A Principled China Policy

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The series of speeches on China given by the Trump administration last summer can be read as a declaration of cold war. This declaration is backed up by a growing bipartisan and international chorus of China hawks. Secretary of State Mike Pompeo further escalated tension this past weekend by canceling rules restraining diplomatic contacts with Taiwan.

The advantages of Western confrontation with China are not convincing. Even as hawks take every opportunity to bash China, this proud and powerful country has proved impervious to foreign pressure to change its behavior on issues like human rights or Taiwan. Although the Chinese Communist Party is unlikely to remain in power forever, history suggests that regime change will come from within China. Foreign pressure might hasten it a bit, but it is a long way off. Regime change may not resolve all disputes anyway.

The disadvantages of confrontation are clearer: the partial reversal of economic globalization, a costly arms race, the off chance of a major war between nuclear powers, and a polarization of global politics that will make it harder to tackle pressing issues like the COVID-19 pandemic and climate change.

However, China doves must recognize that Chinese bullying is a reality, from the South China Sea to China’s trade war against Australia.

Sino-American relations are alas on a traditional trajectory of confrontation between great powers, where firmness is interpreted as aggression by the other side and accommodation as weakness. The lack of strategy and coherence from one U.S. administration to the next and across the Western alliance aggravates this dynamic.

The solution is for the United States to adopt a principled policy toward China and persuade its allies to follow suit. The principle in question should be international law. When a relationship sours, the law is usually a good place to fall back on. Here is what a China policy grounded on international law could look like.

Taiwan and Hong Kong

U.S. policy toward Taiwan is a masterpiece of diplomatic ambiguity. It rests on a fundamental contradiction kept alive by sheer hypocrisy: the United States does not recognize Taiwan as a sovereign state but treats her as such, which includes an ambiguous security guarantee.

That ambiguity has proved useful for more than three decades. It is, however, not sustainable in the long term. Chinese military capability—including long-range “carrier killer” missiles—is growing fast. The likelihood that China would prevail over the United States in the Taiwan Strait is already high. Besides military capability, political will is also essential to win a war, and China clearly cares much more about Taiwan than does the United States.

One principled policy option would be to stand by Taiwan, formally recognize her independence, and sign a defense treaty. Such a stance would be catastrophic. It would immediately trigger a full-fledged cold war, with all the above pitfalls and then some. It would probably be only a matter of time until China successfully invades Taiwan. A softer version of that option would be for the United States to provide Taiwan with an unambiguous security guarantee without recognizing her independence. But that proposal rests on the heroic assumption that a China growing in power and assertiveness will continue to swallow U.S. hypocrisy in the face of provocations like joint U.S.-Taiwanese military exercises on its doorstep.

An alternative principled policy based on international law would be to formally recognize Taiwan as part of China and hence renounce military intervention to defend Taiwan. China might immediately invade Taiwan, but not necessarily, given the military, economic, and diplomatic costs. China might instead “Finlandize” a vulnerable Taiwan and keep her on a short leash with salvoes of missiles whenever she does something too independently.

A softer version of that alternative would be for the United States to reinstate the restrictions on diplomatic contacts and otherwise do and say nothing, while privately urging the Taiwanese to bolster their defense and avoid provocations. This version would be wiser because the current ambiguity still plays a useful deterrent role for the time being. It would also be politically easier since formally changing U.S. policy would require congressional approval. U.S. credibility will take a hit if China eventually attacks Taiwan and the United States fails to respond militarily. But by that time, in the absence of regular words and actions to reaffirm the U.S. commitment to Taiwan, the security guarantee would have become ever more ambiguous anyway.

International law largely vindicates China on the question of Taiwan. Only 15 states recognize Taiwan as a sovereign state, and that doesn’t include either the United States or any other major country. Dismissing that fact carries a high risk that things will eventually go very wrong.

