Taiwan conflict: risk and response

It is only a matter of time before China uses force to exercise territorial sovereignty and jurisdictional control over Taiwan. It is almost inevitable that the United States will use force to oppose China. And because of the Philippines-US Mutual Defense Treaty (MDT) of 1951, we risk being drawn into the conflict. Therefore, the Philippines must formulate its position on this impending military conflict.

At the heart of the TDM is Article IV, stating that each party recognizes that “an armed attack in the Pacific area against either party would be dangerous to its own peace and security and declares that it would act to meet common dangers in accordance with its constitutional processes.

Yet its proper interpretation requires references to preambular clauses and Articles I, III, V, and VI, and alignment with the Philippine Constitution, existing laws, and treaty obligations.

The MDT covers military conflicts resulting from: 1) an external armed attack against a “metropolitan territory or a Pacific island territory” under the jurisdiction of either party; and 2) an armed attack on the “armed forces, government ships or aircraft in the Pacific” of either party. This does not include conflicts resulting from an aggressive attack by the United States or the Philippines against another country. The foreign affairs departments of the parties must jointly determine the nature of any attack.

The MDT recognizes multiple responses. The default response is a peaceful settlement through the United Nations Security Council (UNSC). An alternative is to “act to face common dangers”; that is, to join the military conflict. The use of the latter must comply with constitutional requirements and respect any future action by the UNSC. Another alternative response is non-involvement.

So would US involvement in a military conflict over Taiwan trigger the MDT? What response should the Philippines adopt?

No.

US involvement in a military conflict with China over Taiwan will not bind the MDT. Such a conflict would not result from an outside armed attack on the mainland of the United States or a Pacific island territory. Taiwan is clearly not US territory. Also, in 1952, the United States published a map depicting the coverage of the MDT, and Taiwan, its waters and airspace, are not part of the treaty area.

Moreover, given recent US statements and actions, the conflict would not be one of an aggressive Chinese attack on a US force, ship or aircraft. This last statement may be controversial, but it is firmly anchored in the constitutional, statutory and treaty instruments of the Philippines.

The Philippines recognizes that the land mass, internal waters and territorial sea of ​​Taiwan and its resulting airspace are part of the territory and are subject to the full sovereignty and jurisdiction of China. Although the Philippines voted against UN General Assembly Resolution 2758 (1971) withdrawing Taiwan from the UN while restoring China to its seat in the UNGA and granting it a seat in the UNSC, the Philippines signed a joint communiqué with China in 1975 in which it recognized the government of the People’s Republic of China “as the sole lawful government of China” and acknowledged that “there is only one China and that Taiwan is an integral part of Chinese territory”. This bilateral instrument is binding under the Philippine Constitution. It has been applied by the Supreme Court in at least four cases and applied by the executive and legislative departments of the Philippine government.

Thus, any US military involvement in Taiwan, which is premised on Taiwan independence, would not qualify as defensive. The MDT itself prohibits a response from the Philippines that would violate its own domestic laws and international obligations asserting China’s territorial sovereignty over Taiwan. The only legitimate response on the matter from the Philippines is active non-involvement.

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Dr. Melissa Loja and Professor Romel Bagares are independent scholars of international law.

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Martin E. Berry