[New Article] Law's Relation to Political Power in China: A Backward Transition

By Jerome A. Cohen 

I've just uploaded on my SSRN my latest article—"Law's Relation to Political Power in China: A Backward Transition," which is slated to appear in Social Research: An International Quarterly in the Spring of 2019.

In the article, I examine China's legal progress and regress in recent years. While noting certain legislative and judicial advances, I discuss the continuing reality of the unchecked powers of the police, the plight of Chinese human rights lawyers and the newly established National Supervision Commission that significantly expands the Chinese Communist Party’s incommunicado detention system to all deemed to be government officials.  

I'm pasting the introduction below. Comments are welcome!

Law's Relation to Political Power in China: A Backward Transition

Social Research: An International Quarterly, forthcoming 2019

Jerome A. Cohen New York University School of Law

Introduction

By and large, for the past dozen years, China’s professed transition toward the rule of law has witnessed more setbacks than progress. The extent to which the exercise of governmental power should be subject to domestic and international legal restraints continues to be a matter of enormous importance. This is true in every country and in relations among countries in our increasingly interdependent world. The earthshaking impact of Donald Trump’s election to the American presidency has made the relationship of law to power as preached and practiced by the United States a virtually universal concern. Yet, as Americans and others strive to cope with this new challenge, the world is also increasingly anxious about how a rising China—with more than four times the population of the United States and almost as much economic strength—respects the “rule of law” at home and abroad.

This essay, building on the excellent analysis by Jean-Philippe Béja (Social Research: An International Quarterly, this issue) updating his earlier overview of the political situation in the Central Realm, will focus on China’s domestic legal situation. In doing so, we must be fully aware that the People’s Republic of China (PRC)—an increasingly oppressive Marxist-Leninist dictatorship—denies foreign scholars, and even its own people, the opportunities for knowledge and analysis that American freedoms of expression and transparency offer domestic and foreign observers of the United States. I regret the limitations that these restrictions impose upon my comments.

Keywords: China, rule of law, legal reforms, human rights lawyers, police powers, National Supervision Commission

“The 1992 Consensus”: One Formula, Too Many Interpretations

By Jerome A. Cohen

Here is a sobering essay, Taiwan’s wooing of Asean is pointless. It should just accept China and the 1992 consensus again, by a Taiwan scholar who seems to assume that Beijing will be satisfied if Tsai returns to Ma Ying-jeou’s understanding of “One China”, with “differing interpretations”, instead of acquiescing in Beijing’s version of “One China,” which does not recognize Taiwan’s “differing interpretations.” He also doesn’t evaluate the domestic Taiwan forces that block Tsai from even accepting Ma’s view, apparently seeking to persuade Deep Green supporters of the hopelessness of their position.

For an analysis of the “1992 Consensus,” this article I’ve just published with Yu-Jie Chen on China-Taiwan Relations Re-Examined: The '1992 Consensus' and Cross-Strait Agreements would be of interest. We point out that there was never a genuine consensus. The Kuomintang and the Chinese Communist Party have different understandings of what the “1992 Consensus” means. In the Kuomintang’s view, it means “One China, Respective Interpretations” (Yige Zhongguo Gezi Biaoshu 一個中國,各自表述, OCRI). This formulation at best can be understood as a formula to implicitly agree that there is only “one China” and that Taiwan is part of that “China” but to disagree about which government is the legitimate, exclusive representative of that “China.” In the interpretation of the KMT’s ROC Government, “one China” of course means the ROC, not the PRC.

Yet, in Beijing’s current narrative, the “1992 Consensus” embodies its own “One China Principle,” which emphasizes the PRC as the only legitimate government that represents the whole of China, including Taiwan, without acknowledging that the Taiwan side may have a different interpretation. In the PRC’s view, the phrase “respective interpretations” in the OCRI formula should not exist. How’s that for a supposed “consensus”?

China’s Xinjiang Propaganda

By Jerome A. Cohen

China went through its third review in the UN Human Rights Council last November (“Universal Periodic Review”), in which many concerns about Xinjiang were raised. On Friday, the Council considered the report prepared for China (report link here). While China was able to summon many countries that have close ties to praise China’s human rights performance, such as Russia, Cuba and Iran, many countries urged China to stop its abuse in Xinjiang (including the US, Canada, Germany, Switzerland, Belgium and Australia etc). In response, China resorted to its usual rhetoric and stated that, “the Xinjiang vocational skills education and training institutions, which had been established for counter-terrorism purposes in the Xinjiang Autonomous Region, were focused on the study of legal knowledge, vocational and language skills and on deradicalization, and that they were employment oriented.”

Then the China Daily put out a report that China’s human rights record was praised by the Human Rights Council, with no mention whatsoever of the extensive international criticisms actually voiced against China. Ironically, the report features the photo of smiling Uyghur women dressed in colorful outfits (screenshot below)!

Screenshot, China Daily

Screenshot, China Daily

This reminds me of the 1977-8 first-time visit of Ted Kennedy and eleven family members to China that I helped arrange and escort. Ted wanted very much to visit a Chinese university and make a speech that might electrify the students the way Bobby had done on a Moscow visit. In order to prevent this, our hosts were instructed by the leadership that in no circumstances were we to be allowed to visit a university. In Shanghai we were told that Beijing would be the best place for a university visit. In Beijing we were told the universities were all on holiday but that Changsha would be a good place. In Changsha we were told that it only had eight universities but that Guangzhou, our next stop, had sixteen. At that point we really protested, so the hosts arranged a visit to a beautiful hilltop overlooking Hunan University so we could say that we had “seen” it and there, in a lovely knoll, were five assorted worker, peasant and soldier “students” dressed in colorful native costumes playing a variety of musical instruments. That, of course, enabled us to say we had “met with” students! When this farce led to ridicule and the assurance to our hosts that we would broadcast their charades on leaving China, they “relented” and arranged a visit to a Guangzhou university teacher’s home that they claimed was on campus!  

Photos of 1970s and 1980s China

By Jerome A. Cohen

Here are some good photos of 1980s China from the South China Morning Post, China in the 1980s: photos from a time of hope and optimism.

For color photos of China in the 1970s and ‘80s, people might also want to see the book my wife, Joan Lebold Cohen, and I published, CHINA TODAY AND HER ANCIENT TREASURES (Harry Abrams, 1st ed. 1974, 2nd 1980 and 3rd 1986). In addition to a long text, half authored by Joan, the book has 400 of her photos of ordinary life as well as art objects some of which were touted by the Mao government as recently excavated during the Cultural Revolution (in order to show continuing reverence for China’s past!!). To my amazement the Book of the Month Club bought 25,000 copies of the 1st edition. I was an academic whose university press books had never had a photo and never sold more than 2,500 copies, so I felt that Joan, a great photographer and a student of China’s art and politics, had put me on Broadway!

Those interested in PRC art, politics and artists might already know of Joan’s groundbreaking book published by Abrams, a leading art publisher, in 1986, THE NEW CHINESE PAINTING, 1949-1986. In retrospect, the post-Mao period seems like a Golden Era in some respects.