The status of Hong Kong in international law is clearer than that of Taiwan: it is part of China. But China is constrained in its administration of Hong Kong by a treaty with the United Kingdom. The security law adopted by the Chinese government last year violates that treaty. The decision of the United States, the United Kingdom, and other countries to cancel certain bilateral agreements that provided Hong Kong with more favorable treatment than China are adequate retaliatory measures. If China treats Hong Kong like the rest of China, so should the world. There is nothing more to do, except to provide moral support to the people of Hong Kong. Hong Kong was always going to eventually come under full Chinese control according to the UK treaty.

Security Flashpoints

The Sino-Indian border again became a hotspot in 2020 as the two countries have endured an eight-month military stand-off in the Himalayas. When bilateral negotiations fail, the legal way to resolve such disputes is to let the International Court of Justice draw the border. The ICJ has good expertise in such matters. But neither China nor India accepts the Court’s mandatory jurisdiction. There is alas little that the United States can do about it beyond diplomatic exhortation to deescalate the confrontation. If hostilities were to escalate nevertheless, the United States should condemn either army’s intrusions beyond the Line of Actual Control, but otherwise stay out of the military confrontation and continue diplomatic entreaties.

The South and East China Seas pose an even greater security challenge. Here international law is not on China’s side. China has not precisely defined its maritime claims beyond a vague “nine-dash line,” has not articulated a legal case to back them up, has refused to cooperate with the international tribunal in the case brought by the Philippines, and has wantonly escalated facts on the ground with the installation of military facilities, drainage of reefs, oil exploration, and harassment of other countries’ fishing vessels. The tribunal concluded “that there was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line.’”

A principled policy based on international law calls for the United States to be assertive in pushing back on Chinese bullying. The United States should assist its treaty allies, Japan and the Philippines, to maintain the status quo on the islands and waters they control. It should continue freedom-of-navigation missions and be prepared to respond proportionately to any use of force by the Chinese.

Elsewhere I advocate for the creation of a World Security Community, a defense alliance open to any country in the world committed to human rights and international law—which could include the United States if it renounces the use of force except in self-defense or with UN approval. Southeast Asian nations want to keep friendly relations with both China and the United States and don’t want to be forced to choose sides. Nevertheless, merely having the option of joining a global defense alliance that includes the United States would strengthen their hand in pushing back against Chinese bullying, whether in the South China Sea or on other matters.

Human Rights

Violations of human rights in China are very concerning. China signed several UN human rights conventions, and the right forum to confront it on these matters are the relevant UN committees. They are alas ineffective, but that is what international law provides for. Rather than withdrawing from such bodies, the United States should mobilize an alliance of democracies to strengthen them.

The U.S. government can also help document Chinese human rights violations, assist diaspora groups, and provide moral support to the Chinese people through rhetorical condemnations. That is particularly warranted in the case of China’s treatment of the Uighur minority, as mass incarceration, slave labor, and forced sterilization are crimes against humanity. China is losing a lot of “soft power” over Xinjiang and may well change its approach, especially given that the Uighurs don’t pose much of a threat.

Sanctioning Chinese officials, however, is aggressive, ineffective, and fuels a cold war dynamic. “Horizontal sanctions” equitably applied on all countries or companies that commit certain human rights violations—like employing slave labor—are better. Although the United States cannot force China into adopting its liberal values, American consumers should not be forced to buy goods made by slaves.

China hawks fear that China is exporting her illiberal political system by barring Western companies and individuals who criticize it from accessing its vast market, hence fostering self-censorship in the West. Although the problem is real, it is overblown. It is best addressed by voluntary codes of conduct for Hollywood, academia, the media, and businesses. More generally, the priority to promote human rights should be to strengthen existing democracies and lead by example.

Trade

On trade matters, China is clearly not upholding international law. China hawks point to numerous cases of theft of trade secrets and data, as well as of bending trade rules, for instance by forcing Western companies to form joint ventures with Chinese firms as a condition of accessing the Chinese market.

The issues are too numerous and complex to do them justice here. But a few principles can be discerned to address them. First, any action regarding trade relations with China should be planned, deliberate, and based on rules. This contrasts with the scattershot approach of the Trump administration, which has made America a rogue trader, for example by imposing illegal tariffs on China or forcing the sale of TikTok.

