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.

Another tale of cruelty: how the Chinese government crushed rights lawyer WANG Quanzhang

By Jerome A. Cohen

The case of human rights lawyer WANG Quanzhang (my Washington Post op-ed) is one more tale of PRC cruelty toward a leading lawyer and his family but deserves special further scrutiny from several points of view.

When finally allowed to see him after more than 1,400 days into his detention, his wife Li Wenzu discovered the reason why the regime delayed so long and resorted to so many ridiculous ploys to deny her and any defense lawyers access to him. Like some other well-known professional colleagues, Wang has been reduced to a vegetable through a combination of tortures, physical and mental, as this brief account makes clear.  

Yet there are still unsolved mysteries about the case that render it unusual among the many similar examples of the crushing of the right to defense in violation of China’s Constitution and legislation and the PRC’s international human rights commitments. Why, contrary to standard practice even in “sensitive” cases, has no court judgment confirming and supposedly explaining his long-delayed conviction and sentence been issued to his wife and the public? Is it yet known when his anticipated prison release will occur? Has he, like others, been forcibly subjected to unnecessary and unwanted “medical” treatment that weakened his extraordinary resolve to resist his lengthy incommunicado interrogation?

What will be the terms of his release? Will it be another illustration of what I have often called the “non-release release” (NRR) because the victim is in effect illegally transferred from one mode of loss of personal freedom to another involving less financial and reputational cost to the regime? So many valiant human rights lawyers have been neutered in one way or other after ostensible “release” from their years of futile resistance to unspeakable forms of detention.

I hope many journalists will pursue these inquiries.  

Memories of Bob Bernstein, June 25, 2019

Jerry Cohen

Certain extraordinary people symbolize important aspects of American life. Some stand out in politics, government or law, others in industry, finance, education, culture or sports. Bob Bernstein was a superstar. He was an emblematic figure in not one but two major fields – publishing and human rights. A person of unusual vision and energy determined to make the most of every available moment, Bob insisted on two for the life of one.

I can only speak about Bob’s great accomplishments in the human rights area, which led to a friendship of almost four decades. Yet even in this aspect Bob was a double-header. Not only was he a founder of the leading global human rights organization — Human Rights Watch, but he was also a founder of the leading human rights organization focused on China — Human Rights in China, often referred to as HRIC.

It was Bob’s perceptive preoccupation with China that brought us together, thanks to introductions by the distinguished Columbia political scientist Andrew Nathan and the indomitable scholar-activist Sharon Hom, who has long served as HRIC’s executive director. Together with the able colleagues they recruited for HRIC, this outstanding threesome, Bob, Andy and Sharon, who in China might be dubbed “the three representatives”, have enlightened the world about one of its major human rights challenges.

Robert L. Bernstein (1986). Credit: Don Hogan Charles/The New York Times

Robert L. Bernstein (1986). Credit: Don Hogan Charles/The New York Times

I loved the New York Times obituary about Bob, including the wonderful photos of him. Yet I felt that it didn’t give his work with HRIC its due. With Bob’s prodding and support, HRIC has not only informed the world about the Communist Party’s latest repression of freedoms of expression and arbitrary detention of Chinese who seek to exercise those freedoms, but has also courageously fought to hold the Chinese Government and the Party accountable for their transgressions before the United Nations and other international organizations.

Moreover, Bob was not simply concerned with human rights at large and in the abstract. He cared deeply about the individuals involved, the victims and their front line defenders and also their families. He would often call many of us to ask for ideas about how to find a job for newly-released Chinese dissidents who managed to reach this country or a college opportunity for their children.

Bob’s fierce determination to give voice to the necessarily voiceless was a regular feature of New York’s many China programs. He made sure that the PRC’s  increasing economic development, diplomatic influence and military prowess would not divert us from also considering the human, social and legal costs of its violations of the political and civil rights of its citizens.

I will never forget the lunch at the Council on Foreign Relations where, after listening to a comforting speech by the then Chinese ambassador to the United States, Bob, who was seated directly in front of the speaker, immediately and prominently shot his hand in the air to ask a question that the audience, knowing Bob, anticipated would shatter the harmony. The presider, however, a well-known member of the financial community, kept ostentatiously ignoring Bob’s hand. Finally, Les Gelb, then the Council’s president, to the evident satisfaction of the audience, eased the tension via a stage whisper to the presider: “You’ve got to recognize him!”, at which point Bob did the expected.

