Paying Closer Attention to the U.S.'s Microchip Measures

By Jerome A. Cohen

International attention concerning China has recently been focused on the Communist Party Congress and the prospects for war over Taiwan. Insufficient attention has been paid to the extraordinary microchip measures adopted by the US Government shortly before the Party Congress. Their implementation and impact, which gives new meaning to ”containment”, requires the most careful continuing assessment.

On the one hand, I understand and support the motivation that inspires these measures. On the other hand, they may well increase the likelihood of not only a tech war but a hot war. They uncomfortably remind me of the measures that the USG belatedly adopted before Pearl Harbor in order to cease our contributions to Japan’s war potential. That understandable action reportedly led Japan’s militaristic dictatorship to conclude that war with the US was inevitable. The US and the PRC should not replay this situation but should undertake the most serious negotiations to chart a better future.

Professor Mearsheimer's "Foreign Affairs" Essay on US-China Relations

By Jerome A. Cohen

Professor Mearsheimer’s recent essay in Foreign Affairs deserves careful analysis from many viewpoints. Here are some of my initial reactions:

He does not examine the difficulties China is encountering and will increasingly encounter in maintaining its phenomenal economic development. Nor does he give weight to the challenges the regime will confront on the domestic social and political fronts, not only because of economic dissatisfactions. Of course, because of the PRC’s non-transparency, it is far more difficult for foreign observers to evaluate these factors than to measure the impact on foreign policy of the domestic disarray confronting the United States and other liberal democracies. Yet one hopes that the openness of the liberal societies will eventually improve their relative prospects for coping with domestic challenges that inevitably affect foreign policy.

I wish he would discuss in greater detail the challenge of peacefully getting through the next decade by successfully managing relations with China. What steps to bolster Taiwan might legitimately be perceived to cross Beijing’s “red line” and violate US assurances to Beijing? Can crucial progress be made on climate, health and other rapidly emerging issues while the liberal democracies belatedly strengthen their positions on Beijing’s periphery and properly denounce Beijing’s many provocations? Should they continue the struggle to maintain existing cooperation with the PRC in such fields as business, education, scientific and socio-economic research, and law reform?  Much food for thought.

Extradition and judicial independence–how are countries addressing these issues?

By Jerome A. Cohen

This article on the conversation between Wenran Jiang and former U.S. ambassador Chas Freeman makes apparent the need for a Canadian legislative inquiry into the Article 4 exemption issue. In the interview, they discuss whether Ottawa should have arrested Meng in the first place. Should Canada have released Meng after Trump openly politicized the case? Did Canada’s Executive in effect remove the political question from the Vancouver court’s jurisdiction? How was the court expected to deal with the question? What arguments did the respective counsel make regarding this question? 

I had long advocated that the court resolve the case by denying extradition on the ground that Trump had rendered it political. Were China and the US each worried about what the court would decide? Was Canada leaving the hot potato to the court, at least in the first instance, to the prejudice of the two Michaels? What is the nature of the relationship between the courts and the government in Canada regarding extradition? This must be a common problem. New Zealand has been struggling with it in the ongoing PRC request to extradite a Korean national named Kim who is charged with murder in Shanghai. And, of course, there is the unresolved effort of Taiwan to extradite the Hong Kong citizen accused of murdering his HK fiancée in Taiwan, which raises other mysterious political issues. What a great subject for comparative and international analysis!

Additionally, the struggle for “judicial independence” is an ongoing challenge in all countries I know something about, but it is varied and exists to many degrees. There is surely no equivalence, for example, between the situations in the United States and in China. The systemic, regime-imposed, incessantly articulated Communist Party control of the Chinese judiciary renders it immensely different from the American situation where there is a continuing struggle over the extent to which courts in fact comply with constitutional norms and societal expectations. Since the US has a federal system, we must take account of the differences in this respect that exist between the federal courts, which generally have a higher reputation, and at least some state courts, especially those that are subject to direct election. I just voted for some local New York City judges and noted that the candidates nominated by the Democratic Party’s primary election are running unopposed in the general election. In some parts of northern NY State, I believe Republican nomination assures election. 

