China's Anti-secession Law and the impact on U.S. Relations with Taiwan.

 

For presentation and discussion at a conference on 

Taiwan Relations Act Entering Its 30th Anniversary:

Continuities, Changes, and Challenges

 March 14, 2009

 

Institute of European and

American Studies, Academia Sinica,

Taipei, Taiwan

 

By John J. Tkacik, Jr.

 

Beijing's "Anti-Secession Law"[1]of March 14, 2005, marked the end of the tacit understanding that Washington and Beijing have shared since December 16, 1978, under which Beijing prete[2]nded to pursue a policy of peaceful unification while Washington pretended to pursue a one-China policy.  

 

On the fourth anniversary of its promulgation, the ASL appears to have achieved its primary goal – to undermine Washington's security commitment to Taiwan.  The rest of the ASL is essentially superfluous, except as a propaganda exercise, because China's territorial claim to Taiwan is, and always has been, well embedded in the Constitution of the People's Republic of China.[3]  In fact, ironically the only part of China that the PRC Constitution declares to be "part of the sacred territory of the People's Republic of China" is Taiwan – not Beijing, or Tibet or Xinjiang, or downtown Shanghai. Moreover, says the Constitution, "It is the lofty duty of the entire Chinese people, including our compatriots in Taiwan, to accomplish the great task of reunifying the motherland." The idea that Taiwan is part of China's territory is enumerated in other places as well – in China's "Law on Territorial Sea"[4]for example.  So, the idea that there had to be a wholly new "unification law" to assert China's right to invade Taiwan is a bit of a stretch.[5]  

 

On the other hand, the ASL's primary purpose was not to be a "law" at all.  Rather, it seems the ASL was as an instrument designed to counter American claims of a "statutory obligation" to defend Taiwan under the Taiwan Relations Act.  One might say that the "ASL" was a case of statute envy: that is, Washington had a "law"; Beijing didn't, and China's leaders appear to have believed that the only way to neutralize the American "law" was to counter it with a Chinese "law," and to make the Chinese law carry a much stronger mandate to "unify" Taiwan with the motherland than the American law's mandate to "maintain the capacity to defend Taiwan."

 

The Taiwan Relations Act

 

The Taiwan Relations Act[6]-- a part of the United States Codesince April 10, 1979, required the United States to treat Taiwan as an independent foreign state[7]and obliged the U.S. government to supply Taiwan with defensive arms[8]– presumably in order to maintain Taiwan's separate status from China.  During the Senate hearings on the "Taiwan Enabling Act" in February 1979, both Senators Dennis DeConcini (D-AZ) and Jacob Javits (R-NY) commented on America's continuing "commitment to insure the continued independence existence of Taiwan, if that is the will of its people," and rarely (if ever) did any other senator interpose an objection that Taiwan should be considered part of China.[9]  

 

Since then, American officials, as a matter of policy, consistently have reiterated to Chinese counterparts that, yes, America does have a "One China Policy" – one that was consonant with the "Three Communiqués and the Taiwan Relations Act."  The inconvenience of the Taiwan Relations Act'smandates to arm Taiwan and to "consider any effort to determine the future of Taiwan by other than peaceful means" to be "a threat to the peace and security of the Western Pacific area and of grave concern to the United States" seemed to be a cause of embarrassment to Americans.  Chinese sensed this uneasiness and uniformly professed skepticism of Americans' protestations of fealty to the "One China" concept – even when articulated by no less authoritative an official as the President of the United States.

 

When meeting Chinese leaders, Bush has on many occasions used the expression "opposed to Taiwan independence" (but the expression "no support for Taiwan independence" is still used in official US statements) . . . However, while declaring "opposition to Taiwan independence," the Bush Administration has actually stepped up its military ties with Taiwan, vigorously elevated political relations with the Taiwan authorities, and put into effect a "twin-track policy" of simultaneously developing relations with mainland China and with Taiwan, with the result that the Taiwan authorities, feeling secure in the knowledge that they have strong backing, are sliding ever further along the road of "Taiwan independence."[10]

 

Perhaps to tamp down this undue suspicion American officials avoided explaining to the Communist Chinese that the U.S. had a national interest in defending democracies around the globe, and that Taiwan was – unfortunately for smooth U.S.-China relations – one of those democracies.[11]  Instead, they adopted an annoying habit of pointing to the TRA as one of those "obligations" with which they were saddled (as Bush National Security Advisor Condoleezza Rice explained to Australian reporters on October 14, 2003: "we, of course, always remind people that we also have obligations under the Taiwan Relations Act to ... help Taiwan defend itself" without cautioning that the survival of democracy in Asia was a core American interest.[12]

 

So, if indeed the United States could unilaterally assume an "obligation" to perpetuate the separation of Taiwan and China, then it seemed to at least some Chinese scholars that China could benefit by passing its own binding legislation to effectuate unification of China with Taiwan – immediately, if not sooner.  

