Editor’s note:
One of the most complicated issues in contemporary international relations is the status of the self-governing island of Taiwan and its government in Taipei, formally called the government of the Republic of China (ROC). Is Taiwan a sovereign state? Who gets to decide? What is the legal relationship between the ROC and the People’s Republic of China (PRC)? How much of US support for Taiwan is grounded in law and how much in policy? Does international law recognize Taiwan’s right of self-defense or the right of its friends to come to its aid?
During 2024-2025, the U.S.-Asia Law Institute (USALI) hosted a series of speakers to address these and related questions from different perspectives. In this May 6, 2025 talk, Bing Ling, a professor at the University of Sydney Law School, explains the legal basis for China’s claim to sovereignty over Taiwan; what actions might invoke use of the PRC’s Anti-Secession Law, either to use force against Taiwan or simply bring criminal charges against Taiwanese who oppose unification; and the urgent need for the governments in Beijing and Taipei to resume talks.
The following excerpts have been edited lightly for clarity and brevity. A full recording of the program can be found here. The discussion was moderated by Katherine Wilhelm, executive director of the US-Asia Law Institute.
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By Bing Ling
Let me first make two preliminary points of disclaimer. Obviously, I don't speak for the PRC government. In fact, I'm pretty sure that the Chinese government would oppose, quite strongly, some of the things that I'm going to say today. Also, I'm offering legal analysis. What I consider to be legally correct is not necessarily politically desirable.
There are three topics I want to address today. First, I'm going to talk about the “one China principle,” which is the fundamental undergirding principle of Chinese law and policy on the question of Taiwan. Secondly, I'm going to talk about the Anti-Secession Law, which is the main statute in China dealing with the Taiwan question. And thirdly, I'm going to talk about Taiwan in Chinese courts, how China's judicial system deals with the status of Taiwan, Taiwan's law, and Taiwan's government.
It is well known that China's one China principle involves three propositions:
There is only one China in the world;
Taiwan is an inalienable part of China;
The People's Republic of China (PRC) is the only legal government representing the entire Chinese people.
There has been confusion over the meaning of one key term in this discussion, and that term is “PRC.” In some contexts, “PRC” means the government, as in proposition three, when it says “the PRC is the only legal government representing China.” In the second sense, “PRC” is the name of the state of China that the Communist Party gave to it in 1949. So, PRC sometimes means a state and sometimes means a government. [These] are very different things in international law. If you confuse these two meanings, you sometimes come up with flawed reasoning.
One example of flawed reasoning is to say: “The PRC has never controlled Taiwan for a single day, therefore Taiwan is not part of the PRC.” When you say “the PRC has never controlled Taiwan,” you mean “PRC” as the government. The Communist Party has never controlled Taiwan for a single day. But in the next statement, when you say “Taiwan is not part of the PRC,” here you refer to “PRC” as a state. A government does not own territory; the state does. Even though the PRC as a government has never controlled Taiwan, the state of China has controlled Taiwan since the Qing dynasty except for the 50 years of colonial [Japanese] rule.
[Having] clarified this language confusion, we can look at the three propositions. Proposition one: “There's only one China in the world.” That statement, on its face, sounds quite prosaic. People say, “What's the disagreement over that? Of course there's only one China.” What it is implicitly saying is that Taiwan is not a state. There's one China in this part of the world, [and] there's no state of Taiwan. This raises the question, “Why is Taiwan not a state?” Taiwan apparently has satisfied all the conditions for statehood under international law; why is Taiwan not a state?
The standard explanation for that is the one offered by the late Professor James Crawford in his classic book, The Creation of States in International Law. Professor Crawford argues that Taiwan is not a state because it has not explicitly declared independence. This has been the standard explanation given for why Taiwan is not a state.
Professor Crawford argues that Taiwan is not a state because it has not explicitly declared independence. This has been the standard explanation given for why Taiwan is not a state.
Crawford's argument has triggered lots of commentaries and criticisms. I will just highlight three issues here:
First, is there really a requirement in international law that you must openly, publicly declare independence to become a state?
Second, even if there is such a requirement under international law, hasn't Taiwan already declared statehood on numerous occasions? You have all those presidential statements. You have [President] Tsai Ing-wen and [President] Lai Ching-te repeatedly saying Taiwan is already an independent state. You have applications for UN membership in the name of Taiwan. So hasn't Taiwan already declared independence?
