“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”?

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.

Hong Kong, China, “Rendition” and Human Rights

By Jerome A. Cohen

Officials in Hong Kong are now planning to allow “rendition” (the Hong Kong-Mainland equivalent of  international “extradition”) of criminals to China. This would be a major change and a development that concerns Hong Kong’s special human rights protections.

The United States, Canada, the United Kingdom and Australia have not finalized extradition treaties with China largely because of their concerns about the pervasive problems in China’s criminal justice system, including arbitrary detention, torture and other cruel treatment, coerced confessions, political prosecutions, unfair trials and capital punishment, especially for nonviolent crimes. For similar reasons Hong Kong—China’s Special Administrative Region—has not been able to conclude a “rendition” agreement with the PRC Central Government.

Hong Kong’s current plan to finally move towards a full rendition agreement with the Mainland must not violate the human rights protections that it acquired while still a UK colony under the International Covenant on Civil and Political Rights. The PRC promised to honor these protections after the former colony’s return to the Motherland. They include the non-refoulement principle, which requires governments not to expel any person to another territory if this would result in exposing him to the danger of arbitrary deprivation of life, or torture or other cruel, inhuman or degrading treatment or punishment (and other serious violations of human rights, including, notably, expected violations of the right to a fair trial).   

My colleague Yu-Jie Chen and I have written an article on the human rights problems in Taiwan’s cross-strait “repatriation” agreement (also similar to an extradition arrangement but, like “rendition”, applicable to relations between governments of different parts of China) with Mainland China (see Yu-Jie Chen & Jerome Cohen, "China-Taiwan Repatriation of Criminal Suspects: Room for Human Rights?," Hong Kong Law Journal (2018), SSRN link here). The lessons learned from Taiwan’s experience with the Mainland should be of interest to those who are considering whether Hong Kong should strike a“rendition” deal to send fugitives to suffer the fate of those subjected to Mainland justice. Analogies to the protections provided in conventional international extradition treaties also must be considered.

 

China-Taiwan Relations Re-examined: The '1992 Consensus' and Cross-strait Agreements

By Jerome A. Cohen

Given the recent dueling speeches of Xi Jinping and Tsai Ing-wen, readers might be interested in my forthcoming article co-authored with Yu-Jie Chen on the “1992 Consensus” and cross-strait agreements (Our assessment of the “1992 Consensus” can be found in Section I).

This article was completed in December 2018, but the New Year speeches of Xi and Tsai only vindicate our analysis about the divergent views of the “1992 Consensus.” Their speeches, together with the response from the Kuomintang (KMT) rejecting Xi’s proposal of “One Country, Two Systems,” make it ever clearer that there was no genuine “consensus” about sovereignty issues disputed by the PRC and ROC governments. Notably, Xi Jinping’s remarks, linking “One Country, Two System” with the “1992 Consensus,” depart from China’s previous implicit practice not to publicly challenge the KMT’s position of “One China, Respective Interpretations.”

Taiwan-Japanese Relations and a Rock!

By Jerome A. Cohen

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

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

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

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

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

Provisional Agreement between Holy See and China on the appointment of bishops

Jerome A. Cohen

Today's English language announcement—simple but fascinating in its nuances—seems to be on the track that many observers have envisaged. It is designed to minimize the concerns of both Taiwan and Cardinal Zen and to give Beijing a continuing incentive to do better. If implementation disappoints the Vatican, it can, without significant embarrassment, not move on to a more conclusive agreement. We should scrutinize the Chinese text.

One of my favorite Chinese phrases is "Xuyao yige guocheng" (Everything requires a process), which in this case can certainly be rendered as "Rome wasn't built in a day".

China, Vatican and Taiwan

By Jerome A. Cohen

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

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

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

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

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

By Jerome Cohen

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

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

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

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

Taiwan’s peaceful use of Taiping Island highlights China’s militarization in South China Sea

By Jerome A. Cohen

Here is a very good essay by Steven Myers of the NYTimes on “Island or Rock? Taiwan Defends Its Claim in South China Sea.” The draftsmen of the United Nations Convention on the Law of the Sea (UNCLOS) could have spared the world a lot of confusion had they done a better job. Obviously Taiping Island is an island not only by the definition agreed on in UNCLOS but also in our common vernacular. But Article 121 of UNCLOS should have made it clearer that it deals with two types of islands—those entitled to a 200 nautical mile Exclusive Economic Zone (EEZ) and those that are not. By calling the latter mere “rocks” the draftsmen set the stage for misunderstanding by the general public concerning the decision of the arbitral tribunal in the Philippines-China dispute since any observer can see that Taiping Island is an island in the commonly understood sense. As the tribunal concluded, however, Taiping Island is not an island entitled to an EEZ in accordance with the criteria stated in Article 121. If every small island were allowed an EEZ, it would produce chaos and conflicts in maritime affairs.

