, the ASL stipulates that unification with Taiwan is the only acceptable outcome and that Beijing precludes the possibility of indefinite continuation of the status quo. Margaret Lewis highlights that although “Taiwan authorities” are mentioned in the ASL, they are portrayed as passive objects of the Chinese state.

• It creates a (false) narrative that Taiwan bears the responsibility and blame for any PRC use of non-peaceful means against the island. Jacques deLisle explains that the ASL establishes the legal status quo that Taiwan is a part of the PRC. This then casts any potential Chinese use of coercion or force against Taiwan as defensive and preserving the status quo. Yu-Jie Chen further notes that the 22 Articles stigmatize Taiwan political figures, labeling them as “criminals” to discredit them and their causes.

• The ASL makes clear that in any armed conflict with Taiwan, China does not consider itself bound by the international law of armed conflict. Donald Clarke explains that the ASL justifies any and all PRC means to maintain its territorial integrity and claims over Taiwan — contradicting international law and the Geneva Conventions of 1949. In other words, even if countries view the PRC as the sole and legitimate government of China, its ASL is problematic from the perspective of international law.

• It unilaterally justifies a wide range of actions and legislative actions. Conference experts point out the evolution of how the PRC interpreted and used the ASL over time. Donald Clarke and Yu-Jie Chen note that the law’s vague language is compatible with both friendly and coercive approaches to unification. Specifically, Yu-Jie Chen argues that the ambiguity of Article 8 of the ASL, which outlines conditions for deploying non-peaceful means for unification, grants China broad discretion in its timeline and methods for forcefully unifying with Taiwan.

• It seeks to deter countries, organizations, and individuals from supporting Taiwan. Bonny Lin and Donald Clarke highlight Beijing’s intent to use the ASL to deter international support for Taiwan, with Clarke noting that the lawfare strategy behind the ASL aims to have a chilling effect on other nations’ diplomatic and military engagements with Taiwan. Ken Jimbo and Mark Harrison, however, point out that China’s ASL and threats to use force against Taiwan have caused Japan and Australia to invest more in their respective defense capabilities to prevent regional instability.

Recommendations

In light of the multifaceted implications of the ASL and the 22 Articles, the conference panelists offer three key recommendations for the United States, its allies, and the international community:

• The United States and close allies and partners should engage in more proactive information campaigns to protest the ASL and the 22 Articles diplomatically and publicly and counter China’s cognitive warfare. This includes educating the public about the ASL and the 22 Articles, particularly how China is falling short of embracing peaceful means to seek unification and how its redlines for using force against Taiwan, as well as its definition and criminalization of “secessionist” activities, are repressive and not in line with international norms. Governments should also inform their citizens of the risks of traveling to China if individuals have expressed views on Taiwan that do not align with Beijing’s.

  To date, there has been a relatively muted official U.S. or allied government response to the ASL. The United States should reassess the public and private positions it takes on both PRC measures and directly express concern to Beijing. The United States and allies and partners should also refute false claims by China that its 22 Articles are “normal” and in line with how other countries criminally punish “separatists.”

  Taking a clear position will be of growing importance moving forward. Vincent Chao points out that 2025 is the twentieth anniversary of the ASL, and there is a possibility that Beijing could use this milestone to announce new interpretations or additions to the legislation. Wen-Hsuan Tsai believes that if China seeks to make significant progress on Taiwan by 2027 or beyond, it will need to either amend or revise the ASL. This could involve issuing more implementation details, clarifying how it will determine whether the possibilities of peaceful unification have been exhausted, or passing a unification law.

• The international community should bolster legal and institutional frameworks to counter China’s use of the ASL as a tool of legal warfare and diplomatic coercion. Conference participants recommend that countries should not physically remove or extradite people to China who face criminal prosecutions for their views on Taiwan. Yu-Jie Chen and Chi-Ting Tsai highlight that strengthening international laws and norms, particularly within organizations such as Interpol, can be critical to reducing malign PRC actions. Meia Nouwens points to the European Court of Human Rights’ decision in 2022 to not extradite a Taiwan national in Poland to China as an example of a measure that will shield individuals from the 22 Articles.

• Given China’s evolving views of secession and greater use of coercive tools against Taiwan, the United States and partners in the Indo-Pacific should take seriously China’s willingness to use non-peaceful means against Taiwan and should enhance defense and security cooperation. Ken Jimbo advocates for deeper U.S.-Japan collaboration on Taiwan-related issues. Similarly, Mark Harrison notes that Australia, which has vital economic stakes in the region, should develop hard-power capabilities to deter regional instability. Meanwhile, Ian Chong expresses concern over Southeast Asian states’ relative lack of attention to cross-Strait issues. I-Chung Lai suggests that one possible early indication and warning that China may seek to use significant force is if Beijing activates the process described in the ASL that requires the PRC State Council, Central Military Commission, and People’s Congress to be on the same page.

Roadmap

This report is divided into three sections: (1) an overview and background of the ASL and the 22 Articles; (2) legal analysis of the ASL and the 22 Articles; and (3) perspectives on the implications for specific countries, regions, and the international community.

There are four commentaries from U.S. and Taiwan experts who examine the origin and evolution of the ASL:

• I-Chung Lai presents a close analysis of the political context surrounding the passing of the ASL by the PRC National People’s Congress in 2005.

• Bonny Lin evaluates China’s political calculus for passing the ASL.

• Wen-Hsuan Tsai cautions about the increased willingness of the Chinese leadership to intensify cross-Strait tensions through revising the ASL as a part of Xi’s legal authoritarianism.

• Vincent Chao considers three ways Beijing can leverage the ASL in its Taiwan strategy.

There are six legal analyses on the legality and legal implications of the ASL and the 22 Articles:

• Jacques deLisle provides an in-depth analysis on the legal implications of the ASL for China’s Taiwan strategy.

• Yu-Jie Chen presents a careful analysis of China’s use of the ASL for lawfare and the international legal implications of China’s lawfare strategies.

• Donald Clarke lays out an extensive discussion on how the ASL and the 22 Articles were developed and their legal effects.

• Julian Ku compares the 22 Articles with the criminalization of secessionist acts in the United States and other countries.

• Margaret Lewis analyzes the language of the ASL and the 22 Articles and discusses their legal implications, specifically what could constitute punishable secessionist acts by China’s Criminal Law.

• Raymond Sung gives a detailed review of the 22 Articles and the political agenda behind the document’s weaponization of criminal jurisdiction.

On the implications of the ASL for the broader international community, there are five analyses and regional perspectives on how Japan, Southeast Asia, Australia, and Europe view the ASL and cross-Strait affairs:

• Chi-Ting Tsai explores the implications of the ASL for the broader international community and highlights the need to strengthen international institutions so that they can counter both this legislation and China’s exploitation of international laws to assert territorial claims.

• Ken Jimbo discusses Japanese perspectives on navigating cross-Strait relations in the context of the ASL.

• Ian Chong assesses most Southeast Asian states’ general avoidance of Taiwan issues and their respective One China policies.

• Mark Harrison analyzes the shifts in Australia’s strategy toward cross-Strait tensions.

• Meia Nouwens explains the muted EU response to the ASL and the varying approaches different EU states have taken on Taiwan.

Section I

Origin and Evolution of the Anti-Secession Law

The Political Context and Origins of China’s Anti-Secession Law

I-Chung Lai

Introduction

The 2005 Anti-Secession Law (ASL) marked China’s effort to codify state responses in relation to what it perceived as “Taiwan independence action,” stating that such activities would induce Beijing to use non-peaceful means to prevent Taiwan from separating from China. The passage of this law raised strong opposition from the Taiwan government to the extent that it conducted a state-sponsored, island-wide rally against it. The law may have also caused the United States and Japan to publicly state in 2005 that they have the shared strategic objective of encouraging “the peaceful resolution of issues concerning the Taiwan Strait through dialogue.” Prior to that, the last time the Taiwan issue was included in the U.S.-Japan Security Consultative Committee was in 1969, thus demonstrating the seriousness of their joint collective response to the passage of the ASL.

At the time, it was assumed that China had designed the ASL to counter Taiwan’s Referendum Law and its related activities. After Taiwan passed the referendum law in 2003, former president Chen Shui-bian held two referenda concurrently with the 2004 presidential election. Although both referenda failed due to insufficient participation, China was still concerned about the possibility that new ones could be passed to bring formal Taiwan independence into reality.

However, this reasoning cannot explain why China did not resort to similar actions during Taiwan’s 2008 presidential election when both major parties proposed referenda related to Taiwan’s participation in the United Nations. The Kuomintang (KMT) proposed a referendum on whether the “Republic of China” should “return to the United Nations,” while the Democratic Progressive Party (DPP) proposed a referendum on “Taiwan” joining the United Nations as a new member. However, the KMT asked its supporters not to participate in the DPP referendum vote, leading both referenda to fail to obtain enough votes again. Although both referenda would seemingly have been perceived as violating the PRC’s redline defined in the ASL, Beijing did not do anything to prevent them from happening.

In retrospect, it seems the ASL was Hu Jintao’s effort to both pacify and constrain the hardliners within his party on the issue of Taiwan. Hu preferred to focus on economic development and saw actions on Taiwan as a distraction. What the ASL did was transform the issue of Taiwan independence from a political question into a legal one. Although this law is still vague about what does not constitute “Taiwan independence” action, it did attach a procedure for enacting “non-peaceful means” against Taiwan — implementation of which could signal possible Chinese military action.

The Cross-Strait Relationship Before the Passage of the Anti-Secession Law

It is commonly held that the ASL was passed during a time of tense cross-Strait relations. First, the DPP won Taiwan’s 2004 presidential election through a simple majority, not the plurality it achieved in 2000. This result demonstrated that grassroots support for the DPP had increased significantly since 2000. Second, the oppsition party, KMT, was in disarray, dealing with a power struggle among its leadership after its defeat in the presidential election. Third, it was also believed that the DPP could win significantly more seats in the legislative elections later that year, allowing the party to control both the executive and legislative branches. There were rumors that the CCP would introduce a Unification Law (統一法) in 2005 to stop the DPP’s momentum and prevent Taiwan’s formal independence.

However, several events at the end of 2004 and the beginning of 2005 painted a very different picture in Taiwan.

First, the Pan-Blue Coalition — the opposition alliance consisting of the KMT, the People First Party (PFP), and several smaller parties — maintained a majority (113 seats out of 225) in the legislative elections in December 2004. This meant that Chinese fears of a DPP-dominated government were not realized. Even though it remained the largest party in the legislature, the DPP’s planned constitutional revisions would surely not take place.

Second, a cross-Strait charter flight began operating in 2005 for the Lunar New Year festival between January 29 and February 20. Although there had been some sporadic flights between Taiwan and mainland China before, they had to make a midway stop at Hong Kong or Macau. The 2005 direct flights thus represented another important milestone in improving the cross-Strait relationship.

Third, as the result of Taiwan’s 2004 legislative election, President Chen of the DPP held a meeting with PFP chairman James Soong on February 24, 2005, and came up with the “ten points consensus (扁宋十點共識).” In this statement, Chen promised not to declare Taiwan’s independence, not to change its official name from the “Republic of China,” not to change the guidelines for national unification, and not to conduct constitutional reforms that might involve Taiwan’s sovereignty.

President Chen may have been hoping for the DPP to team up with the PFP to create a functional majority of 123 seats in the legislature, separating from the smaller parties in the Pan-Blue Coalition. Chen reportedly also asked James Soong to bring a message to Hu Jintao on his behalf during Hu and Soong’s 2005 meeting in Beijing. It is possible that this rapprochement between the DPP, PFP, and CCP triggered the KMT’s China-friendly movement and the subsequent KMT-CCP summit due to the party’s fear of being marginalized in the cross-Strait relationship.

Even Hu Jintao himself indicated during the all-important “two sessions” meeting in March 2005 that cross-Strait ties were somewhat stabilized. He mentioned that there were some “positive factors” conducive to constraining Taiwan’s independence and that there were signs of reduced tensions in the Taiwan Strait (“當前，兩岸關係中出現了一些有利於遏制“台獨”分裂活動的新的積極因素，臺海緊張局勢出現了某些緩和的跡象”).

▲ Table 1: Signs China Viewed as Indicative of Reduced Cross-Strait Tensions

Thus, in contrast to the conventional perception that cross-Strait relations were deteriorating before the introduction of the ASL, there were various signs indicating that developments in Taiwan were actually moving in China’s preferred direction, as Hu himself acknowledged. However, those developments did not dissuade Beijing from introducing and passing the ASL.

The Cross-Strait Relationship after the Passage of the ASL

Looking back, cross-Strait tensions did not significantly rise after the passage of the ASL. Not only did the KMT and CCP launch an annual forum starting in 2005, but the PFP was also invited by the CCP for a bilateral party summit and has since conducted an annual visit to China. As seen by Taiwan’s local elections in late 2005, the more independence-minded DPP was losing its grip on power and was on its way to being defeated in the 2008 presidential election.

U.S.-China ties also improved in September 2005, when Deputy Secretary of State Robert Zoellick described China as a “responsible stakeholder” during a speech to the National Committee on U.S.-China relations. The U.S. midterm elections in 2006 then paved the way for the nomination of Hank Paulson as secretary of treasury, a role in which he introduced the annual “U.S.-China Strategic Economic Dialogue,” later renamed the “U.S.-China Strategic and Economic Dialogue” under the Obama administration. (However, these political developments had more to do with the internal politics in Taiwan and the United States’ preoccupation with the War on Terror than with the events caused by or related to the passage of the ASL.)

Given the improved relations between Beijing and Taipei, as well as Beijing and Washington, it seems unlikely that the ASL was intended to force reunification. Instead, as DPP legislator Lin Chou-Shui argued in his 2006 book Community: Taiwan in the World Image (共同體：世界圖像下的台灣), Hu Jintao initiated this law to make it more difficult for the CCP to decide to attack Taiwan. Lin alleged that Hu wanted to focus on economic development when the momentum for that was particularly strong but faced considerable pressure on Taiwan from hawkish elements in the leadership circle — particularly Jiang Zemin, chairman of the Central Military Commission before Hu took over the position on March 13, 2005. Theoretically, there was a period during which the army could therefore have made a military move against Taiwan without President Hu’s prior knowledge. By institutionalizing the State Council and Central Military Commission in the decisionmaking process regarding military actions against Taiwan, Lin argued, Hu was able to rein in opposition from the military. As Lin believed, Hu’s public statement that cross-Strait relations were not too dire was part of an effort to de-escalate and convince his CCP colleagues not to overreact.

The ASL and the Use of Force Against Taiwan

Much of the focus regarding the ASL has been on Article 8, which states:

In the event that the “Taiwan independence” secessionist forces should act under any name or by any means to cause the fact of Taiwan’s secession from China, or that major incidents entailing Taiwan’s secession from China should occur, or that possibilities for a peaceful reunification should be completely exhausted, the state shall employ non-peaceful means and other necessary measures to protect China’s sovereignty and territorial integrity.

The State Council and the Central Military Commission shall decide on and execute the non-peaceful means and other necessary measures as provided for in the preceding paragraph and shall promptly report to the Standing Committee of the National People’s Congress.

The details of the three conditions for employing non-peaceful means are extremely vague and would seem to cover not just Taiwan’s secession but any events that could be perceived as “leading to” independence. In addition, the use of non-peaceful means is to be based on the Chinese assessment of the situation, not any specific actions by Taiwan. Thus, the Taiwan government believes that the ASL was created so that China would have maximum flexibility to easily legitimize its potential use of force against the island.

On the other hand, Article 8 stresses that the process of employing non-peaceful means should be a joint decision agreed to by both the Central Military Commission and the State Council, which then need to report to the National People’s Congress. At the time the ASL was drafted, the Central Military Commission was led by Jiang Zemin (who was succeeded by Hu Jintao soon after the law passed), while the State Council was headed by Wen Jiabao and the National People’s Congress by Wu Bangguo — not all of whom were seen as favoring a more aggressive stance on the Taiwan issue. This context suggests that Hu probably wanted to dilute the hardliner’s influence and temper Chinese actions toward Taiwan.

The ASL outlines the actions China needs to take if it wants to gradually induce unification. Per Article 6, the PRC would need:

1. to encourage and facilitate personnel exchanges across the Straits for greater mutual understanding and mutual trust;

2. to encourage and facilitate economic exchanges and cooperation, realize direct links of trade, mail and air and shipping services, and bring about closer economic ties between the two sides of the Straits to their mutual benefit;

3. to encourage and facilitate cross-Straits exchanges in education, science, technology, culture, health, and sports, and work together to carry forward the proud Chinese cultural traditions;

4. to encourage and facilitate cross-Strait cooperation in combating crimes; and

5. to encourage and facilitate other activities that are conducive to peace and stability in the Taiwan Straits and stronger cross-Strait relations

This approach is reinforced in Article 7, which specifically mentions that peaceful unification can only be achieved through “consultations and negotiations on an equal footing between the two sides of the Taiwan Strait.”

As Lin Chuo-Shui argued, these articles of the ASL successfully helped Hu cap internal pressure to be tough on Taiwan by circumscribing the mechanisms and actions needed to facilitate potential unification. There are reasons to believe that he was prepared to proceed with this proposed process of reconciliation when China-friendly Ma Ying-jeou was elected president of Taiwan in 2008. Indeed, Hu publicly called for cross-Strait negotiations during a speech later that year.

Looking Forward: The ASL under Xi Jinping and Its Possible Function as a Political Signal

Xi has said more than once that he wants to see progress on unification rather than have the two sides’ political differences last for generations. In a speech on January 2, 2019, Xi invoked the 1992 Consensus between the CCP and KMT and indicated he would push for a solution to the Taiwan issue under the “one country, two system” doctrine.

More recently, the “Opinions on Punishing Crimes of Separatism and Inciting Separatism by ‘Taiwan Independence’ Diehards in Accordance with Law” (“22 Articles”) indicated that the PRC would begin to criminalize Taiwan citizens if they conduct actions or voice dissent against the unification of Taiwan under the PRC. This is definitely a sign that Xi is moving forward with his efforts to unify China and eradicate resistance in Taiwan. The 22 Articles applies to both individuals and civilian organizations, in contrast to the ASL, which focuses on collective entities such as the state and governments. This development raises an interesting question: Does the 22 Articles document supplement the ASL or replace it?

Unlike Hu Jintao, who needed to share power with other members of the CCP Central Standing Committee, Xi has all the power concentrated in his own hands, as seen by his recent decree to downgrade the State Council’s executive powers and cut it out of the decisionmaking process. Xi has also stressed multiple times that the military has to listen to the party; in contrast, Hu never had firm control of the military and did not even know about the anti-satellite missiles China launched in 2007 until U.S. secretary of defense Robert Gates confronted him about it. Today, the National People’s Congress essentially rubber stamps the policies of the Chinese Communist Party, meaning procedures outlined in the ASL cannot slow down, let alone restrain, any potential decisions by Xi regarding Taiwan.

However, the ASL remains the only legal framework for conducting non-peaceful actions against Taiwan. And non-peaceful means include more than military actions. This suggests that Beijing would still have to go through the procedures described in the ASL if it wants to resort to such tactics. Thus, evidence that the PRC is following these procedures might provide a signal that the Xi administration is contemplating actions against Taiwan.

The Political Calculus Behind the Anti-Secession Law and Its Evolution

Bonny Lin

Introduction

On the margins of the Group of Twenty (G20) summit in Bali in November 2022, Xi Jinping, leader of the People’s Republic of China (PRC), raised the Anti-Secession Law (ASL) with U.S. president Joe Biden during their first in-person meeting as heads of state. Expressing his opposition to closer U.S.-Taiwan ties, Xi warned that “China will invoke the law and act resolutely if serious violations occur.” This is one of many cases in which PRC leaders have used the legislation to seek to deter foreign countries from supporting Taiwan and to demonstrate China’s determination and willingness to use force to unify with the island. Beijing has also increasingly cited the ASL to attempt to legitimize and justify its option to use coercive means or military force against the island if Beijing assesses that Taiwan has embraced “pro-independence” activities.

In May 2024, for example, China’s Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice jointly released “Opinions on Punishing Crimes of Separatism and Inciting Separatism by ‘Taiwan Independence’ Diehards in Accordance with Law” (the “22 Articles”). Citing the ASL as providing the legal basis for prosecuting those who promote Taiwan’s secession, the 22 Articles specified a range of criminal punishments up to and including the death penalty and the possibility for Beijing to try “separatists” in absentia.

Given the importance the ASL has played in China’s approach toward Taiwan, this paper examines the origin, contents, and evolution of the Anti-Secession Law.

Origins of the Anti-Secession Law

China adopted the ASL in March 2005 under significantly different domestic and international circumstances than today. When it was drafted, Beijing was most worried that Taipei could engage in major or significant actions to push for Taiwan independence, but China faced a more favorable international environment and better relations with the United States. Since then, particularly under Xi Jinping, China has become more worried about Taiwan’s incremental “salami slicing” tactics to promote independence and increase U.S. support, and Beijing’s relations with the United States have significantly deteriorated.

The ASL was passed as one of the first legislative acts by Chinese leader Hu Jintao. Hu was a relatively weak leader and a moderate who took nearly two years to become chair of China’s Central Military Commission (or hold control over China’s military) in 2004 despite becoming general secretary of the Chinese Communist Party (CCP) in 2002 and the president of China in 2003. Compared to his successor Xi Jinping, Hu was more reserved, less ideological, and sought to drive PRC policy through leadership consensus. It is possible the ASL was relatively short because it was hard to build consensus regarding adding more specifics or details to the legislation.

Hu’s priority was China’s economic development, which he believed was the most important driver of the country’s rise. Economic growth also served “as a foundation of social stability” as domestic incidents of mass unrest were growing at an alarming rate. His focus on economic development and creating the necessary international conditions to facilitate China’s growth were evident in the use of the term “peaceful rise” — and later “peaceful development” — to characterize China’s foreign policy.

Indeed, in December 2004, during an expanded session of China’s Central Military Commission, Hu Jintao noted that “the first 20 years of this century is the important Strategic Opportunity Period” for China to modernize and become a moderately well-off society. Washington’s preoccupation with the wars in Afghanistan and Iraq had created space for China to grow, and Beijing’s efforts to support the U.S. Global War on Terror helped improve U.S.-China relations. The United States also had a more favorable view of China and its trajectory, and the two countries were not yet engaged in intense strategic competition.

China’s military in the early 2000s was also significantly weaker than today. When Beijing observed U.S. military operations in the 1990–1991 Gulf War, as well as in Afghanistan and Iraq a decade later, the Chinese government expressed greater concern over what it viewed as a major gap in terms of technology and capabilities between Chinese and Western militaries. There was a recognition in Beijing that the People’s Liberation Army (PLA) was far behind that of the United States and that the United States was capable of intervening to defend Taiwan. By 2005, the U.S. Department of Defense assessed that “the cross-Strait military balance appears to be shifting toward Beijing.” However, China’s capabilities were only beginning to surpass that of Taiwan’s. In 2005, even without U.S. intervention, it would have been difficult for China to launch any successful major military campaign against Taiwan.

To Hu Jintao, Taiwan president Chen Shui-bian was a pro-independence troublemaker. He was first elected as Taiwan’s leader in 2000. Chen’s securing of a second term in 2004 — despite China’s attempts to prevent him from winning the presidency again — only made things worse from Beijing’s perspective. During his May 2004 inauguration speech, President Chen declared his intent to hold a referendum in 2006 to adopt a new constitution in 2008. Beijing was very worried that such major moves were intended to set Taiwan down a path toward independence.

Like other PRC leaders, Hu could not afford to “lose” Taiwan and could not afford to look “weak” or incapable of defending China’s core interests. At the same time, Hu was likely aware that a conflict over Taiwan at that time would be catastrophic for his economic development priorities and foreign policy designs.

