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Abstract

Following World War II, China entered a years-long period of civil war between the Kuomintang government, which was then in power as the government of the Republic of China, and the Chinese Communist Party. After years of conflict, the Kuomintang was forced to retreat to the island of Taiwan in 1949, effectively and reluctantly ceding the Chinese mainland to the Chinese Communist Party. Despite its best efforts, the Kuomintang never regained control of mainland China in the ensuing years; however, it never dissolved and instead remained in place on Taiwan.

As a result, Taiwan, which lies a mere 80-100 miles from the coast of mainland China,5 has been independently governed for nearly 75 years.

Taiwan is now a prosperous and modern place, and despite its lack of international recognition as an independent nation, it acts in many ways as a de facto State. It is a thriving democracy with a strong economy. However, since claiming victory in the civil war and control of the Chinese mainland, the Chinese Communist Party, now ruling as the People’s Republic of China, has viewed the island of Taiwan as its rightful territory and a rogue province that needs to be brought back into the fold, by force if necessary.

Though China has made clear that forceful reunification of Taiwan is an option on the table, it is not necessarily the preferred method of returning the prodigal province to Chinese rule.

China is widely recognized as an advanced practitioner of “lawfare,” a form of legal warfare by which a country may achieve its military objectives through legal processes and without ever engaging in kinetic hostilities. In its quest to weaken Taiwan’s international standing and independence, China has made a lawfare weapon of an unlikely legal framework: international aviation law.

This article will demonstrate the pattern of China’s weaponization of international aviation law against Taiwan by analyzing (1) China’s use of military power to control the airspace around

Taiwan; (2) China’s efforts to shut Taiwan out of the International Civil Aviation Organization; and (3) the ways in which China has used civil aviation both to assert its dominance in the strait between mainland China and Taiwan and to bind Taiwan closer to itself. Ultimately, it will conclude that the result of this pattern of abuse of international aviation law is a negative impact on aviation safety.

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