Corruption is seldom encountered in our federal courts.  Lately there has been a minor scandal initiated over the revelation that some federal judges fail to recuse themselves from cases involving companies in which they own stock. Media publicity is expected to put an end to this dubious practice. Political bias, of course, is a more serious and continuously debated public problem, as controversy over Trump’s US Supreme Court appointments and Senator McConnell’s refusal to consider Obama’s last nomination highlighted. There is daily, useful analysis and argument in the media over this problem, which is raised by the flow of cases at all levels of the federal and state systems.

In China, the overt political command of the judicial system often obscures other perhaps more widespread problems of independent judicial conduct, including massive corruption, strong local protectionism and, above all, personal biases deriving from individual relationships (guanxi) that distort court decisions.

I would love to know what pressures the Canadian judge in the recent Meng extradition case felt and how she would have dealt with that very hot potato. Apparently neither China nor the US wanted to gamble on the outcome.

My Thoughts on "The Sino-American Split"

By Jerome A. Cohen

I recently read Ambassador Chas Freeman’s remarks to the Institute for Peace and Diplomacy in Toronto. It is a brilliant, well-written overview that Biden and his aides should surely benefit from. I think his “post-colonial hangover” analysis is a wonderfully helpful lens with which to view the world. Yet the refinement of general principles does not eliminate the need to deal with concrete cases.

What are the implications of the Freeman overview for confronting the specific issues before us? Chas is surely right about what war would mean for Taiwan, the US, and the PRC (and many other nations), and implicit in his view is the need for extreme caution in dealing with this challenge. But what about other issues to which at least some other important countries look to the USG for a response?

Many mention the Xinjiang obscenity when discussing China, an example of the PRC’s gross violations of international human rights. Should we give it and Tibet a pass as well as the takeover of Hong Kong since warlords, kings, dictators, and other despots have always dominated in most countries? What about the repression of basic freedoms for the rest of the Chinese people? Should nothing be said or done about the practice of arbitrary detention on which Communist control is based? Western colonialism had many vices, but it did leave in many of its victims, by negative as well as positive example, an abiding residue of appreciation for the importance of erecting protections against arbitrary detention. But, as Lenin famously asked, what is to be done?

Of course, the premise for effective American response is the ending of dysfunctional democracy at home. In the meantime, however, should the USG withdraw from the South China Sea? If not, how do we achieve a modus vivendi with China’s expanding power, even while Xi Jinping “struggles” to cope with increasingly serious internal problems of his own country?

We need to improve our general principles. We need to pull up our own socks. But nothing stands still for long. We also need to deal with the complex concrete cases that daily confront us, if only by well-considered inaction. 

Is there an irreconcilable gulf between the US and China?

By Jerome A. Cohen

Here is Michael Cole’s excellent analysis of the current Sino-American crisis. I would only add the following:

We should note the very nice statement by China’s new Ambassador Qin as he arrived in Washington, a vivid contrast with everything else coming out of the MOFA that sent him and at odds with his own reputation. He stated that “the China-U.S. relationship has once again come to a new critical juncture, facing not only many difficulties and challenges but also great opportunities and potential.”

I wish that Michael, in his helpful list of the issues, including human rights, that divide the PRC from the West had made explicit reference to the suppression of human rights lawyers and the abusive criminal justice system that enforces the repression of free expression.

PRC rhetoric does not rail against the current system of international law as much as the alleged manipulation by the US and allied governments of that system and the need to mobilize the non-liberal states to overcome that manipulation, a process that is well under way.

The crucial element in Sino-Western relations now is what to do about Criticism. Although the Biden administration has advocated a balanced China policy that consists of Cooperation, Competition and Confrontation, it did not adopt the fourth “C” that I have been advocating – Criticism, even though it has properly been engaging in a good deal of it. That Criticism should be mutual, not unilateral, of course, since, although the valid aspects of the PRC’s responsive criticisms sting, they provide useful additional stimulus to the necessary domestic debates that currently roil the US, Canada, Australia, the UK and other liberal democracies striving – in public – to address their failings. As many of us have recognized and as the PRC now makes plain, it is easy enough to articulate the elements of a balanced policy, but difficult to execute in practice since Criticism - devastating, rightful condemnation - gets in the way of Cooperation. 