Hu was under significant pressure to do something. One widely discussed and debated proposal came from Chinese scholar Yu Yuanzhou, who proposed in late 2002 that China pass a National Unification Promotion Law. His draft of the law had 32 articles divided into eight chapters. It began with Article 1, which stated that the law was drafted to accelerate unification with Taiwan. Article 5 listed three conditions for use of non-peaceful means against Taiwan:

1. if Taiwan declares independence or takes concrete steps toward independence

2. if foreign militaries intervene or invade Taiwan

3. if Taiwan authorities indefinitely delay or prevent the realization of peaceful unification

Articles 23–25 specified awards and benefits for those who promote unification, and Articles 26–29 stipulated criminal punishment and legal action against those who oppose it.

It is unclear if Yu’s proposal was a way for the Chinese government to test international and public opinion, but Chinese premier Wen Jiabao noted in a press conference in May 2004 that China would “seriously consider” drafting and adopting a national unification law.

Contents of the Anti-Secession Law

The eventual Anti-Secession Law that passed in 2005 had some similarities with the draft National Unification Promotion Law, but it was significantly shorter and less specific. It also raised and changed the criteria for use of non-peaceful means against Taiwan, perhaps reflecting Hu’s prioritization of economic development.

The ASL is broken down into 10 encompassing articles. Article 1 states that the law seeks to prevent Taiwan’s independence, promote unification, and safeguard China’s national interests. It does not mention any desire to accelerate the promotion of unification, nor is there any mention of a timeline for unification.

Article 2 reiterates the PRC’s “one China” principle, but the specific formulation and language is softer than Beijing uses today. In contrast to China’s current language — “there is only one China in the world, Taiwan is an inalienable part of China’s territory, and the Government of the People’s Republic of China is the sole legal government representing the whole of China” — the ASL suggests flexibility. It simply states that “the mainland and Taiwan belong to one China.” The ASL also does not assert that the PRC is the only and sole legal government of China. In fact, it mentions the PRC only once to discuss the law’s adoption, preferring to use “the state” to refer to the government in Beijing. Articles 3 and 4 note that Taiwan remains a legacy and unresolved issue from the Chinese Civil War and declare that it is the duty of all Chinese citizens to unify with Taiwan.

These early articles establish what Beijing believes is the status quo in the Taiwan Strait (i.e., that Taiwan belongs to China). Any actions to change or challenge this status quo are unacceptable to Beijing and violate the ASL.

Articles 5–7 specify Beijing’s desire for peaceful unification, list measures China will take to encourage peace and stability, and describe how negotiations for peaceful unification can be “flexible and with varied modalities.” It stipulates that unifying with Taiwan through peaceful means “best serves the fundamental interests of the compatriots on both sides of the Taiwan Straits.” When explaining the ASL during a press conference, Chinese premier Wen Jiabao noted that the legislation was meant to promote peaceful unification, not target the people of Taiwan or promote war.

These articles are often overlooked, but they detail activities that China should encourage or engage in to maintain peace and stability. Article 7 even states that consultations or negotiations between the two sides for peaceful unification can occur on “an equal footing.” It is far from clear whether China has upheld what it has laid out in these articles and whether it has tried its best to seek peaceful unification.

Article 8 highlights the broad (and vague) circumstances that will justify China’s “use of non-peaceful and other means” against Taiwan. These conditions include the following:

1. If Taiwan independence forces “act under any name or by any means to cause the fact of Taiwan’s secession from China”

2. If “major incidents entailing Taiwan’s secession from China” occur

3. If “possibilities for a peaceful reunification should be completely exhausted”

Compared to the draft National Unification Promotion Law, the ASL focuses on “the fact of Taiwan’s secession” and “major incidents” leading to secession. This sets a higher, but still unclear, bar for invoking non-peaceful means. The third condition of “possibilities of peaceful unification being completely exhausted” is also harder to achieve than the draft unification law, which suggested that “indefinitely delaying or preventing” unification could be a criterion.

Article 9 limits how non-peaceful means and other means can be exercised. It states that China should do its “utmost to protect the lives, property and other legitimate rights and interests of Taiwan civilians and foreign nationals in Taiwan, and to minimize losses.” This again is another case in which it is not clear whether Beijing is respecting its own legislation.

Articles 8 and 9 attempt to shift the responsibility onto Taiwan for any non-peaceful means that the PRC uses against it. By stipulating these conditions, Beijing can argue that Taipei’s actions leave Beijing with no choice but to use coercion or force against the island.

In addition to the above, and compared to the detailed draft National Unification Promotion Law, there are other components not in the ASL:

• The ASL does not specify how Taiwan would be unified with China. It does not take any position on whether Taiwan would become a special administrative region or if a federation could be formed between the two sides. It also does not specify the benefits and rights that Taiwan could enjoy post-unification. Instead, Article 7 of the ASL lists six aspects of Taiwan’s unification that can be negotiated between the two sides.

• The ASL does not include language on rewarding those who promote unification.

• The ASL does not criminalize those who promote independence.

• The ASL does not specify any type of non-peaceful or other means that China could take if the circumstances for their use were met. In contrast, the draft National Unification Promotion Law discussed artillery shelling, the blockading of Taiwan, and other military operations.

Evolution and Use of the Anti-Secession Law

Although in recent years the ASL is most frequently mentioned in reference to PRC coercive measures against Taiwan, Chinese official media and experts have argued that the law is effective and conducive to maintaining stability in the Taiwan Strait and has also brought about cross-Strait opportunities. They credit it for deterring Chen Shui-bian from engaging in more pro-independence activities and for decreasing Taiwan and international support for such efforts. They also credit the ASL for creating the momentum and opening for then Kuomintang chairman Lien Chan to visit Beijing in April 2005 and for People’s First Party chairman James Soong to do the same a month later, the first time Taiwan’s political leaders set foot in China since 1949. After Lien and Soong’s visits, China announced carrots for Taiwan, including easing restrictions on the island’s agricultural products and promoting Chinese tourism. Chinese experts argue that Article 6 of the ASL provided the basis to increase China’s trade and other linkages with Taiwan from 2008 onward during the Ma Ying-jeou administration.

In the past decade, however, there has been growing dissatisfaction within China about how the ASL can be used and applied. Much of this occurred after Tsai Ing-wen won the Taiwan presidency in 2016. Beijing was increasingly suspicious and wary that Tsai either sought to push the island incrementally toward independence or keep it permanently separated from the PRC. At the same time, Beijing became more concerned about growing U.S. support for Taiwan. In 2016, former PLA lieutenant-general Wang Hongguang called for invoking the ASL, arguing that possibilities for peaceful reunification had been exhausted. In 2017, there were press reports that Chinese leader Xi Jinping was considering revising the ASL or passing a National Unification Act.

In 2020, after Tsai was elected to a second term as Taiwan’s president, the discussion in Beijing intensified on how to respond. In March of that year, former PLA general Luo Yuan released an op-ed on how to revise the ASL. He criticized the three criteria for invoking “non-peaceful and other means” as too vague and unclear and noted that the ASL also did not specify what non-peaceful means might look like. He recommended that Beijing take the following actions:

• List “die-hard pro-independence” leaders as war criminals who seek to incite cross-Strait military tensions.

• Create a database of pro-independence individuals and record their acts of secession.

• Impose sanctions on individuals or companies who support Taiwan’s independence.

• Compress Taiwan’s “survival space” if pro-independence Taiwan leaders engage in provocative activities, punishing them by conducting military exercises that move closer and closer to the island.

• Engage in cognitive warfare to raise awareness of the costs that Taiwan would bear if China used force to unify with the island.

• Publicize a timeline for unification.

On May 29, 2020, as a part of a public event commemorating the 15th anniversary of the ASL, Chinese media quoted Li Zhanshu, chairman of the Standing Committee of the National People’s Congress, as stating that the ASL is an important part of China’s “One Country, Two Systems” policy framework, which aims to promote the peaceful unification of China. The same article noted that the ASL was also vital because “it can crackdown [sic] on separatist movements in Taiwan by means of legal authorization.” Chinese media and scholars argued that President Tsai had begun creating the legal basis for Taiwan’s independence — such as by passing Taiwan’s Anti-Infiltration Act, trying to change wording in the Act Governing Relations between the People of the Taiwan Area and the Mainland Area, and proposing constitutional reforms — and that her actions thus provided legal ground to activate Article 8 of the ASL.

At this same late-May event, Chinese leaders and analysts signaled that Beijing was preparing non-peaceful measures against Taiwan. Director of the Taiwan Affairs Office Liu Jieyi warned that Beijing would not leave any space for “Taiwan independence” or renounce the use of force against the island and would reserve the option to take all necessary measures. These threats were similarly echoed by the chief of the Joint Staff Department, General Li Zuocheng.

This 15th-anniversary commemoration of the ASL occurred two months late (taking place in May 2020 even though the actual anniversary was in March 2020). Instead, China celebrated the ASL a day after the National People’s Congress passed the controversial Hong Kong National Security Law on May 28, 2020. Against this backdrop, Chinese experts participating in the symposium argued that Beijing should be taking a range of measures on various separatist movements, including “completing the law systems on national security,” “making reciprocal measures to sanction overseas separatists and anti-China individuals,” and “mak[ing] more detailed laws by extending the experience of the Anti-Secession Law.”

Chinese efforts to complement and extend the ASL began bearing fruit the next year. In June 2021, China adopted its Anti-Foreign Sanctions Law. Although this document does not mention the ASL or Taiwan, Article 3 lays out China’s right to employ corresponding countermeasures when foreign nations interfere with its internal affairs.

Since then, China has cited the Anti-Foreign Sanctions Law to censure U.S. political leaders who support or visit Taiwan, as well as U.S. defense companies that sell arms to Taiwan. In August 2022, after U.S. speaker of the House Nancy Pelosi visited Taipei, China cited the ASL, as well as the National Security Law and Criminal Law, to take criminal punitive measures against Taiwan individuals and organizations whom Beijing called “die-hard pro-independence elements.” At the same time, China used the Anti-Foreign Sanctions Law to justify imposing sanctions on Speaker Pelosi. China’s Ministry of National Defense further shared that the PLA’s unnamed large-scale exercises around Taiwan after Pelosi left were meant to deter secessionists and foreign interference. Although the ministry did not specifically cite the ASL, it noted that the Chinese exercises were “consistent with domestic law and international law and practice.”

This usage of the ASL since at least 2022 has expanded the law beyond its original scope. China is now citing it to engage in gray-zone coercion and sanctions against Taiwan and to target specific individuals and organizations. The ASL does not provide the basis for such activities. Taiwan has not seceded from China, nor does Pelosi’s visit of Taiwan count as a “major incident” leading to Taiwan’s secession, and China has not exhausted the possibility of peaceful unification. As discussed earlier, and despite recommendations from some PRC scholars to include such provisions, the ASL did not include any articles on criminal punishment of Taiwan’s “pro-independence” forces.

In 2024, China further outlined a series of military exercises that the PLA could conduct to punish Taiwan for engaging in “separatist activities” and suggested that the ASL authorizes such activities. In January, after William Lai won Taiwan’s presidential election, China’s Ministry of State Security published an article on WeChat entitled, “The Anti-Secession Law Is a Sharp Sword Hanging High.” The article explained that the blade of the sword points at Taiwan independence efforts, the sword clarifies what China’s red lines are, the hilt indicates that the duty and future is in the hands of the Chinese and Taiwan people, and the scabbard hides the edge of the sword to preserve the option of peace.

In late May and perhaps building on this analogy, the PLA engaged in another round of large-scale exercises around Taiwan to “serve as a strong punishment for the separatist acts of ‘Taiwan independence’ forces and a stern warning against the interference and provocation by external forces.” Beijing sought to use these drills to express its condemnation of President Lai’s inauguration speech, which Beijing viewed as a departure from past inauguration speeches of Taiwan leaders. These joint drills were named Joint Sword-2024A, suggesting there could be several of these exercises per year and there might be more iterations in subsequent years.

In late May 2024 and shortly after China wrapped up its military exercises, Beijing issued the 22 Articles, which China’s Taiwan Affairs Office noted was meant to strengthen the ASL by providing details. The timing of the 22 Articles reinforced China’s military demonstration and opposition to any attempts within Taiwan to move toward what Beijing views as incremental independence.

Conclusion

China’s Anti-Secession Law remains an important piece of legislation that Beijing invokes as justification for its policies and actions toward Taiwan. The short law covers the broad components of China’s approach toward Taiwan, but its lack of specificity has afforded Chinese leaders and experts flexibility in how they interpret it. In recent years, China has increasingly cited Article 8 of the ASL to support its coercive and military activities against the island as it lowers its threshold for use of non-peaceful means against Taiwan. There has been less focus on the other articles, which require China to “do its utmost with maximum sincerity to achieve a peaceful reunification.” China has also built out more legislation to support and complement the ASL, giving Beijing a large set of coercive tools to use against Taiwan and its supporters.

The Significance and Application of China’s Anti-Secession Law

Wen-Hsuan Tsai

Introduction

The Chinese Communist Party (CCP)’s Anti-Secession Law (ASL) notably asserts that Taiwan and mainland China are both part of “one China.” According to this law, there is no particular distinction between using “China” to refer to the People’s Republic of China (PRC) or the Republic of China. The legislation resembles the Treaty of Warsaw signed between East and West Germany in 1972, which declared that the two states should pursue reunification. However, the key difference between the ASL and the Treaty of Warsaw is that West Germany recognized East Germany as a country at the time. In contrast, the ASL only vaguely states that both sides of the Taiwan Strait belong to the nation of China and that the question of Taiwan is a legacy of the Chinese Civil War. Thus, Beijing officially opposes the proposition of Taiwan’s independence and its actions in this regard.

Enacted during the Hu Jintao period, the ASL does not clearly define the name or nature of the country after reunification. However, actions taken under Xi Jinping have led to a clear understanding that this “China” is the PRC, making the terms of the law less flexible and potentially harming future cross-Strait interaction and negotiations.

Changing the PRC Application of the Anti-Secession Law

This shift in the presumed nature of the ASL is related to the overall perspectives of Hu Jintao and Xi Jinping. Foreign relations and cross-Strait policies under Hu Jintao primarily focused on economic development. Therefore, the law was implemented to encourage the future development, including economic integration and political unification, of both sides of the Taiwan Strait. However, it does not discuss the use of the name “China” following unification. Since the ASL was passed in 2005, the main policy focus has shifted from economic development to national security. The law has come to be seen as emphasizing that Taiwan is part of the PRC, with the intention of preventing foreign forces from exploiting the Taiwan issue to negatively affect China’s national security.

Under Xi Jinping, the meaning and application of the ASL seem to have changed in several ways. First, the ASL has been used together with other PRC laws to punish so-called “Taiwan independence” elements. The document “Opinions on Punishing Crimes of Separatism and Inciting Separatism by ‘Taiwan Independence’ Diehards in Accordance with Law,” promulgated by the CCP in June 2024 (the “22 Articles”), mentions in its preface that the PRC can use its Criminal Law and Criminal Procedure Law, as well as other legal provisions. These recent activities align with what scholars call “legal authoritarianism” under Xi — the strengthening and legitimization of PRC policy through the enactment of numerous laws.

Second, the ASL is no longer merely an initiative to promote the cross-Strait pursuit of reunification but an expression that Taiwan is an integral part of the territory of the PRC. Beijing uses this law to claim jurisdiction and control over the people of Taiwan. Under Hu Jintao, the CCP’s definition of “China” had room for ambiguity, and both sides of the strait could have their own interpretations of the China to which they belonged. However, under Xi Jinping, the concept is no longer vague. The “one China” referred to by the CCP now means the PRC.

Third, the ASL is somewhat abstract, leaving ample room for interpretation and follow-on measures. The CCP could issue details on how to implement the law, making it more practically functional. It could also amend the ASL by adding text relating it to Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era. Xi has placed greater emphasis on the concepts of top-level design and national security, and the Taiwan issue is no longer expressed as scope limited to United Front work but forms part of the PRC’s overall security strategy. Therefore, it is possible the CCP will incorporate Xi Jinping Thought in the preface of the ASL, which would have two effects: to make anti-secession and cross-Strait reunification key to China’s concept of national security and to inject additional Xi Jinping symbolism into the law, further cementing his historical status and contribution to cross-Strait policies.

Fourth, the CCP may use the ASL to formulate a new law to accelerate unification. The ASL only passively opposes Taiwan’s independence, but a unification law would actively promote reunification. Xi might ask Wang Huning, chairman of the Chinese People’s Political Consultative Conference, to formulate more detailed regulations on the topic. Xi might also formulate or amend regulations on Taiwan affairs, in particular regarding supplementing and revising the ASL.

Finally, the CCP might seek to clarify Article 8, the most important part of the ASL. This article grants the State Council and the Central Military Commission power to take non-peaceful measures if independence forces attempt to separate Taiwan from China or have already done so, or if the “possibilities for a peaceful reunification should be completely exhausted” — a phrase that is currently very vague. It may be that Xi Jinping will seek to define this parameter more clearly. However, it remains to be seen whether the CCP will formulate a law to institute a timetable and deadline for unification. Doing so would greatly limit the flexibility of the CCP’s Taiwan policy.

If China amends or revises the ASL, Beijing may face international concern and pushback against its unilateral changes to the political relationship between mainland China and Taiwan — particularly from the United States and Japan. Maintaining the status quo in Taiwan is most conducive to the interests of the United States and its allies and partners. If Donald Trump is elected president in November 2024, his anti-China stance may present even more challenges to the CCP’s tough Taiwan policy. But even if Kamala Harris is elected, given the current global anti-China situation and China’s strong diplomacy, the relationship between the United States and China may not improve.

Looking Forward

At the Third Plenary Session of the 20th Central Committee of the CCP in July 2024, the party noted that the reform task of Chinese-style modernization needs to be completed by 2029, the 80th anniversary of the founding of the PRC. This suggests that Xi Jinping will likely secure a fourth term as general secretary in 2027. He may wish to resolve the “Taiwan problem” during this term, and it is possible that he will try his best to bring the cross-Strait political agenda to a stage of substantive negotiations on reunification. In pursuit of this goal, the CCP will need to formulate more relevant laws to provide the legal basis for unification, which will involve either building on or revising the ASL. However, the government and people of Taiwan may not be willing to obey Xi Jinping’s will, meaning cross-Strait tensions could intensify after 2027.

The Dangers of the Anti-Secession Law under Xi Jinping

Vincent Yi-Hsiang Chao

Introduction

The Anti-Secession Law (ASL) of the People’s Republic of China (PRC) has recently been brought back into the spotlight after it was used as a basis for new guidelines that would, among other things, potentially impose a death penalty on “Taiwan independence” advocates. This is a significant escalation related to what was seen as a long-dormant piece of legislation.

First introduced by the National People’s Congress (NPC) in 2005, the ASL is widely viewed as a response to Taiwan president Chen Shui-bian’s pro-independence tendencies. Prior to its passage, PRC premier Wen Jiabao said Beijing was seriously considering a “law of unification” in response to questions of how to deter Taiwan independence. Li Zhanshu, chairman of the NPC’s Standing Committee, also stated that the ASL would serve as a “guiding compass in fighting against separatist forces and promoting reunification.”

Despite strenuous protests from Taipei, international reactions were fairly muted following the ASL’s passage. A White House spokesperson called it “unhelpful.” The European Union urged both sides to “avoid any unilateral action that could stoke tensions.” Japan’s Ministry of Foreign Affairs expressed concern that the law might “exert a negative influence over peace and stability in the Taiwan Straits.” It was apparent that despite its bellicose content, the legislation itself was largely seen as symbolic rather than as a substantive effort to compel unification.

This may very well change under President Xi Jinping’s leadership. Xi has adopted a much harder stance on cross-Strait issues, vowing that China will “never promise to renounce” the right to use force against Taiwan. U.S. secretary of state Antony Blinken said that in doing so, Xi made a “fundamental decision that the status quo was no longer acceptable.” In this context, the PRC’s Anti-Secession Law can be seen as an ideal framework for Xi, not only as it would preclude the status quo continuing indefinitely, but also because it would help him rationalize the use of force against Taiwan to audiences both at home and abroad.

China’s More Assertive Unification Campaign under Xi Jinping

Over the past decade, the situation around the Taiwan Strait has changed dramatically, aided by China’s newfound economic and military might. Repeated overflights by the People’s Liberation Army (PLA) have eroded the role of the median line of the Taiwan Strait as a crucial barrier that prevents accidents and misunderstandings. Diplomatic pressure from the PRC on other countries to break off formal ties with Taipei has dampened Taiwan’s international space. Beijing has also sought to use disinformation and other gray zone tactics to undermine trust in democratic institutions. Through military, economic, and social means, Beijing has increasingly signaled that the status quo is no longer tenable and that concrete actions toward unification must be made.

There are growing signs that these efforts will be further aided by a lawfare campaign centering on the Anti-Secession Law. For example, Xi’s seminal piece on Taiwan policy, “The Taiwan Question and China’s ‘Reunification’ in the New Era,” refers to the ASL twice and quotes from Article 2 that “there is only one China in the world. Both the mainland and Taiwan belong to one China. China’s sovereignty and territorial integrity brook no division.” In November 2022, the Chinese Ministry of Foreign Affairs also released a statement that Xi had raised the ASL during a meeting with U.S. president Joe Biden. More recently, it was used as a basis for the new legal interpretations that would impose jail terms on “pro-independence” activists, with the death penalty reserved for more serious cases.

Within China, discussions over the ASL will likely intensify in the run-up to its 20th anniversary next year. During its 15th anniversary in 2020, China’s state media published an article calling the law “a powerful weapon to deter Taiwan separatists,” adding that it should be revisited in the context of fraying U.S.-China ties and Xi’s cross-Strait policies. It seems possible that Xi may use its 20th anniversary as another milestone to announce new interpretations and applications of the ASL. Such action would be wholly consistent with the way Xi used the 40th anniversary of the 1979 “Message to Taiwan Compatriots” to announce new policies on Taiwan.

Three Ways China Further Interprets the Anti-Secession Law

Moving forward, it is likely that the PRC will shape interpretations of the Anti-Secession Law in three critical areas to: (1) clarify that Taiwan is a part of the PRC; (2) rule out an indefinite continuation of the status quo; and (3) rationalize the use of military force against Taiwan.

First, although the ASL maintains ambiguity in declaring Taiwan as part of “China” rather than the PRC, a closer reading of its text could easily suggest otherwise. Its opening article makes clear that “promoting peaceful national unification” and “preserving China’s sovereignty and territorial integrity” are among its central objectives. Article 2 states: “There is only one China in the world. Both the mainland and Taiwan belong to one China. China’s sovereignty and territorial integrity brook no division.” Article 5 adds that “upholding the principle of one China is the basis of peaceful reunification of the country.”

This should be read in the context of the Taiwan Affairs Office, which has long declared that the “one China” principle means that Taiwan is part of the PRC, stating that “Taiwan is an inalienable part of Chinese territory and, after replacing the government of the Republic of China in 1949, the government of the PRC has become the sole legal government of China, enjoying and exercising sovereignty over the whole of China, including Taiwan.” In addition, the preamble of the PRC’s 1982 constitution states: “Taiwan is part of the sacred territory of the People’s Republic of China.” A case can thus be made that there is no flexibility in the ASL’s interpretation of the “one China” principle.

Second, the ASL suggests that unification cannot be delayed indefinitely. Article 7 lays out the steps and phases of how the two sides can negotiate the cessation of hostilities, the political status of Taiwan, and arrangements for peaceful unification. However, Article 8 also states that if “possibilities for a peaceful reunification should be completely exhausted, the state shall employ non-peaceful means and other necessary measures to protect China’s sovereignty and territorial integrity.” Taken together, these passages can be interpreted to mean that unification must be inevitable and action toward it must be ongoing for there to be peace across the Taiwan Strait, rationalizing the exclusion of any other outcome as a matter of law.