Third, if Taiwan has already declared independence in various ways, how come no state recognizes Taiwan as an independent state? You cannot blame everything on China’s bullying. Of course, China bullies some small states from time to time, but you cannot say that China bullies the United States, Japan, Germany, the UK, France, all at the same time. So if Taiwan is already a state, how come nobody recognizes it?
So that is the first proposition: there is only one China and Taiwan as it exists today is not a state. The second proposition is that Taiwan is part of China. The justification for this Chinese assertion for sovereignty over Taiwan is very well known, and previous speakers have already touched on it, so I'm not going into details here. In gist, the Chinese justification is based on three historical documents: The 1943 Cairo Declaration, which says Japan must return Taiwan to China at the end of the Second World War; the Potsdam Proclamation, which says the Cairo declaration must be carried out; and the Japanese instrument of surrender, where Japan says, “We accept the Potsdam Proclamation.”
After those three documents, China physically took over Taiwan from Japan in October 1945. The treaty that ceded Taiwan to Japan, the treaty of Shimonoseki, was abolished. Based on these historical events, China argues that Taiwan is being returned from Japan to China, and Taiwan is part of China at the end of the Second World War.
The opposition to that line of argument is that there is no formal treaty that actually gives China the territory of Taiwan from Japan. The Treaty of San Francisco [the 1951 peace treaty between Japan and the Allied Powers] only says that Japan will renounce its sovereignty over Taiwan, but does not say to whom. The PRC government has not officially responded to this opposition, but I would imagine that the response would be like this:
First, is there really a requirement in international law that transfer of territory requires a formal treaty? What is the authority for that? If you require a formal treaty, how formal should it be? How detailed should the treaty be?
The opposition to [China’s] argument is that there is no formal treaty that actually gives China the territory of Taiwan from Japan. Is there really a requirement in international law that transfer of territory requires a formal treaty?
Second, if you do require a treaty or an international agreement, wouldn't the three historical documents somehow already constitute an international agreement between China and Japan for the return of the territory of Taiwan? The definition of treaty under international law is actually quite broad.
Third, if you do require a treaty, here's the treaty: it is the 1972 China-Japan Joint Statement. When China and Japan resumed diplomatic ties, Japan said in this statement in paragraph three that it reaffirms its position under the Potsdam Proclamation. The Potsdam Proclamation Article 8 is about the Cairo Declaration. So in this statement, Japan essentially reaffirms its acceptance of the Cairo Declaration, and that is the return of Taiwan to China. Just in case you are wondering whether this joint statement is a treaty in itself, in 1978 there was a formal treaty between China and Japan. It is the Treaty of Peace and Friendship. In its preamble, the treaty explicitly said that Japan and China reaffirmed that the Joint Statement would be strictly observed. So this treaty essentially incorporated and reaffirmed the Joint Statement.
The proposition that Taiwan is part of China is now agreed to, or acquiesced in, by a vast majority of states in the world. In the UN system, Taiwan is recognized as a province of China. In international jurisprudence, we now have international courts or tribunals recognizing Taiwan as part of China. Ironically in this regard, the leading case is a case which China dislikes the most, the South China Sea arbitration case which referred to Taiwan as “Taiwan Authority of China.”
The third proposition is that the PRC is the only legitimate government of China. The first two propositions are somewhat controversial; this one is not. A vast majority of the states, UN Resolution 2758, and the United States itself, all expressly recognize proposition number three.
Proposition number three is significant. When you say the PRC is the only government representing China, you're essentially ruling out [something like the] two Koreas or two Germanys. The PRC is the only party that can exercise the rights and claims in international law of the state of China. The ROC government is in no position to invoke things like the Cairo Declaration and the Potsdam Proclamation. These are rights and claims that are vested in the state of China. The ROC no longer represents China. You can ask yourself if the ROC government cannot rely on the Cairo Declaration, the Potsdam Proclamation, and so on, what is the legal basis for the ROC’s exercise of sovereignty in Taiwan?
