Answering Threats to Taiwan Part II: Understanding the Military Dynamics of a US-China Conflict

[Music and Narration]

 

Jack Capizzi:  Welcome to today’s Federalist Society virtual event. Today, April 21, 2023, we are excited to present the second part in our “Threats to Taiwan” webinar series. This program will focus on understanding the military dynamics of a U.S.-China conflict. My name is Jack Capizzi, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call. After our speakers have given their remarks, we will turn to you, the audience, for any questions you might have. If you do have a question, please type it into the Q&A feature at the bottom of your screen, and we’ll handle questions as we can towards the end of today’s program.

 

Our panel today includes Mark Cancian, retired Colonel, U.S. Marine Corp. He’s a senior advisor at the International Security Program at CSIS, and his recent report, “The First Battle of the Next War: Wargaming a Chinese Invasion of Taiwan,” helped inspire today’s program. We’re also joined by Professor Julian Ku, who’s a Senior Associate Dean for Academic Affairs, the faculty director of the International Programs, and the Maurice A. Deane Distinguished Professor of constitutional law at the Hofstra University Law School.

 

Our moderator today is Professor Jamil Jaffer, who’s an adjunct professor, the National Security Institute Founder, and director of the National Security Law and Policy Program at the Antonin Scalia Law School at George Mason University. Thank you all for being with us today. With that, Jamil, I’ll hand it over to you.

 

Prof. Jamil Jaffer:  Great. Well, thanks for having me. Really appreciate it. And thanks to all of you for being here. Obviously, a significant issue and a timely issue for us to be talking about here as The Federalist Society and the International Law and National Security Practice Group. Just this past week, the Select Committee on China and the House of Representatives held a wargame about the invasion of Taiwan by China. Chairman Mike Gallagher played out the scenario along with his ranking member, Raja Krishnamoorthi. And we’re going to do a similar conversation today.

 

We’re going to have Colonel Cancian walk us through some of the potential scenarios in a Taiwan conflict. We’re going to knock Professor Ku about the legalities and issues at play there. And we’ll take some of your questions from the audience as well. So if you have questions, please put them in the chat, the Q&A function, and we’ll come to you towards the end of this scenario discussion. So, Colonel Cancian, over to you for some analysis of what might happen in a potential Taiwan-China scenario.

 

Col. Mark Cancian:  Great. Well, thanks for having me on your program. Let’s see. If we can have the slides up here, that might help. There we go. Having spent many years in the Pentagon, I’ve lost the ability to speak without PowerPoint, so this is a tremendous help for me. Okay. What we’re going to talk about is this -- and I’ll think it’ll be in the next slide here. And I just wanted to give you a sense about, first, where this is coming from and why it is that I’m here talking to you.

 

And here at CSIS, we ran a wargame project. As you can see here, we developed a wargame—a physical wargame. You can see one of the iterations on the right there. We ran it 25 times. It was entirely unclassified. We brought in players, as you can see, from many different backgrounds. And it got a tremendous amount of attention. There’s a tremendous thirst out there for information about a U.S.-China conflict. Most of the information is classified—not very much out in the unclassified world—so became front page news all over Asia and really around the world. So we were very gratified with the reception.

 

I just want to note the outcome. I don’t want to go into a lot of the details. I mean, I can if people have questions. But we captured the main elements of the outcome -- there, you can see about maintaining an autonomous Taiwan, but it comes at a very high cost. U.S. and its allies lose dozens of ships, hundreds of aircrafts, and thousands of personnel. Chinese also lose heavily, enough so that it might destabilize the Chinese Communist Party. And we hope that they have read the report. In fact, we know that they have, and we hope that it maybe had some influence on deterrents. But coming from that body of analysis and wargaming, we came up with a couple of scenarios that might help to spark a discussion about the legal aspects of warfare and what might be involved in conflict with China.