Third, the ASL can easily be seen as a basis for Xi engaging in military action in the Taiwan Strait. Article 8 details the conditions in which “non-peaceful means” may be employed, including “the fact of Taiwan’s secession from China” or an exhaustion of possibilities for peaceful unification. It also authorizes the State Council and the Central Military Commission to decide what constitutes “non-peaceful means.” The ambiguously worded legal framework has granted Xi flexibility in using force against Taiwan. While this could have been seen as a symbolic gesture in 2005, a time when the PLA had few military options regarding the Taiwan Strait, it should be interpreted far differently today given China’s growing capacity to quarantine, blockade, or invade Taiwan.

Conclusion

The potential that Xi will leverage the Anti-Secession Law to justify more assertive actions against Taiwan should alarm both Taiwan society and the international community. At its core, the ASL is a misnomer. Far from simply targeting efforts to promote Taiwan’s independence, it is designed to affect another outcome: the annexation of Taiwan by any means necessary. It seeks to do so by precluding the indefinite continuation of the status quo while rationalizing the use of military force against Taiwan. It is fundamentally the most dangerous piece of legislation affecting cross-Strait peace and stability.

The stakes are high following the inauguration of Taiwan’s President William Lai, whom Beijing has vowed to oppose. While there may be a genuine desire within Taipei for cross-Strait relations to return to the status quo ante, Beijing’s growing use of the ASL suggests that this is extremely unlikely. Instead, both Taiwan and like-minded democracies around the world should be clear-eyed that defense deterrence and international support remain the best response to the dangers of the Anti-Secession Law as wielded by Xi Jinping.

Section II

Legality and Legal Warfare of the Anti-Secession Law and the 22 Articles

The Anti-Secession Law in China’s Taiwan Strategy, Then and Now

Jacques deLisle

Introduction

China’s Anti-Secession Law (ASL) is a curious, but distinctive and significant, component of Beijing’s repertoire for addressing the issue of Taiwan. In its most obvious features, the ASL appears to add little to long-standing positions. Its key substantive provisions — including the law’s most threatening elements — were far from novel when the ASL was adopted in 2005. With the ASL, the People’s Republic of China (PRC) declared that China will resort to “non-peaceful means” if “‘Taiwan independence’ secessionist forces . . . cause the fact of Taiwan’s secession” or if “major incidents entailing Taiwan’s secession occur” or if “the possibilities for peaceful unification are completely exhausted.” According to the ASL, Taiwan is currently part of China and its possible secession is to be prevented. China’s policy preference is for peaceful unification, and Beijing is prepared to offer terms that include some version of a “one country, two systems” arrangement.

Indeed, in some respects the ASL was seemingly more restrained than some of Beijing’s previously stated positions. For example, it omitted the specific language of the 2000 White Paper’s threat that China could use force if Taiwan were occupied or invaded, or if it refused indefinitely to engage in unification negotiations. And the ASL forewent the phrase “one country, two systems” — already of ill odor in Taiwan in 2005, and much more so after the 2019 crackdown on protests in Hong Kong and the subsequent passage of a National Security Law for Hong Kong in 2020 — instead using the substantively similar but less provocative phrases “systems different from those on the mainland” and “a high degree of autonomy.”

Putting familiar propositions in the form of legislation by the National People’s Congress (NPC) would not seem to do much. As a matter of principles of Chinese law and governance — and perceptions in Taiwan, the United States, or elsewhere — the ASL could not meaningfully enhance the authority of the Chinese state and its military to use force or take other coercive measures against Taiwan. Conversely, and even if they had been less vague, the ASL’s statements concerning the preconditions or procedures for using force could not credibly indicate to audiences at home or abroad the existence of binding and not-easily-alterable limitations on China’s use of force in response to acts that authorities in Beijing deem unacceptably “secessionist.” The ASL’s designation of the PRC institutions that would authorize the use of non-peaceful means portended no meaningful constraint on a decision that, as a practical matter, would be made at the top levels of the party-state.

What, then, does the ASL do, and why has it reemerged as a prominent focus and concern since the mid-2010s, and especially during the 2020s? There are (at least) three, somewhat overlapping, answers to these questions, and they shed some light on China’s current and likely near-future policies and behavior.

A Specifically Legal Element in China’s Response to “Pro-Independence” Moves

The ASL is an unambiguously legal element in China’s repertoire for responding to what it perceives or depicts as excessively pro-Taiwan independence moves, especially (but not only) when such moves themselves have a legal component. The ASL was adopted in 2005, and shaped during the months preceding its passage, when Beijing saw troubling moves toward independence by Taiwan under the leadership of the Democratic Progressive Party’s (DPP) Chen Shui-bian, who had won reelection, to the PRC’s chagrin, at the beginning of 2004.

Of course, China has had available — and has employed — other, less law-centered methods. But legislation — and law more generally — is, at a minimum, another tool in Beijing’s toolkit, and one with several distinctive values that have drawn reinvigorated appreciation during the Xi era. The Reform-Era Chinese regime has used law — particularly legislation — as a way of signaling that a policy position is especially seriously meant and durable. Putting the already-familiar policies set forth in the ASL into legislative form holds out the prospect — and almost surely reflects an intent — to tap into the legitimating power of law, domestically (which the regime has appreciated and sought to cultivate) and, no less importantly, internationally (including in Taiwan and the United States, where law’s legitimacy has been robust).

As this last point suggests, there is also something of a mirroring effect. The ASL reads, in part, as a grudging homage to the United States’ principal relevant law: the Taiwan Relations Act (TRA). The TRA has been an enduring anchor of U.S. policy and a useful and flexible tool, invoked by U.S. leaders in rebuffing Chinese calls for — or rebutting Chinese charges of — change in U.S. policy, yet not purporting to compel specific actions by U.S. presidential administrations (despite provisions that are more concrete and conventionally “law-like” than the ASL). Tellingly, Chinese sources have long denounced the TRA and, at times, compared the ASL to it.

The ASL was adopted in the face of a turn in Taiwan to legal means to address issues that resonated with independence and that alarmed Beijing. These included: the so-called “defensive referenda” put before Taiwan’s voters in 2004; the broader embrace of referenda, including through the adoption of a Referendum Law in 2003; and the pursuit of a project to “reform” the Republic of China (ROC)’s constitution, pursued as an alternative to a more radical project that Chen had at times flirted with of “replacing” the ROC’s constitution. Each of these law-centered means could be read as heightened assertions of Taiwan’s separate, state-like status. The (failed) referenda implicitly invoked Taiwan’s right to self-defense akin to that enjoyed by sovereign states under international law and asserted Taiwan’s equality with the PRC. The creation and subsequent use of a legal framework for referenda resonated with earlier DPP calls for a popular vote on Taiwan independence and with international legal norms that saw referenda as an appropriate means for deciding issues of self-determination (with outcomes that can include independence). The constitutional reform proposals were explicitly framed as efforts to “indigenize” the ROC’s constitution to Taiwan (including by eliminating the mainland-born and One-China-linked National Assembly). More pointedly if less narrowly legally, Chen had made the international law-adjacent assertions that Taiwan was “already an independent sovereign state” and that there was “one country on each side of the Strait.”

An analogous dynamic appears to have occurred and shaped the recent career of the ASL. A renewed emphasis on the ASL in PRC discourse, particularly in the 2020s, and the promulgation in May 2024 of a set of “22 Articles” jointly issued by the Supreme People’s Court, Supreme People’s Procuracy, and the Ministries of Public Security, State Security, and Justice — in part interpreting the ASL — have been specifically legal features of Beijing’s response to what it sees as escalating efforts to assert or support Taiwan’s lasting separation. One principal concern is what Beijing characterizes as the “pro-independence” agenda of President Tsai Ing-wen and her successor, Lai Ching-te, whom PRC authorities regard as more provocative than his immediate predecessor (despite Lai’s repeated pledges of policy continuity). Another impetus is what China sees as dangerously increased support for Taiwan independence (or, at least, deterrence of pressure for unification) from the United States.

During Tsai’s first year in office, for example, an ex-People’s Liberation Army (PLA) general called for triggering the ASL’s non-peaceful means provision because the prospects of peaceful unification had been exhausted, and PRC media reported that the ASL might undergo toughening amendments or supplementation by a National Unification Law. As Tsai moved into her second term, Beijing turned up the volume. At a formal fifteenth anniversary ceremony for the ASL, for example, a top PLA general warned that China’s military would “take all necessary steps” if “the possibility for peaceful unification is lost.” The Chairman of the NPC Standing Committee declared the ASL to be an important part of the “one country, two systems” framework, which Xi Jinping had already declared to be the inevitable template for Taiwan’s unification. A commentary from a prominent researcher at the closely state-linked Taiwan Studies Institute of the Chinese Academy of Social Science (CASS) declared the ASL to be a “powerful weapon” meant to deter Taiwan separatists and a “legal ground” that the government might “activate” in response to Tsai’s provocations. There were also reprises of earlier Tsai-era calls to toughen the ASL.

Toward the middle of Tsai’s second term authoritative Chinese sources returned to emphasizing the ASL. A spokesperson from China’s Taiwan Affairs Office praised the law for its vital role in deterring Taiwan independence and separatism. Foreign Minister Wang Yi warned that Beijing would take “resolute actions to safeguard” China’s “sovereignty and territorial integrity” if the ASL were violated. Xi Jinping referred to the ASL in a G20 sidelines conversation with President Biden concerning Taiwan and U.S. policy. The PRC’s 2022 White Paper on Taiwan invoked the ASL (twice), alongside the PRC’s constitution and the National Security Law, in pushing back against what it characterized as the “DPP authorities’ separatist stance.” Official statements also pointed to the ASL as a basis for possible criminal sanctions for “die-hard” pro-independence elements in Taiwan.

Lai’s inauguration was followed by a Ministry of State Security article on WeChat, which recited the ASL’s three triggers for using non-peaceful means and characterized the ASL as “a sword hanging over the head of Taiwan separatists.” Issued shortly after Lai took office, the 22 Articles explicitly interpreted the ASL, as well as other PRC legislation, criminalizing a wide range of still ill-defined pro-separatist actions and setting forth means for prosecuting violators. Spokespersons for the Taiwan Affairs Office characterized the 22 Articles as reflecting “a solid legal basis and sufficient legal grounds” for punishing efforts to promote Taiwan independence, and (here, apparently pursuing legitimation through comparative law) as consistent with the “common practices of all countries around the world” in punishing crimes of secession or incitement to secession — a legal argument that echoes longer-standing Chinese claims about the permissibility of preventing Taiwan’s secession.

China has taken these measures against a backdrop that includes law-invoking or law-related moves from both Taipei and Washington. Law-reliant or law-resonant statements from Tsai and Lai that have been highly offensive to Beijing include: the now-familiar assertions that Taiwan is an independent, sovereign state (though, especially for Tsai, a state called the ROC, and, in one of Lai’s recent formulations, with the specifically legal hook of “according to international law”); declarations that the entities on the two sides of the Strait must deal as equals (another not-novel proposition, but one that figured prominently in Lai’s inaugural address); Tsai’s second-inaugural reference to “constitutional reform” (arguably echoing Chen); and Lai’s suggestion that, given its one-China presumption, relying on the ROC constitution could bring “disaster” for Taiwan (in a comment made late in the presidential campaign, evoking the specter of the Chen-era constitutional replacement gambit).

PRC sources connected such Taiwanese moves to the ASL. China’s 2022 White Paper specifically pointed to “lobby[ing] for amendments to their ‘constitution’ and ‘laws’” as indicia of DPP authorities’ “separatist stance.” CASS Taiwan Studies Institute commentaries branded Tsai’s law-related moves as an effort to “establish a legal basis for Taiwan’s independence” and characterized Tsai’s mulling of constitutional reform as transgressing the ASL. The 22 Articles formally declared that any referendum or law-making that tried to change Taiwan’s legal status or its constitution would be criminal.

On the U.S. side, Beijing-offending statements — especially President Biden’s repeated commitments to defend Taiwan with military force, which China regards as hollowing out strategic ambiguity — have at times been tethered to an avowed legal obligation under the TRA. Such declarations by administration officials have come in the context of something that has not been seen since the passage of the TRA in 1979: congressional lawmaking (rather than mere proposed legislation) — including the TAIPEI Act, the Asian Reassurance Initiative Act, the Taiwan Travel Act, the parts of the proposed Taiwan Policy Act that made it into a National Defense Authorization Act (NDAA), and several other provisions in recent NDAAs — that has pointedly and repeatedly reaffirmed the TRA and called for U.S. policies of stronger quasi-diplomatic ties, greater defense support and security cooperation, and backing for Taiwan’s international status and participation.

Reflecting and Supporting Beijing’s Master Narrative on Taiwan’s Legal Status

The ASL reflects — and supports — China’s master narrative on Taiwan’s international legal status, which is a core component of Beijing’s strategy toward Taiwan. A key attribute of the ASL is its assertion, set forth in particularly formal and legal terms, that Taiwan is currently part of China, that the PRC already holds sovereignty over Taiwan, and that the people in Taiwan therefore are Chinese nationals. The ASL, thus, is conceptually highly assertive, in pointed contrast to a contemporaneously discussed (and sometimes still-discussed) possible unification law, which implicitly would have conceded that Taiwan was not (or at least might not be) a part of China or under Chinese sovereignty. Since before the adoption of the ASL and continuing through the two decades since, a unification law has been floated periodically — often when PRC sources have contemplated or advocated a harder approach to Taiwan — as an alternative or a supplement to the ASL. But the appeal has been in a possible unification law’s tougher operational — not conceptual — implications: although implicitly accepting that Taiwan had slipped away (or at least was on the verge of doing so), it would declare a situation in which there would be an imperative to act, with force, if need be, to change a status quo of a separate Taiwan.

If the ASL-embodied position that Taiwan is currently part of China is accepted, much that serves China’s Taiwan strategy follows. For example, foreign “interference” to provide for the defense of Taiwan against force by the PRC would be broadly impermissible and presumptively unlawful intervention in China’s internal affairs and, in some versions, against China’s territorial integrity and sovereign autonomy. China’s use of force or coercion against “separatist” moves by Taiwan would be a generally permissible and presumptively lawful action by a government within its own sovereign territory and against a domestic rebellion or attempted secession, as the ASL assumes and China’s Taiwan White Papers assert.

Moreover, and reprising the Hong Kong “one country, two systems” template, the ASL framework assumes that governing a post-reversion Taiwan is ultimately a matter within the PRC government’s discretion. The Chinese government would not be durably or reliably constrained by the terms set forth in the ASL, nor would it be bound by any terms worked out through the unification negotiations that the ASL contemplates. In this respect, the ASL, and any PRC law implementing the outcome of ASL-authorized unification negotiations, would be analogous to the Basic Law for the Hong Kong Special Administrative Region. Any such law for Taiwan would be a mere PRC domestic law and thus subject to the NPC’s, or its Standing Committee’s, unilateral interpretation, amendment, or supplementation by a region-specific National Security Law, but without the treaty-like underpinnings of the Sino-British Joint Declaration on Hong Kong, which Beijing now regards as fully executed and thus moot.

Perhaps most fundamentally, the ASL-embedded PRC legal narrative frames assertions that Taiwan (or the ROC) is an independent sovereign state — and efforts by the United States or others that support or suborn such status or Taiwan’s claims to it — as challenges to the legal status quo of Taiwan as a province-like part of China, and casts China’s measures to prevent such moves as status quo-preserving. Any claims by Taiwan to independent sovereign state status under international law, therefore, would have to meet the much higher threshold for achieving legitimate statehood through secession, rather than the more capacious general criteria for statehood, which Taiwan arguably meets (territory, population, autonomous and effective government, and capacity to engage in relations — albeit mostly informal ones — with other states).

This aspect of the ASL, too, has returned to the fore in recent years. In the 2022 White Paper, for example, the quotations from PRC legal sources — the ASL, as well as the PRC constitution and the 2015 National Security Law — almost exclusively refer to Taiwan’s status as currently a part of China. In other official and quasi-official statements from the 2020s concerning the ASL, the posture is much the same, speaking of the ASL either as a deterrent to (as-yet-unaccomplished) separatist efforts or as a basis for the use of force to prevent such efforts from succeeding. In a similar vein, the 22 Articles restate the standard position that “Taiwan is an integral part of China’s territory” and criminalize acts of “wantonly distort[ing] or misrepresent[ing] the reality that Taiwan is part of China,” or “seeking to change the legal status of Taiwan as part of China.”

Such statements dovetail with a more narrowly international law-focused strategy that Beijing has recently pressed much harder. The PRC claims that UN General Assembly Resolution 2758 settled, as a matter of international law, Taiwan’s status as a province or integral part of China. From this premise, according to Beijing’s account, it follows that the United States and others who support what China deems to be Taiwan independence, suggest that sovereignty over Taiwan is unsettled, or seek robust international participation for Taiwan are violating international law as well as “basic norms” of international relations. Notably, the 22 Articles define as crimes the promotion of Taiwan’s entry into states-member-only international organizations, the undertaking of official foreign and military connections, and collaboration with foreigners to do so.

To be sure, law (including international law) does not determine China’s — or the United States’ or Taiwan’s — choices on such fraught and high-stakes issues. But, as China’s framings in the ASL and various ASL-invoking contexts reflect, legal arguments and instruments seek, and can yield, international political gains.

A Vague and Flexible Framework

The ASL framework is so vague and flexible that Beijing can invoke it in the service of a wide range of policies, from very hard to soft, toward Taiwan. The ASL’s conditions for lawful use of force are general and indeterminate. In terms of substantive criteria, the ASL notably does not articulate any specific moves by Taiwan that would warrant China’s use of force, and there is no plain or definitively stated meaning of acts “under any name or by any means” that would “cause the fact of secession,” or “major incidents entailing . . . secession,” much less what would “completely exhaust” “possibilities for peaceful unification.” In this respect, the ASL is less specific than the policy positions set forth in the 2000 White Paper. In terms of process, the ASL states only that the State Council and the Central Military Commission will decide on and execute the “non-peaceful means and other necessary measures,” reporting to the NPC Standing Committee. Moreover, the ASL’s provisions are subject to unilateral, unreviewable interpretation — and, thus, de facto revision — by Chinese authorities.

During much of the decade or more following its adoption, the ASL stood comfortably alongside a policy of patience and pursuit of “peaceful development” of cross-Strait relations toward an outcome of eventual unification, which would bring practice into line with the ASL’s claimed principle of already-existing PRC sovereignty over Taiwan. But the ASL framework is equally compatible with a much more aggressive and threatening policy, as became evident during the final years of Chen’s presidency and remained so through the Tsai and early Lai administrations. Beijing can, in effect, substantially lower the thresholds and relax the procedures for using force and can credibly claim to do so lawfully without changing the text of the ASL. The 22 Articles may reflect a recognition of this point. To the extent that they adopt a tougher and more threatening line, the 22 Articles purport to do so through the mere interpretation of the unamended ASL — and other existing laws — rather than via a change in law or legislative addition to the ASL.

To forge a legal framework for a much harder-line, even force-using, policy against Taiwan, Beijing thus need not risk the costs that could accompany amending or superseding the ASL. Such changes could undercut the ASL’s evident aspiration to “TRA lite” or “TRA-mirroring” status as a fixed, relatively venerable, formal framework for PRC strategy and behavior. Like the enactment of the ASL in 2005, any ASL-toughening amendment or repeal would draw criticism abroad as unhelpful and threatening. Moreover, any reaction would likely be sharper in the context of today’s resurgent concerns about Beijing’s intentions toward Taiwan and more fraught relations across the Strait and between China and the United States and other powers.

Beyond the ASL: Beijing’s Legal Tactics in Changing Circumstances

Notwithstanding the recently reinvigorated discussion of the ASL, the legal elements of Beijing’s current and probable near-term policy toward Taiwan appear to lie — and are better pursued — in areas that relate only obliquely to the ASL (although they remain consistent with the ASL and the broader PRC narrative concerning Taiwan’s status that is reflected in the ASL). A few changes, particularly in Beijing’s perspectives and assessments, help to explain this pattern.

First, Beijing’s bad-case scenarios for Taiwan’s trajectory have evolved since the ASL’s adoption nearly two decades ago. The focus has shifted toward concern about “gradual” or “incremental” independence, rather than a more dramatic and formal break by Taiwan’s leadership. PRC authorities could construe relevant phenomena in Taiwan as transgressing the ill-defined and malleable limits set forth in the ASL. But, for Beijing, the more promising legal path for addressing the problems it discerns and for setting forth the means to do so is the type of approach evident in the 22 Articles, which are framed as interpretations of the Criminal Law and the Criminal Procedure Law, as well as the ASL “and other relevant laws,” and which provide the first relatively full-fledged and formal legal gloss on the ASL’s sparse text.

The 22 Articles retain familiar targets, such as efforts to change Taiwan’s international legal status through domestic legal means, or attempts “to create Taiwan independence.” But the 22 Articles shift the emphasis away from the ASL’s principal scenario of possible actions by and against Taiwan as a political entity or aspiring state (with pledges to protect, as much as possible, the persons, rights and property of individual Taiwanese, as well as foreigners, in the event of China’s resort to non-peaceful means.) The 22 Articles focus on other entities and individuals — specifically “‘Taiwan independence’ die-hards” and, implicitly, primarily DPP leaders and office-holders (who are characterized as die-hards in the 2022 White Paper and other PRC sources) and secondarily others who might commit acts that fall within the expansively framed crime of separatism. The broadly enumerated offenses include actions — often but not necessarily only by those wielding government power — that would advance what Beijing sees as gradual or incremental independence and the preclusion of prospects for peaceful unification: depicting Taiwan as not a part of China in education, culture, history, or news media; suppressing political parties, organizations, or individuals supporting unification; establishing a separatist organization; and “other conduct seeking to separate Taiwan from China.” The 22 Articles’ agenda to chill or deter such moves is underscored by its call for relevant PRC state organs to “give full play” to their roles to “severely punish” offenders, by its reach to mere “drafting . . . principles, plans, or programs,” actions abroad, and potentially long-past behavior (given its capacious notion that prior actions can be part of ongoing separatist plots), and by its provisions for trials in absentia.

Second, Beijing has become more concerned about the “internationalization” of the Taiwan issue — that is, the PRC wants to avoid it becoming a less narrowly bilateral cross-Strait or trilateral PRC-Taiwan-U.S. issue. Internationalization was a relatively marginal issue in the ASL, wherein there is little more than a rote reference to brooking no “interference by outside forces” in China’s quest for unification. But it is a prominent focus in the 22 Articles, which define the crime of separatism as including: promoting Taiwan’s membership in international organizations (specifically those limited to sovereign states); engaging in official exchanges or military contacts with foreign states; and the more traditionally ASL-resonant offense of working to create two Chinas, or one China, one Taiwan, or an independent Taiwan in the international community. The 22 Articles also provide that any of the secessionist crimes carried out “in collusion with foreign or non-mainland institutions, organizations, or individuals” will incur enhanced punishments. In addition, the actions criminalized under the 22 Articles (as an interpretation of China’s Criminal Law) potentially include those undertaken outside Taiwan or the mainland, including by foreign nationals. In this respect (and some others as well), the 22 Articles echo the Hong Kong National Security Law, which the NPC adopted in the aftermath of the 2019–2020 unrest and which responded (in part) to what PRC authorities saw as foreign efforts to internationalize Hong Kong issues.

Finally, as the foregoing account suggests, China’s preferred means for addressing the challenges it sees on the Taiwan issue have shifted away from the ASL’s emphasis on the full, war-like use of force. Instead, the 22 Articles set forth criteria and (in their interpretation of the Criminal Procedure Law) mechanisms for imposing criminal sanctions — often severe ones — on individuals and entities, which are not the initial or main targets of threats to use non-peaceful means. This legal approach aligns with China’s master narrative by framing Chinese state actions as matters of enforcing domestic criminal laws (albeit ones with extraterritorial reach). In a similar vein, the PRC has created and invoked a framework for maritime regulatory law as a purported legal basis for enforcement actions by non-PLA-Navy vessels against fishing boats or other vessels in waters near Taiwan-controlled territory. This framing casts Beijing’s responses to what it sees as problematically independence-promoting measures from Taiwan as domestic PRC legal measures, distinguished from the actions by the PRC military that are contemplated by the ASL. So, too, the escalating gray zone activities around Taiwan by the PRC military are presented as not entailing an ASL-authorized use of force to prevent Taiwan’s secession (even though such prevention is among their evident purposes). Instead, the principal relevant legal concepts appear to be the international law-rooted ones associated with Beijing’s claims that its military operations are short-of-force exercises in areas over which the PRC has lawful jurisdiction, such that China’s actions do not entail the use or threat of force internationally while other states’ military involvement or intervention would do so.