The one China principle can be invoked against other states. This is not to say that one China principle is already part of international law. I don't think that's correct. I think the technically correct way of describing the one China principle is to say that it is the basis of international legal obligations binding on other states. Those legal obligations can come out of a treaty such as the relationship with Japan, or those legal obligations can come out of bilateral documents. Here, you will have to apply the international law doctrines of recognition, acquiescence, and estoppel. [If] you apply those international law ideas or devices, for the vast majority of the states in the world, including the United States, China can argue that the one China principle is the basis of binding legal obligations on other states.
I think the technically correct way of describing the one China principle is to say that it is the basis of international legal obligations binding on other states.
Here I will deal with the question of how to interpret General Assembly Resolution 2758. In my view, and I think this is also the Chinese view, this UN resolution restores PRC’s seat in the UN. I think the PRC's interpretation is generally correct. It is a little bit overstated, but it is generally historically correct.
Now I'm going into the [PRC] Anti-Secession Law. It’s a national law made in 2005. It talks about how China should develop cross-strait relations, what would a future reunification – a negotiation – look like, and so on. Most people rightly focus on the most important provision in the law, which is Article 8. Article 8 talks about three circumstances in which China vows to potentially use force to achieve reunification:
a formal or de jour secession;
any incident entailing Taiwan's secession. People generally interpret it to mean foreign intervention. So, for instance, the United States recognizing Taiwan as a state, or United States establishing diplomatic ties, or sending US troops into Taiwan;
situations in which reunification is no longer possible. That is a very wide and ambiguous provision of law.
In 2022, we have the latest government White Paper from China on Taiwan. [Slide shows a passage from the White Paper that reads: “We will work with the greatest sincerity and exert our utmost efforts to achieve peaceful reunification. But we will not renounce the use of force, and we reserve the option of taking all necessary measures. This is to guard against external interference and all separatist activities.”]
The takeaway that I would have on this important passage is this. The White Paper does not address the third situation [of Article 8], that is to say, the exhaustion of possibility of unification. So, for practical purposes, I think the third provision in Article 8 probably would not apply for now.
The other two provisions are very much at work. The White Paper talks about two things which would force China to use force. The first is a secessionist Taiwan independence movement, and the second is foreign interference or intervention. These two, obviously, correspond to the first two situations in Article 8. The first provision of Article 8 says we're going to use force if you have secession. As a legal matter, what would be the circumstance that would constitute secession and trigger China's use of force on Taiwan, as a matter of Chinese law?
Here are some of the possible situations: obviously, an open, overt, unilateral declaration of independence would be secession. Short of that, are there any other circumstances that may constitute secession and trigger Article 8 of the Anti-Secession Law? [Presidents] Tsai Yin-wen and Lai Ching-te, have made statements repeatedly that Taiwan is already independent, we don't need to claim independence. China doesn't take them seriously. So you might say covert secession doesn't seem to apply.
The next possibility would be the change of state symbols of Taiwan. What if Taiwan changes [its] name from “Republic of China” to “Republic of Taiwan” – would that trigger Article 8? We don't know. I think it might. What if Taiwan changes other state symbols like the national flag, national anthem, national emblem. Would that trigger Article 8? We don't know.
If Taiwan should abolish the two provisions in the ROC Constitution that are generally recognized to [acknowledge] one China, would that trigger Article 8? Article 4 and Additional Article 11 in the ROC Constitution essentially follow the one China policy. What if these two provisions are abolished?. In Taiwan, amending the constitution is terribly difficult, so we don't think it will happen anytime soon. But would that trigger Article 8? I think it will.
The other, more distinct possibility is the reinterpretation of the Constitution. Taiwan's Constitutional Court could say: “Well, actually, those two provisions of the Constitution do not mean we claim sovereignty over the mainland. Taiwan is just Taiwan.” Would that trigger Article 8?
Some years ago, I think in 1992, there was an attempt to ask the Constitutional Court to interpret Article 4 of the ROC Constitution. At that time, the Constitutional Court said, “This is a political question; we're not going to do that.” What would the Constitutional Court say in the future if the same case goes to them?
I will now move into the final topic, Taiwan in Chinese courts. Official Chinese law and policy sees Taiwan as a province of China. Actually, China’s National People’s Congress (NPC) has a delegation of thirteen deputies representing the province of Taiwan.
The Chinese courts actually take quite a pragmatic attitude towards Taiwan.