 

Moreover, China needed to impress upon the United States that Taiwan was a matter of existential urgency to Beijing – an issue over which China was fully prepared to go to war – nuclear war, if necessary.[13]  From outward appearances, it seems that the Chinese leadership regarded Americans as incredulous about the prospect of war over Taiwan because China – unlike the United States – was not obliged by law to "maintain the capacity" to fight such a war.  Hence, a "law" was needed – and it just so happened that a draft of such a law was already in existence.

 

"Statute for the Promotion of National Unification (Draft)"

 

In late 2002, one Chinese professor came up with a "Statute for the Promotion of National Unification (Draft)"[14], a lengthy blueprint based loosely on unification ideas that have been floating around China since Ye Jianying's famous September 30, 1980, elaboration of a framework for unification[15]and embellished by Deng Xiaoping's visions of "One Country Two Systems" with which China embraced Hong Kong and Macao. The Draft'sauthor was an obscure Wuhan Hanjiang University assistant professor of politics and law, Yu Yuanzhou.   Like the American "Taiwan Relations Act," Prof. Yu's Draft purported to provide a legal basis for Taiwan and China Proper to form a unitary state while maintaining Taiwan's social, political, economic and defense structures within a broader Chinese state entity. 

 

According to Phoenix Weeklymagazine, Prof. Yu's Draftwas the fruit of a decade of legal research and the study of China's evolving policy stance toward Taiwan.[16]  Prof. Yu's 1992 doctoral dissertation in international law had examined the Taiwan issue, and he had been disappointed that Deng's strategic concept of "One Country, Two Systems" seemed predicated on "peaceful unification" and it lacked a legal framework.  Professor Yu's Draftfloated intriguing ideas of a "Chinese Federal Republic" (中華聯邦共和國), perhaps like one envisioned in the 1930's by Mao Zedong,[17]or a less-attractive "Taiwan Special Political Region" similar to Deng Xiaoping's "special administrative region" status for Hong Kong and Macau. 

 

But for China's leadership in Beijing, what captured the imagination in Professor Yu's 2002 "Unification Law" draft was its treatment of a "non-peaceful" unification. Yu, in fact, totally rejected the idea of a "Peaceful Unification Law" that had been circulating in academic circles saying that that a one-sided "peaceful" unification law would undermine the possibility of resolving Taiwan's status "peacefully."[18]Yu's Draftalso outlined three conditions under which "unification" would be "non-peaceful":  1) If Taiwan were to declare independence or adopt concrete measures leading toward independence; 2) if there was foreign armed interference or aggression against Taiwan; and 3) if it came to a point where the Taiwan authorities adopted a position of delaying or obstructing peaceful unification indefinitely.[19]

 

His "non-peaceful" unification articles got specific enough to stipulate that bombardment of Taiwan "would not be limited to conventional munitions" and that the targets "would not be limited to Quemoy or Matsu."[20]  Moreover, the professor's Draftspecified that "national leaders and Central Military Commission" (國家元首和中央軍事委員會) had no need to consult further with the National People's Congress should they determine that one of the three casus bellihad presented itself.

 

In it, he outlined various currency, finance, investment and aid issues; he suggests ways of handling foreign citizens.  He also proposed rewards for patriotic Chinese on both sides of the Strait who contribute to unification.  But he believed that Taiwan Independence advocates and those who sought to "de-Sinify" (去中国化)Taiwan must be made aware that they were breaking China's laws, and suggested harsh punishment – with a "statute of limitation of 100 years" – for those who might continue to resist unification after his proposed law would come into effect.   

 

Professor Yu claimed his Draft was enthusiastically received among his colleagues and other interested persons, and that eventually, it made its way to the central leadership in Beijing where the idea began to catch on.  While most of Prof. Yu's draft never made it into the final law, several sections did, including the verbiage on "non-peaceful means" of unifying Taiwan with China. 

 

Beijing embraces "Unification Law"

 

The "legitimacy" and authority of a "unification law" would presumably come from the legislative process in the National People's Congress, the "highest organ of state power" according to China's Constitution (although the preamble of the Constitution specifies that, in fact, the entire constitution is subordinate to the Chinese Communist Party).[21] The NPC supposedly represents the collective will of the Chinese people, and the feelings of 1.3 billion people are not to be trifled with.  The invocation of legislative mandates for unification as a propaganda tool was at the core of a new People's Liberation Army doctrine of "Lawfare" – a component of a "Three Warfares" doctrine that developed in the Chinese military during 2003 – which tended to use an opponent's reverence for "rule of law" against him.[22]

 

But, oddly enough, the idea for a "unification law" was not stimulated in broad domestic debate either in the Chinese Communist Party or in the National People's Congress.  Rather, it arose at the urging of a "patriotic" Chinese gentleman in Great Britain thereby demonstrating that the broad masses of all the Chinese people under heaven were clamored for such legislation. OnMay 11, 2004, during a London tea party for visiting Premier Wen Jiabao with Chinese expatriates, a 76-year-old Chinese immigrant, Mr. Shan Sheng, "demanded the Premier pass such a law soon."  To which the Premier promptly replied, "Your view on unification of the motherland is very important, very important. We will seriously consider it." 

