Sponsorship of China’s political advertising in the U.S.: The example of Tung Chee-hwa

By Jerome A. Cohen

Here is a report from a few weeks ago, “Chinese Communist Propaganda Group Paying for Vox Posts”, noting that the Vox has received funding support from the China-United States Exchange Foundation, whose chair is Tung Chee-hwa, the first Chief Executive of the Hong Kong Special Administrative Region.

  Photo: a screenshot of the website of the China-United States Exchange Foundation

Photo: a screenshot of the website of the China-United States Exchange Foundation

How should the media in various countries deal with political advertising—and more subtle forms of financial support—for China’s views and actions is an important issue. But we should not neglect the broader aspects of the problem—how should the independent academic and policy organizations on whose China research the media depends deal with their needs for financial support? In what circumstances is it acceptable or even desirable for them to receive the support of China-backed organizations?

No salesman for PRC views could be more attractive and persuasive to Americans than C.H. Tung, who proved more effective in the U.S. than he was in his native Hong Kong during the period he was the SAR’s Chief Executive. On behalf of one organization or another, CH has offered and provided funds to various U.S. think tanks and other research groups.

As long as no strings are attached and there is public disclosure, I am not bothered by such support, and indeed it can be very important in making possible the continuing work of useful research organizations. How long such support will continue if the recipient’s products don’t square with PRC objectives is worth examining. And, of course, CH’s sponsors will not support research organizations that have already demonstrated critical views of PRC policies.

Years ago, when I was urging the Council on Foreign Relations, where I have long worked part-time, to consider opening a branch in Hong Kong, I talked with CH about the possibility of his joining in this effort. He was enthusiastic until I noted that, of course, membership would have to be open to people with all points of view, including the famous democratic veteran Martin Lee!

CH seems to have a long-standing preference for avoiding Martin’s outlook. I recall, when CH was the SAR’s chief, I suggested to him that the Hong Kong Basic Law Committee, which advises the Standing Committee of the National People’s Congress, be developed into a serious forum for fairly considering the proper interpretation of controversial clauses of the Basic Law. This would be somewhat akin to what the role of the Judicial Committee of the Privy Council in the House of Lords had been concerning Hong Kong legal issues in colonial times. His swift reaction was to reject the idea because that would only give “guys like Martin Lee” another opportunity to make trouble!  

Settling law of the sea disputes: international law is better than gunboats!

By Jerome A. Cohen

 Subi Reef, May 2015, by United States Navy [Public domain], via  Wikimedia Commons

Subi Reef, May 2015, by United States Navy [Public domain], via Wikimedia Commons

Here’s a piece from the WSJ on French warships asserting freedom of navigation in international waters in the South China Sea—The French Navy Stands Up to China. It may be helpful to emphasize that the location of the ship, airplane, other object or person in question is indeed a critical fact in these disputes. It’s like the secret of success in the hotel business— “location, location, location.”

More broadly, we also should not overlook the obvious, yet seldom-mentioned, fact that the disputing nations have peaceful means at their disposition to settle their many conflicting claims to territory, maritime boundaries and United Nations Convention on the Law of the Sea (UNCLOS) interpretations. Negotiation, mediation, arbitration, and adjudication are all set forth in the UN Charter, and UNCLOS and other pieces of international legislation provide details regarding the possibilities. It is not good enough for the U.S., China, France and others to employ gunboats to vaguely raise their claims in a threatening manner.

The Philippines, in its stunning arbitration claims against China, did try to resort to law and a decision by some of the world’s acknowledged independent legal experts in order to defend itself against a much stronger power. The durability and significance of the UNCLOS tribunal’s monumental arbitration award against China is now being tested, especially by a Chinese Government that is seeking to undermine the award in multiple ways.