Nevertheless, despite a similar challenge in Soviet-Western relations, Moscow and Washington and its allies did manage to reach a number of important agreements and practices that were crucial in avoiding a conflict that many observers thought inevitable. That record should be re-studied. The PRC, despite its current hostility, will recognize its security interests in resolving certain universal problems regardless of its preference for all-out opposition to the West. That’s what Wendy Sherman was emphasizing the other day. But we need to be patient and anticipate a long period of stalemate before that recognition is translated into action. That is why during the immediate period of the Xi Jinping years we have to avoid unnecessary provocations and excessive nationalism that plays well in domestic politics but can lead to disaster. I don’t like Confrontation and prefer Deterrence, although it does not begin with “C”.  Containment, which I previously invoked, might also be preferable, although it hearkens back to the Cold War and seems to vindicate the PRC charge that the US wants to contain China’s progress. Biden and allies should make clear that we do not want to contain the PRC’s progress, which should be evident to objective analysts, but to contain its destabilizing aggressiveness, just as the PRC rejects the destabilizing actions of the US in recent years. Further analysis of the Cold War and anti-Soviet Containment seems to be warranted, and there is no time to be lost.

What will the PRC-USA Alaska meeting bring?

By Jerome A. Cohen

This Thursday, Secretary of State Anthony Blinken and Biden’s national security adviser, Jake Sullivan, will meet with Chinese Foreign Minister Wang Yi and Yang Jiechi, the PRC’s most senior foreign policy official, in Anchorage. This will be a fateful first meeting between the two leading foreign policy experts of the Biden Administration and their PRC counterparts. Even if it does not moderate tensions, let us hope that it does not make things worse.

The odds are that each side will restate its already well-known positions and then depart. But sober statesmen with a long view should try to identify and pursue areas of cooperation that will benefit both sides and the world community. Climate is only the most obvious of these. If things go well, perhaps progress may be made regarding trade, investment and technology transfer, and there could be some agreement on methods of seeking to resolve the many issues relating to the South China Sea. Sadly, there is not likely to be favorable movement regarding Taiwan, Hong Kong, Xinjiang, Tibet or the general suppression of human rights throughout the Mainland. It would be good if consular premises that were recently closed could be reopened in both countries and journalists’ access improved.Reinstatement of the Fulbright program should also take place.

If the talks become open and sincere, I hope the US side will emphasize to the PRC the desirability for the PRC to act more humanely toward those who have been the targets of its repression. Release of the two Canadian Michaels, who are about to be put on trial, and clemency and release for Joshua Wong, Agnes Chow and their Hong Kong colleagues as well as Jimmy Lai, Benny Tai, Martin Lee, Margaret Ng and other democratic figures would improve the PRC’s stature in the world. Beijing could still maintain its right, and even its claimed necessity, to exercise jurisdiction over the range of behavior involved in these varied cases. But clemency, including release from imprisonment, would in no way be inconsistent with PRC sovereignty. Similarly, termination of the Xinjiang detention camps and moderation of the many restrictions on Xinjiang Muslim society can only improve China’s international image.

We can hope for the best even while preparing for the worst.

The US and the PRC are Oceans Apart on Many Law of the Sea Issues

By Jerome A. Cohen

Here is a very clear and helpful statement issued by the US 7th Fleet’s public affairs unit in Hawaii. Unlike some immediate media reports, it deals not only with the important innocent passage issue but also the even more often overlooked question of the PRC’s unjustified application of the UNCLOS straight baseline rules. Although not as detailed as a legal text, it is a clear, succinct explanation of the issues at stake. 

These are only two of the half dozen or so maritime questions that separate the US and the PRC. It would be good if the Biden administration could initiate bilateral or multilateral meetings with the PRC to try to reach some accommodation on these questions through horse-trading or otherwise.

