Last month, the Federalist Society’s International and National Security Law Practice Group hosted Part II of its Answering Threats to Taiwan panel series. While Part I focused on a hypothetical U.S.-China conflict over Taiwan from a legal standpoint, Part II addressed that possibility through a military lens. The discussion was moderated by Professor Jamil Jaffer, director of the National Security Law and Policy Program at Antonin Scalia Law School and founder of the school’s National Security Institute.

Colonel Mark Cancian, a retired Marine Corps reserve officer who currently serves as a senior adviser to the Center for Strategic and International Studies’ International Security Program, presented several scenarios for a potential future conflict over Taiwan. Professor Julian Ku, the Faculty Director of International Programs at Hofstra University’s law school, provided legal commentary pertaining to each scenario. Ku focused on what kinds of U.S. military actions to defend Taiwan would be in compliance with domestic and international law.

One scenario was what is perhaps the most feared trigger for a conflict: an unprovoked invasion of Taiwan by China coupled with a first strike on U.S. military positions in the Pacific. Professor Ku opined that defending U.S. forces or territory from such a pre-emptive attack would likely not require an Authorization for Use of Military Force (AUMF). Ku went on to explain that military actions beyond those that are clearly defensive would, in the eyes of most scholars, necessitate an AUMF. This would be especially true if U.S. military engagement against China over Taiwan rose to the level of a full-scale war.

Another scenario was an invasion of Taiwan by China absent any simultaneous attack on the U.S. Taiwan’s right to individual or collective self-defense under the UN charter, Ku explained, could be challenged by China from an international law standpoint due to the fact that Taiwan is not a member of the UN. China’s permanent seat on the UN Security Council and veto authority further complicate the matter. Ku added that Taiwan certainly has a right to defend itself from invasion under customary international law. Nevertheless, while a lack of UN authorization would be unlikely to deter the U.S. from defending Taiwan militarily, it could have an effect on other countries, including America’s allies in Europe.

Colonel Cancian also presented the possibility of a Chinese blockade of Taiwan, which he described as a “more likely course of action than an out-and-out invasion.” Professor Ku explained that such a blockade would be the most challenging scenario for a U.S. president to deal with within the confines of international law. “The problem is that the U.S. doesn’t really have a good justification in this instance for using force at all,” Ku stated. “The president would still have some general authority to support and escort ships in and to defy the blockade, but from a legal perspective the U.S. would be in a tough spot.” This in turn would pose difficulties for the U.S. in mobilizing its allies and international opinion.


Watch the full panel discussion here.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].