The U.S. should ratify UNCLOS and subject itself to the UNCLOS compulsory dispute resolution procedures, as other states have. It would be good if Vietnam, Malaysia and other claimants were to challenge China to settle their disputes over who owns the Spratlys before the International Court of Justice. It would be good if Japan, whose Foreign Minister did challenge China to settle their Senkaku/Diaoyu dispute in the East China Sea before the ICJ in 2012, would also challenge some of China’s law of the sea actions and interpretations via the UNCLOS dispute resolution procedures, in the South China Sea as well as the East China Sea. And Vietnam, Malaysia, Indonesia and others should also resort to those procedures to settle their various maritime claims. France should also explore its legal possibilities for contributing to peaceful settlement.

Since the U.S. has shamefully not ratified UNCLOS, that treaty’s procedural options are denied to Washington, which can only coach from the sidelines. In the long run Asian states may want to develop their own regional institutions for handling these problems, but they can do a lot even now. Gunboats are not the only weapons. We can and should make better use of the “weapons” of international law to help settle increasingly dangerous disputes.

China is likely to enter another long period of severe dictatorship

By Jerome A. Cohen

Term limits for the leadership are not usually found in dictatorships. The Chinese Communist Party’s proposed abolition of China’s presidential term limit means that it has forgotten one of the main lessons of Mao’s long despotism. The two-term limit was inserted into the People’s Republic of China Constitution after the Cultural Revolution ended and reflected a widespread desire to prevent the return of one-man dictatorship. Its abolition signals the likelihood of another long period of severe repression. This should prompt us to think of Chiang Kaishek as well as Mao and Yuan Shikai and, in a comparative Asian vein, of Marcos and Park among others. Of course, some recognize that Putin’s example may also have significantly influenced Xi Jinping.

Xi’s move will have a profound effect on world order. It will enable him to move more boldly and increases the risk of his acting arbitrarily and perhaps mistakenly in international relations. It will surely hinder China’s efforts to be respected for “soft power” as well as military and economic prowess.

Xi decided to strike while the iron is hot rather than wait for later in his new term when increasing problems might have made the change more difficult. His brash step has undoubtedly aroused profound concern among the elite. Many high Party personnel, bureaucrats, judicial officials, lawyers, intellectuals, academics and business people, mindful of the past Maoist dictatorship and the increasingly repressive and arbitrary government under Xi, have seen this coming and now, in social media and other informal ways, are showing their anxieties and opposition.

But not many public signs of protest can be expected, since he has stifled free expression in the past few years. There must be great grumbling and concern among the country’s elite and educated, especially since the same Party “proposals” that have eliminated term limits have also confirmed the establishment of the National Supervisory Commission that will make the regime more repressive and more free of legal restraints than ever, imposing what amounts to “the Inquisition with Chinese characteristics.”

There is big risk for Xi at home since, as it becomes more obvious that China’s problems are catching up with its achievements, the government will look less impressive and the masses will begin to lose their enthusiasm and hold the great leader responsible. The elite will be less surprised but less forgiving.

The external risk is more immediate. Xi’s bold consolidation of power will enhance fear of “the China threat”, and his ever greater repression will make people think of Stalin’s decades-long centralization of power, even though, one hopes, Xi will not engage in mass executions. He already is engaging in mass detentions in Xinjiang even though “re-education through labor” was abolished in name a few years ago.

These “proposals” are at least a 1-2 punch against the Constitution when we consider the simultaneous establishment of the National Supervisory Commission. People often wonder—even now—how in 1937 Stalin could have said: “We need the stability of the law more than ever.” while at the very same time displaying the infamous “purge trials” to the world and lawlessly executing huge numbers of people. Xi claims to be strengthening the “rule of law” while making certain that it will never get off the ground. Tell it to all the tens of thousands in Xinjiang who are locked up in Xi’s successor camps to the supposedly abolished “re-education through labor”.

An excellent ChinaFile Conversation: Is American Policy toward China Due for a ‘Reckoning’?

By Jerome A. Cohen

ChinaFile is usually very good value but this week’s Conversation on American policy toward China is of an especially high quality, and what topic is more important and timely, given the current state?