I am not a law of the sea specialist. Perhaps that is why I have always been sympathetic to the argument that every coastal state should have the right to demand notice from any foreign warship that intends to ply its territorial waters and the right to reject its entry. Yet that is definitely not the UNCLOS rule, and I believe that the US, Russia and other naval powers permit foreign warship entry into their territorial waters so long as the passage is “innocent” as defined by UNCLOS. No notice or permission is required.

I feel differently about the UNCLOS rules that permit foreign air and naval reconnaissance from the further offshore Exclusive Economic Zone of the coastal state. Here I am less sympathetic to the PRC position, and this has been a more dangerous Sino-American disagreement than the innocent passage or straight baseline disputes thus far.

Of course, as China develops a more ambitious and far-reaching navy, it may be open to moderating its dissenting views on these issues. It already reportedly engages in its own EEZ reconnaissance elsewhere that is inconsistent with its claims against the US.

It will be important and interesting to see whether Vietnam and Taiwan react to these recent developments. I also hope that law of the sea experts will expound on this situation.

CFR Article: How 2020 Shaped U.S.-China Relations

Here is an end of the year China greeting from CFR. My colleagues and I discuss the impact of 2020 on U.S.-China relations and what lies ahead. It includes commentary by Elizabeth Economy, Yanzhong Huang, Adam Segal, and Julian Gewirtz. Being an optimist, I like the Chinese popular song “Tomorrow Will Be Better.” You can read the article here.

From Nixon to Biden, Kissinger's Role in US-China Relations

By Jerome A. Cohen 

Here is Joe Bosco’s brilliant analysis in today’s The Hill.

I wish the author had not inserted the supposition that Henry Kissinger might have told his PRC friends that flattery of presidents was necessary in order to be persuasive. Although Henry might well have, it would be better to have evidence to support the thought, a quite plausible one in light of Henry’s public flattery of Nixon.

I have not reviewed the Nixon tapes but know, from my own experience in occasional discussions with Henry in the period 1969-71, of his ability, on the one hand, to make fun of the president in private and, on the other, to behave in the most obsequious manner when the boss summons by phone. As many may know, Henry has often been an outrageous flatterer to others, not only presidents. He has long been a sometime practitioner of the maxim that “flattery will get you everywhere”.

More substantively, unlike Joe Bosco and, today, many others, I do not agree that the 1971-72 Nixon-Kissinger momentous breakthrough with the PRC was mistaken, and not only because it was desirable at the time to seek to balance Soviet power. Many of the other reasons that made it desirable for the US and the PRC to begin to cooperate remain valid today. Indeed, in view of China’s progress, those reasons are more important than ever and should not be obscured by the many challenges that China’s increasing prominence inevitably presents.  

I share the author’s great concern for what to do about the PRC’s many outrageous human rights abuses and agree that Henry’s prescriptions utterly fail to respond to those challenges. I wish that Joe had mentioned Henry’s enormous success in maintaining a business consulting enterprise that has rested in important part on his access to PRC leaders.

I was amused by the reference to Henry’s alleged maneuvering to make sure that Nixon would designate him as the presidential agent for the July 1971 secret trip to Beijing.  The first draft of the Harvard Kennedy Institute of Politics private memorandum on the need for a new China policy, prepared for whoever might be elected president in 1968, suggested, in its first recommendation, that the new president select the secretary of state to carry out secret, if need be deniable, conversations with the Beijing leadership. Our Harvard-MIT group of Asia specialists, convened by Kennedy Institute leader Dick Neustadt, intended to submit that memorandum right after the election.

After Nixon won, it became clear that William Rogers would become secretary of state and that our colleague Kissinger would become national security advisor. Because Henry, although not a member of our committee since he had not been associated with Asia, was known to some of our group, we decided to submit our memorandum via Henry. It was suggested by some who knew Henry that we change the first recommendation in the final draft to eliminate the specific reference to the secretary of state and instead to suggest that the president select someone in whom he had the greatest confidence for the stealthy China mission. Those who knew Henry, as I then did not, felt confident that he might maneuver to qualify for the extraordinary opportunity. 