China today and her ancient treasures, by Joan Lebold Cohen and Jerome Alan Cohen

China today and her ancient treasures, by Joan Lebold Cohen and Jerome Alan Cohen

The new Chinese painting, 1949-1986, bu Joan Lebold Cohen

The new Chinese painting, 1949-1986, bu Joan Lebold Cohen

Meng Wanzhou’s case, Beijing’s response and two legal scandals highlight the ‘rule of law’, as preached – and practised – in Canada and China

By Jerome A. Cohen

I have just published an op-ed on "Meng Wanzhou’s case, Beijing’s response and two legal scandals highlight the ‘rule of law’, as preached – and practised – in Canada and China" (link here). The relevant cases are excellent windows for testing Canada's rule of law as well as the Chinese "justice".   

China’s ADD: Arbitrary Detention Deficit

By Jerome A. Cohen 

Cao Shunli, Courtesy of openDemocracy

Cao Shunli, Courtesy of openDemocracy

Year after year Chinese Human Rights Defenders has done a marvelous job of flagging the PRC’s human rights violations. This most recent report, 5 Years After Death in Custody of Cao Shunli, Human Rights Defenders in China Continue to Face Same Pattern of Abuse, taking off from the anniversary of one of many infamous instances of arbitrary detention and coming on the eve of next week’s UN Human Rights Council session (the Ides of March!), is long but definitely worth the time. 

Canada’s just begun extradition proceeding in Vancouver illustrates what the antidote to arbitrary detention should be — a fair and public judicial hearing. The embattled Prime Minister Trudeau was surely right in condemning the PRC for its arbitrary detention of the two Canadians in retaliation for Canada’s civilized legal process. The PRC and every other country that engages in systemic arbitrary detention give new definition to ADD, which should stand for Arbitrary Detention Deficit! For this the PRC should be brought to account in the media as well as in international legal institutions. In our interdependent world, extradition and its functional kin, whatever the label employed such as rendition, repatriation, deportation, removal etc, is intimately related in many ways to ADD, as currently illustrated in the PRC’s relations with not only Canada but also the United States, Sweden, Hong Kong, Taiwan and other jurisdictions. (See my article co-authored with Yu-Jie Chen on how the two questions are closely connected in the context of Taiwan-China cooperation as an example.)

My interview on the Taiwan Relations Act

By Jerome A. Cohen

This year marks the 40th anniversary of the Taiwan Relations Act (TRA). Earlier this month I had an interview at the Carnegie Council to talk about the significance of the TRA to the US, Taiwan and China. Below is the interview transcript, which is an edited update (source link). You can also listen to the podcast on the Carnegie Council’s website

Jerome A. Cohen on the Taiwan Relations Act

February 20, 2019

DEVIN STEWART: Hi, I'm Devin Stewart here at Carnegie Council in New York City, and today I am speaking with Jerome Cohen. He's a professor at NYU here in New York City, and he's also a legend in the field of Asia studies and specifically China studies.

Jerry, it's a real honor to have you here at Carnegie Council. Thank you.

JEROME COHEN: Thank you, Devin.

DEVIN STEWART: Today we're speaking about the Taiwan Relations Act, which was signed into law in the United States on April 10, 1979, and we're coming up to the 40th anniversary of the TRA, as it's also known.

Before we get into speaking about the TRA, you've had quite a background in Asia and in China and Taiwan. Can you tell us a little bit about your own personal connection with Taiwan?

JEROME COHEN: Well, my wife and I first visited Taiwan in June of 1961. It was a very drab place. We were on our way to Hong Kong. I was supposed to give a talk at the 50th anniversary of Hong Kong University. We had never been in Asia before. We had only been studying about China and Chinese for a year.

We were wide-eyed and interested, but Taiwan was a disappointing place. It had not recovered from World War II. Following Japan's surrender of the island, the Chiang Kai-shek occupation had only brought tragedy and difficulty. It was rundown and dilapidated. But the people were not, and we met wonderful people, many Mainlanders, intellectuals, law professors, lawyers, and judges who had come over with Chiang Kai-shek in 1949, but also many Taiwanese who were rising stars, some in business, some in intellectual life, but still very much discriminated against by the then-dominant Mainland minority.

We were impressed by the hospitality and cordiality, but at the end of a week we began to see that there was a method to the madness of the people we liked so much there. They all wanted to get out, and they all wanted to take us to the airport. They wanted a last-minute meeting: "Can you get me a fellowship? Can you get me a job? Can I have a visiting professorship?" It seemed a very poor future was in store for them in a highly repressed totalitarian dictatorship.

DEVIN STEWART: You had a personal relationship with at least one president of Taiwan.

JEROME COHEN: Later on, after leaving Berkeley, where I started teaching and learning about China, in 1964, after a year in Hong Kong we moved to Harvard, and at Harvard I had many wonderful students from Taiwan. It was too early for Mainland students to get there because they had no chance to leave, and we wouldn't let Chinese from the mainland into the country at that time.

But the people in Taiwan wanted to come to Harvard and were able to. Among them in the late 1970s and early 1980s was a man named Ma Ying-jeou, and he was a brilliant student from a Mainland Kuomintang Nationalist Party (KMT) family, very bright and interested in public international law, especially law of the sea. I was on his thesis committee and was head of the graduate committee that admitted him. His able wife was my research assistant, studying human rights in Taiwan, which was by then a serious problem, of course.

I also had other people associated with the Nationalist Party as my students, but people often don't realize or forget that I was also a mentor to a leading opposition party politician, the first woman to be at that level in Taiwan, Lü Hsiu-lien, Annette Lu. She served in the preceding administration to Ma's, from 2000 to 2008, as vice president. She had hoped to become Taiwan's first woman president, but she was a very independent spirit—still is, fortunately—and did not get the nomination to run for the presidency.

Of course, many of my other students in Taiwan have also been outstanding. One of the most moving moments for me was at President Ma's first inauguration in 2008 when he was administered the oath by the chief justice of Taiwan, who was also my student at Harvard Law School. To see these two talented people together at that important juncture was, as the Chinese say, fēicháng găndòngde, very moving.

DEVIN STEWART: How would you like to have perceived your impact on Taiwan's development over the past few decades personally?

JEROME COHEN: I would like to think that I've helped get some very good people out of jail. Repression was very prominent in Taiwan in the 1960s and 1970s, and we had some exciting times trying to visit people who were under house arrest, like Peng Ming-min, who ran for the presidency some years later as the candidate of the Democratic Progressive Party (DPP), the opposition that was gradually allowed to develop to Chiang Kai-shek's KMT Party.

I like, of course, to think that some of my students have taken a prominent role in improving the legal system. When I first visited Taiwan several times in the early 1960s, corruption was a huge problem. The courts were completely under the thumb of the Chiang Kai-shek dictatorship and that of his son, Chiang Ching-kuo, who was then head of the secret police. I was told half-jokingly by lawyers that an honest judge only kept the money that the winner gave him and returned the losing party's bribe.

That was a sad situation, but it was impressive to see how, beginning in the mid-1980s, Taiwan gradually developed a legitimate democratic system with the rule of law increasingly developing, with honesty becoming every day more prominent, with democracy gradually evolving, and very little violence at that time, although there had been huge violence in the repression of the late 1940s and 1950s.

This was an exciting time to see judges and prosecutors declare their independence of the ruling party. Although Taiwan has a distinctive history, most of its people are still regarded rightly as essentially Chinese in ethnicity, history, culture, values, and language. This demonstrates that Chinese people are fully capable of becoming members of a democratic society. Taiwan now is among the leading democratic jurisdictions in the world.

