First Separatism Conviction of a Taiwanese Citizen and Its Implications

Introduction

The August 2024 conviction of Taiwanese activist Yang Chih-yuan (楊智淵) on the charge of “separatism” not only demonstrates the extensive long-arm pretensions of the government of the People’s Republic of China (PRC), but also the increasing dangers for any foreign citizen traveling to and within the PRC. Taiwan, which also is referred to as the Republic of China (ROC), is a state with existing juridical status predating the PRC.[1] The PRC, however, characterizes Taiwan as a part of China and has set out guidance, effective in June 2024, outlining punishment for offenders “committing or inciting separatism,” i.e., advocating for positions inconsistent with the PRC’s claim of sovereignty over Taiwan. 

In recent years, a number of countries—including Spain, Cambodia, and the Philippines—have extradited Taiwanese citizens to China instead of sending them back to Taiwan, underscoring the PRC’s growing global influence and increased risks for international travel.[2] In light of Yang Chih-yuan’s conviction, international travelers as well as businesses are best advised to carefully evaluate the attendant risks of traveling to or operating in China.

Competing Sovereignty Claims over Taiwan

Taiwan “is a self-governing democracy of 23.4 million people located across the Taiwan Strait from mainland China.”[3] An ROC law governing cross-strait relations describes Taiwan’s territory as follows: “‘Taiwan Area’ refers to Taiwan, Penghu, Kinmen, Matsu, and any other area under the effective control of the Government. ‘Mainland Area’ refers to the territory of the Republic of China outside the Taiwan Area.”[4] In terms of government, former ROC president Tsai Ing-wen asserted in 2021 that the PRC and the ROC are not subordinate to each other, a position that is maintained by the current president Lai Ching-te.[5] The ROC Mainland Affairs Council (MAC) stated that “the ROC is a sovereign and independent nation [and that the ROC] exercises jurisdiction over Taiwan, Penghu, Kinmen, and Matsu, and has never been ruled by the PRC.”[6]

On the other hand, the PRC Constitution provides that “Taiwan is part of the sacred territory of the People’s Republic of China. It is the sacred duty of all the Chinese people, including our fellow Chinese in Taiwan, to achieve the great reunification of the motherland.”[7] Furthermore, PRC authorities enacted the PRC Anti-Secession Law in 2005 to provide that “There is only one China in the world. Both the mainland and Taiwan belong to one China.”[8] The law also specifies that “non-peaceful means” will be used if alternative pathways to reunification have been exhausted.[9] The ROC government criticized the law for violating international principles of self-determination and peaceful resolution of disputes; it further denied the law’s applicability to Taiwan “since Taiwan does not fall within China’s jurisdiction ….”[10]

Yang Chih-yuan’s Activism and His Arrest and Sentencing

Born in Taichung, Taiwan in 1990,[11] three years after the lifting of martial law, Yang Chih-yuan grew up with and came of age during a period when Taiwan was joining the ranks of fully democratic nations, with a vibrant and varied political culture. In 2008, when Yang turned 18, he joined the Democratic Progressive Party (DPP); but he left the party in 2009, reportedly due to differences in the understanding of Taiwan’s sovereignty.[12]

Yang’s departure roughly coincided with the DPP losing the presidency to the Kuomintang (KMT). Previously in 2000, the landmark presidential victory of DPP candidate Chen Shui-bian had marked the first time in a Chinese polity anywhere that there had been a peaceful, democratic transition of power to an opposition party, though charges of corruption and political infighting between DPP moderates and fundamentalists had marred the end of his tenure. 