China’s Anti-Secession Law

Legal Warfare and Illegality

Yu-Jie Chen

Introduction

The People’s Republic of China (PRC) has long employed “legal warfare” or “law-based warfare” (法律戰) as a coercive instrument to compel Taiwan into submission. This approach primarily aims to legitimize China’s claim over the island. As scholars observe, China’s strategy for absorbing Taiwan through legal warfare rests on three pillars: reframing the Beijing-Taipei relationship as an internal matter, constricting Taiwan’s international space, and undermining the right to self-determination.

At the international level, China actively seeks to conflate its own “One China” principle with established international norms, thereby isolating Taiwan within the global community. Domestically, its 2005 Anti-Secession Law (ASL) purports to legitimize the use of force against Taiwan. Furthermore, as cross-Strait relations have deteriorated in recent years, China has initiated sanctions against Democratic Progressive Party (DPP) politicians and affiliated organizations, labeling them “Taiwan-independence diehards” (台獨頑固分子). On June 21, 2024, China escalated its deterrence efforts by publishing the “Opinions on Punishing Crimes of Separatism and Inciting Separatism by ‘Taiwan Independence’ Diehards in Accordance with Law” (the “22 Articles”).

All these legislative and judicial maneuvers constitute an integral component of China’s legal warfare against Taiwan. These tactics aim to destabilize the status quo of Taiwan’s de facto independence, legitimize China’s use of force in a potential conflict, and coerce Taiwan into “unification.” Furthermore, they seek to frame any potential intervention by other countries as “foreign interference” in China’s domestic affairs. Within Taiwan, China’s legal warfare tactics aim to manipulate public opinion against supporting autonomy, suppress pro-independence sentiment, and create a pervasive chilling effect on political discourse.

The conceptual framework of legal warfare highlights the Chinese Communist Party’s (CCP) predominant approach to law wherein legal discourse and mechanisms are means to an end. The objective is not to resolve disputes through law but to manipulate the broader strategic environment to the adversary’s disadvantage and to coerce submission from its target. In Taiwan’s case, this entails isolating it internationally, brandishing the threat of force to constrain Taipei’s political choices, and penalizing advocates for the island’s independence more generally.

Finally, when discussing China’s legal warfare, it is crucial to distinguish it from the lawfare that operates in democratic, rule-of-law settings. While using law as a weapon has a long history, the term “lawfare” gained traction in academic and policy circles around 2001, referring to employing legal means to achieve military objectives. Importantly, most definitions of the word are value-neutral, encompassing both positive and negative uses of the law. However, in the Chinese context — which lacks checks and balances, an independent judiciary, or public oversight — legal warfare differs significantly. Lawfare in a democratic society may involve legal arguments before neutral courts, whereas the CCP’s legal warfare lacks independent judicial review and seeks no impartial adjudication. As argued below, China’s legal warfare tactics threatening to annex Taiwan violate the international legal principle prohibiting the use of force, and its persecution of Taiwan individuals for their political views violates international human rights law. Therefore, China’s legal warfare should instead be labeled “illicit lawfare.”

China’s Illicit Lawfare

In the official Chinese narrative, legal warfare is one of the “three warfares” (三戰), a concept that emerged formally in 2003 when China reissued the Regulations on the Political Work of the Chinese People’s Liberation Army (PLA). As described in Article 18 of the regulations, which covers “wartime political work,” these include “public opinion warfare” (輿論戰), “psychological warfare” (心理戰), and “legal warfare” (法律戰).

The three warfares are fundamentally influence operations. While the PLA regulations do not explicitly define them, they do have typical interpretations within Chinese academic discourse. “Public opinion warfare” encompasses the use of media to disseminate social information, intentionally shape and control public opinion, and actively influence public beliefs, perspectives, emotions, and attitudes toward political warfare actions. “Psychological warfare” involves the use of information to manipulate the target’s psyche during wartime. While public opinion warfare targets the general public, psychological warfare specifically aims to undermine the morale of an enemy’s armed forces and the political elite. Lastly, “legal warfare” refers to the state’s use of legal means to categorize the target’s behavior as unlawful, thereby employing legal coercion and sanctions to enforce submission and achieve diplomatic, political, or economic objectives.

Compared with other types of warfare, legal warfare displays distinct differences in medium, effects, and influences. It primarily employs legal norms, means, and narratives to achieve its effects or the potential threat thereof. In terms of influence, legal warfare often leans on the coercive force of the state apparatus to enforce punishments and to have a deterring and chilling effect.

Legal warfare interacts with other types of warfare. Some Chinese commentators, for example, have observed that “public opinion warfare provides a platform for legal warfare, and legal warfare provides a legal basis for public opinion warfare, with both elements mutually reinforcing.” It is also argued that the synergy of the three warfares can “expand the political influence and psychological impact of military operations.” The integrated nature of these strategies necessitates that observers’ understanding of legal warfare extends beyond the legal domain to consider its broader context within the full spectrum of influence operations.

ASL: Authorizing the Use of Force

One of China’s most notable instances of legal warfare against Taiwan is the 2005 Anti-Secession Law. In response to what Beijing perceived as the promotion of “Taiwan independence” by Taiwan president Chen Shui-bian, the ASL was passed to provide a legal foundation to counter propositions such as “two Chinas,” “one China and one Taiwan,” former Taiwan president Lee Teng-hui’s earlier formulation of “special state-to-state relations” (特殊國與國關係), and Chen Shui-bian’s “one country on each side” (一邊一國) theory. While the law expresses a preference for achieving Taiwan’s unification through peaceful negotiations, its vaguely defined provisions notably legitimize the use of force, a prospect of considerable importance to Beijing.

Article 8 of the ASL outlines three broad conditions under which China may employ “non-peaceful means and other necessary measures to protect China’s sovereignty and territorial integrity”:

1. If “‘Taiwan independence’ secessionist forces should act under any name or by any means to cause the fact of Taiwan’s secession from China”

2. If “major incidents entailing Taiwan’s secession from China should occur”

3. If “possibilities for a peaceful unification should be completely exhausted”

Questions inevitably arise. Given that Taiwan has never been under the PRC’s control, how does one define “Taiwan’s secession from China?” What constitutes the complete exhaustion of “peaceful unification” possibilities, particularly if Taiwan prefers maintaining its independence? What if Taiwan continues to reject the so-called 1992 Consensus, which Beijing interprets as affirming the island’s status as part of China? In any case, what can be certain is that the vagueness of the ASL’s language grants China considerable discretion in determining when to act, as noted by many commentators.

The phrase “non-peaceful means and other necessary measures” in Article 8 also warrants scrutiny. Chinese scholars argue that “non-peaceful means” should include more than just armed force or war under international law and that “other necessary measures” should be interpreted as actions closely linked to, yet distinct from, “non-peaceful means.” In this view, “non-peaceful means” may include suspending cross-Strait exchanges, initiating economic warfare, issuing or announcing sanctions (such as prosecutions or wanted lists) against prominent “Taiwan independence” figures and groups, launching public opinion campaigns, and blockading Taiwan internationally.

Upon the ASL’s promulgation in 2005, Chinese premier Wen Jiabao sought to downplay concerns, emphasizing the law’s focus on peaceful unification rather than on targeting Taiwan or triggering war. China’s general low-profile approach at the time effectively deflected Western criticism. Some commentators predicted that the ASL would not drastically alter cross-Strait relations, characterizing China as “talking tough” but “acting prudently.

However, the geopolitical landscape has shifted dramatically over the past two decades, with China adopting a more assertive stance toward Taiwan. This is evident in the rise of hawkish proposals advocating for “legal preparations to resolve the Taiwan question through non-peaceful means.” These proposals include refining Article 8 of the ASL through interpretations by the National People’s Congress Standing Committee and exploring strategies to deter foreign intervention through legal warfare.

As a tool of perception influence, the ASL notably does more than merely authorize the use of force. China uses it to shift blame onto the DPP, portraying its own actions as a necessary response to the party’s alleged “provocations.” Through the ASL, China can legitimize its coercive measures by framing them as a justified response to Taiwan’s perceived transgressions and casting Taiwan as the actor responsible for the deteriorating cross-Strait relationship.

22 Articles: Punishing Taiwan’s People for Political Beliefs

However, the ASL appears to have fallen short of achieving the CCP’s objective of deterring Taiwan independence. DPP candidates have repeatedly been elected president in recent decades, with William Lai in 2024 becoming the third DPP president. This perceived failure by the CCP has fueled ongoing discussions within China about potentially passing more stringent legal measures against Taiwan.

Indeed, since 2021, China has initiated a policy of specifically targeting Taiwan officials and organizations, labeling them as purported “Taiwan independence diehards.” The current sanction lists include 10 DPP politicians, several of whom hold prominent positions in the Lai administration such as Vice President Hsiao Bi-khim, Secretary-General of the National Security Council Joseph Wu, and Minister of National Defense Wellington Koo. Sanctioned Taiwan organizations include the Taiwan Foundation for Democracy, the International Cooperation and Development Fund, the Prospect Foundation, and the Council of Asian Liberals and Democrats. The individuals and associated organizations on this list are prohibited from visiting mainland China, Hong Kong, or Macau. Cooperation between the sanctioned parties and any organizations or individuals in mainland China is forbidden, and companies and investors with ties to the sanctioned entities are precluded from generating profits within China. Importantly, these sanctions may also lead to the imposition of criminal penalties, potentially resulting in the death penalty under the PRC Criminal Code and National Security Law.

Furthermore, on June 21, 2024, the Supreme People’s Court, along with other government agencies, published the 22 Articles, which aims at using law enforcement to punish those deemed “Taiwan independence diehards.” In August, the website of the Chinese State Council’s Taiwan Affairs Office (TAO) published a list of 10 such individuals; the list aligns with those whom the TAO had sanctioned in previous years.

The potential consequences of the 22 Articles are significant, and the possibility of Taiwan individuals being detained and tried within China cannot be dismissed. The large Taiwan population living in or visiting China is particularly vulnerable, as demonstrated by several high-profile cases, such as that of Taiwan NGO worker Lee Ming-che, who was detained in 2017 and subsequently sentenced to five years imprisonment for subverting state power. Lee’s detention appears to have been triggered by his advocacy within China, which included discussions on Chinese social media about human rights, democracy, and Taiwan’s experiences. In this case and in a series of subsequent detentions, Beijing violated the 2009 Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement, which mandates prompt notification and facilitation of family visits for those detained. Beijing’s denial of notification and family visits may be intended to create the impression that even the ruling DPP cannot help Taiwan citizens detained in China.

Recent examples include the cases of pro-Taiwan independence activist Yang Chih-yuan and Gūsa Publishing founder Li Yan-he (also known as Fu Cha). Yang was detained in August 2022 on the charge of “separatism.” He was found guilty and sentenced to nine years in prison on August 26, 2024, with his case becoming the first tried under the 22 Articles. Li, a mainland Chinese national operating a publishing house in Taiwan that releases books on topics deemed sensitive by Beijing, is reportedly being held and investigated for alleged activities endangering national security.

Most Taiwan individuals targeted by the CCP reside in Taiwan and are unlikely to enter mainland China, Hong Kong, or Macau. Recognizing the challenges in prosecuting them, the 22 Articles establishes a clear process for pursuing and trying these individuals, even if they remain outside China’s jurisdiction.

Regarding the statute of limitations for prosecution, the 22 Articles emphasizes two key points. First, for “continuous or ongoing” acts of separatism or inciting separatism, the statute of limitations does not begin until the offense ends. Second, once a case is filed or accepted by the court, suspects evading investigation or trial will not be protected by any statute of limitations. This means individuals can be “held accountable for life” regardless of whether they appear in China during the investigation or trial.

In terms of judicial procedures where the suspect is overseas, the public security or state security organs can issue a warrant for their arrest (Article 13). Even if the suspect does not appear, these organs can still transfer the case to the Supreme People’s Procuratorate for prosecution; the court can then conduct a trial in absentia (Article 17). In other words, even if the suspect remains outside of China throughout the entire judicial process, they can still be convicted.

Chinese law enforcement cannot operate in Taiwan, but the potential for China to pursue these individuals through extradition or illegal measures should not be completely discounted. However, the primary significance of the 22 Articles may not be the physical apprehending of pro-independence individuals but rather its function as a legal warfare tool intended to deter, silence, and divide those perceived as adversaries. Coupled with “public opinion warfare” and “psychological warfare,” this strategy aims to criminalize specific behaviors and label them as “illegal.” By doing so, the 22 Articles appears oriented toward the following objectives, which align with the ASL and the CCP’s recent international efforts to promote the “One China” principle:

• Stigmatization: Labeling specific Taiwan political figures or activists as “criminals” to discredit them and their cause

• Deterrence: Creating a chilling effect within Taiwan society by threatening legal consequences for advocating independence

• Legitimization: Bolstering the legitimacy of the “One China” principle internationally by framing opposition to it as criminal activity

• Scapegoating: Shifting blame for instability in the Taiwan Strait onto pro-independence individuals, deflecting criticism from Beijing’s policies

The CCP’s discourse and strategy toward Taiwan can also draw lessons from its treatment of Hong Kong, most notably its narrative of targeting “an extremely small number of people.” When the National People’s Congress issued the National Security Law in 2020, it claimed to be “punishing a small group of ‘Hong Kong independence’ elements and violent elements who seriously endanger national security.” When the Hong Kong government introduced the National Security Ordinance in 2024, it also claimed that “the legislation targets a very small group of people with extreme behavior.” Likewise, when the 22 Articles was issued, the CCP repeatedly emphasized that the document targets “an extremely small number” of diehard Taiwan independence elements and their secessionist activities, “not involving the vast majority of Taiwan compatriots.” This narrative serves to both appease the general public and create social division by distinguishing between those who are targeted by Beijing and those who are not.

However, the enactment of the National Security Law in Hong Kong has led to a rapid deterioration of the local society and governance system. According to the Hong Kong government, as of March 8, 2024, a total of 291 individuals have been arrested for suspected offenses endangering national security since the law came into effect. Among all cases, over 170 individuals and five companies were charged, with 112 people already convicted or awaiting sentencing. Many pro-democracy activists and ordinary citizens have been prosecuted and convicted, notably including the “Hong Kong 47,” media tycoon and democracy advocate Jimmy Lai, and members of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China and the 612 Humanitarian Relief Fund. These cases serve as a warning to ordinary protesters, pro-democracy activists, news media, and nongovernmental organizations alike. Since July 2020, a chilling effect has permeated Hong Kong’s civil society, with independent groups disbanding, residents leaving in a mass exodus, and street protests disappearing. While Taiwan is not Hong Kong, it is crucial to remain vigilant for any signs of a similar trend, particularly among Taiwan individuals residing in mainland China, who are likely to be the most vulnerable.

Anticipating China’s Future Moves: More Legislation?

As noted, China may see the ASL as insufficient in deterring perceived threats. The CCP has explicitly stated that it will not rule out various other legislative proposals such as introducing a “Motherland Unification Law” or “National Unification Law,” adding implementation rules for the ASL, issuing a legislative interpretation of Article 8 of the ASL, or enacting a “Basic Law of the Taiwan Special Administrative Region” modeled on that of Hong Kong. For instance, in March 2022, Zhang Lianqi, a member of the National Committee of the Chinese People’s Political Consultative Conference (CPPCC), remarked that because the ASL focuses on “anti-independence,” the party should instead pass a Motherland Unification Law, which would stipulate the legal obligation of all Chinese citizens, including Taiwan residents, to promote national reunification and would clearly define the legal responsibility — presumably to include punishment — for violating the “obligation of national reunification.”

Such a law, however, could be a double-edged sword for the CCP. On the one hand, it might underscore Beijing’s determination to control Taiwan, but it could also limit the CCP’s flexibility on the issue, particularly given the difficulty of managing the nationalist sentiments of the domestic Chinese audience toward Taiwan. If a Motherland Unification Law were to be enacted but not successfully implemented, the CCP’s domestic credibility, and possibly legitimacy, could be undermined. Consequently, the potential enactment of such a law has sparked internal debate within China. Given the controversy and historical context surrounding the ASL — originally named the “National Unification Law” — it is unlikely the CCP will enact a Motherland Unification Law that includes any deadline for unification.

China might still move forward on bolstering the ASL through a legislative interpretation or implementing regulation, explicitly defining the conditions for using military force under Article 8. This approach would be less politically contentious than enacting a Motherland Unification Law.

China will undoubtedly intensify its pursuit and punishment of individuals deemed “Taiwan independence diehards,” as outlined in the 22 Articles. This document, jointly issued by China’s top judicial and security organs, was disseminated to all levels of public security, state security, judicial, procuratorial, and justice departments nationwide, signaling a clear intent to encourage investigation, prosecution, and trial of such cases. Cases can be further categorized based on whether the defendant is located within mainland China or overseas, with different procedures for each type.

Cases with Defendants within Mainland China

In recent years, China has demonstrated a pattern of human rights abuses in politically sensitive cases, and Taiwan defendants have not been immune to this treatment. Individuals accused of “separatism” or “inciting separatism” are demonstrably prone to numerous abuses:

• Imposition of six months of “residential surveillance at a designated location” (RSDL, also known as “enforced disappearance”)

• Isolation from the outside world for extended periods

• Lack of access to legal counsel

• Denial of the right to choose their own lawyers, instead appointing “government-assigned lawyers” to handle their cases

• Torture and other cruel, inhumane, or degrading treatment or punishment

• Repeated interrogation to coerce them into “confessing” publicly

• Prohibition against family members or outsiders attending hearings, instead conducting trials in secret

• Prevention of families obtaining case information, including relevant legal documents, from “government-assigned lawyers”

Cases with Defendants Outside of China

For cases where the defendant is in Taiwan or a foreign country, the likely scenario is that Chinese police will first issue an arrest warrant, followed by prosecution and a trial in absentia. Throughout these proceedings, pressure will be exerted on defendants, urging them to “proactively abandon their ‘Taiwan independence’ separatist position [and] no longer carry out ‘Taiwan independence’ separatist activities,” as stipulated in Article 15 of the 22 Articles, in exchange for withdrawing the case or deciding not to prosecute.

Furthermore, during both the investigation and post-conviction phases, China may also replicate its practice of pursuing “fugitives” by applying to the International Criminal Police Organization (Interpol) for a Red Notice against targeted Taiwan individuals or requesting countries that have extradition treaties with China to hand these individuals over. Even when unsuccessful, these actions can inflict significant disruption and reputational harm on the targets.

China’s Illicit Legal Warfare

China’s legal warfare described above violates essential principles of international law. While China uses the ASL to legitimize the use of force against Taiwan, any such use of force would constitute a violation of international law. As Article 2(4) of the UN Charter states, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” This prohibition against the threat or use of force is widely recognized as a fundamental principle of customary international law that binds all states, regardless of their membership in the United Nations.

China’s claim that Taiwan is part of China is unfounded — a point that has generated extensive scholarship. Even if one assumes, for the sake of argument, that Taiwan’s statehood cannot be established, international law still prohibits China from using force to annex Taiwan. For scholars who believe Taiwan’s statehood is contested, Taiwan is nevertheless a de facto state or entity with an international personality distinct from the PRC’s. Many argue that such contested states are bound by international law, including the prohibition on the use of force, and should also be protected by this principle for the purpose of international peace and security. Even scholars who do not view Taiwan as a state under international law, such as the late judge of the International Court of Justice James Crawford, argue that any use of force by China against Taiwan would endanger international peace and security and therefore first require that the parties attempt to seek a peaceful resolution per Article 33 of the UN Charter. In other words, irrespective of Taiwan’s status as an independent state, the evolution of international law establishes that the cross-Strait dispute falls under the purview of international law, particularly given the significant international concern. An attack by China would justify Taiwan’s exercise of self-defense, including seeking external assistance through collective self-defense measures.

Furthermore, China’s persecution of Taiwan individuals for their political beliefs violates international human rights law, including the right to freedom of speech. The arbitrary detention of Taiwan citizens for their views, compounded by the systematic abuses of the Chinese judicial system, violates their rights to personal security and a fair trial. Any attempt by China to exploit Interpol or extradition treaties to apprehend these targeted individuals would constitute an abuse of international judicial-cooperation mechanisms, and the international community should unequivocally condemn such legal warfare against Taiwan individuals as a blatant violation of fundamental human rights.

China’s Anti-Secession Law

Background, Legal Significance, and Recent Developments

Donald C. Clarke

Introduction

While China’s 2005 Anti-Secession Law (ASL) has received much attention for its role in justifying potential PRC actions against Taiwan, its significance specifically as a legal document — how it differs in practical terms from a policy announcement — is less explored.171 It turns out that while the ASL itself is of minor legal significance in the strict sense, it has provided the basis for an interpretive document jointly issued in May 2024 by the Supreme People’s Court (SPC) and several other state bodies. This new document represents a major escalation in China’s campaign of intimidation against Taiwan.

Features of the Anti-Secession Law

The ASL consists of a mere nine substantive articles, as well as a tenth specifying the effective date. Article 1 makes it clear that it is specifically aimed at Taiwan, not at secession generally.

Article 5 promises Taiwan a “high degree of autonomy” after peaceful unification. Unlike the Basic Law of the Hong Kong Special Administrative Region, the ASL does not go into any detail about what will be within Taiwan’s scope of autonomy and how long it will last. In any case, given that the People’s Republic of China (PRC) also promised a “high degree of autonomy” to Hong Kong, the latter’s fate suggests that the Taiwan would be ill-advised to put much store in a verbal formula.

Article 7 calls for talks on peaceful unification on the basis of equality. It does not specify any preconditions and in fact says that conditions can be flexible. In particular, it does not require that Taiwan accept Beijing’s “One China” principle or the alleged 1992 Consensus — conditions that the PRC government later imposed as a matter of policy.

Article 8 calls for the use of non-peaceful means if: (1) “Taiwan independence forces” create the fact of Taiwan’s separation from China, (2) a serious incident occurs that will lead to Taiwan’s separation from China, or (3) the possibility of peaceful unification is “completely extinguished.”

Many commentators, not just outside of China but within the country as well, have noted that the ASL is not very law-like in the usual sense. Well-known party-aligned scholars such as Zhou Yezhong and Tian Feilong have each made this point.

In its vagueness and brevity — just around 1,000 characters — it is not only unlike laws in the United States but also unlike most laws in China. The document generally reads like a government communiqué, not a piece of legislation. It states many principles and makes many assertions but contains no actual rules saying anyone must do this or must not do that. It neither specifies sanctions nor has an enforcement mechanism within the legal system. The only enforcement, so to speak, is via military action — the “non-peaceful means” referred to in Article 8.

The Chinese legal system is not without vague and brief laws, but a custom has developed in which they are usually followed up by detailed implementing regulations and judicial interpretations. Both when the ASL was passed and many years later, Chinese commentators were noting the need for such implementing regulations. However, at the time it was passed, a spokesman for the Taiwan Affairs Office quite unusually made a specific announcement that no such implementing regulations or interpretations would be forthcoming. Indeed, none have been up until now, 19 years later. The ASL was evidently intended from the start to be an unelaborated statement of vague principles that would never be modified through the legal process. This does not, of course, mean that China’s Taiwan policy could not change and has not changed over time; clearly, it has. And Chinese interpretations of the ASL have changed accordingly. However, this has been accomplished not via legal institutions but through the party, government statements, media, and academic commentary.