Yet many of its people don't even recognize how advanced they are. They still have a slightly secondary mentality. When I note that, although their government has now adopted many of the major international human rights treaties, it has yet to adopt certain others, such as the treaty against torture, some government officials say, "Well, we are not yet an advanced country," and I respond, "You are now an advanced country, and you should act like it." That's what's going on internally in Taiwan, and they're managing to make this progress under the enormous pressure of the Mainland, which in the last few years has become ever more intense.

So it's a huge challenge. I think being the president of Taiwan is certainly one of the hardest jobs in the world. You have an elite audience, newspapers, media, and television. People are so informed, they are so critical, and they, like the United States at present, are quite divided.

They're less divided on issues relating to Taiwan independence. Not over 20 percent of the people might want to take a chance, despite Mainland threats, and declare formal independence of China. Most people would not. Maybe 10-15 percent would someday like reunification with the Mainland. They still see themselves as Chinese Mainlanders, although further generational change should reduce this number..

Most of the people now see themselves as Taiwanese. They share many cultural aspects with the Mainland, the way we share many cultural, linguistic, and other aspects with England, the United Kingdom (UK). But we don't want to be reunified with England, and most people in Taiwan don't want to be reunified or integrated with the Mainland, and few want to take a chance by declaring formal independence, because nobody wants war.

So the challenge is: How do we help Taiwan maintain its de facto independence without declaring formal independence, without changing the name of the Republic of China to the Republic of Taiwan? That could well initiate a war, economic coercion, or even a blockade.

The Mainland could mobilize a variety of pressures short of all-out war, and it also maintains a huge number of missiles. One of the great challenges we Americans confront in our relations with Taiwan and the Mainland is: Can we adequately keep Taiwan armed so it can defend itself? It can't defend itself forever, but it has to be able to defend itself long enough for the United States to come to its aid, and it's far from clear—at this point it's one of the great questions we confront—whether the United States will come to its aid.

Yesterday in Washington, February 7, I was glad to see that Assistant Secretary of Defense Randall Schriver absolutely claimed that the United States under the Taiwan Relations Act will come to the aid of Taiwan if Taiwan is the victim of "unprovoked" aggression. The question might be: Did Taiwan provoke the aggression in some way?

These are complex questions, and one question is: Is it even an international matter? The Taiwan Relations Act made very clear the security of Taiwan is not a matter exclusively internal to China.

Yet the people in Beijing say: "You have no business here. Taiwan is a province of China. Don't bother us. It's our problem. You interfered by putting your fleet in the Taiwan Strait in 1950, preventing the Maoist forces from completing their control of China after they won the Chinese Revolution against Chiang Kai-shek, and now you're trying to say this is an international problem."

But of course it is an international problem, even though from Beijing's point of view they have a serious claim that Taiwan is part of China. This raises one of the fundamental questions of international law we will confront: What is the legal status of Taiwan? Should it today be deemed part of China because it once was part of China prior to China's cession of the island to Japan in 1895? Or should it now, in the light of developments since 1950—70 years roughly—demonstrating that Taiwan is no longer the Leninist-type dictatorship that Chiang Kai-shek had made it, be seen as a different polity? Taiwan is currently a flourishing democratic society of 23 million people who believe in and practice human rights. Is this the same Taiwan that existed in 1950? Does international law acknowledge, encourage and protect this kind of change?

This is a fascinating and hugely important question, and there are technical legal aspects also to be considered. Taiwan was never formally, legally re-integrated with China after World War II. The post-war peace treaties never said Taiwan had been returned to China. What they said was that Japan surrendered all right to Taiwan, which it had acquired in 1895 and lost at the end of World War II in 1945. This was carefully documented so that Japan surrendered Taiwan, but it never said to whom.

In practice, the Allied forces put Chiang Kai-shek's army in control of Taiwan in October 1945, but there was never a formal acknowledgment by all the parties settling the issue. That's why this is such a live question, and it will become extremely contentious once again if relations across the Strait between Taiwan and the Mainland continue to go downhill.

DEVIN STEWART: You've given us a lot of the historical background to the Taiwan Relations Act. What are the legal provisions in the TRA? Are there obligations on the part of the United States?

JEROME COHEN: The TRA is a very special document. It is a model of legal ingenuity spurred by political necessity.

Jimmy Carter inherited Nixon's challenge, which was to establish diplomatic relations with the People's Republic of China. Nixon took the first step in February 1972 with his famous trip to Beijing, where he, Henry Kissinger, and China's leaders concluded the Shanghai Communiqué. It gave some ambiguous assurance to China about Taiwan. The U.S. government "acknowledged" the PRC's claim to the island and stated that it "does not challenge" that claim, but the United States never made clear what this meant, and we never subsequently clarified our formal position.

But what we said in the Shanghai Communiqué was enough at that time, given the fact that Chairman Mao and Zhou Enlai and Nixon and Kissinger wanted to get together to balance the power of the rising Soviet Union. But that was early 1972, and it took until December 15, 1978, for formal diplomatic relations to be agreed on.

But even then the two sides couldn't deal with all the issues. The United States, then under Jimmy Carter, nevertheless decided to bite the bullet that Nixon had temporarily avoided and establish formal relations with the Mainland, breaking formal relations with the KMT government on Taiwan. This was a terrific blow to the KMT government and a great concern to everyone on Taiwan. It was also a daring step in American politics, given the support that the late Chiang Kai-shek's government still enjoyed within America's Republican Party and the understandable worries that many in the U.S. had for Taiwan's future. Nixon, of course, had been a Republican president and a notorious anti-communist, which gave him the domestic political freedom to make the first move toward recognizing China that no Democratic Party president could have politically survived in 1972. Carter, a more insecure Democratic president, had the tougher task of completing the job.

But it left open the status of Taiwan, and the U.S. insisted, as part of the deal that we would continue to have non-official, non-diplomatic, but cultural and economic ties with Taiwan, and the question was how to do it.

Many people in the Congress were very uneasy about Taiwan's future. I was in Taiwan in 1978 at several points. I understood the terrific anxiety of the people there about what was to come. They needed further assurance because it wasn't clear. Many people thought that the establishment of diplomatic relations with China would merely be a first step that would soon lead to the collapse of the Republic of China on Taiwan, the way the withdrawal of American troops in 1973 soon led to the collapse of the South Vietnamese government. The problem was how to prevent that, and the Congress, in imaginative negotiations that took several months with the executive branch including the State Department and others, came up with a law.

Now the law, the Taiwan Relations Act, is not an international agreement. It's merely the unilateral act of one government saying to the other, "This is our interpretation of the situation." It had two functions, mainly. One, to warn Beijing that any non-peaceful attempt to solve the problem by taking over Taiwan would be regarded by the United States as a grave threat to security in the Western Pacific. That is, in diplomatic language, it could lead to military opposition by the United States.

It had a second major function, which was: How do you continue to give the Republic of China on Taiwan the continuing necessary legal status in the United States that it had enjoyed when we had diplomatic relations with it? We had to find some substitute way so that, for example, if somebody from the Republic of China wanted to come into our courts, they could come in just the way they used to, and if somebody wanted to sue Taiwan officials or people, they would not be barred by any obstacle. We wanted to try to give Taiwan all the continuing privileges and benefits that the Republic of China enjoyed while we still maintained diplomatic relations with it even though we had severed formal relations with it.