The best part about the Myers story is its emphasis on the peaceful uses to which Taiwan is putting its occupation of the island, in contrast to the militarization by China of features that it has occupied, some of which are not even properly subject to identification as islands at all because, in their natural state, they are not above water at high tide as Taiping Island is.

As Beijing began its artificial constructions on and militarization of these always submerged or low tide reefs and tiny islands – much tinier than Taiping Island, it had tried to assure the world that it was taking these actions largely for non-military purposes, thereby inspiring some of us to suggest that it demonstrate its peaceful intentions by allowing other states to share the use of these features and thereby avoid the crisis that Chinese military bases would inevitably induce. I also suggested that Taiwan open Taiping Island to a variety of international activities. Sadly, at this point, the multilateral option—always unlikely—now seems to be definitively off the charts, leaving the U.S. and China to search for other possible ways to resolve their emerging clash of interests.

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.

Profound implications of the ruling of Taiwan’s Constitutional Court in favor of same-sex marriage

Supporters of same-sex marriage outside the Legislative Yuan in Taipei, Taiwan on the day of the Court decision. (CHIANG YING-YING/AP PHOTO)

Supporters of same-sex marriage outside the Legislative Yuan in Taipei, Taiwan on the day of the Court decision. (CHIANG YING-YING/AP PHOTO)

Taiwan’s Constitutional Court issued a groundbreaking decision yesterday in favor of same-sex marriage (the decision, its summary and an English press release prepared by the Court can be found here).

This decision will have profound implications in many respects, as others have recognized in various fora. Domestically in Taiwan it will spur the Executive and the Legislature to fulfill their constitutional responsibilities within the two-year time frame prescribed by the Court. The Constitutional Court has done this before in controversial situations. For example, as Margaret Lewis and I described in our 2013 book (CHALLENGE TO CHINA:HOW TAIWAN ABOLISHED ITS VERSION OF RE-EDUCATION THROUGH LABOR), the Court’s decisions played the critical role in ending the power of Taiwan’s police arbitrarily to imprison “hooligans” outside the regular judicial system. The Court stimulated the Executive and the Legislature to finally end an abuse similar to “laojiao” on the Mainland.

Yesterday's much more controversial decision reminds me of the landmark US Supreme Court decision Brown v. Board of Education that in 1954 led a divided American society away from segregated schools and from other previously legal segregation practices. Yesterday's decision will generate backlash in Taiwan and elsewhere but it is a major step toward social progress everywhere.

Of course, the decision vividly highlights the sad contrast between Taiwan’s version of the rule of law, democracy and human rights and the Mainland’s, which has become ever more repressive. I think the decision’s positive impact on China as well as other countries far outweighs any modest additional, short-run, adverse impact on cross-strait relations. The Mainland’s strict censorship and manipulation of the media will not entirely prevent people from knowing about the decision and its meaning. Although many in the Mainland may not welcome the decision, China traditionally has been more open to same sex relations than more Christian-dominated countries, and the more educated classes will appreciate not only the wisdom and fairness of the decision on the merits but also the significance of the role of the judiciary in a genuine government under law country. It is a sobering fact that 68 years after its establishment the People’s Republic of China does not have a special constitutional court, does not permit its regular courts to apply constitutional protections and has failed to make significant use of the Standing Committee of the National People’s Congress for this purpose, even though the SCNPC is the institution authorized to apply the PRC constitution.

More broadly, this decision is a shot in the arm for Taiwan’s standing in the world, reminding people of the immense progress it has made, although a Chinese civilization, in instituting legal protection for human rights, judicial independence, separation of powers and all the other “Western values” openly condemned on the Mainland at present. Until now Taiwan’s establishment and implementation of the major international human rights covenants has been too little recognized abroad. Yet its national security and survival depend on the willingness of the United States, Japan and other democratic countries to continue to guarantee it protection against the increasing threat of military action by China, and that willingness will turn in large part on the extent to which those countries are aware of Taiwan’s accomplishments in achieving political freedoms.