Perhaps enough ink has already been spilt in response to the brilliantly provocative essay by Kurt M. Campbell and Ely Ratner, and I found myself in agreement with all the commentators in the Conversation. Of course, I enthusiastically endorse what Liz Economy and Andy Nathan have written and also particularly benefited from the wise counsel of Lindsey Ford and Robert Daly, whose views I had not heard before. Yet a few additional remarks may be helpful in adding perspective to our dilemma. Therefore, I have chimed in with a comment (attached below with a number of links that might be useful as background).

Best wishes to my blog readers for the Year of the Dog. Hope Springs Eternal!

--------My comment in the ChinaFile Conversation--------

The problem of exaggerated expectations is not a new one for China policy. We only need to recall Franklin Roosevelt’s insistence that the Republic of China (R.O.C.) be accorded permanent membership in the U.N. Security Council. I wonder how much more complicated People’s Republic of China (P.R.C.) participation in the U.N. might have become if it had not been able to step into the R.O.C.’s Security Council shoes.

I think the hopes that motivated the U.S. effort to initiate a new China policy in the late ’60s and ’70s were more varied and complex than often recognized. There was realpolitik as well as wishful thinking. Have we given enough weight, for example, to the importance of obtaining P.R.C. support to counter the Soviet Union and to ease us out of Vietnam? Many China watchers had broader considerations than those in mind when advocating change, but I don’t recall many of my own colleagues saying that we would create China in our own image. I think, for example, of the memorandum that our Harvard-MIT group submitted to Nixon and Kissinger under the awning of the Kennedy Institute of Politics in November 1968 after many discussions. I also want to excavate my 1971 and 1976 Foreign Affairs articles to see the extent to which convergence was a stated goal. We plainly thought that rapprochement would improve international relations as well as the lives of the Chinese people.

We should not underestimate the extent to which the new policy did effect positive change, certainly in the lives of the Chinese people. Anyone who worked in China in the ’70s and even the ’80s can attest to the enormous progress in social and economic conditions that gradually resulted from the Open Policy. And, after a hiatus of several years following June 4, the renewed and wider engagement proved to be successful in many respects, including education and communication, and many Chinese elites today reflect the enormous progress that has been made, which is why Xi Jinping has to fight so hard against “Western values” and to repress and punish free expression.

We should keep in mind that Xi will eventually pass from the scene, at which time we can expect a reaction against his harsh rule. Many in China today are very unhappy about both the domestic oppression and many aspects of Xi’s foreign policy. The P.R.C.’s response to the Philippine arbitration was extremely controversial within expert circles, just as is the imminent enactment of the new “Supervisory Commission” system of arbitrary detention that will confirm what I call “The Inquisition with Chinese characteristics.”

I favor the measures suggested by so many of the commentators in this discussion to reinvigorate American policy in diplomatic, economic, and military terms and to revive our society. But in doing so we should not foster the misimpression that the P.R.C. will remain frozen in the Xi Jinping mold. I still like Joseph Nye’s admonition to “keep open the possibility of more benign outcomes.” Indeed, we need to do more to stimulate such possibilities by enhancing our competitiveness without, as the phrase goes, being confrontational. Given the situation in the South China Sea and in the Taiwan Strait, this will not be easy.

China’s seizure of underwater US drone and implications

China has returned the U.S. underwater drone (“unmanned underwater vehicle” or UUV) that it seized in the South China Sea last week. Plenty has been said about the illegality of China’s seizure, such as Julian Ku’s analysis here and that of James Kraska and Pete Pedrozo here. The PRC’s feeble and vague attempt to justify its action legally and the immediate move to return the drone certainly reflect its awareness of its poor legal position.

Politically China is using this incident to make the broader point of seeking to halt U.S. surveillance closer to China in what is plainly China’s Exclusive Economic Zone (EEZ), whether or not the PRC’s minority legal position prohibiting EEZ surveillance is acknowledged. The UUV incident is undoubtedly an effort to remind us of PRC objections to what is really “close in” surveillance.