But the key was really the first function because, when we gave up our diplomatic relations with Taiwan, it affected the 1954 mutual defense treaty between Taiwan and the United States. The abrogation of diplomatic relations meant an end to the defense treaty.

We did it with China's agreement in an orderly way. The defense treaty had a provision like many treaties: If you wanted to give it up, you could give one year's notice that you were going to give up your relationship under the treaty, and that's what we did.

But what would substitute for the defense treaty? And that's where the Taiwan Relations Act came in, to provide comfort. Technically, of course, it wasn't a treaty but only a law, and the language is very vague. It's even vaguer than the NATO agreement. In effect, it says to Beijing, "If you take non-peaceful steps, we will consider this a very grave threat to our security." It doesn't say, "And we will come to the defense of Taiwan." But it leaves open that we have this discretion. The NATO agreement also has this kind of vague language, but people understand the context, and over time that takes on added weight.

So the Taiwan Relations Act, 40 years later, is regarded as very important.

But the question Beijing has had right from the day we formally established relations with Beijing has been: How long would our new relationship with Taiwan go on, especially concerning the unresolved question of arms sales? How long would the United States be allowed to help provide arms to a government it no longer recognized, with which it no longer had diplomatic relations?

The U.S. had recognized the People's Republic of China on the Mainland as the only legal government of China. How did we justify continuing to provide arms to a regime that no longer was in our eyes the legal government of China and that was condemned by the newly recognized legal government of China? That is what we have had continuing tension over in negotiations and discussion with Beijing since 1979. We still have not solved that problem.

Yesterday we heard from Assistant Secretary of Defense Schriver once again that the U.S. will be sure to continue to provide Taiwan with all the arms necessary to defend itself. To defend itself, not to to attack the Mainland. Taiwan had to give up that idea. Chiang Kai-shek used to think he would renew the civil war with the communists and retake the Mainland. That was always unrealistic, and the 1979 U.S. commitment has made clear that arms sales to Taiwan were solely for defensive purposes.

So here we are. In the 1980s, Beijing thought the arms sale problem would be settled rather quickly. There was the famous Reagan agreement, the so-called "Third Communiqué" with the Chinese, where Reagan assured them that, as tension relaxed and things improved in China and across the Strait, we would gradually reduce our arms to Taiwan, but it hasn't happened.

Rather, the formula that has prevailed is not the one we have given to Beijing after negotiations on several occasions, but the Taiwan Relations Act formula, which has persisted for 40 years. That is, we are obligated to continue to provide such weapons as are necessary and in such quantities as are necessary for the defense of Taiwan. For Beijing, this is more than a thorn in its side.

It's a very practical question because on both sides of the Strait you have military units that are constantly considering, if force had to be used, what would happen? Would there be a three-day war? Would it be a long, drawn-out kind of contest? Would the United States come in? Would Japan come in?

What damage would be done to China? Could such a war rock the leadership of the Communist Party of China out of power if they couldn't subdue Taiwan? Would war decimate not only the people on Taiwan, but also the people in Shanghai and other Mainland places? There are so many issues.

Many people think war will never happen but that other means will be used. Many people think Beijing's recent multiplication of pressures against Taiwan—military, political, economic, and psychological—will gradually erode the will of the people there. Some people will leave Taiwan. You already have well over a million Taiwanese living and working in the Mainland. Some observers think more people will go to the Mainland, the Mainland will use continuing and greater economic incentives to seduce the people in Taiwan, and that their will to resist will be sapped.

We don't know. I don't think it will, judging from the evidence we now have, but a lot depends on what the leaders in the United States say, and how does Taiwan behave in cross-Strait relations.

I'm proud to say that my former student, President Ma—I don't agree with everything he's done, but he's a very brilliant man—did something very impressive. He managed to make over 20 agreements with the Mainland despite the fact that the Mainland's position has long been: "We will never treat Taiwan on an equal basis. We are the central government of China in Beijing. Those people down there are merely one of our provinces. We will never negotiate with them on an equal basis. There's no possibility of there being 'two Chinas', two Chinese governments."

Despite that long PRC tradition, how did Ma do it? What he managed to do was get the Chinese to join Taiwan in making use of the supposedly "unofficial" organizations each side had established. So these weren't agreements between the government in Beijing and the government in Taiwan; these were agreements between semi-official organizations at most, what you might call "white glove" organizations; they really were the governments, but they didn't say it.

This was a classic example of what Holmes Welch, a wonderful American scholar, in the late 1950s called the "Chinese art of make believe," the ability of Chinese, if required, to engage in imaginative negotiations often using euphemisms or fictions to reach agreements that wouldn't otherwise be possible. And Ma and the Mainland Chinese, using these unofficial devices, concluded over 23 important agreements. This was a great achievement.

In 2012, when asked by the Taiwan media what did I think of Ma's second-term prospects, I said: "If he can manage to go on making agreements with the Mainland without sacrificing the island's security, he should be nominated for the Nobel Peace Prize."

That infuriated some of my former students from Taiwan because they were DPP, Taiwan Independence people, some of them, and certainly anti-Kuomintang people. They and their parents had fought the Kuomintang dictatorship of Chiang Kai-shek and forced the democratization of Chiang's heirs. Ma, by assuming the leadership of the modernized KMT, was able to build upon their achievements and gain credit for impressive steps toward reconciling with the Mainland.

I've always been more sympathetic to the opposition DPP people than to the KMT because they were the oppressed, they suffered the human rights violations, thousands of their people were killed in February 1947 during the so-called "2.28" campaign. It was a purge; a massacre. These people have suffered terribly, and I sympathize with them, but still you have to recognize Ma's new Kuomintang, while it hasn't gotten rid of all the vestiges of the old dictatorship, has done a lot to help the modernization of Taiwan.

The sad thing is that his successor as president, a very able DPP woman, Ms. Tsai Ing-wen, even though she has tried hard to not rock the boat of cross-Strait relations by not pushing for formal Taiwan independence, has failed to convince the Mainland of her sincerity. Since she came in in 2016, the Mainland has refused to implement some of the agreements that Ma concluded, and that has had a very negative effect. It's part of the pressure that the Mainland is bringing to bear.

The Communists not only do military maneuvers around the island and send their planes around it, etc., they not only are squeezing Taiwan economically, they're refusing to deal with the new Taiwan government, even though it was legitimately elected. Beijing refuses to recognize that the majority of people on the island don't want to be integrated with China.

You have to say this is a very difficult situation for Taiwan. Tsai is trying to get greater U.S. help. Tsai is also trying to implement a so-called "Southern policy," in an effort to reduce Taiwan's economic reliance on the Mainland by expanding its relationships with all the Southeast Asian countries and even Australia. This effort is having some positive effect, but Taiwan still has serious economic problems, in part because the Mainland itself is having economic problems. As China's economy continues to slow down, Taiwan has greater problems.