What the ASL is not is what presents the biggest problem for legal analysis, by suggesting that it is all irrelevant. Unlike the U.S. Taiwan Relations Act, to which PRC scholars like to compare it, it does not allow or require the Chinese government to do anything it could not already do without the law. As Richard Bush accurately commented in 2005, “The ASL does not create any authority where it did not exist, and the actions of China’s leaders will not change because it is on the books.” China’s Leninist political system does not accept any legal limitations on government. Particularly in the realm of foreign and military affairs, the state can do whatever it chooses to do and does not need to pass a law to enable itself.

History and Policy

The ASL was drafted and passed quite quickly — apparently in a kind of panic over political developments in Taiwan. Chen Shui-bian narrowly won reelection as Taiwan’s president in March 2004 after having promised during his campaign to hold a referendum on a new constitution in 2006, and China feared his Pan-Green coalition would win a majority in the subsequent legislative elections in December. China saw the referendum and constitutional change as a kind of lawfare on Taiwan’s part: the attempt to use legal measures to give legitimacy to what they saw as the Greens’ objective of formal independence. The ASL was China’s effort to fight law with law.

In the legislative elections, however, the Pan-Blue coalition retained its majority. This should have comforted China considerably, but it seems the process for formulating and passing the ASL was too far advanced to call off.

One aspect of the ASL’s history worth highlighting is that it was not universally perceived as particularly aggressive at the time. To be sure, some saw it that way. The U.S. government made strong representations at several levels to the Chinese government, urging it not to go through with what it saw as a provocative law, but to no avail. And Taiwan’s Mainland Affairs Council viewed it as expanding the conditions under which China could use force against Taiwan.

But other commentators — by no means all China sympathizers — saw it as conciliatory, pointing out that it could be read as a signal that China did not intend to move militarily so long as Taiwan respected the status quo and that the goal of the law was not active unification but the passive prevention of formal separation. Indeed, its name was changed at the last moment from “Law on Unification” to “Anti-Secession Law,” although other commentators argue that this was for a completely different reason: the premise of “unification” is that China is separated, whereas the premise of “anti-secession” is that it is already one body, which of course is the PRC’s official position.

The law never uses the term “People’s Republic of China”; indeed, it appears to be the only statute ever passed by the National People’s Congress (NPC) or its Standing Committee that is not prefaced with the words “People’s Republic of China.” It does not require adherence to the “One China” principle or the alleged 1992 Consensus as a precondition for talks, while it does say the two governments should engage in dialogue as equals — quite a change from PRC policy today.

The vagueness of the law’s provisions means that as a policy statement, it can be plausibly interpreted in many ways, and the absence of any implementing regulations or explanatory interpretations over the years shows that the Chinese government likes it this way. Interestingly, the more aggressive recent interpretations of the law have come not just from foreign observers but from Chinese sources as well. Tian Feilong, a law professor at Beihang University, is a leading hardline nationalist intellectual. In an article elaborating on a 2020 speech by Li Zhanshu, then chairman of the NPC Standing Committee and the number-three man on the Politburo Standing Committee, he argued that the goal of the ASL is nothing less than “complete unification” (完全统一). In case there was any doubt, he stressed that this meant there was no room for “appeasement” (绥靖主义) or “opportunism” (机会主义), such terms presumably meaning compromise of any kind over the PRC’s absolute authority over Taiwan affairs after unification.

Unlike other PRC commentators — who are apparently oblivious to everything that has happened in Hong Kong and so point to it enthusiastically as an outstanding example of the resounding success of the “one country, two systems” arrangement — Tian is very much aware of developments in Hong Kong, which he views as providing important lessons for the central government in its management of a post-unification Taiwan. He tells his readers they must not romanticize the notion of “one country, two systems” or local autonomy; that the PRC central government must have control over education to make sure children are inculcated into the right kind of thinking; and that the PRC must also control the legal system in the realm of national security, which of course can be (and has been) stretched to cover almost anything.

Evidently, it would be a mistake to read much determinate policy content into the ASL. While it clearly means, “We don’t want Taiwan to declare formal independence,” current policy can be more reliably gleaned from various official statements and actions than from the text of the ASL.

Nevertheless, the very existence of the law is a clear statement of one very important policy: that in any confrontation with Taiwan, China does not consider itself bound by the international laws of armed conflict. The PRC — or, at the very least, one prolific and apparently approved academic commentator, You Zhiqiang — takes the extreme position that all states have an inherent unconditional right to preserve their territorial integrity. Ignoring examples to the contrary, such as the voluntary breakup of Czechoslovakia, it insists that the commitment to maintaining territorial integrity is an inherent feature of a state’s sovereignty. Moreover, it argues that any measures a state undertakes to maintain its territorial integrity, at least within its claimed boundaries, are not governed by international law. This is simply false; Article 3 of the Geneva Conventions of 1949, for example, specifically applies to conflicts not of an international character.

But of course, the fact that China does not consider a conflict with Taiwan to be of an international character does not mean it is not. “Conflicts of an international character” are those between states, and Taiwan meets all the conditions for statehood under the Montevideo Convention of 1933 on the Rights and Duties of States — as Taiwan’s Mainland Affairs Council correctly noted in its 2005 commentary on the ASL. It is important to note that under the convention, recognition by other states is explicitly not a condition for statehood. While China is not a signatory, the Montevideo Convention is generally considered declaratory of customary international law and is thus a mandatory norm. In short, customary international law says that Taiwan is a state; a conflict between states invokes duties under the international laws of war; and China has declared that it will ignore these duties.

Legal Effects

Although the ASL does not give China’s government any power or authority to use military force that it did not already have, it does still have some specifically legal uses.

LAWFARE

China’s concept of lawfare is somewhat different from the term as first popularized in the early 2000s by Major-General Charles Dunlap, who defined it as “the strategy of using — or misusing — law as a substitute for traditional military means to achieve an operational objective.” In contrast, China considers “lawfare” to be the use of law as an accompaniment to traditional military action. Thus, it is the province not of diplomats but of the People’s Liberation Army (PLA). Its purpose is to expand the scope for military action by obtaining understanding and support internationally, sapping the enemy’s will, and boosting morale at home. That the ASL is very much the PLA’s lawfare tool and not a regular piece of legislation can be seen in the secrecy, suddenness, and irregular procedures surrounding its drafting and passage. Thus, concerned observers are not wrong to see a greater military threat behind it than might otherwise appear from its text and institutional source.

China’s lawfare objectives of the ASL are primarily those of legitimation. As cynical Leninists, China’s leaders do not believe that separation of powers is actually real. Thus, when looking at U.S. legislation, they view the Taiwan Relations Act of 1979 and the Taiwan Security Enhancement Act of 2001 not as instructions or as Congress granting authority to the president but as lawfare: nothing more than would-be legitimating exercises for what the United States wants to do anyway. The ASL is their answer.

Beyond simply responding to U.S. legislation, China believes that putting its Taiwan policy in legal form will enhance the international legitimacy of this policy by giving it a certain heft and permanence. In particular, China wants to use the ASL to press its view that what it does in Taiwan is purely its domestic affair. It also expects that putting policy in legislative form enhances the legitimacy of that policy domestically. Moreover, game theory teaches that you can enhance the credibility of your threat by limiting your options if challenged. Here, putting the policy in legal form arguably makes it more difficult — not legally but politically — for the PRC to back down and establish a line beyond which salami-slicing tactics by Taiwan cannot proceed.

CIVIL AND ADMINISTRATIVE LITIGATION

Neither is the ASL completely insignificant when it comes to domestic Chinese law. In other words, Chinese law with the ASL is not the same as Chinese law without it.

First, it has been used in domestic litigation, but only rarely and without much effect. One senior Chinese legal scholar, Zhou Yezhong, expressed the hope in 2018 that Chinese courts could add substance and prestige to the ASL by producing well-reasoned opinions involving its application, in the same way that norms can be strengthened in common-law countries through court opinions. For better or for worse, the court cases so far have been quite minor and do not show this happening. The one case in which it mattered, however, shows the ASL does have the potential for a wide-ranging and largely standardless application in domestic law whenever the authorities make the policy decision to do so, justifying fines and punishment for any words or actions deemed inconsistent with China’s Taiwan policy.

On Pkulaw.cn, a major legal database, there were only five cases as of June 2024 in which courts were asked to address arguments made by a party based on the ASL. In four of the five cases, courts ignored the ASL-based arguments, which were uniformly weak — in one instance, the defendant pointed (irrelevantly as far as the issue before the court was concerned) to the plaintiff foreign firm’s inclusion of Taiwan as a “country” on its website. The court declined the invitation to punish the plaintiff for this offense.

There was only one case in which the ASL seemed to carry legal weight. A local Administration of Industry and Commerce issued an administrative fine to an advertising design firm for producing a map of China that showed the mainland in red but not Taiwan, Hainan, and various disputed islands in the Pacific. The fine was specifically based on Article 2 of the ASL, which declares that Taiwan is part of China. The firm objected, arguing that the ASL contained no provision for sanctions and that imposing a fine on such grounds violated the principle of administration according to law. The court found against the firm, specifically citing the ASL as a proper basis for the fine. Although this case remains an outlier for now, it shows the far-reaching potential application of this law.

THE CRIMINAL LAW AND THE 22 ARTICLES

Second, and importantly, the ASL has been cited as the partial basis for an important new legal interpretation of China’s Criminal Law issued jointly by the SPC, the Ministry of Justice, the Ministry of Public Security, and the Ministry of State Security on May 26, 2024. This document, the “Opinions on Punishing Crimes of Separatism and Inciting Separatism by ‘Taiwan Independence’ Diehards in Accordance with Law” (the “22 Articles”), instructs security authorities, including courts, police, and prosecutors, on how to handle cases of separatism — but also, for this reason, functions as a law prescribing offenses and punishments, which is why it was made public. The interpretation can stand on its own without the ASL, but the Chinese authorities thought it worth invoking, indicating a connection.

The 22 Articles purports to be based on the ASL and the Criminal Law; it functions as an interpretive document, spelling out in more detail the actions and sanctions in Article 103 of the Criminal Law. In principle, there is no problem with this type of document in China’s legal system. Statutes are necessarily general, and it is common for bodies such as the SPC to issue documents under various names — interpretations, replies, and, in this case, opinions — to put meat on the bones of vague statutory terms.

The following discussion examines what the 22 Articles criminalizes and the associated punishments, as well as its jurisdiction (i.e., who is liable). In brief, the response of Taiwan’s Mainland Affairs Office — to issue a travel alert discouraging all non-essential travel to the PRC — is not an overreaction and is quite justified.

WHAT THE 22 ARTICLES CRIMINALIZES

Article 103 of the Criminal Law criminalizes actions of “organizing, plotting, or carrying out the splitting of the country and the sabotaging of the country’s unity” as well as “instigating splitting of the country and the sabotaging of the country’s unity.” Article 2 of the 22 Articles adds detail, laying out all the activities associated with what it calls “Taiwan independence” that constitute crimes under Article 103. The coverage is very broad, including efforts to change Taiwan’s legal status through changes to Taiwan’s domestic law, efforts to get Taiwan admitted into international organizations whose membership is limited to states, using one’s authority of office to “wantonly distort or misrepresent the reality that Taiwan is part of China,” and finally, “any other actions that seek to separate Taiwan from China.” The overall thrust of Article 2 seems to be aimed at government officials, but private citizens could of course commit many of the offenses listed, so are by no means safe.

As if these provisions were not broad enough, Article 7 adds detail to Article 103 of the Criminal Law on “instigation” of separatism. It spells out that it is a crime to “stubbornly spread advocacy” of Taiwan independence and related programs or plans of action. Like Article 2, Article 7 adds a catch-all clause covering “other actions inciting Taiwan to separate from China.”

Somewhat absurdly, Article 11 stipulates a heavier punishment for those who violate these provisions “in collusion with” foreign or overseas (境外) entities or individuals. “Overseas” here is a term of art designed to cover places in which PRC jurisdiction is limited (Hong Kong and Macau) or absent (Taiwan) but that cannot, for political reasons, be called “foreign.” Thus, any violation by one person not carried out in complete, hermit-like isolation from all others will be considered collusive and therefore subject to a heavier punishment.

Punishments for the various offenses are already spelled out in the Criminal Law. They range in most circumstances from minor penalties — deprivation of political rights, for example — to life imprisonment. Article 113 of the Criminal Law states that in the very worst cases of violation of Article 103, “where the harm to the state and the people is especially serious and the circumstances especially odious,” the death penalty may be imposed. The 22 Articles repeats this to make sure everyone gets the message.

WHO CAN BE LIABLE

The Criminal Law covers all actions committed in Chinese territory. As China deems Taiwan to be its territory, it covers actions committed in Taiwan, too. Ironically, given Taiwan’s de facto independence, China’s claim of criminal jurisdiction is even broader than in Hong Kong, where the Criminal Law, like all PRC laws, does not apply unless explicitly included in Annex III to the Basic Law of the Hong Kong Special Administrative Region.

The Criminal Law also covers all actions committed by Chinese citizens anywhere in the world (though authorities may elect not to prosecute smaller infractions). From the PRC perspective, this includes Taiwan citizens. Thus, the Criminal Law covers actions by Taiwan individuals not just in Taiwan but abroad as well. This has some legal precedent in China: in March 2023, a Hong Kong student living in Japan was arrested upon her return to Hong Kong on a charge that a Facebook post she had made while in Japan “incited secession.”

Finally, if either the action or its effect takes place in Chinese territory, it is covered by the Criminal Law. Chinese authorities would certainly argue that advocacy of Taiwan independence has an effect in Chinese territory, so even where the above bases for liability do not exist — for example, with non-Taiwan, non-PRC citizens outside of Taiwan and the PRC — the Criminal Law can still be made to apply.

Thus, it is hard to avoid the conclusion that anything the PRC authorities deem to be advocacy of Taiwan independence, undertaken by anyone anywhere on the planet, constitutes a criminal offense. The actor is liable to prosecution if they come within reach of the PRC authorities. This is not idle speculation. British citizen Benedict Rogers, founder of Hong Kong Watch, was informed that he would be arrested if he went to Hong Kong, apparently on the basis of his criticisms of the local authorities made while in the United Kingdom. Samuel Chu, a U.S. citizen who has not resided in Hong Kong since 1990, is the subject of a 2020 arrest warrant issued by the Hong Kong authorities on charges under the National Security Law of “inciting secession” and “colluding with foreign powers” — the foreign power in question apparently being his country of citizenship. It is unlikely that this extensive scope is an accident of drafting. The threat is clear and intentional.

Overall, the 22 Articles represents a major escalation in China’s war of intimidation against the people of Taiwan. The ASL was directed at Taiwan purely as a political entity; the only sanction mentioned in it is military action in response to what China deems unacceptable moves toward formal independence. The 22 Articles, by contrast, is specifically aimed at individuals.

The Anti-Secession Law in Comparative Context

A Sign of Weakness and Insecurity

Julian Ku

Introduction

When the People’s Republic of China (PRC) enacted the Anti-Secession Law (ASL) in 2005, it drew a sharp negative reaction in Taiwan and a flurry of scholarly analysis. Yet for the following two decades, the controversial law has barely played a role in shaping cross-Strait relations.

All of that changed in June 2024, when the PRC prosecutorial and judicial authorities released official guidance on how the ASL is implemented in the PRC Criminal Code. These “Opinions on Punishing Crimes of Separatism and Inciting Separatism by ‘Taiwan Independence’ Diehards in Accordance with Law” (the “22 Articles”) represented the first official statement that the ASL would be invoked to criminalize a wide range of conduct deemed supportive of or even related to Taiwan’s “secession” from China. The document both broadened the range of pro-Taiwan independence activities that might fall within the scope of the PRC’s Criminal Code and clarified that some of these activities could even warrant the death penalty.

In response to questions about the severity of the punishments contemplated by the 22 Articles, the spokesman for the PRC’s Taiwan Affairs Office defended the guidance as normal and internationally accepted. He stated:

It is a common practice in all countries in the world to use criminal justice to punish criminals who seek to conduct secession and safeguard the core interests of the country. . . . It is reasonable and legal to punish the “Taiwan independence” diehards according to law for splitting the country and inciting the crime of secession.

Taiwan’s government rejects the application of the concept of secession to its situation, as it claims to be a separate and independent sovereign state. But even if, for the sake of argument, Taiwan’s formal independence does constitute “secession,” the PRC’s stance is far from “normal.” On the contrary, its approach to implementing the ASL is significantly out of step with how other countries — including the United States, United Kingdom, and Canada — treat potential secessionist movements. The PRC’s repressive tactics reveal a fundamental insecurity about its ability to persuade Taiwan residents to choose unification, an insecurity that is glaring when compared to the practice of other states.

Global Trends in the Punishment of Secession

As an initial matter, it is worth pointing out that international law offers little direct guidance on the question of secession. The UN Charter elevates territorial integrity to one of a state’s fundamental rights, but it also recognizes a people’s right to self-determination. As one scholar observed, “International law on its own is not the main legal space in which secessionist pressures find accommodation.”

Nonetheless, states have incurred obligations under international human rights law that limit how and in what circumstances they can punish even avowed secessionist activities. In a recent comment made to the Organization for Security and Co-operation in Europe (OSCE) on Moldova’s laws on secession, a human rights watchdog surveyed a wide range of state practices regarding punishments of internal secessionist movements. It concluded that the vast majority of OSCE states limit anti-secession criminal punishment to activities involving the threat or use of force. This restrained approach to punishing only violence related to secession (and not the mere support of secession that the 22 Articles punishes) acknowledges the freedom of expression and due-process rights found in many international human rights instruments.

Thus, Azerbaijan — which has been locked in a decades-long battle with what it deems Armenian secessionists — nonetheless limits criminal punishment to those organizing “armed rebellion or active participation in it with a view of violent change of constitutional power.” Its traditional rival, Armenia, imposes punishment for “actions targeted at violation of territorial integrity . . . through violence or under the threat of violence.” Other countries facing serious secessionist or territorial disputes, such as Croatia, Estonia, and the Czech Republic, take a similarly restrained approach.

In contrast, Article 102 of the PRC Criminal Law prohibits colluding “with a foreign State to endanger the sovereignty, territorial integrity and security of the People’s Republic of China” whether or not this entails the use of force or violence. The 22 Articles makes clear that merely “participating” or “assisting” in Taiwan independence activities violates this part of the Criminal Law.

The only countries that have joined the PRC in this repressive approach to secessionist movements are authoritarian countries aligned with it through the Shanghai Cooperation Organization (SCO), consisting of China, Belarus, Iran, Kazakhstan, Kyrgyzstan, Pakistan, Russia, Tajikistan, and Uzbekistan. For instance, Article 180 of the Kazakhstan Criminal Code punishes “propaganda or public calls for violation of the unitarity and integrity of the Republic of Kazakhstan, inviolability and inalienability of its territory or disintegration of the state,” without reference to the use of force or violence. Similarly, broad prohibitions on “separatist” or secessionist activities can be found in the criminal codes of Kyrgyzstan and Uzbekistan.

In sum, while international law does not strictly prohibit criminal punishments for secession, many countries facing secessionist movements have nonetheless chosen to limit criminal punishments to activities involving the use of force or violence. The PRC, along with a few aligned countries in Central Asia, is a clear outlier in this trend.

The United States and Secession

The United States has wrestled with secessionist movements for much of its history, including a devastating civil war over secession by southern states. At times, the PRC has used this history to analogize its own right to use force against Taiwan. For instance, in 2022, Minister of Foreign Affairs Wang Yi told the Asia Society, “Just as the US would not allow Hawaii to break away,” Beijing “reserves the right” to seek unification with Taiwan.

This talking point, however, ignores how U.S. law differs from PRC law in its treatment of secession. First, like many other nations, the United States does not criminalize mere advocacy of secession. Rather, Section 2283 of Title 18 of the U.S. Code punishes incitement or assistance of a “rebellion or insurrection against the authority of the United States.” First enacted in 1862 during the U.S. Civil War, this passage has rarely been used. In the most detailed case, it was applied to convict individuals accused of warlike conduct such as outfitting ships to attack U.S. commerce during the Civil War. It has not, and almost certainly could not, be interpreted to apply to mere advocacy of secession.

U.S. law also punishes “seditious conspiracy,” which is defined as two or more persons who “conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States.” Although broadly worded, Section 2384 of Title 18 requires that individuals charged with seditious conspiracy have or had an intention to use force in a way that the PRC’s sedition law does not. Moreover, while this provision has recently been used — with a D.C. court convicting individuals of planning to physically breach the U.S. Capitol grounds on January 6, 2021, to block the certification of the presidential election — U.S. courts have rejected broader applications of the law to prosecute strikes, kidnapping, and even the planned assassination of local law enforcement officers.

Given this approach to punishing rebellion and sedition, it is not surprising that Hawaiian independence activists can advocate for and seek independence without fearing U.S. prosecution. The United States has also allowed Puerto Rico to hold numerous referendums on the question of independence without threat of criminal liability. To be sure, the U.S. government has in the past taken draconian measures to oppose San Juan’s independence, such as banning the Puerto Rican flag, but it has generally only prosecuted independence advocates who resorted to violence. Such violent activities have ranged from an attempt to assassinate President Harry S. Truman in 1950 to over 130 bombings on the U.S. mainland in the 1970s and 1980s.

Despite this violent history, Washington has accommodated efforts by Puerto Ricans to hold six plebiscites on the island’s relationship with the United States since 1967. These votes have generally favored Puerto Rico’s status quo as a commonwealth that is neither independent nor a state. While independence activists had drawn some support in earlier votes, a slim majority of voters (52 percent) in November 2020 instead supported immediate statehood. Meanwhile, support for independence sits in the single digits. President Joe Biden has supported Puerto Rican statehood, and some members of the U.S. Congress have proposed a law that, if passed, would require admission of the island as the fifty-first state. While far from perfect, the U.S. process of managing aspirations for Puerto Rican independence has, at least since the 1930s, allowed peaceful and open activism in favor of independence as well as free and fair votes on the question. This confident accommodation of Puerto Rico’s secessionist movement contrasts dramatically with the PRC’s insecure and repressive approach to Taiwan.

The United States is not alone in its refusal to use criminal law to suppress secessionist speech and its willingness to allow secessionist movements to hold democratic votes. Most recently, the United Kingdom allowed Scotland to hold a free and open vote in 2014 on whether to separate from the rest of the country and pledged to honor the results of that vote. Similarly, in 1995, Canada did not take action to punish Quebec’s government for holding a vote on independence even though its supreme court later found that a unilateral secession would violate Canadian law. In all three jurisdictions, residents were given the ability to vote in free and fair elections on the question of secession, free from the threat of criminal punishment.

Conclusion

As a matter of principle, Taiwan’s government may object to considering the concept of secession given its existing claims to already be a sovereign country. However, even if the PRC is right that Taiwan’s formal separation would constitute secession, Beijing’s use of criminal threats and disregard for democratic processes departs from international trends. Many countries, including the United States, allow peaceful consideration and democratic deliberation on questions of secession. This confirms that the PRC’s hard-edged ASL approach is far from normal. Instead, its harsh threats to punish peaceful, nonviolent advocacy of democratic deliberation on Taiwan’s status reflect the PRC’s larger failure to offer the people of Taiwan a real choice in their future. It is worth noting that in a free vote conducted without the threat of criminal punishment or military invasion, the people of Quebec, Scotland, and Puerto Rico all decided against secession. It is a sad commentary on the failure of the PRC’s Taiwan policy that there is little chance of a similar result if such an election were held on the island.

China’s Anti-Secession Law

Bluster to Bite?

Margaret K. Lewis

Introduction

The classic cartoon version of the Three Little Pigs features two carefree pigs overconfidently singing “Who’s Afraid of the Big, Bad Wolf?” As the fable goes, they ultimately retreat to safety in the home of the third pig, who had prepared for the threat by building a brick house. Nearly 20 years after its enactment, who should be afraid of China’s “big, bad” Anti-Secession Law (ASL)? Does it carry serious bite, or is it mere bluster?

