More Thoughts on the Open Letter “China is not an enemy”

By Jerome A. Cohen

The Open Letter “China is not an enemy” (Washington Post link) has generated much debate and disagreement since publication. I have been asked why I signed the letter.

I joined this important effort because I am worried that the current toxic anti-PRC atmosphere and confusion in Washington might lead to a major deterioration in Sino-American relations that could have dangerous political, diplomatic, military and economic consequences. I hoped the letter, endorsed by so many able and prominent observers of the world scene, might alert people in America, China and elsewhere to give the current situation higher priority and greater thought. Of course, if writing the letter alone, I might have handled certain issues somewhat differently, but in a large collective effort one has to focus on its main thrust. I think the impact of the letter and the debate it has provoked demonstrates its value.

The four decades of pre-Trump policies by the U.S. and the “Western” democracies toward China succeeded in many ways. Most Chinese are enormously better off today than in 1972 or 1979, as I can attest from personal experience. China has become part of the world in manifest ways that did not exist forty years ago and there is a huge amount of international cooperation. We need to solve many difficult and serious issues between China and the democracies but should address them one by one while getting our own domestic “Western” houses in better order.

I can cite many examples, good and bad, of how China has been influenced by official American conduct in international affairs. For example, China’s disappointing rejection of the 2016 United Nations Convention on the Law of the Sea (UNCLOS) Philippine arbitration decision concerning many issues of proper interpretation of the Convention undoubtedly was influenced by the egregious failure of the United States even to ratify UNCLOS as well as President Reagan’s scorn for the decision of the International Court of Justice in the Nicaragua case in the mid-‘80s. Also, the cynical U.S. resort to secret CIA actions designed to undermine the new Communist Government in China in the 1950s and 1960s had to have an impact on PRC perceptions about how the international relations game is covertly played.

On the other hand, the major post-World War II roles the U.S. played in establishing the main international organizations and shaping their constructive actions has stimulated increasing PRC efforts to emulate these roles and to rival American influence regarding many crucial areas relating to economics, the environment, international security and even those human rights emphasized by Beijing.

I think the U.S. Government should begin to take a more robust approach towards China’s human rights abuse, especially the Xinjiang atrocities the PRC is now committing. Its Xinjiang record warrants the strongest possible denunciations of the PRC and the application of sanctions, including the Global Magnitsky Act, against those who are directly responsible.

In assessing the current situation, we should recognize that the Xi Jinping government confronts many obstacles at home and will eventually be confronted abroad by a policy that may be summarized as containment, competition and cooperation. Moreover, Xi Jinping will not rule forever.

[New Article] Law and Power in China’s International Relations

By Jerome A. Cohen

I've just uploaded on my SSRN another recent article —"Law and Power in China’s International Relations," which is slated to appear in the New York University Journal of International Law and Politics (JILP) in the Summer of 2019.

This article follows the line of investigation in my 1974 two-volume book co-authored with the late Professor Chiu Hung-dah, People's China and International Law: A Documentary Study, which looked into China's attitudes towards international law. Of course, the book was published in a time when scholars had a challenge finding sources about China's theory and practice of international law in certain respects. Now we're confronted with a different challenge, which is how to thoroughly and thoughtfully investigate an expansive China as it is taking on an increasingly active role in the international arena. I hope that this article offers an up-to-date summary of some important aspects worth considering. I'm pasting the abstract below. Comments are welcome!

Law and Power in China’s International Relations

New York University Journal of International Law and Politics (JILP), Vol. 52, 2019 (forthcoming 2019)

33 Pages Posted:

Jerome A. Cohen

Date Written: April 17, 2019

Abstract

This Article offers a much-needed updated examination of China’s resort to international law in its international relations, one of the most important and controversial topics facing today’s world. The Article analyzes a range of significant subjects concerning China’s contemporary theory and practice, including its WTO experience, territorial and maritime disputes, bilateral agreements concerning civil and political rights and multilateral human rights treaties. Noting that the current rules-based order appears unable to significantly restrain the exercise of China’s growing power, I argue that Beijing’s present attitude toward international law, which thus far seeks piecemeal changes issue by issue, may be in transition, inching gradually toward a more innovative, broader approach that shapes international law in ways that some observers see as resurrecting traditional China’s prominence in East Asia and that others fear reflect even grander ambitions. China’s growing power, however, is not as securely-based as widely-assumed, and we should not underestimate the extent to which China’s views are influenced by its interactions with the United States and its perception of American practice of international law.