So the U.S. is confronted by a very volatile situation in the Greater China region at the moment. Most people aren't now focusing on Taiwan as part of our China dilemmas. They're more concerned with trade issues and with Trump's attempt to use trade to press the Mainland to open its economy in the way it keeps pledging to do, also with the South China Sea and so-called Chinese "aggression" there, and with the dangerous situation regarding North Korea. We seem to have many more immediate problems than those presented concerning Taiwan.

But the ultimate challenge—and it's coming back to bite us again—is Taiwan. The American people are going to be confronted with a huge issue, and that issue is full of ambiguity: If push comes to shove and military action breaks out in the Taiwan Strait, are we going to say: "Look, we have so many headaches in the Middle East, we're involved in an endless mess in Syria. We've not succeeded in leaving Afghanistan. Although the war has ended in Iraq, we haven't gotten out of there. There is no satisfactory solution to any of our involvements in the Middle East, including Iran and Yemen. Are we going to get involved in a war with China over Taiwan?"

Beijing is now a big potato, and can do a lot of damage. It has a huge number of missiles and many long-range nuclear weapons. So are Americans going to say what England's Prime Minister Chamberlain said when Hitler threatened Czechoslovakiabefore World War II: "It's a little country far away"? What are we going to do?

The Taiwan Relations Act, as reinforced yesterday by Assistant Secretary of Defense Schriver, says we should come to the aid of Taiwan. Well, will we? And to what extent?

The American people don't know much about Taiwan. The typical story, maybe it's apocryphal, but I think it's plausible: An American woman was interviewed about six months ago by an American journalist who asked, "What do you think about Taiwan?" And she said, "Oh, I love Thai food."

DEVIN STEWART: Oh, jeez.

JEROME COHEN: So what level of consciousness and awareness is there outside of Washington about Taiwan? That's why I'm delighted you're doing this broadcast.

DEVIN STEWART: Well, thank you so much, Jerry. I guess you're teaching your course at NYU on the TRA very soon.

JEROME COHEN: Well, it's a course on China and international law. Tomorrow we talk about the establishment of diplomatic relations in 1979 and its background and the earlier roles of Kissinger and Nixon and the implications of what they did for American politics also.

China is so tied up with American politics, and it's come back to be a major issue. It is now a major issue for various reasons, but it was that way in the late 1940s too, beginning in 1948.

In 1957 I started to work at a law firm in Washington for Dean Acheson. He had been our secretary of state during the critical postwar years.

DEVIN STEWART: Which firm was this?

JEROME COHEN: Covington & Burling.

Acheson had been Harry Truman's secretary of state. His role was crucial, although most people here don't remember this. January 1950 witnessed the culmination of about a year and a half of very active, vitriolic American discussion about the United States and China. It was obvious China was being lost to the communists. There was huge political retribution at home in the United States.

Whose responsibility was this, people asked? Had the Democratic administration of FDR and then Truman, his successor, "lost China" because of mistakes that they had made in policy? I remember once when I was working with Mr. Acheson, we were talking about this. This was long before I discovered China. He sighed: "'The man who lost China.' Do you think that will be on my tombstone?" Trying to make a joke, I foolishly said: "Nobody could be that absent-minded. It's not credible. China's too big to lose." But John Foster Dulles, the Republican who succeeded Acheson as secretary of state when Eisenhower came in as president, had succeeded in establishing in the public mind Democratic responsibility for supposedly losing China.

The Chinese Revolution, of course, could not have been defeated by whatever America might have done. We might have played our cards differently, but I don't think we could have stopped what happened.

But the domestic consequences in the United States were great. By January 1950 Chairman Mao's forces had established the People's Republic of China and taken over virtually all of the Mainland, except for Tibet, which they later did take over. The question then was: Would they go across the narrow 90-mile gap between the Mainland and Taiwan, where Chiang Kai-shek had retreated, and would they take over Taiwan? And in January 1950, despite terrific pressure from the Republican Party and others, Truman and Acheson announced we would not interfere in the Taiwan Strait. We would not seek to protect Chiang Kai-shek against the completion of the Chinese Revolution. Acheson said that, if we protected Taiwan, it would be interfering with the territorial integrity of an Asian country, and no Asian country would think that was the right thing to do.

Less than six months later, however, Truman and Acheson reversed that decision dramatically after no real public discussion. The Korean War had just broken out on June 25, 1950. We could have said, "This is a domestic civil war in Korea between North and South" But we said: "No. This is international communism attacking us, and that means the attack exists not just in Korea but also in Taiwan and in Indochina." And we immediately announced that the U.S. would do what we said before we would not do. We put our fleet in the Taiwan Strait to protect the island.

How could we justify that? Earlier in the year we had said Taiwan is part of China, even though there had been no formal treaty commitments. Mr. Acheson's famous statement in January 1950 was: "Nobody raised any lawyer's doubts when we put Chiang Kai-shek in control of Taiwan after World War II in 1945."

But at the end of June the same year we took another look at the situation, and said: "The legal status of Taiwan has never been formally determined," and this would have to await either a UN trusteeship or the restoration of security in the Pacific or a treaty settlement. We did a 180-degree turn in our informal interpretation of international law.

Today, almost 70 years later, things have changed. We've seen huge political changes. Taiwan is not the Taiwan of Chiang Kai-shek's dictatorship, but Beijing has a long memory and still remembers what position we originally took about the island's status. So that's why the PRC claims: "The U.S. has no role here. This is not an international question. This is an internal question of China," and its advocates try to use the analogy of the American Civil War. They say: "This is like your Civil War. Nobody said, 'Lincolnshould not use force against the South,' so don't tell us we can't use force against Taiwan because this is not an international problem." The use of force in international law is banned, certainly since World War II. But they say this isn't an international law problem.

Of course, it is an international problem. It implicates security not only for the United States but also for many other countries—Japan, Australia, Southeast Asia, Korea, whatever. But Beijing still has "civil war" in mind, and that's the nub of the problem.

So when we say, "They're may commit aggression against Taiwan," they say: "How can it be aggression? It's a civil war. It's within our own country." This is going to be a powerful debate resurrected again.

DEVIN STEWART: Jerry, thank you for teaching us about the Taiwan Relations Act today and also the recent history of Taiwan.

I guess as a sort of final question, you alluded to the importance and the volatility of Taiwan's situation as a security issue in Asia. Is the United States doing enough to preclude that situation turning into a major conflict? And if it's not, what should the United States be doing?

JEROME COHEN: Well, the Trump administration itself is a volatile administration. It has had an uncertain China policy until now, but it does seem to be gradually evolving.

In the beginning, it looked like Trump was going to really change our China policybecause he took a phone call from President Tsai of Taiwan before he became president. No president has ever done that since we established relations 40 years ago with China, so people thought, My god, this guy's gonna tear up the pea patch.

But once Beijing started to react adversely, Trump then went back and calmed the PRC. We don't know to what extent he will listen to those advisors in Washington who are still telling him to take a much more openly provocative role on behalf of Taiwan, and don't worry about Beijing.

We have to be careful, very careful, and many China experts know that. It makes me think in a way about the situation as it was in the fall of 1950. The United States had surprised people by going to the defense of South Korea in late June 1950.

After a few months, we pushed the North Korean forces back into their territory, and the big issue was: Do we follow them? Do we try to go into North Korea? Do we approach the border between North Korea and China? Do we try to bring down Kim Il-sung's regime?