As discussed in the analysis by Donald Clarke, the ASL is in many ways an unusual law that is heavy on broad assertions and light on clear rules. While the ASL has lurked in the background for nearly 20 years, China’s 2024 “Opinions on Punishing Crimes of Separatism and Inciting Separatism by ‘Taiwan Independence’ Diehards in Accordance with Law” (the “22 Articles”) sharpens its teeth by foregrounding its linkage to the Criminal Law of the People’s Republic of China (PRC). It even provides that punishments can, in severe circumstances, warrant the death penalty. That advocating Taiwan independence anywhere could have an effect in Chinese territory — as authorities in China could argue, at least — means potential global liability. Put starkly, the ASL now applies to advocacy emanating from any “brick house” if deemed as having effects in China, though it is a different question as to whether the Chinese authorities could extract people from their safe havens to inflict punishment.

The 22 Articles interprets the subjects (i.e., the “doers”) and objects (i.e., the “receivers,” who are having something done to them) of the ASL. When the law came on the scene nearly 20 years ago, it had a clear message about Beijing’s desired future for Taiwan but few details about who was allegedly doing what to impede the stated goal of unification across the Taiwan Strait. The focus was on when the PRC might use force against Taiwan (couched in the term “non-peaceful means”), not when the PRC might use force against individuals deemed as impeding unification with Taiwan (such as by restricting their rights during criminal prosecution and sentencing). The 22 Articles hones the ASL from a murky document to one that has enhanced bite, or at least sharpened teeth. The United States is thus at a moment where it is prudent to ask what protective measures should be taken to guard against the ASL’s reach — in other words, how best to build the brick house and how cautious people should be about stepping outside it.

The Who and Whom of the ASL

Article 2 of the ASL speaks in terms of countering “‘Taiwan independence’ secessionist forces” (‘台独’分裂势力), a phrase that is repeated in Article 8. Article 3 further warns against interference by “outside [foreign] forces” (外国势力). In Articles 1 and 4, the ASL also calls for safeguarding the “Chinese nation” (中华民族, which also carries the meaning of the “Chinese people”) and speaks of the duties of the “Chinese people” (中国人民) — of which “Taiwan compatriots” (台湾同胞) are declared to be a part (Articles 2, 4, 6, 9) — to safeguard territorial integrity and achieve unification. It does not, however, specify what actions would transform someone from a “Taiwan compatriot” into a “secessionist force.”

The Chinese “state” (国家) shall never allow secession (Article 2) and shall further do its utmost to achieve unification (Article 5), as well as take measures to promote cross-Strait relations (Article 6), with Article 8 specifying the roles of several specific bodies within this state. In the event that “non-peaceful means” (非和平方式) are used, the state shall protect “Taiwan civilians” (台湾平民), “foreign nationals in Taiwan” (在台湾的外国人), and “Taiwan compatriots in other parts of China” (台湾同胞在中国其他地区) (Article 9). There is one reference to “Taiwan authorities” (台湾当局) in Article 7, but as passive objects without agency whose status requires clarification.

Overall, the ASL depicts the Chinese state as justified in acting toward the goal of unification; it is the doer, and the object of its actions is Taiwan. It is unclear, however, who the separatist forces it seeks to quell are and what activities would gain someone the label of being part of these forces.

The Who and Whom of the 22 Articles

Like the ASL, the 22 Articles uses the familiar language of the “Chinese nation” (中华民族) and “compatriots” (同胞). Yet it goes a step further from using “‘Taiwan independence’ secessionist forces” (‘台独’分裂势力) to warn about “a very small number of ‘Taiwan independence’ die-hards who wantonly carry out ‘Taiwan independence’ separatist activities” (极少数‘台独’顽固分子大肆进行‘台独’分裂活动) (Article 1). The phrase “forces” (势力) is nowhere to be found. The focus is squarely on “elements” (分子), and the 22 Articles goes on to advise how judicial authorities should identify these elements’ crimes under Article 103 of the Criminal Law, which covers “separatism and inciting separatism.”

Unlike the vague ASL, the 22 Articles provides guidance on various activities that would violate Article 103 in the context of Taiwan, as well as how to determine if a person’s actions qualify them as a “ringleader” (首要分子) and when conduct is sufficiently robust to reach a level of “active participation” (积极参加). As in the ASL, the object of alleged harm is expressed in terms of general conceptions of the “state and people” (国家和人民). In this context, supporting Taiwan independence is a way of inflicting harm on Beijing’s conception of China. What the 22 Articles adds is an articulation of what kinds of activities are harmful enough to be criminal.

The 22 Articles echoes the ASL’s warning of “outside [foreign] forces” (外国势力), but Article 11 includes broader phrasing of collusion with institutions, organizations, and individuals that are outside the borders (境外机构、组织、个人) as an aggravating factor in determining punishment, thus unequivocally covering Taiwan and not just “foreign” countries. The document does not address these outside actors as being “doers” subject to criminal punishment. Reading the Criminal Law, however, they could themselves be prosecuted directly under Article 103 and other provisions because the Criminal Law is not limited to subjects labeled “‘Taiwan independence’ diehards.” So long as someone satisfies the general requirements for criminal liability (e.g., meeting the age of criminal responsibility in Article 17), they can be charged with crimes of separatism if the Chinese authorities determine that all elements of Article 103 are met.

Notably, Article 103 of the Criminal Law includes not only “carrying out” separatist acts but also “organizing” and “plotting” them (组织、策划、实施分裂国家). This language also appears in the 22 Articles. Guidance is lacking, however, on what level of conduct beyond mere thoughts is needed to reach the threshold of organizing or plotting separatism. In other words, what is the scope of inchoate criminal liability (i.e., when can a person still face criminal punishment even if their actions fall short of committing a crime)? For instance, would an academic roundtable discussing a possible role for Taiwan in the International Criminal Police Organization (Interpol), International Civil Aviation Organization (ICAO), the World Health Organization (WHO), or other international organizations limited to sovereign states amount to “plotting” the promotion of Taiwan’s independence, as proscribed in Article 2(3) of the 22 Articles?

That Article 103 encompasses not only the crime of separatism but also the “crime of inciting separatism” (煽动分裂国家罪) provides further elasticity in terms of criminal liability. This is underscored by the 22 Articles’ broad definition of this crime as “stubbornly promoting ‘Taiwan independence’ separatist ideas and their separatist principles, plans, and programs” (顽固宣扬“台独”分裂主张及其分裂行动纲领、计划、方案的) and, even more expansively, as “other actions inciting Taiwan to separate from China” (其他煽动将台湾从中国分裂出去的行为) (Article 7).

Clarke’s piece in this compendium addresses the global reach of liability under Article 103 via its interaction with other articles of the Criminal Law. Similarly, other parts of the Criminal Law expand the conduct covered by Article 103, not just the territory. Specifically, Article 23 provides for punishment of attempted crimes, albeit with the possibility that said punishment will be mitigated. What acts might not rise to the level of “inciting separatism” but still qualify as attempting to incite Taiwan to separate from China? Will this gray zone prompt people to take protective measures to assert that they are not advocating independence? What if a person does not engage in separatist crimes or incite separatist crimes by their own hands but assists those who do? Does accomplice liability under Article 27 of the Criminal Law kick in because someone played an ancillary role in the crimes of another?

In sum, while the 22 Articles opens by mentioning “a very small number” (极少数) of Taiwan separatists as the subjects, its emphasis on the linkage between the ASL and Criminal Law provides no comfort that the targets of potential criminal prosecution are “very small,” especially when Article 1 calls on the security and judicial organs to give “full play to their functions and roles” (发挥职能作用). The Taiwan Affairs Office of the PRC State Council has only expressly listed 10 individuals as “‘Taiwan independence’ diehards,” but there is no analysis of why these people were included or guidance about when or why others might be added to the list. Moreover, although there is coordination across government bodies, there is no assurance that the prosecutors and courts are limited to the listed individuals when pursuing criminal charges related to separatism and Taiwan.

There are many unanswered questions. What acts are nefarious enough for the PRC authorities to label someone a “‘Taiwan independence’ diehard”? What nonpublic lists exist in addition to the public one? To what extent is the Taiwan Affairs Office list a constraint on decisions by prosecutors and the courts? This is not known. What is known is that if the PRC authorities decide to charge someone under Article 103 for their activities related to Taiwan, it is politically inconceivable that a court would rule that the person is not guilty. If that convicted person is physically within China (as compared with having been tried in absentia), it is likewise hard to imagine a scenario where they would not be punished by at least some period of incarceration. The 22 Articles, with its express invocation of the Criminal Law, makes these questions of conviction and punishment more immediate and real.

Protecting from the Bite of the ASL, 22 Articles, and Criminal Law Trio

In a recent conversation about the enhanced law enforcement tools provided by Article 23 of the Hong Kong Basic Law — which was passed in the name of national security but brings enhanced erosion of individual liberties — I raised concerns with Chinese interlocutors regarding the legislation’s further empowering of the Hong Kong government to impose criminal punishments for actions that are viewed as exercises of protected freedoms of expression and assembly under international human rights law (to which Hong Kong should abide under China’s accession to the International Covenant on Civil and Political Rights). The response indicated that there should not be too much concern because implementation could well show that the legislation will be invoked cautiously. In short, “Wait and see.” I, in turn, explained that not only was the chilling effect already palpable, but also that the only way to see where the line for triggering enforcement is drawn would be for people to put their individual liberty at risk. In other words, lines can only be clarified at tremendous personal cost.

Similarly, the 22 Articles has sharpened the teeth of the ASL by emphasizing its interrelation with the Criminal Law. It remains to be seen who will do something, whether intentionally or inadvertently, that tests the line and prompts PRC authorities to invoke Article 103. Audiences outside of China who are concerned about this issue can express concern to Chinese interlocutors about the message that the 22 Articles sends, caution people outside of China who do not support the party line on Taiwan about the potential for law enforcement intervention should they visit the PRC (as the Taiwan government has prudently done), and encourage countries not to extradite people to China who could face criminal prosecutions for their views on Taiwan. The number of people who could be deemed to have run afoul of Article 103 is vast. The international community should take seriously what China has said, and the United States should expand and fortify its brick houses to protect against the threat it has declared.

The Weaponization of Criminal Jurisdiction

The PRC’s 22 Articles Criminalizing Advocacy for “Taiwan Independence”

Raymond C-E Sung

Introduction

On May 26, 2024, various organs of the People’s Republic of China (PRC) — including the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice — adopted the “Opinions on Punishing Crimes of Separatism and Inciting Separatism by ‘Taiwan Independence’ Diehards in Accordance with Law” (the “22 Articles”). The gist of the 22-point document is provided in Article 2, which deems advocacy for “Taiwan independence” as a criminal act of “separatism,” detailing the acts that shall constitute such behavior.

Extension of the Application of PRC Criminal Law to Taiwan

The PRC has long maintained its claim over Taiwan, including this claim in its constitution. However, it had not been clear whether the crime of secession provided in Article 103 of its Criminal Law applies to Taiwan. In this sense, the 22 Articles removes room for possible doubt and, in explicit terms, extends the substantive scope of Article 103 to apply to advocacy of “Taiwan independence.”

Under international law, however, the Chinese claim over Taiwan is legally in contention, and the PRC does not in fact control the island. The aforementioned application of Criminal Law to the case of Taiwan rests on a claim, not a settled territorial status — making it fundamentally different from similar provisions found in the criminal codes of many other countries. The state organs of the PRC have often cited the criminalization of secession in other states to justify the legality of its move without mentioning the fundamental difference in terms of territorial status. As such, this move advances a contentious claim wrapped under the cloak of law.

As a matter of PRC domestic law, the 22 Articles provides a supplemental interpretation of the offence of secession. The document itself is not a legislative act or an ordinance but seems to be an interpretative instrument in the PRC legal system. It contains a set of elaborate provisions that operationalize the prosecution, arrest, trial (including trial in absentia), and sentencing (with a maximum sentence of death for a “ringleader” or serious offender) of the crime in question, and in many places bears the hallmarks of legal tactics found in Hong Kong’s National Security Law. In promulgating the 22 Articles, the PRC seems to be building on the experience gained from cracking down on all forms of dissent in Hong Kong using legislative and judicial means. In this sense, the document is a tool to wage lawfare and infringe on fundamental human rights. It bears careful legal analysis in conjunction with provisions of the PRC Criminal Law and Criminal Procedure Law.

Overall, the 22 Articles furthers the agenda of the PRC’s Anti-Secession Law (ASL) in suppressing “Taiwan independence” forces. It constitutes an unlawful claim of criminal jurisdiction under international law, and the international community should push back.

Pursuing the ASL’s Agenda with Newly Learned Lawfare Tactics

The term “‘Taiwan independence’ secessionist forces” (“台獨”分裂勢力) was already found in the PRC’s 2005 ASL. Article 8 of the ASL authorizes the use of “non-peaceful means and other necessary measures” in three cases: (1) where the “Taiwan independence” secessionist forces cause a fait accompli of Taiwan’s secession from China; (2) where a major incident happens that will lead to Taiwan’s secession from China; or (3) where possibilities for peaceful unification are “completely exhausted.”

The ASL does not provide a definition of “‘Taiwan independence’ secessionist forces.” From the political context at the time of its adoption, Beijing was primarily worried about the “pro-independence” slant of Taiwan’s ruling Democratic Progressive Party (DPP), together with the intervention, aid, or encouragement from “external forces” — hence the ambiguous term “forces,” which covers an undefined range of actors, potentially including Taiwan authorities, a foreign government, or a political movement.

In addition, the elements in Article 8 of the ASL were put in terms of a “situation:” a state in which the secession of Taiwan is either complete or seen by China as on the brink of happening. It seems that the function of Article 8 was not to define these situations but to indicate in broad terms what circumstances would “authorize” China to act with force.

The 22 Articles differs from the ASL in the above two aspects and builds on its agenda. A notable heightened degree of specificity can be found in the definition of the “criminal” acts, in effect transforming the ASL’s descriptions of potential situations into elements of crime that can be prosecuted.

urisdiction Ratione Materiae

The criminal acts described in Article 2 of the new instrument include the following:

1. Initiating or establishing a “Taiwan independence” secessionist organization; planning and drafting “Taiwan independence” separatist action principles, plans, or programs; and directing members of the “Taiwan Independence” separatist organization or other persons to carry out activities to divide the country and undermine national unity

2. Seeking to change the legal status of Taiwan as part of China through means such as drafting, amending, interpreting, or abolishing the regulations related to the Taiwan region or through “referendums”

3. Attempting to create “two Chinas,” “one China, one Taiwan,” or “Taiwan independence” in the international community by means such as promoting Taiwan’s entrance into international organizations that are limited to sovereign states or by conducting official foreign exchanges and military contacts

4. Using their authority to wantonly distort or misrepresent the reality that Taiwan is part of China in fields such as education, culture, history, or news media, or to suppress political parties, groups, or persons that support the peaceful development of cross-Strait relations and national reunification

5. Other conduct seeking to separate Taiwan from China

This detailed description of acts constituting advocacy of “Taiwan independence” marks a huge difference from the ASL. China has shifted its focus from “situations” to “acts” and has laid out precise crimes of secession that it will now punish.

Jurisdiction Ratione Personae

The range of actors the 22 Articles targets is even more interesting. Given the “criminal” acts defined above, Article 2 might cover the following:

1. Organizers, leaders, activists, and participants of a “Taiwan independence” secessionist organization

2. Individuals and entities, including political parties, involved in a relevant legislative acts or referendums in Taiwan

3. Individuals and entities that promote Taiwan’s membership in international organizations and international partnerships, irrespective of their nationality

4. Individuals and entities that research, teach, or promote a historical view of Taiwan’s status that deviates from PRC official doctrine, as well as individuals and entities that “suppress” a pro-PRC political party, organization, or person.

The above range of actors might well cover persons who have associations with a “Taiwan independence” organization, political leaders or government officials of Taiwan, political leaders or government officials of a state that has friendly relations with Taiwan, and companies that are involved in arms sales to Taiwan, among others.

A good reference point is the PRC’s sanctions list, which prohibits Chinese interactions with various political leaders, government officials, parliamentarians, governmental agencies, human rights and democracy promotion organizations, and researchers. A large portion of this has to do with their stances on Taiwan. Many of the targets are high-level figures who have visited Taiwan or met with Taiwan’s leaders (e.g., Nancy Pelosi, Mike Pompeo, and Michael McCaul) or represent major companies in the arms industry (e.g., Lockheed Martin, Raytheon, and Boeing).

Beijing’s targeting of individuals and entities does not happen out of the blue. The PRC has practiced such a tactic through targeted sanctions for years. Nevertheless, it is a sobering thought that persons and entities whose statements or actions have made them the target of PRC sanctions are now susceptible to criminal prosecution per the 22 Articles.

Apart from building on the existing sanctions regime, two new aspects of the 22 Articles are worth further discussion. The first is the singling out of studies of Taiwan history: Article 2(4) specifically targets persons who present a historical narrative about the island that contradicts the official position of the PRC. Given that Beijing has already sanctioned scholars and researchers — German anthropologist Adrian Zenz, who writes on human rights in Xinjiang, being the most prominent case in point — the 22 Articles might be used to prosecute researchers in the field of Taiwan history, including individuals involved in editing Taiwan’s textbooks. This calls to mind Putin’s crafting of a narrative that Ukraine was always Russian, then launching a full-scale invasion. But China has gone even further by criminalizing academic research on Taiwan’s history.

The other new aspect is also found in Article 2(4), which seeks to punish actors who suppress “political parties, groups, or persons that support the peaceful development of cross-Strait relations and national reunification.” This likewise has roots in how China has leveraged sanctions against the island, including the recent censure of five Taiwan TV network commentators on May 15, 2024. But Article 2(4) makes the behind-the-scenes distinction clear: The PRC will lend a hand to those who work with it and threaten to criminally prosecute those who work against it in the public sphere in democratic Taiwan. As such, this is an audacious intervention in Taiwan’s democracy, clearly aiming at influencing local public debates and opinions. Its real effect is yet to be seen, but it will not be surprising if some parties or groups publicly come out or implicitly accept a designation as one supporting “the peaceful development of cross-Strait relations and national reunification.”

The Political Agenda: Maintaining the Status Quo to Change the Status Quo

Notwithstanding the above distinction, which aims to foster divisions within Taiwan, the 22 Articles represents an even bigger departure in the PRC’s official approach to the legal order that currently exists in Taiwan. This stance is shaped by China’s “anti-secession” agenda and its relations in the Taiwan Strait.

Article 2(2) punishes any attempt to change the status of Taiwan through constitutional or legislative means or by referendum. The legal order in question, of course, refers primarily to the 1946 Constitution of the Republic of China, as well as legislation such as the 1992 Act Governing Relations between the People of the Taiwan Area and the Mainland Area. Any attempt to change Taiwan’s constitution or the Cross-Strait Act will be considered by the PRC as completely exhausting the possibilities for peaceful reunification (ASL Article 8), which is now punishable by criminal law. On its face, this seems to “protect” the existing legal order of Taiwan and maintain the status quo.

The flip side is that, if so, what explains the hostile posture toward the governing DPP administration of Taiwan? Consecutive DPP administrations have publicly pronounced time and again that their political agenda will not push for Taiwan’s de jure independence and will conduct affairs with China in accordance with the Taiwan constitution or the constitutional order. From the perspective of the ASL and the 22 Articles, these systems pose no threat of “secession” — and may even work toward the aims apparently enshrined in the two documents.

The answer to the above inconsistency lies in the PRC’s political agenda, as was neatly expressed by Chinese minister of foreign affairs Wang Yi at the Munich Security Conference in 2024. In the question-and-answer session following his speech, Wang stated:

Stability in the Taiwan Strait serves the interests of all parties, but it is the “Taiwan independence” forces on the island that undermine peace and stability in the Taiwan Strait. “Taiwan independence” and peace in the Taiwan Strait are incompatible. To adhere to the one-China principle, we should support China’s peaceful reunification; to maintain peace and stability in the Taiwan Strait, we must resolutely oppose “Taiwan independence.”

This statement reflects the PRC’s changed perception of the status quo regarding Taiwan. While paying lip service to peace and stability in the Strait, Wang laid blame on the “Taiwan independence” forces, pointing to the PRC’s One China principle as a solution, and asked government leaders attending the conference to actively support China’s plan for “peaceful reunification.” This rhetoric completely reversed the normative narrative. According to this view, the status quo is not a state to be maintained but a state to be changed by way of China “reunifying Taiwan.” This sophistry would turn the breaker of peace into a maker of peace.

The PRC’s political agenda helps observers understand PRC instruments. China’s Anti-Secession Law, for instance, has never been an end in itself but is instead a halfway house to the ultimate goal of annexing Taiwan. And the 22 Articles carry the torch of the ASL by weaponizing criminal jurisdiction.

Section III

International and Regional Perspectives on the Anti-Secession Law

The Anti-Secession Law and China’s Evolving Legal Warfare Against Taiwan

Chi-Ting Tsai

Introduction

This article will explore China’s Anti-Secession Law (ASL) and its broader implications for international law and regional stability, particularly in relation to Taiwan. The ASL, passed in 2005, serves as a cornerstone of China’s strategy to prevent Taiwan’s independence by combining military deterrence with legal frameworks. However, the law has broader applications, as China increasingly invokes domestic legislation to justify international actions in other territorial disputes.

The main arguments examined here include how the international community perceives the ASL as part of China’s legal warfare, the potential precedents set by its invocation for other territorial claims, and the growing concerns over China’s hybrid influencing strategies. Additionally, this essay will discuss how China’s evolving legal tactics pose significant challenges to international law, particularly regarding self-determination, the use of force, and human rights.

Finally, the essay will propose potential responses to counter China’s legal warfare, emphasizing the role of international institutions and laws in preventing the normalization of these tactics. By understanding the broader ramifications of the ASL, it is possible to better address the threats it poses to Taiwan’s autonomy and regional stability.

International Community Views on ASL

China’s ASL aims to prevent Taiwan’s independence through a two-pronged approach of military deterrence and economic integration. While some view the ASL as a war authorization law, others see it as part of China’s conflict prevention strategy. Over time, the international community has come to see China’s legal warfare against Taiwan as a multifaceted strategy aimed at undermining Taiwan’s international status and at justifying China’s actions. This approach includes reframing the cross-Strait relationship as an internal dispute, thereby limiting Taiwan’s international space while making threats to Taiwan’s people and constraining self-determination claims by Taiwan.

The international community in the past decade has also gradually come to believe that China has often employed domestic legislation on national security and foreign affairs to shape legal narratives and to pressure adversaries into accepting its territorial sovereignty and maritime claims, not only regarding Taiwan but also in the East and South China Seas and disputed borders with India and Russia. Within such a legal warfare strategy, China incorporates cognitive warfare, manipulating information to influence public opinion in Taiwan. China’s legal warfare is part of a broader influencing strategy that includes military threats and covert infiltration. The ASL and its subsequent relevant practices — such as the Hong Kong National Security Law, Coast Guard Law, Maritime Traffic Safety Law, and the 22 “Taiwan Independence Die-hard” Articles (the 22 Articles) — exemplify China’s approach of combining hard and soft tactics within legal frameworks.

Therefore, the international community views China’s ASL with concern, particularly regarding its implications for peace and stability in the Taiwan Strait and the broader Indo-Pacific region. The United States is wary of the ASL’s provisions that authorize the use of non-peaceful means to prevent Taiwan from declaring independence. It sees this as a potential threat to regional stability, as such actions could lead to military conflict between China and Taiwan, with significant ramifications for the region and beyond.