 

Premier Wen's traveling propaganda entourage saw to it that the Premier's exchange with Mr. Shan Sheng was immediately disseminated to all the Chinese newswires, and "unification law" and it was immediately official policy.  No doubt the Premier anticipated the Chinese gentleman's blandishment.  On May 9, just two days before, the Premier exhorted the Chinese Embassy staff in London that unification "is more important than our lives . . . I deeply believe that one day Taiwan will return to the embrace of the motherland. This is a historical inevitability that cannot be blocked by any force." The circumstantial evidence was overwhelming:  The CCP had decided to move ahead with a "unification law", but for reasons of diplomatic cover, wanted it to appear to be responding to the will of the Chinese people – not leading it.[23]

 

The Beijing propaganda machine’s efforts to publicize suggestions that China “will consider legislative steps” mandating “eventual reunification” of Taiwan with China was a sure sign that the People’s Republic intended to ratchet up the pressure on both Washington and Taipei.  The reaction in Washington was noncommittal – rather than warn against any change in the Taiwan Strait's status quo, the State Department Spokesman, Ambassador Richard Boucher could only shrug his shoulders: "There is nothing to talk about at this point because I don't think we've seen any particular legislation. Obviously, it will depend on what they say."[24]  Mr. Boucher's plea that the U.S. could not comment because there was no "particular" text for reference apparently gave the Chinese the impression that the Americans would not have a position on the law so long as they were kept unaware of "any particular legislation."  (Needless to say, the United States had not been so picky when Taiwan's President Chen Shui-bian suggested a "defensive referendum" in December 2003 as a response to China's relentless buildup of missile forces targeted on Taiwan.[25])

 

Within a few days, on May 17, the Chinese probed again to see where Washington stood on its commitment to Taiwan – and its independence-minded President Chen Shui-bian, reelected by a razor thin majority in March, and poised to give his second inaugural address on May 20.  The State Council's Taiwan Affairs Office declared that Taiwan's leaders must choose between recognizing that Taiwan was part of China or "following their separatist agenda to cut Taiwan from the rest of China and, in the end, meet their own destruction by playing with fire," and Beijing's English language China Dailychallenged Taiwan's President:  "Taiwan's leaders at crossroads -- peace or war."[26]    

 

U.S. Deputy Secretary of State Richard Armitage tended to downplay China's new choice of violent words. In an interview with Voice of America'sMandarin Service on May 18, Armitage made calm assurances that he was "quite confident" that Chen wouldn't make any comments in his inaugural speech that would enflame tensions in the Taiwan Strait."[27]  Surely, if the Chinese thought that the United States would take a firm stance in support of Taiwan against China's excessive language, Secretary Armitage's comments to the VOAwere a comfort to Beijing. The only discordant note in the U.S. government reaction to China's rhetoric was White House Press Spokesman Scott McClellan who asserted (though somewhat muddling the Chinese verbiage) on May 19 that "Threats to 'crush' Taiwan or drown it in a 'sea of fire' have no place in civilized international discourse. And Beijing merely hurts its own case by using them . . . and they necessitate that we firmly restate our intention to fulfill our obligations under the Taiwan Relations Act."[28]  

 

"Unification Law" becomes "Anti-Secession Law"

 

The overall American reaction, however, was one of caution and general indulgence of Beijing's fulminations.  And it was a reaction that probably led Beijing to continue to push the "Unification Law" envelope.  Throughout the balance of 2004, dribs and drabs of news about the "unification law" seeped out of China giving the impression that there was some caution in scholarly circles about the effect of such a "law" on neighboring countries, or on the Taiwanese.  

 

Most of it proved insubstantial.  However, there was indeed support for dropping the term "unification law" in favor of "anti-splitting the nation law" (反分裂国家法).   While several analysts portrayed the change of wording from "unification law" to "anti-secession law" as a moderation of tone,[29]it was nothing of the sort.  What the Chinese had dubbed in English as an "Anti-Secession Law was, in Chinese, a law "against splitting asunder the nation" -- clearly much more ominous in Chinese.  There are, of course, perfectly acceptable translations of the term "secession," (脱离) for one, which sounds rather anodyne in Chinese. But in Chinese an  "anti-secession law" (反脱离国家法) simply doesn't sound like it's dealing with a real problem.