The rest, as they say, is history!

Should the US Take China's Threats of Arbitrary Detentions Seriously?

By Jerome A. Cohen

This recent Wall Street Journal article reports that Chinese officials have threatened to detain U.S. citizens in response to the Justice Department’s prosecution of Chinese military-affiliated scholars. The case of the two Canadian Michaels shows that this may not be an empty threat. Both men were swiftly detained following the initiation of extradition proceedings against Huawei’s Ms. Meng in Vancouver. It will be two years in December and there is no prospect of their release since the Canadian case moves forward at a snail’s pace. So, we know that the PRC may well mean business in threatening to detain Americans in retaliation for prosecutions in the US.

Yet the PRC has suffered a huge amount of international condemnation for this blatant example of “hostage diplomacy,” and an obvious effort to extend this practice to a number of Americans will outrage and disgust the liberal democratic world while perhaps pleasing many other nations in the UN that support or fail to criticize the PRC’s human rights violations.

The PRC appears to recognize the grave consequences that would result from a blatant resort to detentions as threatened, which may be why several months have passed with no obvious retaliatory detentions. Perhaps, as with so many other aspects of Sino-American relations, Beijing is awaiting the outcome of the American election. If it should follow through on these threats, it would be providing an enormous stimulus to significant further “decoupling.” Can that be in Beijing’s interest? There must be intense debate at the top.

Did not the 1979 US establishment of diplomatic relations with the PRC alter America's course?

By Jerome A. Cohen 

I enjoyed Professor David Greenberg’s positive evaluation of Jonathan Alter’s new biography of Jimmy Carter, His Very Best, in Sunday’s NYTimes Book Review. I was glad to see that Greenberg–and apparently Alter–appreciate President Carter’s numerous “unsung policy achievements”, since I believe that the Carter administration, although mistaken on some important issues, has been unfairly underestimated. One of its too often “unsung” achievements was Carter’s completion of the task Watergate left unfinished – the “normalization” of Sino-American relations. In February 1972 Nixon left the domestically controversial issue of Washington diplomatically abandoning its KMT ally on Taiwan, the Republic of China, until after he had used the prospect but not the conclusion of normalization to assure his 1972 re-election. Ford did not follow through, and it was difficult for Carter to do so, but he managed. I was surprised, therefore, that Professor Greenberg, in listing the Carter accomplishments that “altered the course of our nation,” did not even mention China policy.

I have not yet seen Alter’s book but assume he gives ample treatment to the subject that has helped keep many of us off the streets for the past five decades. I hope others can tell me more about Alter’s coverage.

Now Is Not the Time to Fully Normalize Relations with Taiwan

By Jerome A. Cohen

Today Newsweek published my article, “Don’t Rush to Fully Normalize Relations with Taiwan,” beside Gordon Chang’s article, “Avoid War, Defend America, Recognize Taiwan,” as part of The Debate, a Newsweek op-ed series. Although our conclusions differ on the formal diplomatic recognition issue, both articles emphasize the need for clear US policy on the defense issue, arguing that the United States should abandon the policy of “strategic ambiguity” that fosters uncertainty and instead make a clear promise to defend the island. You can read both articles here.

What Now? A Conversation on the Future of US-China Relations

By Jerome A. Cohen

I recently joined Scott Kennedy, Rui Zhong, Robert Daly, Sophie Richardson, Yangyang Cheng, Tong Yi, Andrew J. Nathan, Pamela Kyle Crossley, and Alex Wang for a ChinaFile conversation on the future of US-China Relations. I discuss the Trump administration’s dangerous China policy and offer my own ideas on how to improve relations. By adopting “The Four C’s: Cooperation, Competition, Criticism, and Containment,” I believe that Washington and Beijing could improve relations and avoid a further worsening of the situation. You can read the article here.