Chen’s successor Ma Ying-jeou of the KMT campaigned on platform that included improving ties with the PRC, in particular economic ones, marking a departure from Chen Shui-bian’s more confrontational approach. As part of that warming, the chairman of the mainland’s Association for Relations Across the Taiwan Straits, Chen Yunlin, visited Taiwan in November 2008. His visit prompted protests from young Taiwanese, known as Wild Strawberries (野草莓), which Yang Chih-yuan was a part of.[13] Police in Taipei allegedly responded with heavy-handedness, including discouraging displays of the ROC flag in the presence of the representative from mainland China.[14]   

After Yang Chih-yuan left the DPP in 2009, he co-founded the Taiwanese Nationalist Party (台灣民族黨). Although the party never contended seriously politically, PRC state security officials criminally detained him in August 2022 when he was present in Wenzhou municipality, Zhejiang province, and held him under a form of incommunicado detention known as “residential surveillance at a designated location.”[15] On August 26, 2024, the Wenzhou Municipal Intermediate People’s Court in Zhejiang province, China, convicted Yang on the charge of “separatism,” making him the first Taiwanese citizen to be convicted of this offense.[16] He was sentenced to nine years in prison and three years’ deprivation of political rights.[17]

According to a PRC spokesperson, the court found that Yang was a core leader in various political organizations, including the Taiwanese Nationalist Party, through which he promoted Taiwan independence between 2008 and 2020.[18]

Given that PRC authorities initially detained Yang in 2022, he is expected to complete his sentence in 2031.[19] But as seen in the case of former Taiwanese detainee Lee Meng-chu (李孟居), Yang may be required to remain in China until the term of the deprivation of political rights expires, thereby delaying his return to Taiwan to 2034.[20]

Reactions to Yang’s Detention

PRC authorities detained Yang Chih-yuan on August 3, 2022, a date that coincided with former Speaker Nancy Pelosi’s visit to Taiwan, which prompted speculations that Yang’s detention was a retaliation by the PRC government.[21] Former political prisoner Lee Ming-che (李明哲) underscored the fact that all of Yang’s political activities took place in Taiwan and that Yang had not criticized the PRC government or done anything illegal when he was in China.[22] Lee opined that by treating acts that transpired in Taiwan as if they happened in China, the PRC government was in effect exercising “longarm jurisdiction.”[23]

Taiwan’s Mainland Affairs Council shared this view and rejected the PRC government’s attempt to exert “longarm jurisdiction.”[24] In addition, the MAC urged Taiwanese citizens to avoid non-essential travel to China in light of the PRC government’s efforts to crack down on what it viewed as separatist conduct.[25] As a rights advocate pointed out, the absence of consular presence in China augmented difficulties faced by detainees and their families in receiving support from the ROC government.[26] Highlighting the increased risk of arbitrary enforcement, the MAC referenced a PRC official document that outlined the criminal consequences of “Taiwan independence” activities, commonly known as the 22 Guidelines.[27]

Overview of the 22 Guidelines

The PRC official document referenced by MAC is titled Opinion on Lawfully Punishing Obstinate “Taiwan Independence” Offenders for Committing or Inciting Separatism (22 Guidelines).[28] Effective on June 21, 2024, the document was jointly issued by five official bodies of the PRC, namely, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security (MSS), and the Ministry of Justice.[29] Consisting of 22 articles (and hence the informal title 22 Guidelines), the document lays out circumstances under which activities promoting “Taiwan independence” may constitute the crime of “separatism” under Article 103 of the PRC Criminal Law, as well as factors relevant to sentencing.[30]

Specifically, the 22 Guidelines list five categories of conduct that may constitute separatism (which do not expressly include any acts of violence or the use of military force): 1) initiating and establishing “Taiwan independence” organizations; 2) seeking to change Taiwan’s status through means including referendum; 3) conducting official exchanges, creating military ties, or pushing Taiwan to join international organizations whose membership is limited to sovereign states; 4) wantonly distorting or falsifying Taiwan’s status through means including education and news media; and 5) any other conduct seeking to separate Taiwan from China.[31] In general, core and repeated participants in “Taiwan independence” activities are subject to heavier punishment, and the death penalty may be imposed for crimes with undefined attendant circumstances that are “especially serious.”[32] In terms of procedure, the guidelines provide that the statute of limitation may be extended indefinitely for people who avoid investigation or trial and that they may be tried in absentia.[33]

