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

Webcast recap: “Jack Downey, Sino-American Relations and International Law — Lessons for Today"

By Jerome A. Cohen

I gave a talk entitled “Jack Downey, Sino-American Relations and International Law — Lessons for Today" at the Woodrow Wilson Center today in Washington, DC.  It was in memory of the late distinguished historian of Sino-American relations Nancy Bernkopf Tucker and reviewed the case of my Yale college classmate Jack Downey, a CIA agent whose plane was shot down in China November 29, 1952.  

I discussed the secret, unlawful and hypocritical policy of the US Government that led to this case and the consequences for Downey and “new” China’s perception of U.S. practice of international law. The talk ended with a consideration of the relevance of the lessons learned to contemporary relations between Beijing and Washington.

The talk’s webcast recap is here: https://www.wilsoncenter.org/event/the-seventh-annual-nancy-bernkopf-tucker-memorial-lecture-us-east-asia-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.”

My interview on the Taiwan Relations Act

By Jerome A. Cohen

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

Jerome A. Cohen on the Taiwan Relations Act

February 20, 2019

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

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

JEROME COHEN: Thank you, Devin.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DEVIN STEWART: Oh, jeez.

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

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

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

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

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

DEVIN STEWART: Which firm was this?

JEROME COHEN: Covington & Burling.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DEVIN STEWART: Thanks again, Jerry.

Normalization of Sino-American Relations: 40 Years Later

By Jerome A. Cohen

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

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!

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.