 

So the first scenario here is the obvious one: invasion. Classic. Now, China attacks Taiwan and the U.S. In our wargames, we assume that China would attack U.S. forces at the same time it attacked Taiwan, very much making the same calculation that the Japanese made in 1941. You can see from the bullets there how the game plays out—landing forces at Taiwan causing major casualties, including two aircraft carriers. We can talk about that. And then the U.S.  immediately starts taking action. So a couple of questions, of course, come up with regard to a major conflict like that -- like this about what sort of authorizations might be required or might be useful. And with that, I will turn the discussion over to the lawyers.

 

Prof. Jamil Jaffer:   Well, thanks, Mark. We really appreciate it. And so, Julian, talk to us about what this scenario entails. Colonel Cancian teed up a couple of questions, right? Is an AUMF needed and the like? Talk to us about some of these issues that come into play if Taiwan -- sorry, if China invades Taiwan and simultaneously attacks U.S. forces, speaking to aircraft carriers, causing casualties; U.S. has begun defensive operations. Do we need an AUMF? How soon? When? What might we do to trigger an AUMF? Talk us through some of those concepts.

 

Prof. Julian Ku:  Okay, yeah. So just the basic constitutional law on this is, as you know, the Congress has the power to declare war, but the president has a lot of residual authority to conduct military operations absent congressional authorization. So on the U.S. constitutional law side, the one rule that seems pretty clear that no one disagrees with is that when the United States territory is attacked, the U.S. president can take military force to respond without going to Congress. It also seems a little less clear but also pretty clear that when  U.S. forces are attacked, as long as they’re in international waters, they also -- or overseas, they also have the right to respond. So they can defend themselves.

 

So the U.S. can act to defend their own military forces and use military force to defend themselves without going to Congress to get authorization. So in the scenario Mark lays out, if the U.S. has been attacked sort of preemptively by China, which is a real scenario—I mean, I think you can imagine that’s part of the plan for the Chinese invasions to knock out U.S. forces—those U.S. forces would be authorized to defend themselves and to strike back at the forces that were attacking them, and so I think -- without any congressional authorization being required. So I think that’s the basic framework.

 

Where it gets trickier is whether U.S. forces could, in responding to attacks on them, launch attacks on Chinese forces in China—on the mainland China. For instance, imagine missiles coming out of China being used to attack U.S. forces in international waters. Could then the U.S. start bombing those missile bases that are in China? And again, I think there’s a reason to think that they could do so as part of their own defensive -- their right to defend themselves. But obviously, that is escalatory, I guess. Right?

 

Prof. Jamil Jaffer:  But, Julian, let me ask you, why is that controversial? I mean, that seems like straight, classic self-defense. You fire missiles at me; I hit you where you fired your missiles from. Is there any real question that they need authorization to do that? That doesn’t seem --

 

Prof. Julian Ku:  Yeah. I mean, I think it’s -- I think that it’s -- we don’t quite have that scenario exactly. But, yes, I think that there is some -- when you attack the territory of another country, even though they’re attacking at you, they’re launching at you, it is still a step beyond just defending yourselves in international waters. I think that’s -- that’s, I think, where it’s a little bit different. So, I think it’s -- because then, it opens the door to what -- are there any limits on what you could hit within China? I think maybe the best way to read it is you’re limited to hitting those things that are threatening you—missile bases. But you can’t just take out general, unrelated facilities that aren’t attacking you if it’s really a defense --

 

Prof. Jamil Jaffer:  Under international law? So you don’t think the right of self-defense under international law where you’ve been attacked enables you to take out the opposition’s ability to attack you again?

 

Prof. Julian Ku:  Well, I think that you can. Right? So there’s the right of self-defense under international law.

 

Prof. Jamil Jaffer:  Right.