 

In Chinese terms, however, the image of "cleaving asunder" (分裂) the nation implies that the nation is a unitary whole as it is.  Whereas a "unification law" implies that the nation is already split and in need of unity.  In dealing with Taiwan, both for propaganda as well as doctrinal purposes, a law against "cleaving the nation asunder" was rhetorically more urgent and necessary than one that "promotes unification" (国家統一促進法).  

 

This could account for the relative equanimity with which the non-Chinese speaking world faced the prospect of an "Anti-Secession Law" while Chinese speakers in Taiwan were a bit more alarmed by the title.  An aide to House International Relations Committee Chairman, Rep. Henry Hyde (R-IL) later revealed that Chinese officials briefed Hyde indicating that China chose the words “anti-secession” for its resonance with the U.S. Civil War.  The Chinese compared their opposition to Taiwan’s independence with President Lincoln’s decision to fight the American Civil War, a war which the Confederates (the Rebels) at the time called the "War of Secession."[30]  It is also very likely that the Chinese Communist Party Central Propaganda Department instructed Chinese interlocutors in Beijing and elsewhere to spin diplomats, scholars, reporters and other interested foreigners with the "inside scoop" that a move from "Unification Law" to "Anti-Secession Law" was a sign of "moderation."  If so, then it worked flawlessly.

 

Another factor that may have played a large part in the progress of the "Unification Law" was Chinese Communist Party General Secretary Hu Jintao's ascension to the Chairmanship of the PRC's Central Military Commission, replacing Jiang Zemin on September 4, 2004.  Hu was known to have been negotiating with the military about Jiang's removal in August, and part of his negotiating tactics appear to have involved adopting a much harder line on Taiwan policy.[31]  

 

In March 2003, Hu Jintao had espoused a fairly moderate Taiwan stance called "The Four Suggestions and the Three Whatevers."[32]  Jiang Zemin, on the other hand, had insisted on a hardline set of Taiwan directives on May 17, 2004, (related to the vitriolic positions noted above) which the People's Liberation Army embraced.  By December 2004, three months into his tenure as CMC Chair, Hu Jintao had nailed his colors to the hardline mast: Hu pronounced his internal directive that "settling the Taiwan issue late is not as good as settling it earlier," and in the words of one Taiwan analyst, Hu Jintao's "Strike Taiwan Independence" would be much more "cold blooded," more "targeted" and certainly not as "weak-handed" as Jiang Zemin.[33]

 

Washington's Flaccid Response to "Anti-Secession Law"

 

The Bush Administration – narrowly winning a second term despite monumental strategic dislocations in Iraq – was not inclined to exert any intellectual efforts to deal with China's gathering assertiveness in East Asia – Taiwan, especially.  Outgoing Secretary of State Colin Powell – perhaps anticipating his ouster in a Bush second term – made an unscheduled and unnecessary visit to Beijing on October 25, just days before the U.S. presidential election, and took the opportunity to explain to the Chinese media what the U.S. meant by "dialogue" between Taiwan and China: "So both sides should show restraint, not take any unilateral actions, look for ways of improving dialogue across the Straits and move forward toward that day when we will see a peaceful unification."[34]  It certainly seemed to everyone listening as though the Secretary of State was doing Beijing's work for it: "promoting unification".   If Secretary Powell thought that by preemptively reassuring China that it didn't need a "law for the promotion of unification" because the United States would promote unification without it – it failed.

 

The State Department, for example, simply couldn't tell what to make of signs from Beijing that China's National People's Congress would indeed pass an ASL at its March 2005 Plenum. On December 10, 2004, outgoing Deputy Secretary of State Armitage (who had announced his imminent resignation a month earlier) appeared on the popular television interview program, the Charlie Rose Show, and saw fit (apropos of nothing) to explain (erroneously) that "We all agree that there is but one China, and Taiwan is part of China."[35]  

 

On December 11, Taiwan's Legislative Yuan elections yielded exactly one new legislative seat for the pro-independence Democratic Progressive Party, a massive loss for the even more pro-independence Taiwan Solidarity Union, and the emergence of the pro-China Kuomintang as the majority party in Taiwan's parliament.  One could argue that if there had been a need for a unification/anti-secession law earlier in 2004 (after the reelection of President Chen), things were turning around quite dramatically in Taiwan, and the urgency had subsided.  But Beijing certainly didn't see it that way.  