The Reemergence of the Phrase "Communist China"

By Jerome A. Cohen

I was recently asked about China Daily’s use of quotation marks around “communist China” in this piece, which is much more worth reading and thinking about than most of the articles that CD puts out. The article discusses limitations on Chinese journalists in the US, notably calling the US administration a “cabal of wackadoodles” and criticizing the severance of ties between the US and China.

The Trump people’s resurrection of “Communist China” (I am accustomed to capitalization of Communist when linked to China) as the term for identifying the Government of the People’s Republic of China (PRC) rings many bells with the old cadre of American China-watchers and is a contemporary attempt to help Americans and other people see the differences between the Party and the people in China. “Communist China” was an early, transitional term that served another function – to distinguish Mao’s regime from that of Chiang Kai-shek’s “Nationalist China” sheltering on Taiwan. It was sometimes considered an upgrade of the earlier, more politically emotive term “Red China” that overlapped with “Communist China” in American policy parlance in the ‘60s and early ‘70s. For example, the Harvard-MIT group of China specialists that sent a memorandum to President-elect Nixon via Henry Kissinger in November 1968 used the term “Communist China”.

I remember how startled the journalist Lawrence Spivak, who ran Meet the Press, was when, in an April 1971 TV interview with John Fairbank and me, I admonished him for constantly using “Red China” at that late date and urged him to clean up his language and recognize that the Communist government was indeed the government of mainland China. I have always liked to refer to it as the PRC, which accords it its self-described name and yet has the ring of a Communist regime. I don’t object to the use of Communist China today, during Xi Jinping’s Party-obsessed era, as I didn’t object to it during Mao’s era, because it is a useful reminder of the distinctive regime that controls the Chinese people. That, of course, is why Pompeo and company are using it today. The term has genuine factual connotations and also serves a delegitimizing function in describing a dictatorial system. 

“Intellectual Property Theft” Requires Some Clarification

By Jerome A. Cohen

Here are some thoughts inspired by one American investor’s experience in China as related in Steve Saleen’s Wall Street Journal article. 

Today it is commonplace to read about alleged PRC theft of intellectual property. Often, however, it is unclear what this phrase means. Sometimes it merely refers to PRC insistence that would-be foreign investors transfer valuable IP to their investments in China, whether a joint venture of some type or a wholly foreign-owned enterprise. Sometimes it merely means that a would-be licensor of technology transfers its best IP at a favorable price in return for access to the China market. Such market access in return for technology deals are part of the ordinary commercial bargaining process, and theft seems a misnomer in those circumstances.

At the other end of the spectrum is genuine outright theft via various means including cybertheft. In between, there are many variants, one type of which the sad Saleen story recounts. My three decades of practical experience dealing with PRC business as both a lawyer and an arbitrator, as well as an academic, ended around 2010 and included many situations that qualify for the appellation “theft”.  One standard pattern was for one or more local employees of a Chinese-foreign joint venture to secretly abscond with IP, including trade secrets, contributed by the foreign investor in order to quietly set up a competing venture. Another technique was for the local joint venture (JV) partner or licensee to secretly register the foreigner’s IP in its own name. This was easily done for trademarks as well as patents. A third common technique was for the local licensee to refuse to pay license fees and claim that the foreigner’s licensed technology failed to meet the contract’s prescribed standards, even while the licensee secretly was successfully using it in production and sales. A fourth technique was for the local JV partner simply to take advantage of the foreigner’s helplessness in a remote area where the local authorities were cooperating with the local venture and would permit the local partner, often a government agency itself, to squeeze the foreigner out of control. Sometimes the local police would detain one or more foreign owners or employees and “renegotiate” the relevant contracts in the detention house of the Public Security Bureau! Yet another technique, where the foreign investor or licensor unwisely decided not to keep one of its employees on the ground in China – a basic error, was for the local employees of the JV to keep two sets of books so that local interests could secretly pocket some of the JV profits.  