Obviously, the attitude of the Trump administration will be crucial in determining whether the U.S. and China are headed toward military conflict. The U.S. government should devise plans for a more vigorous effort to negotiate detailed understandings about UUV and other surveillance activities. The PRC is likely to continue its resistance to such efforts unless it decides to follow Russia’s example by belatedly acceding to the majority rule permitting EEZ surveillance. Such a change in principle is unlikely in the foreseeable future because of the immediate importance to the PRC of insulating from American scrutiny the movements of its submarines in the South China Sea and because the tides there seem to be moving in China’s favor at the moment.

There is also the broader and even more dangerous problem America faces of continuing to protect Taiwan’s security as tensions mount in the Taiwan Strait. The Taiwan and South China Sea issues are related since they both involve the major question of the extent of the U.S. government’s continuing involvement in East Asia. Will there be any possibility of serious negotiations with Beijing on these matters in the near term? First, the U.S. government will have to prepare a strategy, one that will have the backing of a divided American people long tired of foreign wars but aware of East Asia’s importance to our security, of our accomplishments in the post-WW II era and of our values.

Donald Trump's telephone call with Taiwan's President Tsai Ing-wen

China plainly cannot be happy with this direct telephone contact between Taiwan’s President Tsai and President-elect Trump. Of course, Trump is not yet president, so the contact can be regarded as unofficial. Yet it suggests the possibility that the Trump administration may to some extent alter the long-standing policy of the U.S. Government of not maintaining official contact with the Taiwan government.

 Photo credit: Reuters, ABC News

Photo credit: Reuters, ABC News

Pressures have been building during the Obama era to abandon the strict US policy of not permitting the president and vice president of Taiwan to do more than transit the U.S. Indeed, I have advocated allowing them free access to every place in America except Washington, D.C., especially since the current rule restricts my freedoms of speech, information and association unnecessarily and undesirably. A similar rule has prevented the highest American officials from visiting Taiwan, again an inappropriate restriction, especially when the security of Taiwan will soon become a major issue in Sino-American relations once again.

Of course, administrations often change course in light of events. In April 2001 I recall watching George W. Bush, as part of what appeared to be a pugnacious stance toward China, declare on TV at the outset of his administration that he would do ”whatever it takes” to defend Taiwan. Once 9/11 occurred, his administration moved much closer to the People’s Republic and began to avoid provocative statements.

North Korea policy: how about some imaginative variant thinking?

Here’s a piece by Gordon Chang last week on North Korea, To Disarm North Korea, Wage Trade War On China, advocating waging a trade war with China to make it stop from supporting North Korea.

What about trying a different policy toward North Korea, going to the other extreme from Gordon Chang’s proposal? I refer to a systematic effort to bring the North Korean regime fully into the world community and meet its security needs.  US policies toward Vietnam, China, Burma, Cuba and even Iran have changed remarkably and favorably, with varying degrees of success. North Korea would be the ultimate challenge, and implementation would require enormous patience, imagination, flexibility, public education and expenditure of considerable political capital at home and abroad, especially in Northeast Asia. But no other course seems promising. On and off, I have had a number of contacts with the North since 1971, enough to make me think that such an unlikely suggestion may well be worth considering. 

Eric Li’s flawed arguments in a recent NYT Op Ed, “How Trump Is Good for China”

Eric Li, who made his name in the US with a TED talk in which he praised China’s political system, published an Op Ed in the New York Times on Monday, “How Trump Is Good for China.”

I do not object, as some have, to the Times publishing his one-sided piece because its Op Ed Page has favored strong “attack” columns since its inception under Harrison Salisbury in the early 1970s, and it’s good to know what a significant body of people in China are said to be thinking.

I liked Li’s idea of trying to find a “silver lining” by turning the vice of Trump’s election into the virtue of improved Sino-American relations, but his arguments are deeply flawed, as many have pointed out. Two aspects especially struck me.

One is his forceful summary of the ailments of American society and politics while totally ignoring the very serious challenges confronting a China that is gradually weakening, not only economically but also politically and socially.

The second aspect is related to the first. He completely ignores Xi Jinping’s increasingly severe suppression of internationally–recognized civil and political rights. Instead, Li seeks to convey the impression that those inside and outside China who protest Xi’s oppression are tools of aggressive American cultural imperialism rather than reflecting widely-shared universal, civilized values. Even the Times op ed editors, despite their preference for controversy, might have questioned these glaring defects.