Keywords: China, international law, WTO, territorial disputes, maritime disputes, bilateral agreements, human rights treaties, US-China relations

Taiwan Relations Act at 40

 The Foreign Policy Research Institute and the Global Taiwan Institute cohosted an event marking the Taiwan Relations Act at 40 last week. Below is the transcript of my remarks in the event. You can also read essays by other participants on this website (link, good).

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Taiwan Relations Act at 40

Jerome A. Cohen

The Taiwan Relations Act (TRA) is a model of legal ingenuity spurred by political necessity. Jimmy Carter inherited Richard Nixon’s challenge, which was to establish diplomatic relations with the People’s Republic of China (PRC). 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. The Communiqué gave 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 the U.S. has never subsequently clarified its formal position. But what the U.S. said in the Shanghai Communiqué was enough at that time, given the fact that Chairman Mao Zedong and Premier Zhou Enlai and Nixon and Kissinger wanted to cooperate to balance the power of the rising Soviet Union.

Although that cooperation began in early 1972, it took until December 15, 1978 for formal diplomatic relations to be agreed on. Even then, the two sides could not deal with all the issues. The Carter administration, nevertheless, decided to bite the bullet that Nixon had avoided and establish formal relations with the Mainland, breaking formal relations with the Kuomintang (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 Chiang Kai-shek’s KMT 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—a move 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 that Nixon had started.

But the two Communiqués left open the status of Taiwan, and the U.S. insisted, as part of the deal for normalizing relations with the People’s Republic, that Washington would continue to have non-official, non-diplomatic, but cultural and economic ties with Taiwan. The question was how to do it.

The Birth of the Taiwan Relations Act

Many members of Congress were very uneasy about Taiwan’s future. I was in Taiwan in 1978 at several points. I saw the terrific anxiety of the people there about what was to come. They needed further assurance because it was not clear what the U.S. would do. Many people thought that the establishment of U.S. 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 U.S. Congress, in imaginative negotiations—ones that took several months—with the executive branch including the State Department and others, came up with a law.

That law, the Taiwan Relations Act, is not an international agreement. It is merely the unilateral act of one government saying, “This is our interpretation of the situation.” It had two functions, mainly. One was 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: 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 the two had formal diplomatic relations? The U.S. had to find some substitute arrangement so that, for example, if somebody from the Republic of China wanted to come into U.S. courts, they could come in just the way they used to, and if somebody wanted to sue Taiwan officials or people, that it be no less, and no more, possible than before 1979. The U.S. wanted to try to give Taiwan all the continuing privileges and benefits that the Republic of China enjoyed when the two maintained diplomatic relations even though Carter had severed formal ties.

The key was really the first function because, when the U.S. ended diplomatic relations with Taiwan, it affected the 1954 mutual defense treaty between the ROC and the United States. The abrogation of diplomatic relations meant an end to the defense treaty. The U.S. terminated the treaty with China’s agreement in an orderly way. The defense treaty had a provision like many treaties: If you wanted to withdraw, you could give one year’s notice that you were going to do so, and that is what the U.S. did.

But what would substitute for the defense treaty? The answer, in part, was the Taiwan Relations Act, which was to provide comfort to Taiwan. Of course, the TRA was not formally a treaty, but only a law, and the language on defense cooperation is very vague, even by the standards of mutual defense treaties. 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 this possibility and implies that the U.S. has the discretion to do so. The NATO agreement also has this kind of language, but people understand the context, and over time, vague words take on added weight. Forty years later, the Taiwan Relations Act is rightly regarded as having become very important.