Bob was also a tireless human rights advocate behind the scenes. One day, for example, he insisted that I join him in calling on the then president of the Ford Foundation in a final attempt to persuade him to fund the work of HRIC. As Bob knew, Ford, which has done so much to aid China’s modernization, including the development of its legal system, was a reluctant dragon because the Beijing regime has always branded HRIC a “counterrevolutionary” organization. Ford, which has generously supported our NYU US-Asia Law Institute’s law reform projects in China, was concerned that funding HRIC might prejudice Ford’s many ongoing activities in the People’s Republic. I remember three things about that meeting: Bob’s passionate perseverance despite the odds, the respect with which Ford’s president treated him and the grace Bob demonstrated in receiving our inevitable disappointment.

We recovered soon afterward at one of our periodic breakfasts at the University Club, which Bob hosted and knew I enjoyed and which he effectively used as a vehicle for involving me in yet another human rights controversy with the Central Realm. Every time Bob invited me there I knew I would be risking the rice bowls of my law firm colleagues devoted to China and our NYU research associates and perhaps forfeit my next visa.

I could rattle on with other anecdotes but want to end with a tribute to Helen and Bob and their children, who are carrying on his human rights traditions. Bill has recently served as chairman of HRIC and, like the loyal NYU alumnus he is, was instrumental in establishing our comprehensive and innovative NYU Law School Robert L. Bernstein Institute for Human Rights in which Sharon Hom and our US-Asia Law Institute take part. Tom is  Co-chair of another dynamic and international human rights organization, Human Rights First, is Chair Emeritus of the United States Holocaust Memorial Museum and was instrumental in establishing the groundbreaking Bernstein program on human rights at his alma mater, Yale Law School. Peter, with whom I have had the pleasure of cooperating on some publishing projects, has taken a page from each of his father’s two careers and played an invaluable role in bringing to publication many excellent books relating to China and human rights that might have otherwise been still-born. Helen has presided over this energetic menagerie with apparent, if occasionally bemused, equanimity.

Bob was understandably proud of his sons’ perpetuation of his work and indeed proud of all the young people who have flourished and contributed to it, thanks to the foresight and support of the programs in Bob’s honor at Yale and NYU. I feel especially privileged to benefit even today from the continuing help of several of those NYU law students who went on to enjoy the Bernstein fellowships that enabled them to learn the ropes of human rights advocacy at HRIC.

I only came to know Bob toward the end of his impressive publishing career, at a time when he might well have rested on his laurels but instead went on to further achievements in the human rights field. I always told him that I hope to be like him when I grow up! His accomplishments and friendship during the marvelous second phase of his career make me want to recall a few words from Robert Browning’s “Rabbi Ben Ezra”:

“Grow old along with me, The best is yet to be, The last of life for which the first was made. Our times are in His hand, Who saith ‘A whole I planned.’ ……. Let age approve of youth and death complete the same.”

What thoughts should be inspired by the prosecution of Meng Hongwei, the former Interpol chief from China?

By Jerome A. Cohen

The Wall Street Journal had a report on the prosecution of Meng Hongwei a few days ago (“Former Interpol Chief Admits to Taking Bribes, Chinese Court Says”). Here is someone who allegedly received over US$ 2 million in bribes from 2005 to 2017 and nevertheless was selected by the People’s Republic of China in 2016 to be one of its most prestigious representatives abroad. So many questions should be raised about this case.

Were Meng’s alleged misdeeds, committed over a decade, not known at the time of his selection? How could he have previously risen to the top of his PRC institution, the Ministry of Public Security itself, without having been vetted and discovered through its formidable and frightening investigative powers? Were his misdeeds known and not considered troublesome because so common that they did not go beyond the bounds of acceptable behavior? Were they held in abeyance in order to guarantee his compliance with Party demands while at Interpol? Was it inability or refusal to execute Party demands at Interpol that led to his disappearance and prosecution?

Why did Meng return to Beijing when he could have become one of the very people the PRC has unsuccessfully sought to have Interpol help forcibly return to China? Although France has an extradition treaty with the PRC, Meng could easily have gone elsewhere. Moreover, France has signaled that it will not extradite his wife and that she warrants political asylum.