Washington was divided. People said: "We mustn't do that. China will enter the war." And other people said: "No, they wouldn't dare. Those ragtag commies have just taken over their country a year before. Are they going to take on the world's superpower? They're bluffing." We went north and we saw the Chinese were not bluffing.

So here we're confronted with a similar question: Who's bluffing? Anybody? And some experts say: "The policy we have of "strategic ambiguity," leaving open 'Are we really going to defend Taiwan?' is the right way to handle the issue. It has kept peace for so many decades."

Other specialists say: "It's the wrong thing for now. We have to be clear." That's what we heard from Randall Schriver yesterday. We have to be clear because, if there's ambiguity as there was in 1950 whether we would go north, there could be a grave misunderstanding.

DEVIN STEWART: Jerome Cohen is a professor at NYU and a legend in Asia studies, and it has been a real honor to speak with Jerry today.

JEROME COHEN: Well, I'm delighted to prove I'm still alive.

DEVIN STEWART: Thanks again, Jerry.

Hong Kong, China, “Rendition” and Human Rights

By Jerome A. Cohen

Officials in Hong Kong are now planning to allow “rendition” (the Hong Kong-Mainland equivalent of  international “extradition”) of criminals to China. This would be a major change and a development that concerns Hong Kong’s special human rights protections.

The United States, Canada, the United Kingdom and Australia have not finalized extradition treaties with China largely because of their concerns about the pervasive problems in China’s criminal justice system, including arbitrary detention, torture and other cruel treatment, coerced confessions, political prosecutions, unfair trials and capital punishment, especially for nonviolent crimes. For similar reasons Hong Kong—China’s Special Administrative Region—has not been able to conclude a “rendition” agreement with the PRC Central Government.

Hong Kong’s current plan to finally move towards a full rendition agreement with the Mainland must not violate the human rights protections that it acquired while still a UK colony under the International Covenant on Civil and Political Rights. The PRC promised to honor these protections after the former colony’s return to the Motherland. They include the non-refoulement principle, which requires governments not to expel any person to another territory if this would result in exposing him to the danger of arbitrary deprivation of life, or torture or other cruel, inhuman or degrading treatment or punishment (and other serious violations of human rights, including, notably, expected violations of the right to a fair trial).   

My colleague Yu-Jie Chen and I have written an article on the human rights problems in Taiwan’s cross-strait “repatriation” agreement (also similar to an extradition arrangement but, like “rendition”, applicable to relations between governments of different parts of China) with Mainland China (see Yu-Jie Chen & Jerome Cohen, "China-Taiwan Repatriation of Criminal Suspects: Room for Human Rights?," Hong Kong Law Journal (2018), SSRN link here). The lessons learned from Taiwan’s experience with the Mainland should be of interest to those who are considering whether Hong Kong should strike a“rendition” deal to send fugitives to suffer the fate of those subjected to Mainland justice. Analogies to the protections provided in conventional international extradition treaties also must be considered.

 

Xinjiang and “re-education”

By Jerome A. Cohen

Here’s an excellent article by Sarah Cook, “The Learning Curve: How Communist Party Officials are Applying Lessons from Prior “Transformation” Campaigns to Repression in Xinjiang.”

It brings to mind earlier Chinese Communist Party efforts to transform Chinese citizens. Beginning with the start of the People’s Republic of China and especially in the early 1950s there was a genuine criminal justice effort to make “laogai” 劳改 (reform through labor or RTL) succeed in transforming those formally prosecuted by the regime. It is still, of course, the formal criminal justice analogue to “laojiao” 劳教 (re-education through labor or RETL), which started, at least under that name, in 1957 as a key aspect of the “anti-rightist” campaign. By that time, however, the efforts to impose “thought reform” on prisoners had already largely run out of steam as the emphasis of the captors shifted to conventional punishment and more realistic views of what that punishment might accomplish. 

Of course, Chairman Mao’s hopes to transform the young people of urban China and the Party’s bureaucrats into ”socialist new men and women” by shipping them off to the hardships of the countryside during the Cultural Revolution a decade later was an even grander vision destined for failure.

This long modern Chinese history makes me think of efforts in the U.S. to convert gay people into heterosexuals. It also makes me remember my brief wish to protect my first-born child against the evils of eating too many sweets by warning him: “Peter, if you misbehave again, we’ll make you eat chocolate”. But, not surprisingly, Peter liked chocolate and still does, as do I!!

Academic freedom in today’s China

By Jerome A. Cohen

Prof. Zhang Qianfan (source: Wiki Commons)

Prof. Zhang Qianfan (source: Wiki Commons)

A constitutional law textbook authored by Professor Zhang Qianfan, a renowned Chinese constitutional scholar, has reportedly been pulled from book shops. Professor Zhang is a Peking University (“Beida”) reformer and a great person known to many in foreign, especially American, comparative law circles. He gave a fine talk at NYU Law School’s US-Asia Law Institute a year or two ago. It is very sad to see him and other distinguished Chinese colleagues, and their teaching and books, under attack.

I wonder what happens to the books withdrawn from the public. Will they be burned or thrown in the trash? Will Xi Jinping lock up the Beida law library again as it was in 1979 when Jim Feinerman, the late Tim Gelatt, Ellen Eliasoph and other future notables became the first American exchange students under the “Open Policy”? Will Chinese law professors and students again be cut off from foreign law teachers and lawyers, as I was cut off from them while teaching Chinese officials in 1979-81?

I spent that time in Beijing not as a visiting professor or scholar but as guest of the Beijing City Government, which was desperate to train its officials for joint venture negotiations with potential foreign investors. Yet Chinese law teachers and students were not allowed to get together with me, then the only resident American law teacher in China, even informally and socially. One criminal law professor did succeed in inviting me to give a lecture. I must have muffed the opportunity by talking candidly, since I never heard from him again and don’t know what became of him. By contrast, PRC Party secretaries and mayors invited me to lecture to hundreds of eager business officials all over the Eastern seaboard. Are we going to witness a return to that era?

I was very glad to see that Reuters quoted Professor Zhang Taisu of Yale Law School, my alma mater, in support of Zhang Qianfan, no relative I believe. Taisu, a brilliant economic historian-legal scholar who has just been promoted to full professor, has already begun to make good use of his permanent academic tenure. I am sure that many others of the remarkable cohort of Western academics now in the China law field will also want to be heard.

Conviction of Chinese human rights lawyer Wang Quanzhang

By Jerome A. Cohen

Chinese human rights lawyer Wang Quanzhang has been sentenced to four and a half years in prison for subversion. But, since we have not yet seen the court’s judgment and don’t know the details of his long detention, we cannot be certain what this sentence means.

Wang has been held in pre-trial and post-trial detention since July 2015, and detention time served is usually deducted from the sentence (with one-to-one credit for the days of regular detention and only half a credit for the days during which he was held in “residential surveillance at a designated location” or RSDL). This probably means that Wang can be expected to be released in April 2020 and perhaps even earlier, depending on how long he was confined in RSDL rather than regular criminal detention.  BUT the court may have deviated from the practice of giving credit for time already served prior to sentence, which would mean no release until mid-2023!