The question Beijing has had from the day formal relations were established has been: How long would the new U.S. relationship with Taiwan go on, especially the arms sales that the TRA provided for? How long could the United States be allowed to provide arms to a government it no longer recognized, and with which it no longer had diplomatic relations? Once the U.S. had recognized the People’s Republic of China on the Mainland as the only legal government of China, how could it justify continuing to provide arms to a regime that no longer was in Washington’s eyes the legal government of China and that was condemned as an illegitimate regime by the newly recognized legal government of China? These questions have been a source of continuing tension in Washington’s negotiations and discussions with Beijing since 1979. Forty years on, no one has solved this problem.

Arms Sales under the Taiwan Relations Act

In February 2019, Assistant Secretary of Defense Randall Schriver offered assurances that the U.S. will continue to provide Taiwan with all the arms necessary to defend itself. That is what the TRA says: for Taiwan to defend itself, not to attack the Mainland. Taiwan had to give up that idea, which Chiang Kai-shek had endorsed, with the unrealistic hope that he might renew the civil war with the communists and retake the Mainland.

In the 1980s, Beijing thought the arms sales problem would be settled rather quickly. In the “Third Communiqué” issued by the U.S. and the PRC in 1982, the Reagan administration assured Beijing that, as tensions relaxed across the Strait and as the situation improved, the U.S. would gradually reduce arms sales to Taiwan. But the end to arms sales that Beijing hoped for has not happened. The U.S. formula for arms sales that has prevailed is not the one Beijing believed it had secured after negotiations on several occasions, but, rather, the Taiwan Relations Act’s formula. Under the TRA, the U.S. remains obligated to continue to “make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capability.” For Beijing, this is more than a thorn in its side.

Arms sales are symbolically important, but they also are a very practical question because on both sides of the Strait, military planners that are constantly considering, if force has to be used, what will happen? Would there be a three-day war? Would there be a long, drawn-out contest? Would the United States come to Taiwan’s aid? Would Japan join in? What damage would be done to China? Could such a war threaten the Chinese leadership’s grip on power if China could not quickly and effectively subdue Taiwan? Would war decimate not only the people on Taiwan, but also the people in Shanghai and other Mainland places?

Many people think that war will never happen, but that Beijing will use other means, and that Beijing’s recent intensification of pressures against Taiwan—military, political, economic, and psychological—will gradually erode the will of the people in Taiwan. Well over a million Taiwanese are living and working in the Mainland, and some observers think more Taiwanese will move there, becoming more vulnerable to Chinese influence. Some expect that 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, but none of this seems likely, judging from the evidence we now have about attitudes in Taiwan. Still, a lot depends on what leaders in the United States say that reassures, or fails to reassure, Taiwan, and how Taiwan—as well as the Mainland—behaves in cross-Strait relations.

China-Taiwan Relations in the 21st Century

My former student, Ma Ying-jeou, accomplished something very impressive during his two terms as president in Taiwan (2008-2016). He managed to make over 20 agreements with the Mainland (on economic matters) despite the Mainland’s longstanding positions that: Beijing will never treat Taiwan on an equal basis; the central government of China is in Beijing and Taiwan’s government is merely a government of one of China’s provinces; and there is no possibility of there being “two Chinas,” two Chinese governments.

How did Ma do it? He managed to get China to join Taiwan in making use of the supposedly “unofficial” organizations each side had established—Taiwan’s Straits Exchange Foundation and the Mainland’s Association for Relations Across the Taiwan Strait. As a result, the cross-Strait agreements were not agreements between the government in Beijing and the government in Taiwan; they were agreements between semi-official organizations at most, what might be called “white glove” organizations. In reality, they were agreements between the governments, but they did not say so because that would be unacceptable to Beijing.

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, if required, to engage in imaginative methods, often using euphemisms or fictions, to reach agreements that would not otherwise be possible. Ma and his Mainland counterparts, using these devices, concluded 23 important agreements. In 2012, when asked by the Taiwan media what I thought of Ma’s prospects during his second term (which was about to begin), 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.”