 

On December 17, 2004, after the formal announcement of an "Anti-secession Law" was issued in Beijing, State Department spokesman Boucher ducked reporters' questions by insisting that "We have not seen the legislation, had a chance to study it, so we are not in a position to comment in any detail."  He then repeated "our longstanding position that we've stated many times" that " it's the time to focus on dialogue and not for hardening of positions" – as if "dialogue" were the panacea for Beijing's ills.

 

A reporter reminded Boucher that Taiwan's minister "said they talked to the U.S. Government and got the impression that U.S. is against this law," and asked "I wonder can I confirm with you that?"  Boucher dodged: "Well, we certainly keep in touch with all of the parties on this subject. It has come up in the last few days and we've kept in touch with -- as I've said, we've talked to the Chinese and we've talked to some people in Taiwan."  But he ultimately retreated to nonjudgmental diplomatese: "We think it's important for both sides to focus on dialogue. It's not time to harden positions or take unilateral stances" – as if "both sides" were at fault. 

 

The exasperated reporter tried another angle:  "I mean, I understand U.S. policy's One China policy and maintaining status quo, but obviously the Chinese effort to this law is to anti-secession. So would you see this coinciding with the U.S. policy?"  Bucher left the distinct impression that the ASL could indeed be coincident with U.S. policy:  "We'll have to see the actual text of the legislation."[36]

 

Washington's flaccid reaction because there was no "actual text of the legislation" obviously resulted in a stiffening of Beijing hardline position on Taiwan. It was precisely the result that most U.S. officials wanted to avoid, according to well-informed Washington observer Christopher Nelson.  His Nelson Reportfor December 21, 2004, recorded an unnamed Bush official "as saying that the proposed law definitely poses a threat to regional peace and stability" and an unnamed source of his warned privately "that Beijing’s heavy-handed statements this week 'will breathe new life into Chen’s quest for separating Taiwan from the Mainland.'"  

 

Nelson, however, noted that "most China professionals were inclined to try and play this one down, but, when pushed, to express some level of anxiety."  One unnamed source suggested that the National People’s Congress statement “almost certainly has blundered by suggesting that the ‘one country/two systems’ principle should govern all relationships. That has been a sticking point in Cross-Straits dialogue in the past.”[37]  (Alas, there was no "blunder."  This source's comment is apparently uninformed by the fact that virtually all PRC statements on Taiwan place it in the "one country, two systems" category, and it is inconceivable that China's NPC would (or could) take legislative action on Taiwan without invoking Deng Xiaoping's "one country, two systems" principle.[38]) 

 

Nelson observed that the consensus in Washington was, whatever else, “from an international standpoint”, the NPC statement “suggests a willingness to alter the status quo that prompted [State Dept. Spokesman Richard] Boucher’s comments last Friday.” Another "former official" told Nelson 

 

The problem I have with the bill is that it threatens to create an action/reaction chain that is quite unhelpful and unnecessary at the current time. With the LY election, Chen’s options, and the options of the more extreme elements pushing him, are limited. They aren’t zero, but anything approaching ‘juridical independence, the presumed PRC ‘red line’ would seem to be foreclosed by Taiwan politics. So, why do this now!?[39]

 

Nelson's interlocutors suggested that Washington's best tactic would be to firebreak the NPC's moves toward an ASL by "getting Chen to turn the other cheek," something that would be a "major undertaking".  Nelson added, without apparently putting the two together, that the Chinese Embassy in Washington had sent several Congressmen and Senators a letter noting that the ASL "will give full expression to the strong resolve of the Chinese people of never allowing the 'Taiwan independence' forces to cut off Taiwan from the rest of China under any name or by any means."  As Nelson described it, Washington would put pressure in Taiwan "to turn the other cheek," while China would put pressure on Congress to ignore China's new aggressive tone.[40]  (Of course, in retrospect, Chen did "turn the other cheek" – the result was that China's threats to enact an ASL went unanswered by Chen until a year later, when Chen "scrapped" the National Unification Guidelines – and was harshly condemned by the Bush Administration which, by then, had forgotten about Beijing's ASL.)

 

Tokyo persuades Washington to get "serious" about China

 

Six weeks later, at the beginning of February 2005, the Bush Administration was still studiously ignoring the ASL.  As The Nelson Reportput it: 

 

Worried observers say the Administration needs to make more noise about this, because Capitol Hill certainly will, otherwise. And, China is compounding the bullying by trying to force trading partners to endorse the legislation, even though there’s no bill to read. Hard to see how this helps the atmosphere, and seems to indicate China is not really serious about exploring possibilities for progress, so long as Chen and the DPP are in power...that’s the interpretation here.[41]

 