Effects of ASL Invocation on other Territorial Claims

China’s invocation of the ASL to justify actions against Taiwan could set a precedent for using domestic laws to justify international actions in China’s other territorial dispute cases. China’s public and legal declarations, such as domestic laws or official statements regarding territorial claims, often serve as the basis for its legal and international enforcement of such claims. By codifying certain positions into law, China makes it costly to backtrack without facing domestic or international repercussions. For example, domestic Chinese legislation that regulates activities in disputed territories, including the establishment of administrative units and fishing ban areas in the South China Sea, signal a commitment to maintaining control over these areas through unilateral domestic law.

Moreover, if China invokes the ASL as a basis for the use of force against Taiwan, that could create substantial and comprehensive challenges to international law. For example, when China faces territorial disputes under international law, Beijing often invokes a “historical rights claim,” which forms an underlying legal rationale to justify territorial claims, including to Taiwan. Typically, such historical rights discourse involves arguments that certain territories have been part of Chinese cultural or political spheres in its history. For example, in one white paper — “The Taiwan Question and China’s Reunification in the New Era” (台灣問題與新時代中國統一事業) issued by Taiwan Affairs Council of the State Council — China’s sovereignty claim on Taiwan is based, at least partly, on such a historical rights discourse.

The historical context that Taiwan has belonged to China since ancient times is clear, and the legal facts are well-established. Continuous new archaeological discoveries and research demonstrate the profound historical and cultural connections across the Taiwan Strait. Numerous historical books and documents have recorded the early endeavors of the Chinese people in developing Taiwan.

However, such discourse — whether “since ancient times” or based on “cultural connections” — is not a valid legal rationale for sovereignty claims in contemporary international law. Therefore, an invocation of the ASL as a basis for using force against Taiwan may create another precedent, with dangerous implications for China’s other territorial sovereignty claims.

China’s invocation of the 22 Articles will create another precedent by violating international human rights conventions in order to suppress pro-Taiwan independence. If this precedent can be successfully set by China, especially if China were able to extradite such “political criminals” from other countries, China could very well (and probably would) employ similar measures against “die-hard individuals” in other contexts. In Taiwan’s case, the international community should be very concerned about China potentially utilizing extradition treaties with Shanghai Cooperation Organization member countries for domestic political reasons by labeling pro-independence “die-hards” as separatist criminals. As such, China’s ASL practices may alter the scope of political crime in extradition law.

China’s invocation of the ASL would also be a violation of the prohibition against the use of force under Article 2(4) of the UN Charter. China has not renounced the use of force to achieve reunification with Taiwan and, in fact, included this potential action in the ASL. This stance raises concerns under international law because the threat, or use, of force to coerce a political outcome can be considered a violation of the prohibition against the use of force as defined in the UN Charter. The ongoing Chinese military pressure and exercises near Taiwan, coupled with diplomatic and economic measures meant to isolate Taiwan internationally, can be viewed as coercive actions that undermine the principle of peaceful dispute resolution.

Through invocation of the ASL, China has the potential to establish precedent concerning two related issues: the non-intervention principle and the right of self-determination. While China asserts sovereignty over Taiwan, many in Taiwan view themselves as having the right to determine their own political status. By threatening force to prevent any move toward independence, invocation of the ASL can be seen as infringing upon the right to self-determination of Taiwan’s people, thus violating international norms that protect such rights.

Countering China’s ASL

Structurally speaking, China’s legal warfare has been elevated to “legal enforcement warfare” in recent years and includes not only the unilateral promulgation of new laws or regulations by China but also the projection of actual “legal enforcement” capabilities in “extraterritorial” and “disputed areas.” China hopes that these laws, and the appearance of their implementation and acceptance, will serve as a psychological deterrent to other countries. For instance, in the South China Sea, China has enacted unilateral fishing bans and Provisions on Administrative Law Enforcement Procedures of Coast Guard Agencies. For cross-Strait relations, China has put forward the aforementioned 22 Articles — coupled with possible red notice and extradition treaties — as well as other measures.

Given the current situation, the international community must prevent China from making such practices acceptable through the use of international institutions and international law. For example, the European Court of Human Rights jurisprudence in Liu v. Poland needs to be elaborated outside of the court. In Liu v. Poland Liu v. Poland (Application No. 37610/18), the European Court of Human Rights ruled that, if Poland were to extradite Liu — a Taiwan national — to China, it would violate Article 3 of the European Convention on Human Rights, which prohibits torture and inhumane treatment. The court’s reasoning in the Liu case should be noted by European countries and should spur them to reconsider judicial cooperation with China and other nations characterized by a “general situation of violence” and a lack of transparency. In the context of the ASL and the 22 Articles, we may need to further elaborate on the relationship between them and torture in particular, while also recognizing the court’s interpretation as obligations erga omnes.

Moreover, request of a red notice in Interpol, as a matter of law, must align with the international policing organization’s regulations as well as international law in order to ensure that the notice is not used for political, military, racial, or religious reasons. The definition and scope of “politically motivated reasons” can be ephemeral and thus may not serve as a safeguard for political dissidents. Hence, in the reviewing process of red notice issuances, the international community needs to examine more closely whether countries criminalize separatism for politically motivated reasons and place more burden of proof on countries that request red notices.

Furthermore, in jus ad bellum issues, to assert that China’s ASL violates international law on the prohibition of the use, or threatened use, of force, one key issues must be considered: the positioning of cross-Strait relations. If cross-Strait relations are considered to be interstate relations, then the narrowest interpretation of Article 2, Paragraph 4 of the United Nations Charter and the customary international law principle prohibiting the use of force can serve as a rationale. However, if the special nature of cross-Strait relations is adopted, or if it is claimed that Taiwan is a special entity under international law, it is necessary to consider which interpretation (or interpretations) of the injunction should be adopted, including: the use of force against de facto regimes, the use of force to infringe upon de facto borders, or the use of force to deprive a people of their right to self-determination. Although these scenarios are not explicitly stipulated in the aforementioned United Nations Charter provisions, the spirit of the prohibition, state practice, and scholarly views suggest that the principle should apply to cases beyond traditional interstate relations.

Implications

China’s ASL is a critical element of its broader strategy to assert control over Taiwan and other contested territories, and understanding it is essential. By legally codifying the potential use of force to prevent Taiwan’s independence, China aims to create a framework that justifies aggressive actions under the cover of domestic law. This approach not only threatens Taiwan’s autonomy but also serves as a tool for China to extend its influence and assert its sovereignty over other disputed regions, such as the South China Sea and borders with India and Russia. The international community, particularly the United States, rightfully views these developments with concern, recognizing the potential for the ASL to escalate tensions and destabilize the region.

The implications of China’s ASL extend beyond Taiwan, as its invocation sets a worrying precedent for using domestic legislation to justify international actions. By invoking the ASL, China seeks to legitimize its territorial claims and suppress any movements toward self-determination, not just in Taiwan but also potentially in other regions. This is exemplified by China’s historical rights claims, which are often used to assert long-standing ties to contested territories. Additionally, measures such as the 22 Articles illustrate China’s willingness to use legal tools to silence dissent and to control narratives. Such actions raise significant concerns under international law, particularly regarding the prohibition of the use of force and the right to self-determination.

As China’s legal warfare evolves into what can be described as “legal enforcement warfare,” the international community faces new challenges, including responding not only legally and diplomatically but also with practical measures to counteract China’s gray zone strategies. The international community must also scrutinize China’s use of international organizations, such as Interpol, to pursue political objectives under the guise of criminal charges. In response, countries must reinforce international legal norms, support Taiwan’s democratic self-determination, and work collectively to prevent the erosion of international law standards.

A View from Japan

Navigating Cross-Strait Tensions

Ken Jimbo

Introduction

The introduction of the Anti-Secession Law (ASL) by the People’s Republic of China (PRC) in 2005 was a significant event in East Asian geopolitics, reflecting Beijing’s determination to prevent Taiwan’s formal independence. For Japan, the law represents China’s uncompromised official declaration to use force in the case of unacceptable political consequences in cross-Strait relations, which later became Tokyo’s basic logic to prepare for a Taiwan Strait contingency. The law has also strictly limited Taiwan’s international representation, thus testing Japan’s diplomatic balancing act between China and Taiwan. Japan’s approach to the ASL, and more broadly to the “One China” framework, underscores its strategic interests in maintaining regional peace and stability while fostering unofficial relations with Taiwan.

Historical Context of Japan-Taiwan Relations

Following the normalization of relations with the PRC in 1972, Japan adhered to a policy of recognizing the PRC as the sole legal government of China (a “One China” policy) while maintaining unofficial relations with Taiwan, primarily in economic and cultural spheres. This stance was rooted in Japan’s strategic interest in maintaining stability in the Taiwan Strait, an area critical to regional security and economic interests.

Taiwan’s democratization in the 1990s added a new dimension to its relationship with Japan. The political liberalization allowed for greater public appreciation of Japan in Taiwan, fostering closer economic and cultural ties. However, the shadow of the PRC’s claims over Taiwan has consistently necessitated a cautious approach from Japan, ensuring that its interactions with Taiwan do not provoke Beijing’s ire.

The Anti-Secession Law and Regional Implications

The enactment of the ASL by China was perceived in Japan as a unilateral move that could destabilize the Taiwan Strait, an area Japan views as vital for its security. The law’s explicit provision for “non-peaceful means” to prevent Taiwan’s independence heightened concerns about the potential for military conflict, which could directly impact Japan given its geographical proximity and security ties with the United States.

Japan’s official response to the ASL was measured. The Ministry of Foreign Affairs expressed concern over the potential threat to peace and stability in the Taiwan Strait, reiterating Japan’s opposition to any non-peaceful resolution of cross-Strait issues. This response reflects Japan’s broader strategic calculus: maintaining a stable regional environment conducive to economic growth while balancing its relations with China and Taiwan.

Nevertheless, Japan’s commitment to adherence to the basic position of the One China policy remained after the PRC’s adoption of the ASL. At the Japan-China Summit Meeting in May 2008, “Regarding the Taiwan issue, the Japanese side again expressed its adherence to the position enunciated in the Joint Communique of the Government of Japan and the Government of the People’s Republic of China.”

Japan’s Strategic Interests and Policy Adjustments

Japan’s strategic interests in the post-ASL Taiwan Strait are multifaceted. Economically, Taiwan is a significant partner with robust trade and investment ties. Japan’s economic interests in Taiwan are driven by its advanced technology sector and its role in global supply chains. Culturally, the shared values of democracy and the rule of law have fostered a unique bond between the Japanese and Taiwan peoples. The U.S.-Japan security alliance underscores the importance of maintaining peace in the Taiwan Strait, with both countries sharing concerns about China’s growing military capabilities and assertiveness. These factors have driven Japan to seek a balance in its approach, leveraging unofficial channels to deepen ties with Taiwan while adhering to its official recognition of the PRC.

The changing geopolitical landscape, particularly China’s rise as a more assertive regional power, has prompted Japan to reconsider its security posture. In December 2022, the Japanese government approved three security-related strategic documents, namely the National Security Strategy, the National Defense Strategy, and the Defense Buildup Program. The premise of these strategic documents is that the international community is facing its “greatest postwar challenge” and that the security environment surrounding Japan is “the most severe and complex” in the postwar era. The documents defined China as the “greatest strategic challenge.”

The approach that the three strategy documents seek to take is to operationalize deterrence by denial and new ways of fighting. Given a status of structural inferiority vis-à-vis China, Japan’s goal is not to quantitively balance the amount of Japan Self-Defense Forces (JSDF) equipment against the scale of China’s conventional forces. The strategy documents aim to develop JSDF capability enough to “make [the] opponent realize that the goal of invasion of Japan is not achievable” and that the “damage the opponent will incur makes the invasion not worth the cost.” In other words, denying adversaries’ prospects of operational success is the essence of the denial strategy.

The sequence of operationalizing denial strategy is (1) disrupting and defeating invasion over long distances through stand-off defense capabilities; (2) if deterrence fails, ensuring asymmetric superiority through cross-domain operations that integrate the space, cyber, and electromagnetic domains; and (3) conducting swift and persistent operations to dissuade conflict escalation. Until 2027, Japan will strengthen its existing defense equipment to prevent or eliminate an invasion of Japan. By roughly 2032, it will fundamentally strengthen its defense capability to “disrupt and defeat invasion at earlier timing at a location further afield.”

The high-end military contingency scenarios over the Taiwan Strait are unspoken assumptions for which the Japanese government aims to be ready. The logic of denial for China’s integrated military operations in Taiwan can be found in various dimensions.

Enhancing the U.S.-Japan alliance, particularly in defense cooperation, implicitly acknowledges the possibility of a Taiwan contingency. The essence of integrated deterrence in the Japan-U.S. alliance lies in the joint promotion of the denial strategy. Fundamental reinforcement of Japan’s defense capability will lead to Japan’s defense and the effective projection of U.S. forces. The JSDF’s standoff defense capability will also provide wide-area force projection support to U.S. forces. Integrated air and missile defense capabilities, sustained and robust operations, and the strengthening of domestic and international facility areas will be key elements for U.S. forces to conduct operations in the war zone.

Opportunities and Challenges in Japan-Taiwan Relations

In recent years, Japan has explored new avenues to strengthen its relationship with Taiwan, capitalizing on areas less likely to provoke a strong reaction from China. This includes cooperation in nontraditional security domains such as cybersecurity and public health, where both sides have shared interests and face common threats. The Global Cooperation and Training Framework, which includes the United States, Japan, and Taiwan, exemplifies a pragmatic approach to trilateral cooperation that circumvents diplomatic constraints. Japan also began stationing an active-duty Ministry of Defense official in the Japan-Taiwan Exchange Association in 2022.

However, challenges remain. The lack of official diplomatic recognition limits the scope of Japan-Taiwan relations, necessitating creative diplomatic strategies to advance mutual interests. Additionally, domestic politics in both Japan and Taiwan can complicate bilateral ties. In Taiwan, political agendas related to Japan often become contentious issues, reflecting the island’s divided political landscape. In Japan, while public sentiment toward Taiwan is generally positive, political caution prevails in the Diet, where strengthening ties with Taiwan could draw China’s strong opposition.

Conclusion: Navigating the Future

As Japan navigates the complexities of the ASL and its implications for regional stability, it must continue to balance its strategic interests with the realities of cross-Strait relations. This involves carefully calibrating its policy toward Taiwan, leveraging unofficial channels to foster cooperation while adhering to the framework established by the 1972 Japan-China Joint Communiqué.

Japan’s path forward involves maintaining its current policy stance and exploring new opportunities for collaboration with Taiwan in areas aligning with its strategic interests. This includes enhancing economic partnerships, strengthening people-to-people exchanges, and supporting Taiwan’s participation in the international community in ways that do not contravene Japan’s official diplomatic stance.

A View from Southeast Asia

Inattention and Avoidance

Ja Ian Chong

Introduction

Relations across the Taiwan Strait are typically out of sight, out of mind in Southeast Asia, where states are eager to profit from economic ties with both Taiwan and the People’s Republic of China (PRC). Governments generally view the political sensitivities associated with cross-Strait relations as quagmires to avoid, especially if there is the potential for friction with Beijing’s goals of controlling Taiwan and reducing Taiwan’s distinctiveness. They believe that cross-Strait issues are separable from developments in Southeast Asia and try to pay little attention — except when there is a real risk of instability spilling over. Consequently, these governments have put little thought into the PRC’s Anti-Secession Law (ASL) since it was introduced in 2005. To the region, it is a piece of domestic legislation on which they have little, if anything, to comment.

Varied Views of Taiwan Across Southeast Asia

Taiwan’s relationship with the PRC is something most regional governments believe has little to do with them, even though Taiwan borders the South China Sea and Taipei lays claim to much of those waters. A popular perspective across Southeast Asian governments is that they are unable to affect decisions in Taipei and Beijing — and, at any rate, can depend on the United States and perhaps Japan to discourage escalation and manage crises. Many in Southeast Asia also appear to think that the importance of economic ties across the Taiwan Strait will ease tensions. Legacies of colonialism, independence, and separatist movements, along with a norm of noninterference in domestic affairs, further prompt Southeast Asian states to disregard cross-Strait relations as someone else’s problem.

The Philippines is an exception. The PRC’s demarcation of military exercise areas just outside Philippine territorial waters following U.S. speaker of the House Nancy Pelosi’s 2022 visit to Taiwan emphatically reminded Filipinos of the fallout that a major crisis around Taiwan could bring. The islands’ geographic proximity makes avoiding reverberations highly unlikely. Complicating the calculus for Manila are, of course, its ongoing territorial dispute with the PRC and its alliance with the United States. Resources, trainings, diplomatic support, and potentially military support from the United States can better enable the Philippines to maintain its claims in the West Philippine Sea/South China Sea in the face of mounting PRC pressure until a solution emerges. However, a contingency involving Taiwan might see the United States demand access to territorial waters, airspace, and bases and emplace equipment and supplies, which could in turn invite backlash or even force from Beijing. Other Southeast Asian governments, such as Singapore, are purportedly privately concerned about rising tensions surrounding the South China Sea and Taiwan but have refrained from taking public positions, possibly out of fear of PRC punishment.

On the status of Taiwan, Southeast Asian governments have generally adhered to the definitions used by the PRC and Kuomintang (KMT) that Taiwan is part of China — regardless of which regime represents it. These governments have adopted “One China” policies (“一中”政策) to some degree, sometimes in exchange for economic benefits such as market access or assistance. However, there are clear divergences among the Southeast Asian states’ One China policies, as evident following the PRC’s military exercises in response to the 2022 Pelosi visit, when the Association of Southeast Asian Nations (ASEAN) called for calm and reiterated “Member States’ support for their respective One-China Policy [sic].” Southeast Asian states have, until recently, generally managed to escape debates surrounding PRC efforts to recast these positions in terms of its own, narrower One China principle, but whether this can continue is an open question.

The table below summarizes the current One China policies of Southeast Asian governments, noting that positions sometimes subtly adjust over time. It draws on official statements from the government in question and is cross-referenced against PRC versions, although in some cases only one version is publicly available. The Laotian, Indonesian, Singaporean, and Vietnamese positions recognize that Taiwan is part of China but do not explicitly equate China with the PRC. Cambodia is not explicit about whether Taiwan is a part of China or the PRC, while the Philippines “fully understands and respects” the PRC’s position on Taiwan without openly recognizing or agreeing to it. Indonesia, Laos, the Myanmar junta, Timor Leste, and Vietnam publicly support peaceful (re)unification but are silent about their stances on Beijing using force. Other parts of Southeast Asian states’ One China policies draw variously from that of the PRC. ASEAN itself has no position on the issue given the wide range of member-state policies.

▲ Table 2: Chinese and Southeast Asian Policies toward Taiwan

Different Southeast Asian governments’ One China policies are not necessarily consistent with Beijing’s One China principle. These differences are especially evident in terms of equating “China” with the PRC, insistence on peaceful (re)unification, and non-support for Taiwan independence. The lack of a clear, sustained position reflects the fact that Southeast Asian states mostly do not care whether Taiwan is a formal part of China, defined as the PRC or otherwise — instead preferring stability, being able to benefit from economic ties with China and Taiwan, and avoiding trouble. Statements about “one China” serve as a way to improve ties with Beijing and seize any accompanying opportunities, since they see the cost of crossing Taiwan as minimal. In the case of Myanmar, the competing regimes each appear to be using public alignment with the PRC’s One China principle to garner support from Beijing for their rule, or at least to avoid having the PRC side with their rival. Southeast Asian states have little reason to commit one way or another on issues of Taiwan and China and seem willing to trade commitments to One China for whatever benefits them most at a given time.

Southeast Asian states care most about safeguarding their sovereignty, maintaining their regimes, driving economic development, and maintaining the regional stability that undergirds their ability to pursue prosperity. The ASEAN statement in the wake of the 2022 Pelosi visit to Taiwan — one of the very few times the grouping and its members spoke publicly on cross-Strait relations — was more an expression of concern for stability and supply chains than anything else. Southeast Asian states are happy to leave Taipei and Beijing to their own devices so long as they bear no negative consequences.

Southeast Asian Views of China’s Anti-Secession Law

Given such reasoning, it is not surprising that Southeast Asian states and ASEAN barely made any mention of either the PRC’s Anti-Secession Law upon its promulgation in 2005 (or any of its subsequent anniversaries) or the “Opinions on Punishing Crimes of Separatism and Inciting Separatism by ‘Taiwan Independence’ Diehards in Accordance with Law” released in 2024. They view these documents as domestic PRC law like any other legislative or policy framework promulgated for internal purposes, only taking public positions when it affects the Southeast Asian countries’ interests.

Instrumental approaches toward One China among Southeast Asian capitals, however, cede initiative on an issue that could have broad and serious ramifications for the stability and security of the region. For the most part, Southeast Asian governments either negotiate over One China for immediate gains or accept what Beijing tells them in the hope of winning goodwill. They may rhetorically call for a peaceful resolution of cross-Strait differences, but they have not commit anything to promoting resolutions or stability. Such attitudes are evident from the public silence about Beijing’s unilateral gray-zone pressure tactics and political interference targeting Taiwan. There tends to be reflexive blaming of the United States and Taiwan for provocation despite overwhelming support for the status quo among Taiwan’s public over time, as seen across various opinion polls. Southeast Asian states see such statements as costless in the immediate term, since they do not expect punishment from Taipei or Washington.

Another consideration for Southeast Asian states and ASEAN regarding the ASL is to avoid the awkwardness that comes with public positions on PRC domestic legislation. Brunei, Malaysia, the Philippines, and Vietnam have territorial disputes with the PRC over the South China Sea/West Philippine Sea/East Sea. In addition, Indonesia’s exclusive economic zone (EEZ), extending northward from the Natuna Islands, overlaps with the southern section of Beijing’s unilaterally drawn “nine-dash line” in those waters, even if Jakarta asserts that there is no dispute. Cambodia, Laos, Thailand, and Vietnam contend with the ecological consequences of the PRC’s upstream damming of tributaries to major rivers such as the Mekong and Irrawaddy. Taking public positions or making public comments on the ASL may invite complicated questions about PRC domestic laws that pertain to contested maritime and riparian issues where Southeast Asian states would prefer silence for the sake of limiting friction. At any rate, publicly commenting on China’s domestic legislation runs counter to the Southeast Asian and ASEAN norms of noninterference in the internal affairs of others.

Some among Southeast Asia’s large ethnic Chinese communities demonstrate sympathy toward Beijing’s position on Taiwan, including the ASL, regardless of official positions. Such sentiments are often rooted in a twentieth-century Chinese nationalism that was keen to recover from the “century of humiliation” and recreate the Qing Empire’s more expansive borders, which encompassed Taiwan and Mongolia. Recent PRC advancement of the “China Dream” has given life to attempts by some ethnic Chinese in Southeast Asia to advance Beijing’s One China principle, ASL, and the unification of Taiwan on Beijing’s terms. The most obvious aspects of such mobilization take the form of local “peaceful unification promotion associations” (和平统一促进会); another is renewed United Front Work Department (统一战线工作部) activities that seek to shape host-country policies and police local opinions about the PRC. Such manipulation of ethnic-based nationalism in Southeast Asian societies risks sparking resurgent communal tensions during a crisis.

Inattentiveness toward Taiwan-China ties also means that Southeast Asian states and ASEAN are not in positions to help manage and reduce cross-Strait tensions. They depend on Beijing and Taipei to avoid escalation and crises while relying on Washington and possibly Tokyo to address any serious problems that may arise. Such conditions mean that Southeast Asian states and ASEAN possess little initiative on cross-Strait issues and end up simply reacting to developments. A major crisis in the Taiwan Strait may see Beijing pressure Southeast Asian states to deny the United States and allied forces access to territorial waters, airspace, and facilities, including by mobilizing members of local ethnic Chinese communities. Washington could well demand the opposite. Without more active approaches to cross-Strait developments — which include Beijing’s efforts to use its ASL to justify coercion, force, and violence toward Taiwan — most Southeast Asian states would be caught flat-footed in a cross-Strait crisis.