Sadly, Ma’s successor and current president, the very able Tsai Ing-wen (of the Democratic Progressive Party), has not convinced the Mainland of the sincerity of her earnest efforts not to rock the boat of cross-Strait relations by not pushing for formal Taiwan independence. Since she came to office in 2016, the Mainland has refused to implement some of the agreements that Ma concluded. This has had a very negative effect on cross-Strait relations and is part of the pressure tactics that the Mainland is bringing to bear on Taiwan under Tsai.

The PRC not only conducts military maneuvers around Taiwan and sends military planes to encircle the island, and so on. China is not only squeezing Taiwan economically. Beijing is also refusing to deal with Tsai’s government in Taiwan, even though it was legitimately elected. Beijing refuses to recognize that the majority of people on the island do not want to be integrated with China.

This has created a very difficult situation for Taiwan. Tsai is seeking greater U.S. help. Tsai is also trying to implement her “New Southbound Policy,” in an effort to reduce Taiwan’s economic reliance on the Mainland by expanding its relationships with Southeast Asian countries and even Australia. This effort is having some positive effect, but Taiwan still faces 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. And Taiwan’s economic dependence on the Mainland also means political vulnerability.

All of these issues are occurring at a time when the U.S. is confronting a very volatile situation in the Greater China region. Most people are not focusing on Taiwan as part of the U.S.’s troubled relations with China. There is more concern with other issues: trade disputes and Trump’s attempt to use trade policies to press China to open its economy in the way it keeps pledging to do; the South China Sea disputes and examples of China’s “aggression” in that region; and the dangerous situation with North Korea and its nuclear arms program. We seem to have many more immediate problems than those concerning Taiwan.

The Importance of the Taiwan Issue

But the ultimate challenge in U.S.-China relations—and one that may be coming back to bite us again—is Taiwan. The American people may be confronted with a huge issue that is full of ambiguity: If push comes to shove and military conflict breaks out in the Taiwan Strait or China takes other serious coercive measures against Taiwan, 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 now going to get involved in a war with China over Taiwan?”

Beijing’s increased military capability means that it could do a lot of damage to U.S. forces and even the United States, with its huge arsenal of missiles and many long-range nuclear weapons, as well as its regular military forces and conventional assets. Faced with this reality, are Americans going to say what British Prime Minister Chamberlain said when Hitler threatened Czechoslovakia before World War II: “It’s a little country far away”? What are we going to do?

The Taiwan Relations Act, repeatedly and recently reaffirmed by senior U.S. officials, says we should come to the aid of Taiwan. Well, will we? And to what extent? One of the challenges is that most Americans don’t know much about Taiwan. The typical story, maybe it’s apocryphal, but I think it’s plausible and may be indicative of a much larger vulnerability in the U.S. commitment to Taiwan: An American woman was interviewed by an American journalist who asked, “What do you think about Taiwan?” And she said, “Oh, I love Thai food.”

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”?

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.

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!

Taiwan-Japanese Relations and a Rock!

By Jerome A. Cohen

Aerial view of Okinotorishima, Japan. (source:  国土交通省関東地方整備局 , Japan)

Aerial view of Okinotorishima, Japan. (source: 国土交通省関東地方整備局, Japan)

Taiwan and Japan, despite the absence of formal diplomatic relations, have just signed another agreement and four MoUs on commercial and various matters, in the context of closer ties since President Tsai Ing-wen took office in Taiwan in 2016. I wonder what is going on in the quiet negotiations between Taiwan and Japan over the more sensitive Japanese claim that Okinitorishima is entitled to an Exclusive Economic Zone (EEZ) of 200 nautical miles and therefore Japan can restrict Taiwan fishermen from large and rich areas.

The 2016 Philippine arbitration award against China could be invoked by Taiwan in support of its opposition to the EEZ claim but it may be impolitic for Taiwan to do so in light of its need for Japan’s support in other matters (additionally, the arbitration award is not legally binding on Taiwan since Taiwan was not allowed to be a party to the arbitration proceeding, and Taiwan has therefore rejected the arbitration award).

