The long-standing dispute between Washington and Beijing over Taiwan seemed to reach an impasse in recent months. Observers highlight the Biden administration’s unequivocal commitment to Taiwan’s defense as a calculated effort to deter an imminent Chinese military assault. While the prevailing U.S. narrative often portrays Taiwan as a strategic buffer — a crucial geopolitical asset under the “island chain defense notion — such a military-centric approach risks eliciting counter-escalation from China and escalating tensions even further.
The genesis of the crisis, in reality, is anchored in a tangled web of legal agreements and shifting norms. Accords that were once sufficient to navigate the complexities successfully are being eroded. China and the United States seem driven toward military posturing, fueled by fear and mistrust. In response to the disrupted status quo, a more fitting remedy is warranted. Revisiting the often sidelined legal and normative dimensions could pave the way to a more constructive and potentially de-escalatory position.
Legal quagmire
The legal complexities were first formalized in three joint communiques issued by Washington and Beijing in 1972, 1979 and 1982. These constituted a broad diplomatic thaw. Despite recognizing the People’s Republic of China as the only legitimate government of China and acknowledging Taiwan as a part of China, Washington’s rhetorical ambiguity in these agreements left many questions unresolved.
This course largely stems from the evolving U.S.-Taiwan collective identity, transitioning from being anti-communist allies from the 1950s to 1970s to being democratic partners since the 1990s. As articulated in one related U.S. statement in December 1978, “the American people and the people of Taiwan will maintain commercial, cultural and other relations without official government representation …[and] will seek adjustments to our laws and regulations to permit the maintenance of commercial, cultural, and other non-governmental relationships in the new circumstances that will exist after normalization.”
While established U.S. policy leaves the Taiwan question to be resolved by the people on both sides of the strait, with added conditions, its emphasis on the consent of Taiwan’s people and without unilateral changes is tantamount to enforcing contextual constraints on the three communiques.
Legal challenges arise from differing interpretations of these agreements’ lawfulness. The signing of the earlier 1952 Sino-Japanese Peace Treaty — alternatively known as the Treaty of Taipei — symbolizes that the transfer of Taiwan’s status was de facto and de jure finalized from Japan to China.
While the three joint communiques are seen as internationally binding, the absence of judicial rulings in U.S. domestic law maintains the fog, thereby inviting consistent attacks on their validity. Former U.S. Secretary of Defense Mark Esper, during a meeting with Taiwan’s leader, Tsai Ing-wen, explicitly asserted that “the one-China policy has outlived its usefulness.” Similarly, Michael Rubin of the American Enterprise Institute said that “Washington is under no obligation to abide by outdated arrangements.”
The U.S. Congress enacted the Taiwan Relations Act in 1979, laying a strong foundation for selling arms to Taiwan’s military. The act has also elevated the Taiwan question to the status of an institutionalized national security-related duty and obligation of the United States, giving it discretion on intervention in the event of a military offensive by Beijing.
Leverage and countermeasures
The last five years have further showcased the role of Congress both as a strategic counterbalance and as a norm-maker in shaping the terms of U.S. foreign policy against China. Key proposals such as the Taiwan Invasion Prevention Act, the Arm Taiwan Act and the Taiwan Defense Act, convey a clear and robust bipartisan pro-Taiwan bias that has long been entrenched among American legislators. Proponents of arming Taiwan enthusiastically embrace these initiatives and encourage spending on asymmetric defenses. One might be led to think the island is a tough nut for Beijing to crack, militarily speaking.
However, this tendency has not gone unnoticed by Beijing, which has developed its own set of countermeasures. It’s virtually certain that Beijing would resort to force in a worst-case scenario, even if the cost of war were extraordinarily high. The balance of resolve decisively favors Beijing over its distant rival because bringing Taiwan into its fold directly serves the ultimate goal of national rejuvenation. For the leaders, Taiwan is not merely a territory with core security interests. It’s a matter of national pride and security.