Second, holding China accountable to trade agreements should not be approached from the prism of a total confrontation with an adversary. Trade relations should remain separate from security considerations whenever possible, with trade in dual-use technologies being the exception.

Third, the United States should not act alone, but in concert with allies. Securing allied support will be easier if the United States adopts a principled China policy, such that allies will not perceive a confrontation with China on trade matters as part of a cold war that they do not want.

Fourth, new rules and accountability mechanisms are best developed multilaterally. The World Trade Organization (WTO), where China sits, should be the first port of call. Whenever the WTO fails to resolve disputes, the Organization for Economic Cooperation and Development, the members of which are democracies, has the expertise to develop detailed rules to manage Western economic engagement with China.

Fifth, Western countries should be cognizant of the fact that they developed WTO rules without China and at a time when developing countries were largely powerless. The West should be open to revisit certain trade rules to reflect the new balance of economic power.

International Cooperation

China is the biggest country in the world and an indispensable partner to tackle global challenges like the pandemic, climate change, and other global catastrophic risks. The current state of bilateral U.S.-China relations is appalling in the context of the biggest global crisis in 75 years. It is imperative to reset relations with China, and international law is the logical principle to fall back on.

The lack of democracy in China may have played a role in the early onset of the novel coronavirus pandemic. An independent investigation overseen by the World Health Organization should shed some light on the matter, and it is the proper way to address this gripe of China hawks. But China has now much to offer the world to cope with the spread of the pandemic. It is also a serious partner—more so than the Trump administration ever was—in tackling the other vital threat to humanity: climate change.

Another global challenge is the proliferation of armed conflicts and the spike in refugees that they entail. Here China should be commended for what it is not doing. A hallmark of the Cold War were the many proxy wars that the United States and Soviet Union fought against each other in the Third World. Russia is rekindling these proxy conflicts by providing military support to governments (Syria and Venezuela) or rebels (Libya). As the cases of Iraq and Syria demonstrate, the United Sates never kicked the habit either. Iran, Turkey, Saudi Arabia, the United Arab Emirates, and Qatar are all fueling armed conflicts.

Not China. China’s philosophy of non-interference in other countries’ domestic affairs is sometimes frowned upon in the West as it entails providing economic support to dictatorships (something the United States actually does as well). But national sovereignty remains the bedrock of international law. As a big power, China has both the means and interests to take sides in armed conflicts. Its restraint is remarkable, and the United States should follow that example.

The Importance of a Principled Policy

A principled China policy would neither confront China nor cave in to it across the board. Confrontation will only meet China’s stiff resistance, and appeasement is unacceptable. A principled policy would give credit where credit is due and hold China accountable where it breaks the rules. Above all, China-bashing must be toned down. Criticize the behavior, not the actor. It is possible to condemn China’s treatment of Uighurs while negotiating trade solutions in good faith.

Adopting international law as the basis for U.S. policy toward China would shape expectations in a helpful way. Taken individually, several of the policies advocated here, like the Taiwan policy, would project weakness, which could embolden China’s bullying behavior and alarm U.S. allies. The principled approach reduces that risk. The United States refrains from defending Taiwan not out of weakness but to remain consistent with international law. Allies can be reassured—and China warned—that by virtue of that same principle the United States remains firmly committed to the defense of its treaty allies.

Likewise, the overarching principle also lends credibility to the more confrontational policies advocated here, like the South China Sea policy. The Obama and Trump administrations have warned China against establishing facts on the ground, but China has called their bluff. If the incoming Biden administration resets relations with China, concedes some of its demands on principled grounds, but becomes more assertive in the South China Sea because international law is the bedrock of peaceful relations, China will think twice about picking that battle.

China hawks also claim that their approach is principled, but they pursue two principles: international law as well as human rights. Promoting human rights is of course a worthy cause, which the United States should pursue by putting the U.S. house in order, strengthening other democracies, and refraining from bolstering dictatorships. But any China policy whose principal aim is either ousting the Chinese Communist Party from power or making it comply with human rights will put the United States on the path to a new cold war, which is likely to harm human rights everywhere. International law alone is the bedrock of healthy international relations.

Didier Jacobs is a contributor to Foreign Policy In Focus.