Japan and Taiwan will probably try to work out a compromise on this issue before the 2020 presidential election in Taiwan in light of a possible KMT return to power that would oust Tsai’s DPP administration. The KMT administration of President Ma Ying-jeou (2008-16) was openly hostile to Japan on this fishing rights issue. The EEZ claim, giving Japan control over the resources of a huge sea area, has implications that go far beyond fish and is based on tiny islands not much larger than a king-size bed!

My Sept. 12 talk at Yale on “Law and Power in China and its Foreign Relations”

Jerome A. Cohen

I gave a talk last month at Yale’s Paul Tsai China Center [link here]. It’s about an hour long, and tries to contrast the differences between PRC theory and practice regarding domestic and international law. It also started with a protest against what the PRC is doing against Muslims in Xinjiang.

Jerome A. Cohen ’55, a professor at NYU School of Law and founding director of its U.S.- Asia Law Institute, discussed China and foreign relations on September 12, 2018. The event was hosted by the Paul Tsai China Center.

China, Vatican and Taiwan

By Jerome A. Cohen

The Vatican is reportedly discussing an agreement with China on the status of China's Catholic Church and appointment of bishops. If an agreement is concluded, would that indicate the Vatican’s severance of its diplomatic ties with Taiwan?

Every one of Taiwan’s remaining formal diplomatic relationships has its distinctive features, but the Vatican’s is the most special, of course. I assume that ROC diplomats are working hard to separate a Vatican-PRC agreement on “only religion” from other matters.

The ROC on Taiwan, of course, has a huge amount of experience on how a government, by necessity, often has to make agreements on “cultural and economic” matters with governments with which it does not maintain formal diplomatic relations, and how such agreements can often be used as a cover for political, legal and other contacts as well. We should not forget that the PRC, for the first three decades of its existence until “normalization” of its relations with the U.S. in 1979 and especially in the ‘70s, broadened and strengthened its relations with some other governments despite the absence of formal diplomatic relations. Perhaps the Vatican’s second step beyond the current one will be to establish a special type of “liaison office” (lianluo chu) in Beijing, adopting a religious variation of the American office established in Beijing in 1973, six years before “normalization”! International law is rich in flexible examples, and the Vatican has made many unusual arrangements with various states.

I got a kick out of the ROC representative in Rome’s saying that it maintains a “smooth flow of information” with the Vatican. Was this supposed to be illustrated by the Vatican representative in Taiwan’s refusal to comment when asked questions by the local media?

Questions for Taiwan and the world at the decline of formal diplomatic relations

By Jerome Cohen

Last week Taiwan lost diplomatic relations with El Salvador, a long-time diplomatic ally of the Republic of China. Here is an interesting report on the statement of the President’s spokesperson in Taiwan openly recognizing that the end of the ROC’s formal diplomatic relations may be approaching. 

This will be an enormous challenge not only to the ROC but also to all those countries that wish to continue to have de facto relations with it, starting, of course, with the United States. Will more of their current policies and practices—for example, continuing resort to the embassy-like American Institute in Taiwan—suffice? How many countries will be willing to maintain this substitute for normal diplomatic relations once Beijing starts to apply the kinds of pressures on them that it has been applying on Taiwan, its remaining diplomatic allies and even the airlines and hotels that acknowledged Taiwan’s independent existence?

What imaginative strategies and tactics can the ROC employ to improve its situation and maintain and even strengthen its ties to the world in multilateral and bilateral contexts? Will it be possible to further develop the role of “unofficial” de facto diplomatic missions?

Are we on the brink of witnessing some attempted modification of the existing international system? Will some dangerous new formula emerge that may precipitate the cross-strait crisis that has long been postponed but that is gradually developing? An open establishment of a “Republic of Taiwan” might lead to war and might fizzle if not recognized by important states. What if Taiwan seeks to become a UN trusteeship or a U.S. territory, courses that have always been regarded as beyond the pale? Beijing may be stimulating radical thoughts on the part of those concerned to preserve what is usually referred to as “Taiwan’s vibrant democracy”.

