US should tell China: ‘Legal warfare’ against Taiwan will lead to real war

The most consequential sub-summit meeting in modern times will take place this week in Anchorage, Alaska, when Secretary of State Antony Blinken and national security adviser Jake Sullivan square off with China’s two toughest diplomatic actors.

Foreign Minister Wang Yi and Yang Jiechi, director of China’s Office of the Central Commission for Foreign Affairs, will present their usual hard-edged warnings about Washington’s “interference in China’s internal affairs” on human rights, Xinjiang, Hong Kong and Taiwan.

Blinken and Sullivan will push back that the United States and other nations are defending Western interests and values against China’s multiple malign challenges to the liberal international order that has well-served all countries for 70 years, most notably China.

Both communist officials are known to employ harsh rhetoric and angry tones when lecturing audiences about China’s victimization at the hands of the West. Hours of close-range hectoring from the two men with their stern visages will be a memorable, but surely not pleasant,  experience for Blinken and Sullivan. 

It will be somewhat akin to Nikita Khrushchev’s berating of John Kennedy at their summit in Vienna in 1961, during a time of similarly-rising tensions with the Soviet Union. The young U.S. president ruefully acknowledged afterward, “He savaged me.”  

President Biden has been in office for an even shorter period than Kennedy was at the time, and Biden is not burdened with a Bay of Pigs foreign policy disaster that Khrushchev mercilessly exploited against the inexperienced president. 

Instead, Wang and Yang will direct their venom toward Trump administration policies and demand that Biden reverse them. Blinken’s spokesperson already has dispatched that ploy, but incessant repetition of stale charges has never deterred the authoritarian regime in Beijing.  

The Chinese protagonists will also surely use the same apocalyptic line on Taiwan that the Soviet leader pressed on Kennedy over Berlin — that Washington must stop resisting the communist power’s ambitions. “It is up to the U.S. to decide whether there will be war or peace.”   

Blinken and Sullivan, Biden’s foreign policy A-team, are astute enough to counter that responsibility for conflict rests with the aggressor, not the defender. As Kennedy reportedly told his communist tormenter, “Then, Mr. Chairman, there will be war. It will be a cold winter.” The deterrent message got through and there was no war. 

Fortified by recent discussions with America’s Indo-Pacific allies, the Americans need to repeat former President Trump’s private warning to Beijing that America will defend Taiwan.  However, if that commitment is not made publicly at some point, Beijing will have good reason not to take it seriously — until they discover too late that they should have. That was Khrushchev’s experience with Kennedy regarding both Berlin and Cuba.

Rather than simply playing defense, Blinken and Sullivan should demand that Beijing stop making the tense Taiwan situation even worse. It can begin by shooting down an idea recently floated at the National People’s Congress that a “national reunification law” for Taiwan is under serious consideration.   

It would reinforce the Anti-Secession Law (ASL) that declared China’s intention to use force against Taiwan not only if it formally declared independence but also if it simply took too long to submit to Beijing’s will. The new measure is intended to go further in enforcing Chinese leader Xi Jinping’s declaration that the Taiwan issue cannot be passed “from one generation to another” and Henry Kissinger’s earlier warning that “China will not wait forever.”   

If enacted, the legislation would mean Beijing has concluded that time finally has run out on Taiwan; that, as the ASL put it, “possibilities for a peaceful reunification [are] completely exhausted”; that the use of force is now not only justified but legally required; and that America will not defend Taiwan. 

When the ASL was first publicly discussed by Chinese authorities in 2004, the Bush administration and the international community made only perfunctory public objections.  Clearly undeterred by that weak response, Beijing enacted the law in 2005. That Western mistake of diplomatic passivity must not be repeated.

The Americans should tell Wang and Yang that the provocative legislation would be tantamount to a declaration of intent to wage war — not only against Taiwan but against the United States, as Taiwan’s “security partner” and primary defender.  

The law, if implemented, would be a mistake of catastrophic proportions for China’s communist government. When the Chinese demand compensation for forbearance, they should be told that avoidance of negative consequences is their reward.

Its mere consideration is the final phase of China’s non-kinetic campaign to “win without fighting” — by intimidation and “hybrid warfare.” In 2003, China’s Central Military Commission promulgated the Three Warfares: public opinion warfare, psychological warfare and legal warfare.  

Beijing has employed all three techniques on the Taiwan issue. Its use of the media to incorporate Taiwan into the Chinese communist empire is all-pervasive, embedding print, radio, television, social media and digital instrumentalities throughout Western countries.  

The messages consistently conveyed are 1) Taiwan is, and always has been, an integral part of greater China, including, since 1949, the People’s Republic of China; 2) the United States and the international community “acknowledged” that historical “reality” starting with Richard Nixon’s opening to China in 1972; and 3) both historical precedent and China’s national law authorize the use of force against Taiwan if all else fails to bring about national “reunification.” 

The second of the Three Warfares, psychological warfare, is clearly influenced by the first.  Use of the media to carry out information warfare and propaganda is the primary way of conditioning the thinking of the target audiences — in Taiwan, the United States, and the broader international community — of the essential correctness, even the morality, of China’s claim to Taiwan. Other means — economic pressure, military demonstration and intimidation — convey the message not only that China’s position is right and just, but that it is also irresistible and inevitable. 

Legal warfare — the ASL and the proposed national unification law — is meant to place the legal imprimatur on the project. One authorizes the use of force; the other mandates it. They counter Washington’s legal position that the Taiwan Relations Act (TRA) obligates the U.S. to help Taiwan defend itself.   

China’s laws also are intended to preempt the Taiwan Invasion Prevention Act (TIPA), which would formally authorize the president to take military action to defend Taiwan. The bill died in the last Congress without active Trump administration support and, reintroduced, it now languishes in Congress under Biden. 

After playing active diplomatic defense in Anchorage against the Wang/Yang tag team, Blinken and Sullivan need to urge the president to go on offense with America’s own legal warfare before his administration finds itself on kinetic defense in the Indo-Pacific.

Joseph Bosco served as China country director for the secretary of Defense from 2005 to 2006 and as Asia-Pacific director of humanitarian assistance and disaster relief from 2009 to 2010. He is a nonresident fellow at the Institute for Corean-American Studies and a member of the advisory board of the Global Taiwan Institute. Follow him on Twitter @BoscoJosephA.