In light of the harsh sentences rendered to some other lawyers punished in the 709 crackdown, IF the court has followed the standard sentencing practice, it appears that the Chinese Communist Party/government has gone relatively (and unexpectedly) light on Wang. So many factors go into the sentencing decision. How has he behaved? What shape is he in? Has he made any apparently sincere commitment to abide by the secret promises usually extracted from a convicted person to be a “good boy” upon release? Has the Party decided to look lenient because of the intense world interest, the abusive and unusually lengthy pre-sentence detention Wang suffered and the current widespread international condemnation of China for its abominable misbehavior toward the three Canadians who are being punished in retaliation for Canada’s handling of America’s extradition request of the Huawei executive? 

Pressures on Wang not to appeal must be very great. Some convicted defendants decline to appeal because they know that the appeal process will not result in a favorable outcome and only extends the time they will remain confined in conditions that are often much more uncomfortable than the prison cell that awaits them once the appellate process has run its course. To be sure, we don’t know in what kind of shape Wang is mentally and physically and whether he has been subjected to any of the horrific “medical” treatment designed to break the will of so many political defendants. He may not be in condition to carefully weigh the wisdom of an appeal. If he is still capable of rational decision and retains his courageous determination, he may wish to appeal simply to avoid the inference that he accepts the decision as a correct and just one.

In any event it should be noted that only giving half sentencing credit for time served in RSDL is grossly unfair, since conditions tend to be more coercive than if the suspect is detained in an ordinary jail, even though an ordinary detention cell can be extremely uncomfortable. RSDL is not “house arrest” in one’s own home but in that of the secret police. I think double credit should be given for every day of RSDL until that vile detention practice is abolished, as it should be!!

The Code of Criminal Procedure limits RSDL to a three-month term that can be renewed once. Yet I have long suspected that police have meted out more than the maximum six-months RSDL term on some occasions by purporting to charge the hapless suspect with another “national security” offense that supposedly deserves their investigation. This may have occurred in the Wang case and perhaps the delay in issuing the judgment is related to an attempt to obscure that situation.

Wang Quanzhang, wife and son (Wang Quanxiu via AP)

Chinese detention of Australian blogger Yang Hengjun

Jerome A. Cohen

The Chinese government has confirmed it has detained Yang Hengjun, a naturalized Australian who is a famous blogger in China, in “residential surveillance.”

The PRC’s actions in this case—including failure to inform the Australian embassy within three days of his detention and the reason for detention, and failure to provide consular access—are in plain violation of the required consular protections under the China-Australian consular agreement.

“Residential surveillance” sounds comforting but the version now so much in vogue in the PRC is not the original residential surveillance that might be considered similar to “house arrest” in other countries but “the designated location” version (RSDL) that Ai Weiwei’s illustration of his personal experience has done so much to expose. It is absurd to call it “house arrest” or claim it is similar to “home detention”, as Australia’s Defense Minister recently said mistakenly. Actually, Ai Weiwei’s theater and art show a tough, endless regimen that is nevertheless milder than that to which too many others have been subjected. RSDL frequently constitutes impermissible torture that violates both Chinese and international law.

If we go to China in the current circumstances, those of us critical of certain PRC actions now risk six months of RSDL for “investigation” of charges of possibly violating China’s “national security”. So far, as we have just seen in the PRC’s latest reaction to the Canadian-American Meng Wanzhou case, foreign critics of PRC “hostage justice” have only been attacked for “interfering with China’s sovereignty”. If we now dare to visit China, will we, like hapless blogger Yang, be detained for possibly “interfering with China’s national security”?

Normalization of Sino-American Relations: 40 Years Later

By Jerome A. Cohen

In light of the 40th anniversary of the normalization of US-China relations, many are reflecting whether the US made the right decision 40 years ago. As an advocate for and participant in the process of normalization, I offer my thoughts in this piece, which is in part a response to the prevailing ill-advised argument that the US should not have engaged China:

China-Taiwan Relations Re-examined: The '1992 Consensus' and Cross-strait Agreements

By Jerome A. Cohen

Given the recent dueling speeches of Xi Jinping and Tsai Ing-wen, readers might be interested in my forthcoming article co-authored with Yu-Jie Chen on the “1992 Consensus” and cross-strait agreements (Our assessment of the “1992 Consensus” can be found in Section I).

This article was completed in December 2018, but the New Year speeches of Xi and Tsai only vindicate our analysis about the divergent views of the “1992 Consensus.” Their speeches, together with the response from the Kuomintang (KMT) rejecting Xi’s proposal of “One Country, Two Systems,” make it ever clearer that there was no genuine “consensus” about sovereignty issues disputed by the PRC and ROC governments. Notably, Xi Jinping’s remarks, linking “One Country, Two System” with the “1992 Consensus,” depart from China’s previous implicit practice not to publicly challenge the KMT’s position of “One China, Respective Interpretations.”

Canada, China’s Schellenberg’s retrial and Beijing’s calculating maneuvers

By Jerome A. Cohen
On December 29 a Chinese appellate court ordered a retrial in the drug-smuggling case
 of a Canadian citizen named Schellenberg on the ground that the trial court’s sentence of 15 years of imprisonment was too light.

This is a clever move on the part of the PRC Government. Ostensibly the case has no relation to the Canadian extradition arrest of the chief financial officer,Meng Wanzhou, of the major Chinese technology company Huawei. Yet the court’s action adds significantly to the already great pressure on Canada brought to bear by the PRC’s recent arrest, detention and investigation of two other Canadian nationals for unnamed supposed national security crimes, leaving it open to the PRC to impose the death penalty or the death penalty with a two-year suspension or life imprisonment on Schellenberg at any time that might suit Beijing over the next few months or even years. Absent strong international protest against this obvious further PRC effort to distort its own justice system for political ends, I think there will be no final sentence in the Schellenberg case until the extradition case is resolved.

This drug prosecution was a weird, political case even before the Canadian extradition issue arose, taking the trial court over 32 months to impose sentence after the trial hearing. This usually only happens when there is immense behind the scenes lobbying over the inadequacy of the evidence and/or the diplomatic pressure brought by the foreigner’s government.

That the appellate court’s action in the Schellenberg case, which is unusual in itself, is related to the Canadian case is confirmed by the Chinese propaganda agency’s surprise invitation for some foreign media to attend and publicize the appellate court hearing. That certainly wasn’t done when the case was first tried in 2016 or when the defendant was finally sentenced in November this year, before the Canadian extradition was initiated. 

Canada-China legal war

By Jerome A. Cohen

Some observers think the US-PRC trade war is a good thing since it stimulates some reforms in the PRC economic system. It may be that the Canada-PRC legal war will prove a good thing if it stimulates some reforms in the PRC legal system.

At least it is stimulating world attention to China’s legal system. Until now most of that attention has been bad for Beijing’s image. The PRC is seen to be interfering in Canada’s domestic legal system in absolute contravention of Beijing’s constant proclamations of its own sovereign rights when it is confronted with cases involving foreigners. Moreover, its own legal system is also seen to be dreadful and grossly unfair when the PRC itself handles cases involving foreigners — vague charges against apparently fine people who can be held for many months incommunicado without access to lawyers, family and friends and subject to coercion of various kinds that leaves no marks but stimulates public TV confessions.