Sometimes the foreign company could obtain legal relief at considerable cost. But local courts are, of course, under local Party control, and reliable, independent local lawyers may be hard to find. Local protectionism is strong, and corruption rife. Beijing’s central agencies may have limited influence and interest in far-off disputes, and I have been an arbitrator in Chinese arbitrations, even in Beijing, that were plainly stacked against the foreign company that sought relief. 

So “theft of intellectual property” requires some details. 

The US and China Near the Brink—We Need Them to Step Back

By Jerome A. Cohen

In less than half a century, has the wheel come full circle? Nixon used the China issue to reassure his reelection in 1972. Trump is using the China issue in an effort to reassure his reelection in 2020. Unfortunately, contrary to the protests of innocence from the Chinese Government, it has played right into the hands of the Trump “warhawks” now riding high, offering them much to feed upon. What we need today is governments on both sides that will step back from the brink and seek a new modus vivendi, one that will endure for the next, even more complicated half century. Balance – not all-out nationalistic enmity – is what is called for. 

Each side should practice what I call the Four C’s: Cooperation in areas critical to world progress and survival; Competition in business, science, education, the arts and sports; Criticism of each other’s many faults and failures in government, human rights and international relations; and Containment of its own military forces and goals as well as those of the other side. The next six months may be the most challenging to get through. One can only hope that next January will witness the charting of a new path. It will be a long road back.

The Impact of the Hong Kong National Security Law—Outside of Hong Kong

By Jerome A. Cohen

Recently, the State Department warned US citizens in China to “exercise increased caution” in light of the new Hong Kong national security law although it cautiously does not mention the law by name. We are all waiting to see how the PRC interprets Article 38 of the new NSL for HK that on its face purports to cover speech and other conduct by anyone anywhere that the PRC claims to have violated the HKNSL.

The notice is available to all Americans who might plan to travel to China as well as those already there. It is interesting that it warns that consular access might be denied. Even the two Canadians, Michael Spavor and Michael Kovrig, who were detained 18 months ago, had Canadian consular access until this past January when it was cut off allegedly because of Covid-19. The problem is that the PRC version of consular access is very limited. Meetings usually occur once a month at best, they are short, and it is not permitted to even discuss the case that led to the detention. Moreover, PRC commitments to allow appointment of a defense lawyer are not honored. 

The PRC may modify the NSL's extraordinary breadth by announcing additional prerequisites to prosecution in the law itself and/or by demonstrating in its application of the law or through informal public statements that it recognizes that the literal wording goes too far and won’t be applied. But, so far as I know, it has not yet done any of these things. PRC authorities may be scrambling to come to a conclusion about what to do to meet the rising world concern and opposition.

In the interim, Article 38 has certainly had a strong deterrent impact in many countries and is already affecting the calculations of many NGOs and ordinary citizens abroad about their plans and conduct. The State Department is of course most immediately concerned about Americans currently within China’s borders, presumably including Hong Kong, since they are subject to immediate enforcement of the broadest interpretation of 38 if that is the path the PRC decides to pursue. But it should surely notify anyone who, although not currently in China, is planning to travel there, including those who may merely be planning to pass through en route to further destinations.

It is interesting to see the emphasis on private electronic communications. The email warns citizens that they may be detained or deported “for sending private electronic messages critical of the Chinese government.” What is the State Department’s premise? That emails and phone calls wholly between persons outside China are susceptible to PRC monitoring and potentially subject to prosecution? Internet chats? Direct communications between someone outside China and someone inside? “Only” communications wholly within China? The NSL has already had an impact outside of Hong Kong, but it is still unclear what the full impact will be. However, I suppose we have to be grateful that the HKNSL has done a lot to alert the world to the dangers of arbitrary detention in China that too many have long ignored. 

US policy toward the PRC: "the 4 Cs” — cooperation, competition, criticism and containment

By Jerome A. Cohen

Here is a stimulating piece by Steve Orlins, president of the National Committee on US-China Relations for so many years, stressing the importance of Sino-American cooperation in combatting Covid-19. Among other things, Steve discusses the difference between healthy competition and strategic competition.