The Chinese courts actually take quite a pragmatic attitude towards Taiwan. There is a striving for legal normalcy to deal with cases involving Taiwan. In the past two decades or so, Chinese courts have adopted a pragmatic position in regard to recognition of the validity of Taiwan's laws, legal process, and judgments. It is possible now in China to have the courts recognize and enforce Taiwan's civil court judgments. The Supreme [People’s] Court has a judicial interpretation to that effect. The Supreme Court also allows Chinese courts to apply the law of Taiwan in civil cases involving Taiwan. Of course, China and Taiwan have an agreement on cooperation in criminal cases.
What about the government of Taiwan? Chinese courts, surprisingly, also take a very pragmatic attitude to that. The evidence for that is a case published by the Supreme Court at the end of last year. The case is extraordinary. The county government of Kinmen in Taiwan started a lawsuit in the PRC Xiamen Maritime Court some years ago, I think it was 2017-2018, suing certain Chinese companies for causing marine oil pollution in the Kinmen waters. The PRC court decided in favor of the Kinmen County government. It applied Chinese law and said the polluter should pay for the cost of cleanup.
The court did not address the most important issue in that case, which is whether the Kinmen County government actually has legal standing in China. If I'm the lawyer for the defendant, the first thing I'm going to argue is: What is this Kinmen County government? Under the PRC legal system, this county government simply has no legitimate status. They should have no standing to bring a lawsuit against us. Well, that was not addressed by the court. We don’t have the full judgment but the Supreme Court apparently thinks this is a very good judgment. They published it as a “typical case,” a “dianxing anli” (典型案例), and they released the case in the news media. At least Chinese courts implicitly recognized the de facto existence of a Taiwan governmental body, and that, I think, is important.
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Wilhelm: Why do you think the Chinese court accepted the Kinmen County government as a legitimate entity, sufficient to be in court as a plaintiff? Do you think it was part of a diplomatic strategy to show an attitude of legality and reasonableness to the Taiwanese people?
Ling: The Supreme Court published a batch of four cases called “Typical Cases on the Protection of the Legal Rights and Interests of Taiwan Compatriots.” In a broad way, this comports with larger PRC policy, which is: even though we fight Taiwan independence, we're going to promote cross-strait exchange. We're going to protect the rights of Taiwanese companies and even the Taiwanese government bodies.
Politically speaking, I think the Supreme Court is pretty much following this party policy. Legally speaking, this position of the Supreme People's Court is most reasonable. In fact, it would not be a surprise for most lawyers in other countries. In the common law system, there is a clear line of jurisprudence recognizing a government body that has not been recognized by the state. For instance, you have English courts giving some recognition to the East German authorities at a time when the United Kingdom did not recognize East Germany either de jure or de facto. This is all because of common sense, because of maintaining the normal civil and commercial order. I think the Chinese court is showing practicality, pragmatism, and reasonableness. In this dark time in the cross-strait relationship, this is a ray of light.
Wilhelm: To your knowledge, have any mainland government agencies filed any kind of claims in the courts of Taiwan?
Ling: I searched the database and I talked to colleagues. It seems that this Kinmen maritime case is the only case in which the government of mainland or Taiwan filed a lawsuit against the other side.
Wilhelm: What is the PRC’s strongest argument under international law for its legal claim to the territory of Taiwan?
Ling: Obviously, this is not going to be something that will be heard by the International Court of Justice. We can talk about the role of international law in broader politics a little bit later. In terms of the strongest points that China makes in regard to Taiwan, I would point out three things. First, reliance on historical documents is something that both PRC and ROC shared. The ROC, up until the Chinese Communist Party government took power, essentially argued exactly the same thing as the PRC. They also relied on the trifecta of historical documents ... to say that Taiwan is part of the state of China.
Second, recognition by the majority or large majority of the states, by the United Nations, and by international institutions plays very strongly in China's hands.
At the end of the day, international law has a limit in terms of the role it can play in settling this dispute.
China sometimes may not be able to articulate some of those international legal arguments well enough, or in a way that is persuasive enough, but I think overall, there are historical legal materials that are in China's favor. But at the end of the day, international law has a limit in terms of the role it can play in settling this dispute.
Wilhelm: It seems that we sometimes combine two separate issues when we’re talking about Taiwan and its status. One is the territory of Taiwan and the other is the fate of the people and society of Taiwan. Even if all the jurists and scholars in the world were to say, “China is right, it has title to Taiwan,” it is still not the same as having the right to invade and attack a thriving, peaceful society.