The urgent need for stronger foreign opposition to China’s human rights violations

By Jerome Cohen

The essay by Rian Thum and Jeffrey WasserstromThe Dark Side of the Chinese Dream, deserves the widest attention. The problem of how to alert the world to gross violations of human rights while coping with the broader political actions of the perpetrating state is not a new one, of course, in regard to China and other dictatorships. We have long faced a similar challenge regarding North Korea.

It also reminds me of the late 1930s when growing international concern over the foreign political actions of Hitler helped to obscure the domestic horrors he was increasingly committing and to diminish the foreign reactions to those horrors that might have otherwise been expected.

With respect to China’s continuing atrocities, it is time to consider how to heighten the awareness and willingness to protest of the foreign governments and businesses that interact with Beijing. Much greater pressure has to be applied to the national politicians who influence the actions of their  governments. Social protests and boycotts against the multinational corporations that court the PRC and yield to its demands may be necessary to get their attention. Popular condemnations even at athletic events may be desirable. Of course, it behooves the United States Government and the American people to cure our own human rights abuses. “Do as I say, not as I do” is never an attractive or effective posture.

'Easier to die than live': #LiuXia, widow of Chinese dissident Liu Xiaobo, cries out for help in phone call https://www.hongkongfp.com/2018/05/02/easier-die-live-liu-xia-widow-chinese-dissident-liu-xiaobo-cries-help-phone-call/

George Staunton, W. A. P. Martin and the transmission of foreign law

By Jerome A. Cohen  

Here is a good NYT interview with historian Stephen R. Platt about his new book, “Imperial Twilight: The Opium War and the End of China’s Last Golden Age.” It highlights the sad end to George Staunton’s remarkable career relating to China. That career began early with Staunton’s participation in the historic Macartney voyage to Peking in 1793 at age 13 when he reportedly impressed the Emperor with his newly-acquired Chinese language skills.

The high point of Staunton’s career, at least for those of us interested in the Chinese legal system and its interaction with the West, came with his 1813 publication of the first English translation of The Great Ch’ing Code. Having tried wine and women, if not song, to pass the time during the boring off-season in Macao while waiting for trade with the Mainland to reopen, Staunton made good use of the assistance of Chinese colleagues to produce this monumental work. It was stimulated by the recognition that successful business with foreigners requires familiarity with their legal system.

Staunton’s precedent was cited by missionary W. A. P. Martin (丁韙良) in the early 1860s in his campaign to persuade the authorities in Peking to translate Wheaton’s then leading Western text on public international law into ChineseMartin believed that it would not only lead the heathen to Christ but, more practically, also help the Chinese cope with overzealous Western diplomats and traders whose demands were often couched in terms of international law. Some of the foreign diplomats living in China opposed the project for this reason. As Immanuel Hsu’s excellent book on the topic pointed out, the Chinese Government indeed successfully invoked the law of the sea principles recorded by Wheaton against Prussia even before the translation was published.

Israel’s Ties with China

By Jerome A. Cohen

Here is a very useful update on the complex Israel-China relationship, What’s Behind Israel’s Growing Ties With China?. It makes me recall the period 1979-81 when, long before the establishment of diplomatic relations between them, Israel was already secretly providing arms to China. Many of us who then inhabited the Peking Hotel knew what the lonely Israeli arms merchant, Shaul Eisenberg, who so often ate alone in the hotel restaurant, was up to.

 I was told at the time that Israel had enacted a special law exempting Eisenberg (or his company) from income tax on his China profits. His cooperation with Beijing undoubtedly laid the groundwork for gradually increasing Israeli-PRC contacts that led to the preparation for diplomatic relations. My awareness of this process crystallized when in the early ‘80s Peking University asked me to find it a Hebrew teacher and the money to support the teacher. Most of the small group of first students ended up working for Xinhua in Israel or in other relevant pursuits of the Israeli-PRC normalization (Xinhua is the New China News Agency, often used as a forerunner of formal diplomatic relations).

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.