Chinese Think Tanks: Confidential Messengers and Idea Sources as Well as Spear Carriers for Their Government

Here is a noteworthy report by Isaac Stone Fish in Foreign Policy, Beijing Establishes a D.C. Think Tank, and No One Notices.

I would only add to this useful analysis the following: In their publications and public speeches, those who work at Chinese think tanks do indeed tend to be spear carriers for their government, with varying degrees of subtlety and effectiveness. Two opposing extremes were on view, for example, at the annual meeting of the American Society of International Law in Washington on April 2, where the South China Sea was discussed. Dr. (Ms.) HONG Nong made a gentle, respectable argument designed to elicit the attention, if not agreement, of the mostly American legal specialists present. The other Chinese speaker, injected into the panel as a result of pressure from the PRC government, proved a disaster who infuriated the crowd by his blatantly unfair efforts to attack the legitimacy of the United Nations Convention on the Law of the Sea dispute resolution process. He reminded me of Molotov, the Hammer, in the good old days of Stalin.

What the thoughtful Foreign Policy article does not discuss is the valuable roles that Chinese think tanks play in conveying foreign information and ideas to PRC decision-makers and in quietly suggesting their own ideas for consideration. In the current Chinese political climate, the latter sometimes requires courage!

South China Sea Disputes: Lawfare instead of Warfare!

by Jerome Cohen

 Spratly Islands, South China Sea, by  Storm Crypt .

Spratly Islands, South China Sea, by Storm Crypt.

The US Navy is preparing to send a ship inside the 12-mile territorial sea China (the PRC) reportedly claims for its controversial man-made island chain in the South China Sea, according to this report

To defuse the rising tension in this area, the US and other countries should resort to international legal institutions, rather than warfare.

The US Senate should seize the opportunity presented by the heightened public interest in the Law of the Sea to finally ratify US adherence to The United Nations Convention on the Law of the Sea (UNCLOS). It would give us greater credibility by subjecting our country to the same dispute resolution constraints that all state-parties to UNCLOS, including the PRC, are legally bound to accept, and it would offer us what we are now denied – the opportunity to challenge PRC maritime claims before an impartial arbitration tribunal, as the Philippines has done.

The value of this opportunity should not be underestimated even if the PRC continues to formally thumb its nose at Manila’s challenge (while seeking to answer it outside the tribunal’s jurisdiction). I do not think most observers appreciate the momentous nature of the Philippine case, which seems to be coming to a head more quickly than previously anticipated. The tribunal’s decisions on jurisdiction and perhaps at least some of the substantive issues have the potential to be a game changer in an increasingly dangerous and uncertain situation. 

All the countries concerned with PRC maritime assertiveness need to respond to the South China Sea crisis with greater collaboration. But, in addition to focusing on political/military gestures, they should be “bombarding the headquarters” in Beijing with international arbitration and International Court of Justice (ICJ) claims that will test the PRC’s actions before respected international legal institutions.

Any hopes Beijing may have for “soft power”, already blocked by its domestic legal misconduct, will be obliterated if the world community condemns it for rejecting itsUNCLOS obligations re maritime issues and the ICJ or ad hoc tribunals for deciding territorial disputes. Only active collaboration by the various countries involved can bring these peaceful ways of settling disputes to the attention of Xi Jinping himself and stimulate reconsideration of the PRC’s current course.

Unfortunately, until now, although there is strong potential support in each of the relevant countries on China’s eastern and southern periphery for lawfare instead of warfare, each finds political reasons for passivity and avoiding Beijing’s wrath in the hope that the Philippines will be successful.  In the meantime, the PRC has been quietly using every means possible to terminate the Philippine effort before the tribunal reaches what may be a damaging decision for Beijing. Time is a factor here since there will be a new Manila administration by mid-2016, and the PRC’s blandishments and pressures might prove more effective with the new Manila power-holders than with the current government, which has already felt and thus far resisted their force.