Potential Scope of Impact of the 22 Guidelines

The 22 Guidelines could negatively affect worldwide travel, despite the PRC government’s claim that the document has limited applicability. The PRC Taiwan Affairs Office (TAO) maintained that the 22 Guidelines targeted “an extremely small number” of obstinate offenders.[34] As of August 2022, the TAO had published two lists identifying a total of 10 individuals as “obstinate Taiwan independence offenders” (including Taiwan’s current vice president Hsiao Bi-khim).[35] The TAO emphasized that there were others who were so designated, but it did not disclose their identity or how many of them there were.[36] Official public messaging also linked “Taiwan independence” with an alleged espionage network, as shown in an online post by the PRC’s MSS.[37] In an August 2024 social media post, the MSS claimed that it had recently cracked over a thousand cases of Taiwan-related espionage and discussed its efforts within the context of Yang Chih-yuan’s case.[38] Contemporaneously, the TAO established a webpage dedicated to providing information on “obstinate Taiwan independence offenders,” as well as a mailbox for the public to provide tips and reports.[39] This was an addition to the existing reporting platform for suspected espionage and other state security-related activities installed in 2018, which according to a scholar was intended for instilling fear rather than serving a practical purpose since the public would lack the expertise to discern such activities.[40]

From the ROC government’s perspective, the 22 Guidelines and related measures target all Taiwanese citizens, particularly those traveling to China.[41] According to data publicized by the PRC and ROC governments, a large number of Taiwanese citizens visit China every month.[42] The TAO reported that there were over 2.6 million entries to China made by Taiwanese citizens between January and August 2024, averaging about 325,000 entries per month.[43] A database maintained by Taiwan’s Ministry of Transportation and Communications showed that there were about 8.27 million outbound visits between January and June 2024, of which 16.3 percent were to China, averaging about 225,000 visits per month.[44] Discounting the 100,000 discrepancy between the two averages, at least 225,000 entries to China were made by Taiwanese citizens each month, and there has been an upward trend in the number of visits since 2023.[45]

The statistics presented above presumably include people who travel to China for work. About 177,000 Taiwanese workers were present in China as of 2022, some of whom were employed by international and Taiwanese companies.[46] Following the issuance of the 22 Guidelines, some business executives sought clarity from legal counsel regarding risks to their personnel, and some employers offered their Taiwanese staff an option to leave China.[47]

Traveling to Hong Kong likewise could present risks to Taiwanese citizens. Border officials have been screening travelers for their political speech and activities, asking visa applicants about the political contents of their social media posts.[48] While work visa applicants reportedly were subject to closer scrutiny, some people intending to visit the city decided to abandon their travel plans in light of the elevated travel advisory issued by the MAC in response to the 22 Guidelines.[49] Beginning in 2020, reports also emerged that Taiwanese academics traveling to Hong Kong were subject to additional questioning by border officials regarding their itinerary and their local contacts.[50] In September 2024, the U.S. Government updated its business advisory for Hong Kong, cautioning that business activities and travel to Hong Kong could be affected or impaired by the recent national security laws including the 2020 PRC Law on Safeguarding National Security in the Hong Kong SAR, and the 2024 Safeguarding National Security Ordinance.[51]

The application of the 22 Guidelines may extend beyond the borders of China. According to a 2021 report prepared by Safeguard Defenders, between 2016 and 2019, several countries had extradited or deported over 600 Taiwanese citizens to China, rather than to Taiwan, notwithstanding the prohibition under international law against extraditing people to a place with substantiated risks of due process violations, torture, or the imposition of the death penalty.[52] In violation of its agreements with Taiwan, the PRC government exerted pressure on foreign governments to extradite Taiwanese citizens to China as a means to assert its one-China narrative.[53] In light of the PRC government’s measures to counter Taiwan independence and past instances of detaining foreign nationals for political purposes, supporters of Taiwan independence may face the risk of being extradited to China.[54] As of January 2023, the PRC government had 45 extradition treaties that have been bilaterally ratified, and 14 pending full ratification.[55]

Conclusion

 The conviction of Yang Chih-yuan substantiates the PRC government’s threat of punishing advocates for “Taiwan independence,” even for acts involving peaceful speech and assembly and other fundamental rights. The U.S. Administration should accordingly implement effective measures to educate the public about the risks of traveling to or operating in China, such as by updating the State Department’s travel and business advisories.