Taiwan, the United States, and others who wish to maintain stability and the cross-Strait status quo may want to emphasize to Southeast Asian states what they have at stake. A Taiwan that remains functionally and effectively autonomous is important for supply chains, access to technology, and prosperity in Southeast Asia, as is these states’ unfettered physical access to Taiwan, Japan, South Korea, and the PRC. The South China Sea is not insulated from conflict, blockades, and other forms of instability around Taiwan. Any escalation in tensions could quickly and easily spread southward as contestation over water, airspace, and submarine cables intensifies. Except for the Philippines, Southeast Asian governments do not appear ready to acknowledge the gravity of increasing PRC pressure on Taiwan and its implications for broader regional security and order. Yet they have good reasons to take a more active interest and role in supporting stability and the status quo surrounding Taiwan, not out of enthusiasm for any position but to safeguard their own interests.

A View from Australia

The Risk of Non-Peaceful Means is Already Priced In

Mark Harrison

Introduction

Taiwan’s interstitial place in the international system and Australia’s own history of post-colonial federation and statehood have created an indeterminate basis for the bilateral Australia-Taiwan relationship. For Australia, relations with Taiwan are mediated by the absence of formal diplomatic recognition and a strong trade relationship, while being triangulated by Australia’s relationships with the United States and the People’s Republic of China (PRC).

Australia’s fundamental policy response to this indeterminacy is a One China policy that, like most such policies, maintains an ambiguity toward Beijing’s territorial claim over Taiwan. Australia recognizes the PRC as a state in the international system but only goes so far as to acknowledge Beijing’s claim that Taiwan is a province of the PRC. This distinction has enabled Australia to remain committed to the U.S. alliance, including taking into account U.S. obligations to Taiwan, while building relations with China in accordance with a broad trade maximization principle, to the level that it accounts for one-third of Australia’s exports.

On this basis, the relationship with Taiwan is simultaneously central and peripheral for Australia. Taiwan makes visible the structural challenges of reconciling the alliance with the United States and promoting trade with China while tending to displace the bilateral Australia-Taiwan relationship itself. This is expressed in both a cautious and highly constrained policy rhetoric from Canberra about Taiwan and an intense and divisive domestic public discourse about Taiwan’s place in Australia’s international relations.

Therefore, the Anti-Secession Law (ASL) has been seen as an additional complication in Australian policy toward China and the United States rather than a central issue in Australia-Taiwan relations. As Donald Clarke observes in this collection, the law itself is as much a policy statement as a piece of legislation given its brevity and lack of specifics. The ASL sits within the development of legal institutions in China overall and asserts the role of legal instruments in cross-Strait relations, which had been dominated by party-to-party relations since the National People’s Congress in 1979. Its most notable feature is the assertion of a legal justification for military action against Taiwan in the name of securing China’s territorial integrity.

Australia’s Initial Response to China’s Anti-Secession Law

The promulgation of the ASL in 2005 coincided with a period of difficult relations between Australia and Taiwan. In 2004, Australian minister of foreign affairs Alexander Downer made a statement that the Australia, New Zealand, and United States (ANZUS) Security Treaty would not necessarily be in effect in the event a military conflict in the Taiwan Strait brought the United States and China into a wider conflict. This was the culmination of a series of challenges in the Pacific and a general reorientation of Australian policy toward Beijing in response to China’s economic growth.

Tension between Canberra and Taipei in the 1990s and 2000s developed from Australian efforts to promote Pacific development and stable governance while Taiwan sought to maintain or even grow the number of its diplomatic allies. As Pacific governments switched recognition from the PRC to Taiwan or vice versa and both Beijing and Taipei used development aid and investment as diplomatic tools in the Pacific in their competition, Canberra tended to view Taipei’s activities as destabilizing. The absence of a regional security architecture or formal diplomatic relations between Australia and Taiwan constrained the capacity of both sides to manage these issues.

Therefore, the Australian government at the time assessed that the ASL was more of a complication in relations with China than a significant development in cross-Strait relations or the bilateral Australia-Taiwan relationship.

At a summit in Beijing in April 2005, Australian prime minister John Howard stated that he had not raised the ASL in his discussions with his Chinese counterparts. He did, however, comment on the initiation of negotiations for an Australia-China free trade agreement. Earlier in March, Australian Greens leader Bob Brown, a federal Senate member for Tasmania, tabled a motion that the Senate “opposes China’s ‘anti-secession’ laws which would mandate the use of military force if the Taiwan people opt for independence,” but the motion was defeated 7 to 44.

Later that year, the Australian government noted that it was “very disappointed” by the law’s references to military action but that the provisions for cross-Strait consultations were positive. The assessment also stated that Australia urged “both sides to refrain from any unilateral action that would change the status quo, pending a dialogue towards an eventual peaceful settlement.”

The ASL is also noted in the final report of an inquiry by the Australian Senate’s Foreign Affairs, Defense, and Trade References Committee into Australia-China relations in 2005. The report did not draw conclusions about the law’s significance, but the PRC’s embassy in Canberra did submit public comments stating that the ASL “is the legislation that promotes the development of cross-Straits relations and peaceful reunification, aimed to maintain China’s sovereignty and territorial integrity, oppose and curb any secessionist activities as well as maintain peace and stability in the Taiwan Straits.”

In the decade after the ASL was issued, Australia’s relations with China developed significantly. In 2014, the China-Australia Free Trade Agreement was signed, and both sides agreed to elevate the relationship to a “comprehensive strategic partnership.” Australia was also considering a free trade agreement with Taiwan. But in 2017, in the context of the PRC’s approach to Taiwan’s new Democratic Progressive Party (DPP) government led by Tsai Ing-wen, Beijing communicated directly to Canberra that it would look unfavorably on an Australia-Taiwan free trade agreement, and Canberra dropped the proposal.

Deteriorating Relations with China and “Pricing in” the Anti-Secession Law

In the past decade, however, relations between Australia and China have deteriorated sharply as Canberra took action against PRC interference in Australian domestic politics and public institutions, responded to the growing capacity of the Chinese military, and addressed the Covid-19 pandemic. Beijing’s displeasure at this sometimes-clumsy recalibration from the Australian side was to implement a ministerial-level communications freeze and targeted trade sanctions in 2020 that triggered a vociferous and divisive debate in Australian policy and public life.

The deterioration of relations with China coincided with a disciplined and open government in Taipei, and Taiwan-Australia relations have become the warmest they have been since 1967, the only time an Australian prime minister has ever visited Taiwan. However, in managing the difficult relations with Beijing, Canberra remains cautious with Taipei, and steps are small. In 2024, the two governments signed a new memorandum of understanding on transportation safety. This was followed by a science and technology arrangement that promotes cooperation on information and communications technology, biotechnology, and zero-carbon energy. These agreements are meaningful in the context of Canberra’s reluctance to enter into new agreements over the previous decade.

The most important policy initiative to emerge from this period concerning Taiwan is the AUKUS partnership, under which Australia will acquire U.S. nuclear-powered, but not armed, submarines before developing a new AUKUS-class submarine in collaboration with the United Kingdom. This capability-development framework has been normalized into Australia’s policy establishment across both sides of politics but remains the subject of intense public debate and criticism. AUKUS reflects a change in Australia’s overall strategic outlook, as expressed in the 2023 Defence Strategic Review, which lists regional conflict involving China and the United States as one of the key concerns. This outlook captures Australia’s difficulty in placing the bilateral relationship itself at the center of Taiwan policy.

AUKUS circulates around the concept of deterrence, wherein Australia develops the military capability to project power in the region and deter action by Beijing. As Minister of Defense Richard Marles summarized:

Our national security and our national prosperity are based on a stable peaceful region where the global rules-based order is preeminent and respected. Indeed, the rules of the road at sea are everything for us. When the rules-based order is under pressure, Australia is under pressure.

Crucially, this narrative paints the picture of the geography of our national security. And it does not lie on the coast line of our continent. It lies further afield. An invasion of Australia is an unlikely prospect in any scenario, precisely because so much damage can be done to our country by an adversary without ever having to step foot on Australian soil.

Our national security actually lies in the heart of our region. Because the defence of Australia does not mean much without the collective security of the region in which we live.

The vitriolic public debate about AUKUS reflects anxieties about Australia’s identity as a postcolonial nation, in which relations with China are symbolic of an Australian postcolonial modernity that contrasts with the “imperial” powers of the United States and United Kingdom. Nonetheless, while these themes drive the domestic debate, the agreement itself reflects how the ASL has been priced into Australian policymaking and defense preparations for a Taiwan Strait crisis.

Australia’s policy architecture is not sensitive to the complexity of Taiwan’s sovereignty or the role of the ASL in institutionalizing Beijing’s territorial claim over Taiwan. Canberra is also not fully attuned to the possibility that Beijing would use the ASL to justify military action against Taiwan. Australian policy is being made within a deteriorating regional security outlook: with more than 60 percent of Australian exports going to Northeast Asia, a conflict in the Taiwan Strait would have a devastating impact on Australia’s economy and security regardless of how it is justified by Beijing. Australia has recognized that regional power projection is required to secure its interests through hard power.

The ASL offers one lens for viewing Australia’s overall shift in regional security policy. Canberra’s relatively sanguine interpretation of the law in 2005 has given way to a much more sober reading of the security outlook, in which China’s “rise” in the past decade has become less of an unalloyed market opportunity than a complex security challenge. While Australia has far to go to implement the goals of AUKUS, this agreement is a sign that the purpose of the ASL — and recognition that it runs counter to Australia’s national interests — has been internalized in Australian policymaking.

Europe and the Anti-Secession Law

Challenges in Unity

Meia Nouwens

Understanding Europe-Taiwan relations requires differentiating between the European Union overall and its member states and, further, among EU member states and non-EU European countries. Similarly, it requires an examination of EU institutions and of branches of national governments, particularly regarding the role of parliaments.

The European Union’s relationship with the People’s Republic of China (PRC) drives European relations with Taiwan, and all such relations (including for the European Union itself) are stated in adherence with a “One China” policy. The official policy positions on the One China policy among capitals and the European Union are relatively consistent: European governments remain committed to the idea that the PRC is the sole legitimate government of China.

Europe’s initial response to the 2005 Anti-Secession Law (ASL) was limited. However, geopolitical shifts have since changed European views on China and Taiwan. In the event that the ASL is invoked, Europe will likely find it difficult to offer a unified response. Europe’s limited defense resources may complicate military responses. A more likely reaction from Europe would be economic, particularly since Europe has already developed an economic toolbox in response to Russia’s invasion of Ukraine. Yet the extent of any response is unclear, and disagreement over the level of ambition to “de-risk” from China remains. Political and diplomatic responses may be even more likely, but significant effort will be needed to speak with one European voice on the issue of Taiwan moving forward. Forming a unified European response in the event of a military conflict across the Taiwan Strait will be challenging. Doing so in the event that the ASL is applied short of war will be even more challenging.

Response to the PRC’s ASL

Initial reactions to the PRC’s ASL were muted. The European Union published a declaration concerning the passing of the law, which stated that the bloc had “taken note” of the law’s adoption. It further avowed that the “peaceful resolution of disputes . . . is the only means of maintaining stability in the Taiwan Straits” and that the bloc was opposed to any use of force. The declaration did reveal some element of concern. The European Union “would be concerned if this adoption of legislation referring to the use of non-peaceful means were to invalidate the recent signs of reconciliation between the two shores” and urged Taiwan and the PRC to “develop initiatives which contribute to dialogue and to mutual understanding.”

Context of European Response to ASL in 2005

The European Union’s early response was perhaps not entirely surprising. The law was passed at a time when the European Union’s policy toward the PRC was, as some observers described, “comprehensive engagement and co-operation.” Individual member states and business interests in trade and economic issues dominated the region’s China policies, and European and U.S. observers could not agree on whether a stronger China could be compatible with Western norms and interests.

Structural issues also played an important role. The EU Common Foreign and Security Policy sought to coordinate EU foreign policy, an activity that required unanimity between member states in the Council of Ministers. It was not until 2009 that, with the Treaty of Lisbon, there was a singular high representative of the union for foreign affairs and security policy and a common Foreign Office through the European External Action Service. In September 2005, when the European Union and China held their eighth China-EU summit in Beijing, there was only one mention of Taiwan: a reaffirmation of the European Union’s continued adherence to the One China policy and its hope for a peaceful resolution of the “Taiwan question.” Aside from the bloc’s continued arms embargo on the PRC, the rest of the joint statement following the summit highlighted overwhelming cooperation and engagement.

Enter Geopolitical Commission

More recently, and in response to geopolitical shifts involving the PRC, some European governments have been more willing to explore to what extent Europe-Taiwan cooperation can be developed further. The European Parliament has been leading the call for greater criticism of the PRC and its assertive and illiberal rise; it has also worked to deepen EU-Taiwan relations.

In 2021, the European Parliament adopted its first stand-alone report addressing the European Union’s relationship with Taiwan (under the guidance of the bloc’s One China policy). The European Commission and other EU institutions have taken note.

In an address to the EU Parliament in February 2022, EU high representative and vice president (HRVP) Josep Borrell declared that “to preserve, peace, stability, and the status quo in the Taiwan Strait is key, not just for the security and prosperity of the region, but also for ours.”

The following year, Borrell clarified his position, stating that “Europe must in fact be very present on this issue [of Taiwan], which concerns us economically, commercially and technologically. That is why I call on European navies to patrol the Taiwan Strait to signify Europe’s commitment to freedom of navigation in this absolutely crucial area.”

In her 2024 bid for a second term, EU Commission president Ursula Von der Leyen declared that she would seek to “deter China from unilaterally changing the status quo by military means, particularly over Taiwan” by cooperating with partners and allies who face common challenges.

Von der Leyen’s remarks were unprecedentedly direct on the question of Taiwan and were a result of the geopolitical context in which the European Union found itself. The Trump administration debated with Europe about the nature of China’s rise and the challenges it posed to the rule-based international order. As a result, the European Union launched its revamped China Strategy in 2019, which more keenly saw EU-China relations through a triptych of lenses: China is simultaneously a competitor, rival, and partner. Brussels was particularly concerned about China’s reach into critical European national infrastructure, the hostile takeover of European strategic industries, China’s human rights violations in Xinjiang, the crackdown on protests in Hong Kong, and the People’s Liberation Army’s intense modernization efforts. Covid-19 highlighted just how dependent Europe had become on China for key resources and products and how vital the role of Taiwan is in global supply chains. Von der Leyen’s focus on “de-risking” rather than decoupling reflected the European Union’s recognition of the challenges it faced. If Europe needed a further push toward a more clear-eyed approach to its China policy, the PRC’s deepening relationship with Russia following Putin’s second invasion of Ukraine provided the impetus.

Varying Approaches to Taiwan by EU Member States

Some European capitals have become more forward-leaning in their approaches to Taiwan. Germany, for example, has published its first Strategy on China and the Netherlands has also published its own China “notitie.” However, neither the German nor the Dutch plans directly mention the ASL. Furthermore, many capitals have yet to make any China strategy publicly available. Some of those countries, such as the United Kingdom, however, have deepened Taiwan relations in practice, albeit quietly, while others have become more openly aligned with Taiwan, though not diplomatically. This is particularly true of Lithuania and various other Central and Eastern European states, which have developed closer technology and industrial ties with Taiwan.

There remain disagreements among the capitals with regard to China. Since Russia’s 2022 invasion of Ukraine, numerous European leaders have traveled to Beijing on state visits, but these visits have lacked unity in messaging. In contrast to the aforementioned shifts toward Taiwan, for example, French president Emmanuel Macron has struck a more conciliatory tone toward Beijing and avoided critical statements on the issue of Taiwan, even stating that Europe should not become embroiled in conflicts not of its own making. Though President Macron has since clarified his comments, it does appear that the French president is more convinced of the merits of cooperation and partnership with Beijing than some of his European counterparts, including on issues such as Russia’s war of aggression against Ukraine.

Europeans more generally have become more concerned about China. A Pew Research Center study showed that, while only 34 percent of participants surveyed in Poland viewed China unfavorably in 2005, that number had risen to 67 percent by 2023. Similar changes in opinion were seen in France, Spain, Sweden, the Netherlands, and the United Kingdom.

Despite these unfavorable rates, a 2023 European Council on Foreign Relations (ECFR) poll found that, in most EU countries surveyed, China is still overwhelmingly a “necessary partner” rather than a ”rival — with which we need to compete” or “an adversary.” Furthermore, though over 70 percent of those surveyed recognized that Russia and China are close partners, only 22 percent believed that Europe’s economic relationship with China poses more risks than benefits. In short, in the eyes of those surveyed, Russia and China are not alike and Europe’s response to the two countries should recognize that difference.

When it comes to public views on Taiwan, a 2023 Pew Research Center survey showed that in 8 out of 10 European countries polled, participants viewed Taiwan more favorably than unfavorably. Notable exceptions were Greece and Hungary.

The question remains as to what these developments mean for Europe’s response to any situations in which the PRC may seek to invoke the ASL.

Will Europe Respond in Support of Taiwan If the ASL Is Invoked?

In contrast to the Biden administration, European capitals and the European Union have, to date, refrained from stating whether they will intervene to support Taiwan in the event of the ASL being invoked. Nevertheless, the heightened awareness in European capitals of geopolitical challenges and increasing concerns over the potential impact of PRC foreign and domestic policies on European security could create the conditions in which Europe sees stability in the Taiwan Strait as central to regional and European security and prosperity. China’s ongoing support for Russia despite the latter’s war of aggression in Ukraine further clarifies the links between European security and the Indo-Pacific region.

Though Europe is unlikely to be able to contribute to a Taiwan crisis or a conflict militarily, its response to Russia’s war of aggression and the economic and legal toolbox that it has developed since then does provide European countries and the European Union with potential nonmilitary means to respond. Depending on China’s actions toward Taiwan, Europe’s economic response could include the further sanctioning of Chinese state-owned or private sector entities or individuals. However, while the United States and the United Kingdom have discussed coordinating policies, it is unclear to what extent European states have made equal progress in preparation. Political and diplomatic actions are more likely — such as sanctioning party leaders or formally denouncing China’s actions — but even here the type of activity China undertakes against Taiwan will be an important factor in determining the European Union’s response. In the event that there is any doubt about Taiwan’s role in instigating a crisis or conflict, a collective EU response in support of Taiwan would be more complicated. Ultimately, Taiwan would stand the best chance of European support if it were unequivocally understood to be the victim in the event of crisis or conflict.

A key obstacle to any response will be the ability of European countries to unite in the same way against China were the ASL to be invoked. When it comes to China, Europe has shown difficulty speaking with one voice; acting together will be even more difficult. European unity will require greater alignment on China strategies as well as greater public discussion around Taiwan and the impact of instability in the Taiwan Strait on European interests. Economic responses will largely depend on the severity of Chinese actions and the willingness of the private sector to cooperate. While European businesses took swift and unilateral action after Russia’s second invasion of Ukraine in February 2022, it is not yet clear whether businesses will be similarly proactive in the event of any Taiwan scenario short of a full-scale invasion.

Similarly, unified diplomatic action will be complicated. As an example, the European Union failed to issue a council statement supporting the Permanent Court of Arbitration’s ruling in favor of the Philippines’ case against China’s excessive territorial claims in the South China Sea. Despite the ruling being unequivocally in favor of the Philippines, the European Union took two weeks to issue a response, and ultimately merely issued a statement by the high representative and vice president of the European Commission — usually a sign that consensus was unable to be reached. Furthermore, the statement issued avoided direct reference to Beijing.

Europe’s response will also be dependent on the timing and context of Europe’s own neighborhood. In 2023, some European militaries increased their exercises in the Indo-Pacific and with Asian partners. The Netherlands, United Kingdom, France, Spain, and Italy have deployed navy ships and aircraft to the region in recent years. However, as long as the war in Ukraine continues, Europe will likely prioritize its resources for the European theater instead of the Indo-Pacific. This, however, could still be helpful for a Taiwan scenario if it allows the United States, in turn, to focus its resources on the Indo-Pacific.

The last consideration with regard to the ASL relates to its invocation just short of justifying unification by force. Indeed, the extraterritoriality of clauses within the “Opinions on Punishing Crimes of Separatism and Inciting Separatism by ‘Taiwan independence’ Die-hards in Accordance with the Law,” published by the PRC on May 26, 2024, creates the potential for Chinese requests for extradition of those considered guilty under PRC law. Several European countries have signed extradition treaties with China, including Belgium, Bulgaria, Cyprus, France, Greece, Italy, Lithuania, Portugal, and Spain; a number of these countries have already extradited Taiwan nationals to China. For example, in 2019, Spain extradited 94 Taiwan criminal suspects for alleged involvement in telecommunications fraud.

Despite these treaties, in 2022, the European Court of Human Rights (ECHR) blocked a Taiwan national in Poland from being extradited to China on fraud charges. The ruling stated that “torture and other forms of ill-treatment were credibly and consistently reported to be used in Chinese detention facilities and penitentiaries”; the ECHR ruling prohibits the extradition of individuals to countries where they may face torture or general violence. The ruling applies to any person in Europe, regardless of nationality, who is at risk of extradition to China, and it applies to all 46 member states of the Council of Europe. The ruling therefore makes it unlikely for Chinese nationals found guilty of separatism under the 22 Articles to be extradited to China.

Bonny Lin is a senior fellow for Asian security and director of the China Power Project at the Center for Strategic and International Studies (CSIS).

I-Chung Lai is the president of the Prospect Foundation and the board member of Taiwan Foundation for Democracy.

Vincent Yi-Hsiang Chao is an elected member of the Taipei City Council. Formerly, he was Taiwan president Lai Ching-te’s campaign spokesperson and foreign policy adviser.

Yu-Jie Chen is an assistant research professor at Institutum Iurisprudentiae of Academia Sinica and a non-resident affiliated scholar at the U.S.-Asia Law Institute of NYU School of Law.

Ja Ian Chong is an associate professor of political science at the National University of Singapore. He is also a nonresident scholar at Carnegie China, Carnegie’s East Asia-based research center on contemporary China.

Donald C. Clarke is the David Weaver research professor emeritus of law at the George Washington University.

Jacques deLisle is the Stephen A. Cozen professor of law, a professor of political science, and director of the Center for the Study of Contemporary China at the University of Pennsylvania.

Mark Harrison is a senior lecturer in Chinese studies in the Politics and International Relations program at the University of Tasmania. He is also a founding fellow of the Australian Centre on China in the World at the Australian National University.

Ken Jimbo is an associate professor at the Department of Policy Management, Keio University. He is also a senior research fellow at the Canon Institute for Global Studies.

Julian Ku is the Maurice A. Deane distinguished professor of constitutional law at Hofstra University’s Maurice A. Deane School of Law.

Margaret K. Lewis is a professor of law and an associate dean at Seton Hall University. She is a member of the Council on Foreign Relations and a non-resident affiliated scholar of NYU School of Law’s U.S.-Asia Law Institute.

Yeh-Chung Lu is an assistant professor of the Department of Diplomacy in National Cheng-chi University (NCCU), Taipei, Taiwan, ROC.

Meia Nouwens is a senior fellow for Chinese Security and Defence Policy and head of the China Programme at the International Institute for Strategic Studies (IISS).

Eric Tin-wai Poon (Sang Pu) is the director-general of Taiwan Hong Kong Association and a commentator on Taiwan affairs. He is a solicitor in Hong Kong, a qualified attorney in Taiwan and New York State, and has taught a number of Chinese law courses in the Open University of Hong Kong.

Raymond C-E Sung is the vice president of the Prospect Foundation and a DPhil candidate at Oxford University.

Chi-Ting Tsai is an assistant professor of international law in the Department of Political Science, National Taiwan University, Taipei, Taiwan. He is also an author for CSIS Asia Maritime Transparency Initiative.

Wen-Hsuan Tsai is a research fellow at the Institute of Political Science at Academia Sinica and a jointly appointed professor at the National Chengchi University, Taipei, Taiwan.