China Expands Legal War against Taiwan and Its Like-minded Partners

On the 21st of June, China issued the “Notification on Punishment of “Taiwan Independence” Diehards Who Commit Crime of Splitting the Country and Inciting the Secession (關於依法懲治“台獨”頑固分子分裂國家、煽動分裂國家犯罪的意見).”  It is a new legal notification enacted based on “Anti-Secession Law (反分裂國家法)” and the “Criminal Law of the People’s Republic of China” from 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. The new legal guideline specifies that it is forbidden to propagate Taiwan’s international space and alternative interpretations of what constitutes China.

The eagerness to minimize the claims for independence are neither novel nor difficult to understand from Beijing’s perspective, but this new legislation is a new level of restriction that could affect anyone working with or on Taiwan issues. It has not only become illegal in accordance with first paragraph of Article 103 of the Chinese Criminal Law to advocate for independence but also promote Taiwanese participation in international organizations that require recognition as a state and teach or discuss alternative interpretations of the history of China and its control of Taiwan.

“By promoting Taiwan to join international organizations that are limited to sovereign countries, or by conducting official exchanges and military contacts with foreign countries, it is planned to create “two China”, “one China, one Taiwan” and “Taiwan independence” in the international community”.

“通過推動台灣加入僅限主權國家參加的國際組織或者對外進行官方往來、軍事聯系等方式，圖謀在國際社會制造“兩個中國”、“一中一台”、“台灣獨立”的”

Implications of the New Legal Guidelines

Chinese state media has stated that these new legal guidelines are targeting just a few diehard advocates for Taiwanese independence. They may, however, also have implications for anyone who has advocated for Taiwan’s international space or organized open discussions on this topic. One question that arises is whether anyone that differentiates between Beijing’s “one China principle” and the European “one China policy” is now guilty of a severe crime in China punishable, with a lengthy prison sentence. That would put all European parliamentarians at risk. Further, advocating for Taiwan’s inclusion in the World Health Assembly (WHA) of the World Health Organization (WHO) could be another reason for arrest. This is as per the definition of participation in these organizations as related to statehood according to China, but this is not necessarily how other states define the membership. Such membership, or international space in general, could be deemed to rest upon humanitarian arguments rather than statehood. The various Taiwan friendship groups in different parliaments around Europe will all fall under the guidelines immediately as they are “colluding” with separatist elements.

The question, of course, has to be if the new legal guideline has implications only for Taiwan or if it could be implemented internationally. Interestingly, one day after the reveal of the new guideline in simplified Mandarin, the legal guidelines were presented in People’s Daily Online, the Chinese Communist Party’s mouthpiece, using traditional Mandarin characters that are used in Taiwan and not in China. The use of traditional Mandarin indicates that the target audience is primarily in Taiwan, or ethnic Chinese that use traditional characters. There are also reports about how the launch of these new legal guidelines coincide with two U.S. State Department officials having traveled to Taiwan to discuss Taiwan’s international space with representatives from like-minded countries. This indicates that although the primary target for these new legal guidelines are Taiwanese as the Chinese state media has mentioned, a secondary objective is likely also to discourage free and open discussions about Taiwan’s greater inclusion and participation in international affairs. This is a topic that has gained traction in recent years, especially following Taiwan’s noteworthy exclusion from the WHA and the WHO during the COVID-19 pandemic. Many European parliamentarians and academics have engaged in such discussions in recent years. As such, more caution would need to be used when traveling to Taiwan, especially if it is on invitation from the Taiwanese government bodies. It is unclear if this would constitute a criminal offense, or where the line for criminal offense is drawn.

With at least 59 states having signed extradition treaties with China, there is a growing concern for Taiwanese citizens traveling abroad, if they have expressed something that China would interpret as separatist or in favor of Taiwan’s international space. It is unlikely, but not impossible, that European parliamentarians, officials or academics could be arrested in most of these states on the basis of challenging Chinese laws. If the Chinese government interprets individual actions as advocating for Taiwanese independence or “distorting” what they see as the true interpretation of Taiwan in international affairs, they could be prosecuted in accordance with the new legal guidelines and China will increasingly ask their partners and ideological allies to assist.

Most concerning is that the guidelines are intentionally vague and arbitrary. It is difficult to know if academic cooperation on historical issues could be a reason for arrest, as the guidelines clearly state that anyone can:

“Take advantage of using their authority to distort or tamper with the fact that Taiwan is a part of China in education, culture, history, news media and other fields, or suppress political parties, groups and personnel that support the peaceful development of cross-strait relations and national unification.”

“利用職權在教育、文化、歷史、新聞傳媒等領域大肆歪曲、篡改台灣是中國一部分的事實，或者打壓支持兩岸關系和平發展和國家統一的政黨、團體、人員的”

This could easily be interpreted as any history professor arguing for less than total Chinese control historically is conducting separatist work. It could also be interpreted that countering Chinese official propaganda or United Work Front intelligence work is actively countering Chinese unification and a crime under Chinese law.

The arbitrariness of the guidelines also lacks definition on what are the actions considered as attempts to separate Taiwan.

“Other attempts to separate Taiwan from China.”

“其他圖謀將台灣從中國分裂出去的行為”

With such vague definitions in the legal guidelines, China controls the narrative and interpretation of what constitutes a separatist attempt. It is difficult to predict how China would interpret and enforce these guidelines. Additionally, trial in absentia can be applied during the legal process. Without clear definitions and the possible use of trial in absentia, Taiwanese citizens and their like-minded partners might face legal issues without even realizing it. The Taiwanese government is warning Taiwanese citizens to consider the necessity of traveling to China while raising the travel warning for China to the second-highest orange alert.

The new legal guidelines do not come out of nowhere: There has been a consistent increase of Beijing’s pressure not only on Taiwan, but also on people that are supporting or could be supporting a greater role for Taiwan, even excluding independence. This is in fact a direct correlation with the PLA’s three principles of warfare where the public opponent, legal and psychological warfare are key elements, but the new guideline takes the warfare outside of the immediate borders of Taiwan.

Therefore, we should not see this as something new, but rather an extension and increase of the pressure on anyone that is not in line with the Chinese official view regarding Taiwan by unilateral legislation that needs to be questioned.

What Does it Mean for the European Union?

Will this have any implications for the European Union (EU) and its member-states? First of all, it might increase the limitation and restriction on Taiwanese officials regarding meetings with foreign officials and even academicians as it would be interpreted as “splittist” activities. Even though it is unlikely that China’s supporting partners would take action on arresting Chinese-claimed Taiwan independence separatists, the legal guidelines could still deter Taiwan’s like-minded partners from further advocating Taiwan’s meaningful participation in international affairs.

Additionally, the guidelines could also hamper activities between Europe and Taiwan as China has taken more measures to limit its international engagement. How much the guidelines would limit the Taiwanese officials, Taiwan’s like-minded partners, academics and Taiwan’s international space remains to be seen. The reveal of these legal guidelines should make European officials and academics think twice about traveling to China, even if they have not advocated independence for Taiwan, but maybe only supported a peaceful resolution and Taiwan’s international space by increasing its meaningful participation in the international community.

The U.S. expressed its concerns about the guidelines and urged China to “engage in meaningful dialogue with Taiwan.” As a major like-minded partner to Taiwan, how these legal guidelines affect the EU and how the EU should react to this issue are timely questions for the EU to contemplate.