In a recent Zoom talk, I tried to come up with a catchy slogan summarizing the elements of a balanced US policy toward the PRC.  I called it “the 4 Cs” — cooperation, competition, criticism and containment.

Each of these concepts requires refinement and continuous adjustment. At this time, I’d like to see more discussion, for example, of the differences between desirable containment and dangerous containment.

Also, the scope and emphasis to be given to criticism is an almost daily dilemma for me personally because of requests to comment on this or that PRC policy or action infringing on international political and civil rights as well as rights mentioned in the PRC Constitution. Every criticism provides more ammunition to those who advocate decoupling from the PRC and frustrating its development, policies that I oppose.

Yet self-censorship would be unacceptable and constitute abandonment of hope for moderating the excesses of Beijing’s dictatorship through international exposure and pressures. It would also represent a failure to honor the moral obligation to speak on behalf of the many Chinese who are not allowed to speak of human rights abuses in their country.

Diplomatic interpreters and direct communication

By Jerome A. Cohen

A few days ago NYT had an obituary for Ji Chaozhu, who by all accounts was always a wonderful interpreter. His efforts in the early 1970s were supplemented by Nancy Tang (Tang Wenshun), who shared a similar Sino-American upbringing. Because I was on leave from teaching at Harvard Law, I think Ji felt a certain connection with me, close enough to call one winter day in Beijing in 1979 to ask whether I could arrange for an interpreter from the PRC’s Ministry of Foreign Affairs to be admitted to the regular three-year American law JD program at Harvard Law School. MOFA, he said, wanted to have its first well-trained expert in American law to promote the recent normalization of diplomatic relations.

In view of China’s then extreme foreign exchange shortage, he also asked me to find the funds to pay any necessary costs! The interpreter-candidate he sent for an interview, a dynamic woman in her late 30s, proved as able as Ji predicted, and she was soon admitted without the usual tests etc. Finding the funds beyond a scholarship proved a bit more challenging. But Alexis Coudert, senior partner of the late lamented Coudert Brothers international law firm, for which I was consulting, gave an imaginative interpretation to the terms of a foundation grant he was administering for the study of Polish law that provided enough support to sustain her til graduation!

I don’t think, however, that Ji or any foreign interpreter should have been permitted by the US Government to serve both sides in formal diplomatic discussions. As I recall, the USG did not make use of Foreign Service Officer Chas Freeman, a superb interpreter (and Harvard Law School JD) whom the State Department had trained for the normalization process, for Nixon’s most important discussions in Beijing in 1972. Since Kissinger did not want Secretary of State Bill Rogers there, how could he have the Secretary’s young assistant?  

Finally, I cannot emphasize enough the importance of direct communication without the intervention of an interpreter. At a recent University of Virginia Zoom conference, US Deputy National Security Advisor Matt Pottniger’s delivery of his speech in Mandarin—which has been widely-watched and discussed by many in China—was a master stroke, one that I hope will encourage US diplomats stationed abroad to speak more often in the local language rather than through an interpreter.

I much admired my Harvard colleague and friend, the late Edwin O. Reischauer, who served five years as US ambassador to Japan 1961-66 and was worshipped by Japanese scholars and the Japanese public for his expertise on the country and its language. Yet he usually called upon Prof. Otis Cary, whom I later knew when visiting at Doshisha University, to interpret for him on formal public occasions while serving as ambassador. He believed that any error he might commit in speaking Japanese in public would diminish his status in the eyes of his audience. As I mentioned to him, I think greater weight should be put on the value of American representatives speaking directly in the local language to the foreign public they are addressing.

My interview with ThinkTech Hawaii

This was an informal interview done at the request of Hawaii Public Radio, which wanted to discuss the extent to which I agree with those who now claim that our engagement policy with the People’s Republic of China was a terrible mistake (interview youtube link).

I think the interviewer, the knowledgeable observer Jay Fidell who had interviewed me years ago, had read my recent memoir essay, “Was Helping China Build Its Post-1978 Legal System a Mistake?”. The program was meant to be on Zoom but technical difficulties turned it into a telephone talk.