TAIPEI (Taiwan News) — The Australian government executive branch's sole authority to declare war risks Australia getting drawn into a war with China over Taiwan without clear legal justification.
That is according to Australian international law expert Ben Saul, a professor at the University of Sydney. Currently, the Australian executive can enter into armed conflicts without input from parliament, creating conditions that challenge United Nations conventions stating countries must justify going to war before the U.N. Security Council, according to Saul.
“As we’ve seen with really controversial wars, like Iraq in 2003, the public is deeply concerned about the use of military force in situations that could be illegal under international law,” he told Australian magazine Crikey. He said that if the government were required to justify a decision to go to war, this would satisfy U.N. requirements under international law.
“There’s lots of talk about potentially defending Taiwan, but neither Australia nor the U.S. has ever explained what would be the legal basis for doing so,” Saul said. He also said that both Australia and the U.S. say that Taiwan is not a state, and that under international law it cannot draw on the right of self-defense and collective self-defense.
“So you would want to know Australia is on very solid legal grounds if it is to make a decision to go to war in a case like Taiwan,” Saul said.
Saul made the comments as Australia conducts a parliamentary enquiry into its executive’s powers to unilaterally declare war. The Australian executive is made up of the prime minister and about 19 ministers, and its decisions are made behind closed doors.
Australian Foreign Minister Penny Wong speaks about AUKUS in June 2022. (AP photo)
The leader of a campaign to reform war powers and former diplomat Dr. Alison Broinowski said that America was not beyond “contriving circumstances” to justify going to war, referencing the U.S. invasion of Iraq, which the U.N. said was illegal in 2004.
Broinowski said that if Australia were to join the U.S. in a war against China to defend Taiwan, it would be breaking its commitment to an international rules-based order, and that requiring parliamentary oversight would increase protection against this happening.
Australian Foreign Affairs Minister Penny Wong has been accused of prejudicing the outcome of a parliamentary enquiry into war powers reform after she said that she believes it is important for the security of Australia that the issue “remains a power and prerogative of the executive.”
It is not clear if Australia would defend Taiwan militarily if China invaded, though the government did increase its security presence in East Asia last year through a security cooperation agreement with Japan in 2022, and by joining AUKUS in 2021.