What journalists can do in the case of Lee Ming-che

Here is an article that Yu-Jie Chen and I wrote on China’s secret detention since March 19 of Taiwan rights and democracy advocate Mr. Lee Ming-che. We argue that China’s handling of the case violates Mr. Lee’s human rights and a cross-strait agreement Beijing and Taipei signed in 2009. This incident has dealt a serious blow to the reliability and legitimacy of cross-strait institutions, which is not in Beijing’s interest.

(Voice of America—Wikimedia Commons)

(Voice of America—Wikimedia Commons)

Where is Lee? Journalists, especially Taiwanese journalists, should keep asking questions about his fate, including in the press conferences of China’s Taiwan Affairs Office and the Foreign Ministry. In particular, we still don’t know whether he is detained under “residential surveillance at a designated place” (指定監視居住) or normal criminal detention (刑事拘留) (although as we pointed out in the article, the charge of “endangering national security” suggests that Chinese police may have invoked the former procedure).

If it’s criminal detention, the police can hold the suspect as long as 30 days, by which time they have to ask the approval of the procuratorate to formally arrest (逮捕) the suspect in order to keep him in custody. The prosecutors have up to 7 days to make their decision. The 37-day mark for Lee’s detention is April 25 (counting from March 19). If there is any formal arrest in Lee’s case, it should be made by April 25. At that point journalists should ask whether a formal arrest has been approved. If it has, where is Lee being held? Why? Can he see a lawyer? Will Taiwan officials have access to him?

If there is no formal arrest, Chinese spokesmen should be asked whether Lee is under “residential surveillance,” according to which the suspect can be held for up to six months in an undisclosed place (i.e., without the protections of a formal detention center) and has no access to the outside. Torture is commonplace in such circumstances.

A Conversation With Ma Ying-jeou

On March 1, Asia Society hosted a program where I had a 80-minute interview with my friend, Taiwan's former President Ma Ying-jeou. You can watch the program online now (link here).

His performance was impressive and obviously appreciated by an overflow audience with diverse views. As he contemplates an important and useful future, he should not neglect occasional gigs as a stand-up comedian!

Review of Taiwan's implementation of the two major UN human rights covenants

Photo credit: Taiwan's Presidential Office

Photo credit: Taiwan's Presidential Office

The week January 15 to 20 was a busy week in Taiwan for our ten-member committee of international human rights specialists who were invited by the ROC Government to review its progress in implementing the two major UN human rights covenants.

This was the second such review, the first having been in 2013. It was an impressive exercise and culminated in a stimulating lunch with ROC President Ms. Ing-wen TSAI. After lunch my wife, Joan Lebold Cohen, who specializes in Asian art history and photography, my very able colleague, Ms. Yu-jie CHEN, who just received her doctorate in law from NYU, and I spent another hour exchanging ideas with President Tsai. The Concluding Observations and Recommendations of the Second Review Committee can be found here.

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.

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

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

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

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

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

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

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

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

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

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

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

“He said, Xi said”: the press conferences after the Xi-Ma meeting

Photo by the Office of the President of Taiwan

Photo by the Office of the President of Taiwan

by Jerome Cohen

The much-anticipated meeting between China’s President Xi Jinping and Taiwan’s President Ma Ying-jeou took place today. Here are the statements from Xi Jinping and Ma Ying-jeou and the subsequent remarks of Tsai Ing-wen, Taiwan’s political opposition party’s leader and presidential candidate.

We will see more analysis by political commentators, especially those on Taiwan from the opposing KMT and the DPP camps. But one thing we can all agree upon is that the press conference of Zhang Zhijun, the head of China’s Taiwan Affairs Office, gave the world a new example of “He said, Xi said.”

Seriously, I think Ma’s decision to do his own press conference rather than leave it to the very able Andrew Hsia, the head of Taiwan’s Mainland Affairs Office, which would have comported with Taiwan’s other efforts to demonstrate equality with the PRC, was a wise one, demonstrating how democratic leaders expose their conduct to the public. Xi’s consistent reluctance to face questions and the pathetic three questions staged for Zhang, together with the shielding of the Chinese people from Ma’s initial speech and then his press conference, undoubtedly left a vivid impression on many Chinese.