Ling: The political and moral force behind this argument against the use of force is incontrovertible. The PRC’s position is also that the use of force is not something that they are going to consider lightly. In fact, the 2022 White Paper makes it quite clear, using explicit language, that this is going to be the very last resort.
So on that, I don't think the PRC government would disagree with you. Now on the question of people, I have argued in relation to Hong Kong that you cannot just apply traditional international law to territory as if it is vacant of population. This is the part that I want to emphasize, the difference between legal analysis and political or policy arguments.
International law still is quite clear that there is no legal right of secession. International law does not prohibit secession, but there is no legal right of creating an independent state against the will of the central government. So that means we need to have a political process to remove the danger of use of force.
For now, the vast majority of Taiwanese people are in favor of the status quo. The optimal status quo, in my view, is the one characterized by President Ma Ying-jeou: the three no’s. No reunification, no independence, no use of force. But unfortunately we seem to be moving farther and farther away from those three no’s right now.
International law does not prohibit secession, but there is no legal right of creating an independent state against the will of the central government.
Wilhelm: We frequently hear the phrase that Taiwan is a breakaway province from China. What if we think about the Republic of China as having lost 95% or 98% of their territory, and they are what remains of a state? The perspective about who is the breakaway party shifts.
Ling: I think it's recognized by most states around the world that what happened in the late 1940s with the civil war in China is you had two competing governments, the Communists and the Nationalists, and the Communists won the war, controlling 98, 99% of the territory and population. Civil wars usually end quickly, but in this case it just never ended. In that situation, logically or legally, there is no inevitability in saying, “Well, if you have two governments standing side by side within the same state, other states can recognize both governments even though each government claims sovereignty over the entire territory.” That's legally quite possible. It has happened with two Germanys, and it has happened with two Koreas. But in China, it's not possible because the PRC and the ROC, for a while, insisted that you must recognize only one government. One is the king, the other is the bandit, and other states went along.
That is the third proposition in the one China principle. You must recognize PRC as the sole legitimate government of China. The vast majority of states have done that, the United Nations has done that. You are essentially ruling out the legitimate status of Taiwan in international law. I think that probably is one of the most important and strongest points that China could make.
Audience question: How does the one China, two systems paradigm fit here? Hong Kong, of course, is the example of one country, two systems in practice.
Ling: I think the overwhelming majority of people in Taiwan reject the one country, two systems model for Taiwan. What happened in Hong Kong, especially following the implementation of the National Security Law, seems to cause people to even have less confidence in how this model can apply to Taiwan in a way that can preserve the rights and freedoms and way of life of Taiwan.
One thing in Hong Kong that made the model less and less palatable is the fact that when it started to be implemented over the past two and a half decades, the Chinese government started to interpret the policy more and more in favor of central power. It started, for instance, in the [PRC] government white paper on Hong Kong, in which it argued that the central government has the so-called overall jurisdiction or overall governance power, quanmian guanzhi (全面管制) in Hong Kong, even though it is not written in the Basic Law anywhere.
Then in 2020, they enacted the National Security Law, even though the Basic Law itself said quite clearly that National Security Law ought to have been made by Hong Kong. ... At this moment, and probably for the foreseeable future, the one country, two systems model for Taiwan is dead.
Wilhelm: What do you see as a possible entry point for something different? And what should the US role be? Some suggest that it would be better if the US and other countries stayed out of the picture and the two sides of the Taiwan Strait could reach an agreement between themselves.
Ling: The mainland and Taiwan need to talk. They need to negotiate. The current status is dangerous. At any time, we have the risk of some incidents that can cause catastrophes. But in order to talk, you need to have a shared framework. This is what international relations theorists call an “intersubjective understanding.” That is to say, an understanding that recognizes the legitimacy of each other's narratives. The 1992 Consensus used to be such a shared framework, such an understanding. Now we don't have that. I, personally, would blame it on Taiwan. The DPP [Democratic Progressive Party] government, when they came to power in 2016, withdrew that understanding from cross-strait relations. But [DPP Presidents] Tsai Ing-wen and Lai Ching-te have not been able to put in anything as a substitute.