What about Meng’s prosecution? Why did the PRC choose to prosecute him and expose itself to greater international embarrassment when it could have simply kept him “disappeared” like some other sensitive “offenders” who are simply not heard from after their return to the Motherland, voluntarily or not, and who are soon forgotten abroad as well as at home?

Will the court’s forthcoming judgment reveal the details of Meng’s offenses? Will it reveal the identity of the lawyer reportedly assigned to him and the extent of the lawyer’s role both during the many months of presumably incommunicado detention Meng suffered before being brought to trial and during the trial? Did government witnesses testify at trial or were their statements merely introduced in writing? If any appeared in court, were they subject to cross-examination? Was the defense allowed to present its own witnesses in court or even gather evidence before the trial began? Will the court’s judgment be made public as ordinarily required even though the trial was closed to the public? Will Meng be allowed to appeal his anticipated conviction? Will any relatives or lawyers be allowed to visit him once he is transferred from detention to prison at the close of his case?

Will the outside world, the Chinese people or even the overwhelming majority of the Communist Party ever know the answers to these questions?

Police use of force in Hong Kong protests and Carrie Lam's responsibility

By Jerome A. Cohen

This remarkable essay by Neville Sarony is the best I have seen on the use of force in dealing with protesters. I almost skipped reading it because of its title, assuming it would be a one-sided, understandably outraged attack on Mrs. Lam. Instead it turned out to be a judicious, balanced disquisition rooted not only in theory but also in practice and personal experience.

It also is a definitive verdict on Mrs. Lam’s future. She must now accept responsibility for the whole mess and for many specific ugly actions, even preceding Wednesday’s climactic events.

Indeed, we have new insights into the origins of the Hong Kong extradition bill from yesterday’s New York Times. Keith Bradsher’s front page story reports on the introduction of the bill, just before the Chinese New Year holiday, to the Executive Council prior to its subsequent introduction to the Legislative Council after the holiday. ExCo quickly approved the bill “with virtually no discussion”. And the top finance officials and leading financiers at the meeting were not alerted to provisions of the bill for “mutual legal assistance in criminal matters” that would permit the police to freeze the assets of companies and people in Hong Kong at the request of Mainland security agencies!

These officials and business leaders were reportedly “appalled” when they later learned what they had approved! This information adds to what has been well-known about the abbreviated procedures to which Mrs. Lam resorted in seeking to gain LegCo’s approval. Was this “good faith” political leadership in the interest of Hong Kong’s people or even its local and foreign business community?

Hong Kong's extradition law: Not just “Hong Kong people” have reason to fear Chinese “justice”!

By Jerome A. Cohen

It’s not only “Hong Kong people” whose fate is at stake here. Anyone passing through Hong Kong airport could be detained and sent to China (compare the Huawei Vancouver extradition case). Even people who have been extradited by a third jurisdiction to Hong Kong could be subject to re-extradition to  China unless some provision is made in the extradition treaty between Hong Kong and the third jurisdiction to prevent that! This bill would undoubtedly lead those democratic countries that have extradition treaties with Hong Kong to either renegotiate them successfully or terminate them.

No criminal justice systems could be more different in practice than those of China and democratic jurisdictions including Hong Kong. Despite Xi Jinping’s occasionally expressed theoretical aspirations to promote a Chinese court system that will achieve justice in every  case, reality is very different in the many cases that, for one reason or other, are regarded as “sensitive” in China.

Actually, Xi keeps reminding the public that the courts are in fact and ought to be under the absolute political control of the Communist Party. The Ministry of Public Security, the Ministry of State Security, the newly-established Supervisory Commissions and many legally unauthorized secret Party, civilian and military units that also detain “suspects” are far more powerful than the courts or even the procuracy (prosecutors) that is supposed to supervise the legality of all government operations.

Some alleged offenders are never brought to trial in China. Think former Party General Secretary Zhao Ziyang, detained without any legal process for the last 16 years of his life!! Many are detained on spurious charges. Think Ai Weiwei, a famous dissident artist who was ostensibly detained on tax charges! How easy it would be for Beijing to conjure up charges that meet the tests of the forthcoming Hong Kong extradition amendments.

Even formal, authorized detention is frequently marked by physical and mental torture that often leads suspects to “confess” on television even before indictment. Suspects and defendants are often denied timely access to any defense counsel  or to defense counsel of their choice, even at trial. Trials in sensitive cases are usually a farce, and appeals either prevented or a meaningless exercise. Detention conditions are often execrable, leading some accused to confess in order to end the formal prosecution process so they can be transferred to the generally better conditions in prisons. Human rights lawyers are frequently disbarred, sent to prison or otherwise neutered.