But something had changed by February 17.  Bush Administration statements on China suddenly took on a firmer tone.  Defense Undersecretary Douglas Feith, in remarks to the Council on Foreign Relations, predicted that over the coming ten or twenty years, "the country that can be expected to have the greatest effect on international relations is China."  He then asked if China's leaders "see that China's long-term interests  . . . hinge on its becoming a respected and responsible member of an international community, and that this will in turn require that it forego the threat or use of force to pursue reunification?"[42]  Typically, the new American Secretary of State, Condoleezza Rice, was more circumspect, but at least she, too, at least alluded to China's attempt to change unilaterally the status quo in the Taiwan Strait.[43]

 

On the morning of February 18, The Washington Postprovided clues to the identity of the forces behind the Bush Administration's new assertiveness.  On the front page, it quoted Shinzo Abe, acting secretary general of Japan's ruling Liberal Democratic Party and the obvious successor to Junichiro Koizumi as Japan's prime minister, as cautioning "It would be wrong for us to send a signal to China that the United States and Japan will watch and tolerate China's military invasion of Taiwan . . . If the situation surrounding Japan threatens our security, Japan can provide U.S. forces with support."[44]  

 

The Post'sreport also quoted a "senior Japanese government official" as saying "We consider China a friendly country, but it is also unpredictable," and warning "If [China] takes aggressive action, Japan cannot just stand by and watch."  These were much more blunt formulations than "senior" Japanese had permitted themselves to utter theretofore – and blunter by far than their American counterparts.  Moreover, the Postarticle came the day before the 2005 "Two Plus Two" talks between the American and Japanese foreign and defense ministers.

 

A combination of events had so agitated Japan that it felt constrained to pressure its American ally into a joint statement of strategic interests in the Pacific – particularly vis-à-vis Taiwan.  China's military expansion was accelerating; China's provocations in Japanese East China Sea territorial waters had increased; China's hostility to Japan's quest for a United Nations Security Council Seat was getting more vicious; China's patronage of North Korea in its ambitions for nuclear arms had strengthened; and China's clamor for a "law against splitting the nation asunder" – the ASL – that spelled heightened tensions in the Taiwan Strait and regions adjacent to Japanese waters was louder.

 

Friday afternoon, February 18, briefing reporters on U.S.-Japan strategic issues, Ambassador Boucher allowed himself a rare moment of candor about China.  

 

I didn't say it was all rosy. Part of looking for China to adopt responsible behavior and responsible standards is . . .for example, to get them to limit their exports of missile technology. That's been an ongoing effort. Or to look to resolve tensions peacefully. We have many times expressed our concerns about tensions on the Taiwan Straits and specifically Chinese military activity in that area.[45]

 

One reporter, unaccustomed to State Department expressions of unhappiness with China asked "... so how seriously U.S. is taking it today?" How seriously?  Boucher thought about it, and then answered "Forty-two," a remark that brought laughter from the press corps – but indicated that "seriousness" wasn't necessarily a quality of the U.S. attitude toward China's security challenges. Boucher then reverted to traditional State Department cordiality – "we see overall China's emergence as positive . . . But there are areas where we need to work with China on the international standards that are expected of all nations, and we hope that China will adopt those standards."

 

On Saturday, February 19, when the American and Japanese foreign and defense ministers issued their agenda of "common strategic objectives", prominent among them was to "encourage the peaceful resolution of issues concerning the Taiwan Strait through dialogue."[46]  While couched in positive terms and nestled in other "strategic objectives" that included "develop a cooperative relationship with China, welcoming the country to play a responsible and constructive role regionally as well as globally," the specific enumeration of Taiwan among common objectives of the U.S.-Japan Alliance was startling – indeed unprecedented. It was necessitated by China's increasing stridency over Taiwan.  But it is highly unlikely that the Bush Administration would have assumed a contentious posture toward China without a forceful nudge from Tokyo.

 

China's reaction was intemperate, but it got the message across.  On February 19, 2005, the People's Dailypublished a sour commentary slamming the "Two Plus Two" agenda for "nakedly provokingand interfering in China's sovereignty, territorial integrity and national security."  Moreover, the U.S. and Japan were "encouraging the forces of 'Taiwan Independence' by sending the "wrong signal."  China's NPC was intent on passing the "Anti Secession Law" precisely in the "exertion of the greatest effort to achieve peaceful unification, to oppose and block 'Taiwan Independence' from splitting asunder [China], and to protect the peace and stability of the Taiwan Strait."[47]

 

It was at about this time (February 10) that North Korea stunned the world with its announcement that it was "compelled to suspend our participation in the [Six Party] talks for an indefinite period," and, by the way: 

 

We had already taken the resolute action of pulling out of the NPT and have manufactured nukes for self-defence to cope with the Bush administration's evermore undisguised policy to isolate and stifle the DPRK.  Its nuclear weapons will remain nuclear deterrent for self-defence under any circumstances. The present reality proves that only powerful strength can protect justice and truth.[48]  

 