Peter Dutton's commentary on the significance of China’s response to the South China Sea arbitration award

Here is a brief comment worth reading on the PRC's response to the recent UNCLOS arbitration award. As Peter makes clear, the significance of China's response goes far beyond the specific dispute and raises the question of the reliability of any PRC international legal commitment including its economic pledges relating to One Belt One Road and Asian Infrastructure Investment Bank.

One hopes that the PRC will begin to recover from its major blunder through the quiet discussions that have begun with the Philippines. Previous PRC leaders have shown the capacity to modify unwise attitudes toward international law. Whether the current leadership is up to the task is probably doubtful but may depend on the extent to which other influential nations seek to demonstrate the undesirable consequences of Beijing's stance.

One important topic that has not received enough attention is where Taiwan fits into the equation. Unlike the PRC, the ROC was eager to take part in the Philippine arbitration proceedings. The UNCLOS tribunal, well aware that its decision on the merits of the many sensitive issues at stake would infuriate Beijing, went out of its way to avoid further offending the PRC in its handling of Taiwan's efforts to be heard. Taiwan could not take part in the proceedings, and the tribunal even refused to allow Taiwan observer status at the hearings, which had been granted to several interested Southeast Asian states. Moreover, the tribunal's opinion referred to Taiwan in a way that would not offend Beijing (but was sure to offend Taiwan). To its credit, and perhaps in order to please Beijing, the tribunal, while not formally accepting the strong "friend of the court" brief submitted by Taiwan's leading NGO - the Chinese (Taiwan) Society of International Law, on whether Taiping island (Itu Aba), the largest of the Spratlys and the only one occupied by Taiwan, is entitled to an Economic Exclusive Zone, did make the brief available to the parties and surely considered it before disagreeing with Taiwan's (and Beijing's) position. Taiwan's new government is now struggling with the dilemmas of how to respond to the tribunal's decision, which offended it not only in substance but also in procedure.

Why So Many Journalists Thought the Permanent Court of Arbitration Made the Philippines-China Decision

The South China Sea arbitration ruling was made by an arbitration tribunal set up in accordance with the United Nations Convention on the Law of the Sea (UNCLOS). However, when discussing the arbitration case, many news reports made the mistake of saying that it was the Permanent Court of Arbitration (PCA) that issued the ruling. Indeed, the context of the PCA’s actions and its very name as a ”Court of Arbitration” obviously throw newcomers and journalists off the track. Its Press Release, however, makes it status and role clear to the wary.

On page 3, the section on the PCA’s Background explains its origin long before the UN and its many contemporary functions as a site for and agent of various types of international dispute resolution arrangements. The PCA is a facilitator. It provides a splendid place for hearings and excellent administration that relieves the tribunal of endless burdens that come with every arbitration and that the arbitrators themselves cannot deal with. It even has a public relations office that captures public attention in the same way that its palatial hearing room does. Plainly, the PCA does not minimize its role.

Commercial arbitrators have to avail themselves of similar facilities and facilitating agencies, but usually the arrangements are less misleading. Some years ago, for example, I had to preside over a 12-day arbitration hearing in London in an investment dispute between a South Korean company and a Saudi Arabian company that had, per the contract, to take place under the arbitration rules of the International Chamber of Commerce. I asked a UK organization to handle all the host arrangements, which relieved me and the ICC headquarters in Paris of many tasks. But there was never any confusion over whether our tribunal’s decision was that of ICC arbitrators or of the facilitating organization.

Future UNCLOS arbitrations should make sure that such confusion does not arise if they again choose to benefit from the assistance of the PCA, as they undoubtedly will. 

South China Sea Ruling and Defamation

The press conference of the PRC Ministry of Foreign Affairs (MOFA) following the South China Sea arbitration award was surely one of the lowest of many low points in China’s response to the arbitration Tribunal. Here is what’s reported, Foreign Ministry Spokesperson Lu Kang's Regular Press Conference on July 13, 2016:

“Q: Vice Foreign Minister Liu Zhenmin told the press this morning that the then Philippine government gave bribes to judges of the Arbitral Tribunal, but did not go into details. Does the Chinese side believe that the bribes from the Philippines would make the judges rule in favor of them?