The mainland and Taiwan need to talk. … But in order to talk, you need to have a shared framework.
Biden's repeated assurance that the United States will come to Taiwan's rescue in case of armed attack gives Taiwan a false sense of security and a lack of urgency. But I think the transactional, volatile nature of Trump policy might mean that Taiwan will take this matter urgently. We now may have a possibility of the mainland and Taiwan thinking about the situation afresh, and hopefully at least, trying to find a common understanding, a shared framework.
Wilhelm: The DPP’s problem with the 1992 Consensus seems to be that they didn’t actually believe there was a genuine consensus. There was a show of a consensus without there being a real consensus.
Ling: This so-called ‘92 Consensus, which is “one China, different interpretations, yizhong gebiao (一中各表) even if it is reduced to a piece of writing, and both parties signed it, it would still be something that is intrinsically ambiguous. But it remains true that this idea of the ‘92 Consensus served as the working basis for cross-strait corporation for eight years under Ma Ying-jeou. And Tsai Ing-wen, in her first inaugural address, said she respected this fact of 1992, the both sides seemingly agreeing to something. But in the end, I suppose for reasons of domestic politics, the DPP government never embraced the 1992 Consensus, and that is unfortunate. ...
That means we need to find something new. What is it? Could it be some sort of provisional pledge, like the situation in Hong Kong: “For the next 50 years, we are not going to declare independence, and you are not going to use force.” Can we have something similar to that? Perhaps we need a third person to mediate, a third person with gravitas. Right now it's just unfortunate that China is raising the slogan of reunification. Taiwan, in the eyes of China, is moving farther and farther away, and of course this danger of use of force seems to be looming all over us.
Wilhelm: You pointed out that the most recent White Paper does not mention that the possibilities for peaceful reunification should be completely exhausted for force to be used. Do you understand that to mean that even if possibilities for a peaceful unification are not exhausted, whatever Beijing might deem to be a “major incident” could trigger use of force?
Ling: I'm sometimes asked by my students: why do you pay attention to Chinese law? China is not a country of rule of law. The Chinese Communist Party would not pay attention to the law if it wants to invade Taiwan. In a sense that is true. But the Anti-Secession Law, the White Paper at least give us information about the thinking of the Communist Party and their policy preferences in regard to Taiwan. So we need to pay attention to what they say. ...
The third situation, exhaustion of reunification possibility – well, as a matter of legal analysis, you might say that if you're going to invoke that vision, you probably need to give notice first. I don't think the Communist Party will pay attention to that. But I think it is significant that the White Paper says nothing about “we are losing hope, we don't think reunification is possible in the near term.” The White Paper seems still hopeful that we are making progress and reunification is our ultimate destiny, and so on. I don't think this third provision needs to worry us, for now. We can just focus on the other things that that the White Paper warns us about.
Audience question: President Xi Jinping of China has said that the Taiwan question should not be passed from generation to generation endlessly. US officials have made guesses about possible deadlines that have been set by the Chinese leaders. What is your sense about these different timeline scenarios?
Ling: There hasn't been a publicly announced timeline or deadline. And why would China do that? Keeping the deadline under wraps works to China's advantage. Xi Jinping clearly has a sense of urgency in resolving this problem. But would that go as far as using force against Taiwan? So far I don't see clear evidence for that.
Again, the situation is ominous. Lai Ching-te has declared the mainland to be a hostile force, and if we look at the United States, there are about 40 bills before the US Congress regarding Taiwan. I sometimes have the feeling that some US congressional people might want China to start an attack on Taiwan ... because many of those legislative proposals would constitute what China might consider to be US intervention into Taiwan.
Everyone needs to calm down and start to talk and think about how to start a process of realistic negotiation, rather than just fanning emotional sentiment and increasing the tension.
Q: One of the propositions of the one China principle states that the PRC is the only legal government representing the entire Chinese people. What does “the entire Chinese people” mean? It almost sounds as if China is saying that it has the right to control and govern Taiwan because its people are ethnically Chinese. If that's the case, then they also equally have the right to control Singapore, because it's largely ethnically Chinese. What is your understanding?