More than a week after North Korea's bombshell, the Chinese foreign ministry was still confining itself to comments such as it was "studying the situation" and urging all sides to be "sincere" and "patient." At a press briefing February 18, a Foreign Ministry spokesman insisted that, "just having the six-party talks in itself is tremendous progress." That comment came after several reporters bluntly pointed out that two years of the talks -- which brought together the two Koreas, the U.S., China, Russia and Japan -- hadn't resulted in any progress and that the North Koreans had just announced they were suspending their participation.[49]

 

By February 24, a Chinese envoy had managed to get North Korea to make a show of grudgingly coming back to the Six Party Talks, and Secretary of State Rice called her Chinese counterpart with some relief – the Taiwan issue was not as important in her short early as Secretary as the North Korean one was, and China seemed to be the only hope of resolving it.[50]  China, naturally, was playing it for all it was worth.  Rice phoned Chinese Foreign Minister Li Zhaoxing on Friday, March 4, and again on Tuesday March 8, to discuss the North Korean crisis.  In order to keep the United States' eye on the North Koreans rather than the ASL, China kept the text of the law under wraps – as of March 7, it was said, "barely 100 people had seen the actual contents" of the new statute.[51]

 

The ASL reaches the National People's Congress

 

But the National People's Congress was now in session, and the law would have to come to light.  On March 8, It was introduced to the NPC by Vice Chairman and Politburo member responsible for United Front Work, Wang Zhaoguo, who delivered a written "explication" (说明) which asserted in no uncertain terms that the "Anti-Secession Law" was absolutely necessary – given the inexorable rise of "Taiwan Independence Forces" and the push in Taiwan for "constitutional" and "legal" adjustments (in the form of "referenda") which sought to "change the fact that both Taiwan and the Mainland belong to China."   

 

But lest someone in the NPC get the wrong idea – that somehow Taiwan and the Mainland had "equal" status in "one China"  – Wang reassured all that nothing had changed.  The ASL had been carefully constructed within the structure of the PRC Constitution.  

 

Taiwan is a part of the sacred territory of the People's Republic of China.  The grand mission to bring to completion the unification of the motherland is the sacred duty of all the people of China including the Taiwan compatriots.[52]

 

Wang read aloud the text of the new ASL: "If possibilities for a peaceful reunification should be completely exhausted, the state shall  (得) employ nonpeaceful means and other necessary measures to protect China's sovereignty and territorial integrity.  There was no legislative definition of "nonpeaceful means" or of "completely exhausted" – it was left to the State Council and the Central Military Commission to make up their own definitions, presumably in secret, and then decide on war based on them.

 

In other words, it was not up to the NPC continuously to revisit the issue of Taiwan's behavior, but rather, the NPC had ratified the authority of the State Council and the Central Military Commission to determine when dialogue with Taiwan was "completely exhausted" in which case, "non-peaceful means and other necessary measures" would be employed.  (Prof. Yu Yuanzhou's anticipation -- that any "unification" law would necessitate the NPC to abdicate all further responsibility for Taiwan, and leave it in the hands of the Party (via that State Council) and the Central Military Commission – is a testimony to his profound understanding of the way representative parliamentarianism really works in China.)

 

The Politburo's tactic of keeping the text of the ASL tightly held – even from the NPC – was no doubt a response to American pleas notto publish it.  After all, the State Department routinely justified its incapacity to comment on the ASL because no one had "seen an actual text."  The tactic was effective.  When the ASL's text was sprung on the world, it was a fait accompli.  It was now Chinese "law" and nothing could be done to roll it back.  

 

Did China's handling of the ASL learn from the TRA?

 

Perhaps it was a lesson the Chinese had also taken from the Taiwan Relations Act's passage in April 1979. The State Department had submitted a hurriedly drafted "Taiwan Enabling Act" to Congress in January which basically dealt with the status of State Department officials in Taiwan, and secondarily with keeping some sort of legal basis for continuing "commercial, cultural, and other relations with the people on Taiwan on an unofficial basis."[53]   The Chinese took State Department assurances that the "enabling" legislation would be "consistent" with derecognition of the "Republic of China" and recognition of the PRC as the sole legal government of China – including the transfer of Taiwan's diplomatic real property in the United States to the Beijing regime.[54]

 

When the Congress completely rebuilt the "enabling" legislation into the Taiwan Relations Actwhich included a continuing defense commitment, a statement of national policies relating to Taiwan's security, and preserved the Taipei government's legal ownership of all properties – including diplomatic real property (TRASection 4(3)(B)), Beijing was incensed, filing two firm protests with the Carter Administration March 16 (three days after the TRA passed the Senate 90-6 and the House 345-55) and March 25.[55]  The Chinese had hoped that President Carter could maintain his threat to veto legislation – after all, Deng Xiaoping could do so in China – and was quite unsettled that the TRA had passed with a veto-proof margin.  