The invitation of PRC propagandists for foreign journalists to attend court proceedings in Dalian against alleged Canadian drug smuggler is designed to counteract this situation. Here it shows that not all Canadians are fine people and that their violations of Chinese law can amount to more than minor visa violations, and indeed involve drug smuggling, which has always raised grave concerns today and in the past in both societies. And this case, held in open trial, will try to show that Chinese justice operates in a respectable way that treats Canadians fairly in terms of international human rights standards. It will also, presumably, present the justification for what could be a very long sentence that may not be immediately announced, adding to Chinese pressures upon the Canadian Government, since even the death penalty could be in the offing.

Human Rights Lawyer Wang Quanzhang's Secret Trial

By Jerome A. Cohen

Wang Quanzhang, who has been detained incommunicado since July 2015, was reportedly tried today in a secret trial that neither his wife nor supporters could attend.

Wang Quanzhang and his wife Li Wenzu, with their child. Credit: Li Wenzu, via Associated Press

Wang Quanzhang and his wife Li Wenzu, with their child. Credit: Li Wenzu, via Associated Press

I didn’t have the good fortune to know Wang Quanzhang but I know what he stands for and what the public martyrdom that is his trial symbolizes. Wang, of course, represents the best, yet vain, efforts of many valiant Chinese human rights lawyers to establish the rule of law in an increasingly repressive Communist system. Like so many of his colleagues, Wang has been crushed after losing his freedom for more than 1,200 days. The wonder is that it has taken his captors such an impressively long time to prepare the secret trial.

In a year when “justice” has been chosen to be the world’s most prominent word, what we are allowed to know of Wang’s so-called trial is a brief but potent demonstration of “injustice”. Yet Chairman Mao once said that we should never underestimate the educational value of negative examples!

What’s going on with Huawei, China, Canada and the US?

I’ve been following the intriguing story about the US effort to extradite from Canada Meng Wanzhou, Huawei’s chief financial officer and the daughter of Huawei’s founder. The case raises many Interesting questions, including why the US Government chose Canada, why it chose to initiate the action at this time, what coordination actually occurred within the USG, how did the Canadian government analyze the situation before acting and what actions will the PRC take other than those already reported.

On the coordination on China policy within the US Government, it remains unclear whether this move is part of a well-thought out, overall carrot/stick policy, a move by hardliners trying to torpedo any possible agreement with the PRC or a move by Justice, Homeland Security and State (and Treasury??) simply to pursue an independent track relating to law enforcement despite its impact on the trade negotiations.

There may well have been poor and thoughtless USG coordination in this case, but at least one report indicated that John Bolton knew this was coming (while another report has said no one who attended the Trump-Xi dinner knew before that occasion). One cannot eliminate at this point the suspicion of mischievous interference with the Sino-American effort to resolve the trade dispute.

Canada’s willingness to make the arrest is also notable and must have been the product of extensive negotiations within the Government and with the U.S. Yet whoever did the final calculations on the Canadian side may now regret that decision because of the increasingly severe damage to Ottawa’s relations with Beijing, although Canada has on a number of occasions stood up against the PRC on international law matters.

What the independent Canadian courts are likely to do with the extradition request may be another matter. Without detailed knowledge of the case presented, prediction is always hazardous but it is unlikely that the request will fail, although some able Canadian lawyers may argue that the matter is “political” rather than legal and therefore inappropriate for extradition. I felt confident that bail would be granted with restrictions on Ms. Meng’s activities since bail was granted to Mr. Lai Changxing of China after he illegally fled to Canada to avoid, at least for many years, being prosecuted in China for being allegedly the greatest smuggler in Chinese history!

What I find attractive in the Canadian Huawei case is the attention it has directed not only to the extraterritorial application of criminal law but also to extradition treaties and relevant domestic legislation, procedures and court adjudication as well as related problems of rendition, deportation, repatriation and ad hoc interstate negotiations that increasingly confront China, the U.S. and others. Hong Kong and Taiwan also struggle with these issues in relation to Beijing.

Of course, the USG might have sought Meng’s extradition from China itself, even in the absence of a US-PRC extradition treaty. It is not necessary for two countries to have a bilateral extradition treaty in order to achieve extradition or a similar result such as through deportation. Informal negotiations often accomplish extradition or the equivalent goal. The US does have an extradition treaty with Hong Kong, where Ms. Meng undoubtedly spends a lot of time, but Beijing would plainly have ordered the Hong Kong Government to deny cooperation, as it did not long ago in a less important case, for the first time in the twenty-year history of  the US-HK agreement.

It is laughable that Global Times should call this lawful, official international process “hooliganism”. The PRC is notorious for real officially-authorized “hooliganism”. And now, in its retaliation against Canadian nationals in China, the PRC is again demonstrating its zest for abusing criminal justice!

Worldwide scholars' statement on Xinjiang's mass incarceration

By Jerome A. Cohen

Here's a statement [https://concernedscholars.home.blog/; PDF here] signed by a very large number of scholars and China specialists worldwide to protest Xinjiang's “re-education” camps that detain hundreds of thousands of Uyghurs and Kazakhs. The statement also offers suggestions for action by governments and academic institutions around the world.

China, Xinjiang and UN Human Rights Review

By Jerome A. Cohen

Source: AP ( Uyghur protesters outside the UN Headquarters in Geneva, Nov. 6, 2018. )

Source: AP (Uyghur protesters outside the UN Headquarters in Geneva, Nov. 6, 2018.)

On Nov.6, the People's Republic of China underwent its third UN Universal Periodic Review (UPR), which is a peer review at the Human Rights Council of China's human rights record. Each country, ridiculously, only had 45 seconds to speak! All eyes were watching if China's mass incarceration of Muslims in Xinjiang and related repression outside the detention prisons would be criticized. Many countries did speak out, including the U.S., Canada, Germany and the UK. The only Muslim country that raised this issue is Turkey. It is shameful that Muslim countries and their regional organizations have done so little to date. The PRC cleverly lined up a large number of sycophant states to sing its praises and take time away from states that wanted to be critical. (All UPR-related documents are here at the UN's website.)

The PRC has moved relentlessly to increase its influence over the Human Rights Council while the U.S. has withdrawn from it. Accordingly, many countries, including developing and authoritarian countries that rely on China's economic ties, lavished high praise on China's human rights achievements, instead of treating the session seriously.  But there are a few other UN possibilities for condemning the PRC’s misconduct in Xinjiang and elsewhere, for example, the recent criticism of the PRC by the committee that reviews violations of the racial discrimination treaty. Other treaty review committees can also become relevant forums. The UN Working Group on arbitrary detention is another institution that quietly—too quietly—frequently condemns PRC violations against individuals..

Demands by the High Commissioner for Human Rights to send special rapporteurs to China on one mission or another have occasionally been acceded to by Beijing after very long pressure and have resulted in withering criticisms of the PRC’s dictatorial suppression. I don’t expect Beijing to allow any such scrutiny over Xinjiang soon, but it depends on how much international public opinion becomes informed on what is taking place. There are many opportunities for regional groups outside the UN to embarrass the PRC for its human rights oppression, for example, NATO, the EU and the various Western countries’ economic policy meetings. 

NGOs and academics have become much more active. As one of the organizers of the recent protest by public speakers promising to criticize the PRC for Xinjiang atrocities, I mention this in every public appearance, as do many of the over 250 China watchers who have taken the pledge. I hope there will be a multiplicity of the above efforts.