Ling: This is obviously a political statement. As a matter of law, the government represents a state. As a policy matter, in its overseas Chinese policy, in its policy to Taiwan, Hong Kong, and Macau, China has historically sometimes claimed leadership for all the ethnic Chinese people. They have political or moral expectations for Chinese people to act in a particular way, basically to support China in its national reunification cause. That has been Chinese thinking for decades.
But coming to the matter of law, when you look at bilateral statements between China and the US, if you look at UN Resolution 2758, it all talks about recognizing PRC as the sole legitimate government for the state of China, which is what international law would envisage. Whether you represent the whole people, whether you have special rights or special interests in terms of ethnic Chinese, especially for those who are living outside, it's quite a different matter. How far China will go, especially if Chinese action is at the expense of the sovereignty and the legal order of other countries, that remains to be seen.
Wilhelm: Russia has made legal arguments to try to legitimize its invasion of Ukraine. Do you see China making any of the same arguments with respect to Taiwan?
Ling: I think the Russia-Ukraine situation clearly presents a mixed bag for China, and the Chinese position has been ambivalent. ... China has not recognized the annexation of Crimea. China has not recognized Russia's territorial claim in Ukraine. China supports Russia in the war, but China does not say that the Russians’ use of force in Ukraine is legal or lawful. ... The fact that you have a referendum in Crimea declaring independence from Ukraine, and then joining Russia, that is a double-edged sword for China as far as Taiwan is concerned.
China has not recognized the annexation of Crimea. China has not recognized Russia’s territorial claim in Ukraine.
What I think is encouraging for China is this split public opinion in the world, especially in the global South, in terms of this clearly blatant violation of international law by Russia. If China should use force on Taiwan, China could well expect the world to be even more split. You might not even be able to get a General Assembly resolution condemning the use of force on Taiwan.
Wilhelm: The opinion that was issued last year by the Supreme People’s Court and several government ministries on how to apply the Anti-Secession Law says calling a referendum of the Taiwanese people on the question of statehood or independence would constitute a criminal act. Could you talk about this move to criminalize holding a referendum?
Ling: Because of the one China idea, Chinese criminal law in theory could apply to the entire territory of China, which would include Taiwan, from China's point of view. So there has been this crime of secession under Chinese criminal law for many years. Potentially it could apply to Taiwan, but it was never explicitly made so until 2022. When China issued this so-called opinion about the punishment of the crime of secession, it set out several specific acts, and one of them was the organizing of a secessionist referendum.
The other thing that the opinion said – and this is based on a 2018 amendment of the Chinese Criminal Procedure Law allowing for criminal trial in absentia – the opinion said we're going to apply it to crimes of secession. People in Taiwan who do [secessionist] things can be tried in China in absentia if the evidence is straightforward. So far, I don't think China has done that. It is mostly symbolic.
Wilhelm: The Anti-Secession Law does seem to impose obligations on ordinary people. It says that all Chinese, including all people in Taiwan, have the obligation to work for unification and are barred from supporting secession. Could a teacher making statements in a classroom deemed to be supportive of secession be in violation of the Anti-Secession Law?
Ling: That could be so under the 2022 opinion. The opinion did criminalize promotion of secession in areas of education, culture, news media, and so on.
Wilhelm: This is quite terrifying, I would think, for not just people who are government officials but ordinary professionals who might, in the course of their writing or their teaching, say things that could be construed to be secessionist simply because they are not endorsing the one China principle.
Ling: In theory, yes, and it is magnified by the introduction of in-absentia trial. Chinese criminal law can apply to all Chinese nationals worldwide, wherever you are. And, in fact, even if you are a foreigner outside China, if you do something against China's national security, in theory Chinese criminal law can apply to you. But as a practical matter, I actually have searched the Chinese court database on this point, there have been very few cases in which foreigners have been prosecuted for something that is done outside China. Most of the cases relate to drug offenses. National security crimes, very rarely.
What I usually tell people is, in theory, the risk is always there. The practical matter is that China, even though they have the law on the books, it is rarely enforced in practice.
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Bing Ling is a professor at the University of Sydney Law School and associate director of its Centre for Asian and Pacific Law.
Suggested citation:
Bing Ling, “What Does PRC Law Say About Taiwan?” USALI Talking Points, June 28, 2025, https://usali.org/publications/talking-points-what-does-prc-law-say-about-taiwan.
The views expressed are those of the speaker, and do not represent those of USALI or NYU.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.