 

So, in preparing for the passage of the ASL, the Chinese leadership no doubt believed it was none of America's business, but purposefully limited the amount of information on its contents prior to its introduction in the NPC to keep the non-Chinese speaking world in the dark, while Taiwan's voters could benefit from the anxieties created by a year-long rumor-mongering campaign.

 

Secretary Rice's anxiety over ASL and U.S.-China relations

 

While the U.S. Congress complained about the ASL – the House passed a resolution 424-4 "expressing the grave concern of Congress regarding the recent passage of the anti-secession law by the National People's Congress of the People's Republic of China",[56]the State Department was worried about other things.  Ane even when the ASL's legal text was published, the Department's position on the ASL failed to get beyond the idea that it was "unhelpful."  

 

As it happened, Secretary Rice was scheduled to visit Beijing the week after the ASL passed the NPC.  On March 13, before her departure for China, she told the ABC News program This Weekthat the ASL "clearly . . . raises tensions and it's not necessary or a good thing to raise tensions."  But she attempted to reassure Beijing "We have a 'one China' policy. Everybody understands that. The key is that there should be no effort on either side to unilaterally change the status quo."[57]  

 

That same day, the NPC announced a 13% increase in China's military spending.  Still, Rice insisted on describing U.S. relations with China: "And with China, I also think we've had the best -- we have the best relations that we've had in some time, perhaps ever."[58]  Rice's newly nominated choice for Assistant Secretary for East Asia and Pacific Affairs, Christopher Hill was a bit more pointed on the ASL:  The U.S. must be "very vigorous in making clear to the Chinese our concern . . . We don't believe there is any justification for making these unhelpful statements that suggest that there are other options out there that the Chinese can use beside peaceful dialogue" with Taiwan, he said. He also insisted to the Senate Foreign Relations Committee, "clearly any Anti-Secession Law that alludes to the legality of military means is simply not helpful."

                                                                                            

China's defense budget increases prompted Secretary Rice to fret en routeto India from Tokyo – that China's "military spending is concerning because it is taking place at a time when the cross-Strait issue (with Taiwan) is not still resolved and in which the United States has certain commitments to a peaceful solution."  Yet, Rice continued to waffle on the ASL:  

 

It's our responsibility to say to both the parties that unilateral moves that increase tensions are really not helpful, and the anti-secession law, as it's called, is not helpful in reducing Cross-Straits tensions and therefore we have said to the Chinese that we would have hoped that this would not have been done.  Now, it doesn't mean that they can't continue to try to improve Cross-Straits relations, that talks shouldn't continue on the links between Taiwan and China.[59]

 

When she was finally in China, the most Secretary Rice would say about the ASL was "As for the anti-secession legislation, I said to my Chinese hosts that we would hope that this would be something that having, we believe, made dialogue across the Cross-Straits perhaps more difficult, that they would take steps to reduce tensions now with Taiwan."[60]

 

Conclusion – The ASL exposed weaknesses in the U.S. commitment to Taiwan

 

The United States basically dealt with the Anti-Secession Law as a nuisance, and tended to ignore its propaganda significance:  i.e. the Chinese side stressed their right to subjugate Taiwan by "non-peaceful means" while the United States could only say the ASL was "unhelpful."  Beijing spent a good deal of effort lobbying Powell and Armitage at the State Department as well as members of Congress, with the director of China's Taiwan Affairs Office Chen Yunlin visiting Washington in January 2005.  In a February visit to Beijing, National Security Council Senior Director for Asian Affairs Michael Green told Chinese counterparts that passage of the legislation would undermine cross-strait stability – they obviously didn't believe him, and calculated that the U.S. would be more concerned with North Korea – and China's willingness to rein-in Pyongyang.  Rice raised the ASL with Chinese leaders – all the while declaring solemnly that U.S.-China relations were perhaps the "best ever."

 

In April 2007, Chen Yunlin had reportedly informed Washington that some in Taiwan planned to use a "Second Republic Constitution" to achieve independence – and if Taiwan crossed this "red line", China "wouldn't hesitate to invoke the Anti Secession Law."[61]The "Washington source" that provided this report, said the same message had been passed to "other important" governments, including Japan, and that as a result, the February 19, 2005 listing of Taiwan among the "common strategic objectives" of the U.S.-Japan alliance, was never reiterated.  

 

Looking back on the four years since the passage of the Anti-Secession Law, one can only conclude that it achieved its objectives:  to strengthen China's legal claim to the right to use military force against Taiwan, to force Washington to choose between China and Taiwan and thereby weaken 

the American commitment to Taiwan, and to convince the people of Taiwan that – in the