Not just “Hong Kong people” have reason to fear Chinese “justice”!

My take on Hong Kong's extradition bill

By Jerome A. Cohen

I've just written a commentary on Hong Kong's controversial extradition bill (SCMP link below). Comments are welcome, especially with regard to the solution proposed at the end of the article.

Jerome A. Cohen, If Beijing wants an extradition law with Hong Kong – and elsewhere – it should reform its judicial process, South China Morning Post, May 23, https://www.scmp.com/comment/insight-opinion/article/3011117/if-beijing-wants-extradition-law-hong-kong-and-elsewhere-it

Perhaps the most frightening aspect of the impending amendment is its application, not only to all SAR citizens and foreign and Chinese residents of the SAR, but also to anyone who passes through Hong Kong.

Washington Post: The forgotten victims of China’s Belt and Road Initiative

By Jerome A. Cohen

I played a minor role in the publication of an op-ed, The forgotten victims of China’s Belt and Road Initiative, with my colleague Aaron Halegua, a terrific Chinese labor law scholar whom I take credit for spotting many years ago, even before he started his JD study at the Harvard Law School! Here's the link to the op-ed online in the Washington Post. The Post was glad to have it and did a very careful job checking the facts and editing it, but I do not think it will appear in the paper because there are just too many Mueller Report-related op eds at the moment.

[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.”

Jia Zhangke's new movie "Ash Is Purest White"

 By Jerome A. Cohen

 The new interesting film by Jia Zhangke has elicited prominent journalistic attention. In the March 13 NY Times, veteran reviewer A.O. Scott calls it Jia’s “enthralling new feature” that develops what starts as a crime drama among urban Chinese lowlife into “a clearer, grimmer air of reality.” Scott seems unaware that in contemporary China the Communist Party is a major social and political force that permeates reality and that one can innocently enjoy this love story gone wrong without realizing that the Party is left out of the story, which otherwise attempts to provide a moving and informed portrait of current gangster life.

By contrast, the reviewer in Film Comment, published by the Film Society of Lincoln Center, someone named Abby Sun, obviously knows more about the People’s Republic than Scott does. Sun, noting that Xi Jinping recently merged the country’s film board with the Party’s Propaganda Department and that the Party cut out from the film’s domestic release a cameo appearance by another well-known but apparently disgraced director — Feng Xiaogang, speculates that Jia may have made the film in “a way to head off or discourage specious Chinese state control”.

Jia Zhangke’s film, "Ash Is Purest White", Cohen Media Group, Opening March 15

Jia Zhangke’s film, "Ash Is Purest White", Cohen Media Group, Opening March 15

Whatever the explanation, I for one was surprised at the omission of the Party’s presence and the simple, candied appearance given to the legal and prison systems. It reminded me of what the dissident writer Liao Yiwu said when, shortly after his first arrival in the U.S., he was asked what he thought of his first American residence in the Chinese-dominated New York City district of Flushing. “That’s easy,” he replied. “Flushing is China without communism.” Ash is Purest White could have been made in Taiwan or even Hong Kong, if not Flushing!

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

By Jerome A. Cohen 

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

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

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

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

Social Research: An International Quarterly, forthcoming 2019

Jerome A. Cohen New York University School of Law

Introduction

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

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

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

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

By Jerome A. Cohen

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

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

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

China’s Xinjiang Propaganda

By Jerome A. Cohen

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

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

Screenshot, China Daily

Screenshot, China Daily

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

Photos of 1970s and 1980s China

By Jerome A. Cohen

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

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

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

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

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

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

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

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

By Jerome A. Cohen

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

China’s ADD: Arbitrary Detention Deficit

By Jerome A. Cohen 

Cao Shunli, Courtesy of openDemocracy

Cao Shunli, Courtesy of openDemocracy

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

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

My interview on the Taiwan Relations Act

By Jerome A. Cohen

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

Jerome A. Cohen on the Taiwan Relations Act

February 20, 2019

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

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

JEROME COHEN: Thank you, Devin.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DEVIN STEWART: Oh, jeez.

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

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

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

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

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

DEVIN STEWART: Which firm was this?

JEROME COHEN: Covington & Burling.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DEVIN STEWART: Thanks again, Jerry.