Taiwan has returned to the forefront of the international scene since 2020. Its management of the Covid-19 crisis is being carefully observed, as are its reactions to Xi Jinping’s China. The Taiwanese authorities have explicitly referred to a “risk of war” between now and 2025. The defense ministries of many European countries have begun to anticipate, as a preventive measure, scenarios of war based on a possible escalation of tensions in the strait, following similar discussions in Washington or Tokyo. Among the scenarios imagined, that of a limited Chinese attack on Taiwanese territory – for example a takeover of the Pratas Islands by Beijing. An option that would have been discussed internally in China but would not be considered immediately, according to Chen Ming-tong, the director general of the Taiwanese national security office.
If these discussions are legitimate, in a context of multiplication of air and sea incursions by the People’s Liberation Army in the strait, they should not make us forget that China has tools other than military to promote its interests: economic first of all – with the continued desire to present the Chinese market as essential for Taiwan’s growth; technological as well – with cyberattack capabilities and the launch of disinformation campaigns, which regularly threaten the island, and are expected to be exacerbated in the run-up to the Taiwanese presidential election of 2024.
Serial extraditions
But Beijing could play another card in the coming years, often underestimated, by launching a legal offensive. The adoption of a national security law and its particularly rapid and strict implementation in Hong Kong in the summer of 2020 is difficult to transpose to Taiwan given the difference in status between the two territories. However, China could use the law in different ways to promote its interests vis-à-vis Taipei. In fact, it has already been using it since 2016: several hundred Taiwanese suspected of telephone scams and arrested abroad (Spain, Kenya, Cambodia, etc.) have been extradited to the territory of the People’s Republic of China, Chinese justice considering itself competent to judge them, in direct opposition to the Taiwanese government, which is asking for their repatriation.
Beijing could use the law more strategically in the future. In addition to the “anti-secession” law adopted in 2015, which provides Beijing with a legal framework for its policy towards Taiwan, the Chinese authorities could adopt more targeted legislation aimed at punishing Taiwanese individuals whom the authorities consider ” separatists” (political representatives, pro-democracy activists, etc.). Already, a first blacklist of “separatists” and their financial supporters was drawn up by the communist regime in 2020, and since last year several of them have been subject to sanctions (ban on entering the territory of the People’s Republic of China, to cooperate with Chinese organizations or citizens).
Taiwan, “special administrative region”?
Beijing could also decide to take more offensive measures, then using the law as a tactical weapon: for example by deciding unilaterally to classify Taiwan as a “special administrative region” (status of Hong Kong and Macao, since 1997 and 1999 respectively) or by suddenly adopting a “unification” law, more precise and strict than the anti-secession law.
More broadly, it is the notion of the extraterritoriality of law that is gaining ground. China, partly inspired by the United States, considers that the application of Chinese law abroad is legitimate to better defend its interests against Washington and its allies, and must extend without embarrassment. According to article 38 of the law on national security, foreigners who commit acts in violation of this text outside Hong Kong and more broadly Chinese territory would be criminally responsible and could be arrested upon their arrival in Hong Kong. Extraterritoriality is a principle of public international law often associated with economic warfare, but the case of Hong Kong reminds us that it can be used for strictly political ends. More than ever, in Hong Kong, but also in Taiwan and elsewhere, well beyond the Asian region, the legal weapon must be fully taken into account in the analysis of current and future conflicts.
Alice Ekman is a Sinologist and Asia Lead Analyst at the European Union Institute for Security Studies (EUISS). She is the author of “Bright Red – the Chinese Communist Ideal” (Flammarion, 2021) – Today Prize and Geopolitical Book Prize.