A: As we said before, the establishment of the Arbitral Tribunal has no legitimacy. It is illegal, and what it has done over the past couple of years was questionable. What Vice Foreign Minister Liu Zhenmin said this morning was that the Arbitral Tribunal was not an international tribunal and had nothing to do with the UN-affiliated International Court of Justice (ICJ) in the Hague. Judges of the ICJ and the International Tribunal for the Law of the Sea are paid by the UN to ensure their independence and impartiality. As for the five judges in this case, they made money, they were paid by the Philippines. I figure it necessary to make that clear.”

Of course, what constitutes libel or slander in one jurisdiction may not qualify in another (especially in China, where the source of the judges’ compensation guarantees their lack of independence!!). This MOFA reaction is based on so many distortions of the truth that the mind boggles but its implication certainly amounts to defamation in my eyes.

It would be good if the arbitrators, and even the Permanent Court of Arbitration that facilitated administration of the case, would file law suits against the PRC and its spokespersons in China and in some democratic countries where the defamation had effect, preferably including at least one Anglo-American country and one Continental European country in order to perfect this imaginative research experiment in comparative law!  

Tsai Ing-wen’s Response to the South China Sea Arbitration Award on Itu Aba

President Tsai Ing-wen yesterday addresses dignitaries and the crew of the frigate Dyi-huah at Zuoying naval base in Kaohsiung. Photo: ROC Ministry of National Defense

President Tsai Ing-wen yesterday addresses dignitaries and the crew of the frigate Dyi-huah at Zuoying naval base in Kaohsiung. Photo: ROC Ministry of National Defense

I think Tsai’s immediate response was disappointing. Why send a military vessel to protect Taiwan’s sovereignty over Itu Aba (Taipingdao) when the decision had nothing to do with sovereignty? Such uncharacteristic bluster (so different from Tsai’s response to Japan’s interference with Taiwan fishing within the preposterous Okinotori Exclusive Economic Zone (EEZ) claimed by Japan) may have played well at home but abroad it made Taiwan look like the PRC.

I think she should have announced her disappointment about the unfairness to Taiwan of having been excluded from an adequate hearing before the tribunal made its decision as well as about the decision on the merits (Although I liked the amicus brief submitted by the Chinese (Taiwan) Association of International Law, the tribunal’s arguments were more impressive, as I am about to publish in the Wall Street Journal today Beijing time.)  That would have made a better platform for then going on to say that, of course, Taiwan is prepared to take part in negotiations about how to resolve the problems in light of the new circumstances.

I don’t think the American people noticed Tsai’s actions at all. While the US Government can’t be happy with her initial response, the USG got what it wanted on this issue and surely understands Tsai’s felt need to deal with her public’s opinion.

The real challenge for Taiwan is whether to continue to press for an EEZ/Continental shelf for Itu Aba via some imaginative means. Being excluded from the United Nations Convention on the Law of the Sea and the UN, options are limited. Note that Ma offered ten suggestions re how to deal with the Itu Aba problem internally, but not one dealt with trying to reverse the decision or even what to do next externally in any way. 

My Letter to the Editor, NY Times

http://www.nytimes.com/2016/07/14/opinion/the-south-china-sea-dispute.html?ref=topics

To the Editor:

South China Sea and the Rule of Law” (editorial, July 13), about China and the South China Sea arbitration, lacks only one important point. Surprisingly, you don’t mention that the United States, while urging all Asian states to respect the United Nations Convention on the Law of the Sea dispute-resolution institutions, has itself shamefully failed to ratify Unclos, something China did 20 years ago.

This puts us in the position of “do as we say, not as we do,” insulating us from similar challenges and denying us the opportunity to begin similar challenges.

It’s like a swimming coach who exhorts the swimmers but dares not wet his own feet!

JEROME A. COHEN

New York

The writer is a professor and director of the U.S.-Asia Law Institute, New York University School of Law.