China’s dangerous legal distortions

China just announced passage of “the Law on Foreign Relations.” According to Wang Yi, director of the Chinese Communist Party’s Central Committee Foreign Affairs Commission, the enactment “is a major achievement in implementing Xi Jinping Diplomatic Thought in the form of law … and a key initiative to improve the construction of China’s foreign-related rule of law system.”

Both excerpted parts of Wang’s statement are bizarre by Western intellectual standards. “Diplomatic Thought,” or foreign policy, can hardly be conceptualized “in the form of law.” And, it has long been recognized that the Chinese Communist Party’s “rule of law” is actually understood as rule by law.

When a government promulgates laws that stand on their own as transparent, objective and consistent standards against which individual actions, decisions or policies are judged, it is recognized around the world as practicing the rule of law. But when a legal “principle” is created to rationalize and “legalize” an official policy decision or action already taken, or when binding international agreements can be discarded at will, it is law only by self-definition, or rule by law.

The distortion is part and parcel of Beijing’s manipulation of both domestic and international law to suit the party’s expanding ambitions at a given point in time.

With the 1972 Shanghai Communique, China and the United States sought to establish their bilateral diplomatic relations on a firm grounding in international law. With dramatically divergent positions on the question of Taiwan, however, much harmonizing wordsmithing was necessary.

The primary area of contention was over whether Taiwan is part of the “one China” both sides endorse. Beijing asserted its absolutist claim in favor of a unified China. Washington agreed that the People’s Republic of China is the sole legal government of the China mainland, but professed agnosticism on Taiwan’s status, merely “acknowledg[ing] [and] not challeng[ing]” China’s position as long as the issue is resolved peacefully. Records of the negotiations and Henry Kissinger’s own public utterances suggest that he may have given private assurances to Mao Zedong and Zhou Enlai that America would not oppose China’s ambitions toward Taiwan.

Beijing, however, was dissatisfied with the lingering ambiguity in Washington’s official formulation and relentlessly pressed for an explicit acceptance of China’s interpretation, which the U.S. side consistently declined, preferring the literal reading of the communique.

Reacting to then-President Carter’s official recognition in 1979, when Taiwan was well on its way to democracy, Congress clarified Washington’s commitment to its security by passing the Taiwan Relations Act (TRA).   

The TRA committed the U.S. 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 capacity as determined by the President and the Congress.”

China has vilified the TRA, especially its guarantee of arms sales to Taiwan, which it correctly perceives as softening the U.S. break with Taiwan it sought with the first two communiqués. Beijing endeavored to nullify the TRA’s effects by pressing for yet a third communiqué to limit arms sales to Taiwan, and Washington accommodated.

In neither the Aug. 17, 1982, U.S.-China Communiqué on Arms Sales to Taiwan or President Reagan’s contemporaneous internal memorandum providing Six Assurances to Taiwan was the TRA mentioned.

China had reason to doubt whether it was a genuine security commitment to Taiwan or just a feel-good gesture by a U.S. Congress slighted by former Presidents Nixon and Carter as they shunted Taiwan aside in favor of closer relations with Communist China.

Beijing tested the U.S. commitment kinetically in 1995-1996 when it fired missiles across the Taiwan Strait to protest President Lee Teng-hui’s visit to the United States and Taiwan’s first direct presidential election. The situation ended in stalemate when Washington sent two carrier battle groups to the region but avoided the strait after Beijing threatened a “sea of fire.”

When Chinese military officials asked how Washington would react if China attacked Taiwan, then-Assistant Secretary Joseph Nye said, “We don’t know … it would depend on the circumstances.” Like prior Republican and Democratic administrations, he failed to mention the commitments set forth in the Taiwan Relations Act. In the subsequent 27 years, only one U.S. carrier has entered the strait, while China’s small but growing fleet of aircraft carriers makes routine passages.

As China’s Taiwan-focused military threat accelerated, U.S. officials finally got around to invoking the TRA as a central component in U.S. policy toward both Taiwan and China. The George W. Bush administration cited it as a legal mandate in Washington’s approach to cross-strait relations.

But, invoking a U.S. domestic law to vitiate, even rhetorically, what China thought it accomplished with the three communiqués clearly rankled Beijing. If Washington was going to use American legalisms to undermine the bilateral undertakings, which it considered the only authorities governing the U.S.-China-Taiwan relationships, China’s leaders decided they would counter with their own domestic legal authority.

In 2004, China passed the Anti-Secession Law (ASL) to “promote peaceful national reunification” by warning the “‘Taiwan independence’ secessionist forces” that “China’s sovereignty and territorial integrity brook no division.” It also warned the United States, “Solving the Taiwan question and achieving national reunification is China’s internal affair, which subjects to no interference by any outside forces.”

The ASL concluded, “In the event that … possibilities for a peaceful reunification should be completely exhausted, the state shall employ non-peaceful means.”

The ASL added a “legal” patina to what had always been Beijing’s public posture: to use force against Taiwan if it refused to submit to China’s authoritarian embrace. The people of Hong Kong have painfully learned the value of Beijing’s word when it discarded the solemn promise of a democratic “system” for Hong Kong.

China similarly showed its contempt for international norms and bilateral agreements when it violated the U.S.-brokered resolution of the Scarborough Shoal dispute; reneged on its promise not to militarize its illegal artificial islands in the South China Sea; and rejected the findings of the United Nations Arbitral Tribunal. Most recently, it agreed with its Russian “no-limits” strategic partner that the West, not Russia, triggered the war on Ukraine, that governments can decide for themselves if they are democratic regardless of universal standards, and that the Western-created, rules-based order must be scrapped.

Communist China’s attitude toward domestic and international law is identical to its view of democracy — the purposes of the communist state prevail over all else.

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 served in the Pentagon when Vladimir Putin invaded Georgia and was involved in Department of Defense discussions about the U.S. response. Follow him on Twitter @BoscoJosephA