Recognizing the potential pitfalls of military confrontation, some U.S. lawmakers are exploring legal avenues to support Taiwan. Specifically, they are considering devising an exemption that would allow U.S.-led intervention in the future, given that the non-intervention principle under UN regulations would prohibit such action because of Taiwan’s current status as a Chinese territory. In their minds, any violation of these preexisting foundational principles, if coupled with ongoing questions about the righteousness of Beijing’s sovereignty, could undermine its claim to the island.
Therefore, they pivot to legitimizing strategies and norm-shaping. Following the trip to Taiwan by House Speaker Nancy Pelosi, more American delegations landed in Taiwan. Newly elected House Speaker Kevin McCarthy’s April meeting with Tsai in California sustained the hardening pattern in the U.S. approach to China. But they amount to more than manipulating risk or braying for war. These moves, along with Taiwan’s designation as a major non-NATO U.S. ally, hint at a desire for closer U.S.-Taiwan ties.
In a similar vein, Taiwan isn’t sitting idle. The authorities have paralleled their American counterparts in challenging Beijing’s standing rules over the island. Taiwan’s foreign affairs leader Jaushieh Joseph Wu, recently called for Taiwan to have a seat in the UN, signaling a calculated, revisionist approach to redefine Taiwan’s status from a Chinese territory.
This is beyond rhetoric and a deliberate attempt to shift the discourse. By framing China as an autocracy that is indifferent to humanitarian concerns, Wu positions Beijing as the antithesis of world peace. In this context, what might otherwise be seen as a transgression of sovereignty serves a just end. By seeking meaningful participation in global institutions, Taiwan is not just asking for a seat at the table but is actively altering the global rulebook in its favor, thereby transferring its loss of standing under existing norms that have long favored Beijing.
Equally noteworthy, China recognizes this assertiveness and reacts by engaging in more frequent military activity near Taiwan. Many might argue that the pattern indicates an increasingly normalized military provocation in that region. Indeed, through coercive diplomacy and with a compelling (even swaggering) use of force, China’s leader leverages the threat to repeatedly send adversaries clear signals. More important, it fulfills the strategic goal of active defense, equivalent to the concept of A2/AD, by delaying or preventing an adversary from entering the theater of action and keeping hostilities at a low intensity.
As a component of Beijing’s calculus, the military operation is in essence a practice striving for control — rather than attack — over air or sea and aims to emphasize China’s legitimate rule over Taiwan and undermine that of the United States. It, too, coexists with linguistic choices and diplomatic moves. A statement issued by the Chinese People’s Political Consultative Conference said Pelosi’s visit “gravely violates the one-China principle” and international norms. Further, Beijing has gone to great lengths to selectively accommodate locals by laying out visions for a post-unification Taiwan. The latest white paper confirms the first-time permission to have foreign consular ties with Taiwan by reinstating autonomy as a special administrative territory of China.
Together, they form the Chinese art of “rightful resistance” — and serve as a gauge of both domestic and international support for its claims. Beijing aspires to gain recognition of its rights and garner a favorable bargaining position against Washington within a rules-based international order under American leadership. If the U.S. remains aloof, it risks being seen as disregarding the very international norms, rules and laws it claims to uphold. In this regard, the strategy is a win — or at least a chance for Beijing to delegitimatize U.S. authority.
Call for de-escalation
U.S.-China relations are bound to be characterized by competing interpretations of Taiwan’s status for a long time to come. This scenario not only presents a demanding legal minefield but also unveils a dimension of strategic competition that is of paramount importance. The norm-driven approach has been a central feature of the statecraft employed by both states in the broader strategic competition over regional rule and order beyond Taiwan. By resorting to norm-legitimating strategies to secure strategic gains during crisis bargaining, the great powers will undoubtedly grow more adept at exploiting legal resources to establish the forms of control that sustain their supremacy and delegitimize that of others. While the role of military power cannot be discounted, the urgency to move beyond mere military posturing has never been greater. It is high time to halt the escalating, reckless deterrence-only policy before it puts millions of lives at stake.