 

Prof. Julian Ku:  What right is the right to defend your country and your territory? Whether that extends to your military forces that are overseas is one thing. In other words, what I’m saying is that there’s this thing to which if they attack the United States territory—Hawaii, Guam—that is distinctive than they attack a U.S. carrier that’s in international waters. I think, under -- in both cases, we can -- the U.S. forces can respond. But it’s a harder question when they’re being attacked when it’s not U.S. territory. The most likely scenario, I think, the lawyers have come out with is that they can attack and respond in kind. But the use of force has got to be proportionate to what [inaudible 10:06] could use against them. So it can’t be a massive unrestrained retaliation.

 

Prof. Jamil Jaffer:  So, Mark, when you were serving, I mean, does that sound right to you? Is that how you understood the rules of engagement? If you’re attacked, you can respond at some level immediately, right? But when do you have to wait for presidential authorization? Right? And is it a lock under the command and the field if you’re advising the commander of the field or you’re the commander of the field? How do you think about that problem from a practicality perspective? You’ve been hit right now. Can you fight back immediately, or do you have to wait for presidential authorization? And maybe if the president wants to wait for Congress, then they wait for Congress.

 

Col. Mark Cancian:  Well, I think there’s no question that the military could take defensive action. So if the Chinese are launching missiles at our ships, we can use all of our defensive capabilities against those missiles.

 

Prof. Jamil Jaffer:   Of course. Right.

 

Col. Mark Cancian:  The thing is that the military’s going to come back and say, “Okay, we want to strike the missile bases on the mainland.” Well, first, we want to strike their fleet, which is now in international waters, and we also want to strike the missile bases on the mainland. And that is going to be a presidential decision where he brings that in [inaudible 00:11:17].

 

Prof. Jamil Jaffer:  So, Julian, so one of the things we were talking about was—put aside international law—does the president need an AUMF. If the president is acting in self-defense and we think he needs an AUMF, and then -- what happens if he decides, “Okay, I’ve hit the Chinese back. I’ve hit them where they hit me. Now, I want to go to defend Taiwan because they brought us into this war, and I want to go defend Taiwan as well because we’re not part of this on the other side of the battle.” Can he do that without an AUMF? Is he required to get an AUMF? Can he do it without it? What are the [inaudible 00:11:45]? What about the War Powers Resolution, which is that thing that was passed after Vietnam that purports to constrain presidents? And every president to look at it has said, “Well, I’ll act consistent with it, but not pursuant.” What about the War Powers Resolution? Does that matter here at all either?

 

Prof. Julian Ku:  Yeah. So the framework is -- as you know, it’s a little muddy. But I think the way we’ve sort of -- the U.S. has acted in the past -- so there have been several incidents in the past 50 years when the U.S. has acted -- used military force overseas. The basic sort of framework is that the U.S. president is authorized to use force consistent with the War Powers Act, which means that, at least for 90 days, he’s allowed to use force as long as he reports to Congress. And the only limit that really even -- that lawyers have really identified under this framework, therefore, is as long as he does not engage in war. Now, war being the technical term in this case because the word “war” is used in the Constitution. Congress has the power to declare war, not the president. Now --

 

Prof. Jamil Jaffer:  But we haven’t declared war since 1945, right? So what does it matter?

 

[CROSSTALK]

 

Prof. Julian Ku:  We haven’t declared war. So there is some -- there is some arguments about whether declare war requires you to actually go to Congress for anything other than the legal sort of framework. But there is also -- I’ll just point out there is a body of law which is embodied, for instance, in the Office of Legal Counsel Department of Justice opinions about the Libya conflict, where the Obama administration Department of Justice argued that use of force by the president short of war can be used effectively for anything that threatens national interests consistent with the War Powers Act—and maybe arguably not even consistent with War Powers Act—but that the only limit really there is whether it would give rise to a war.

 

And there’s a threshold as to whether something’s a war, and we’ve never met that threshold since 1945. Or maybe we have. So Iraq would have been that threshold maybe if we -- but we had an authorization. Vietnam would have been that threshold, but we had sort of an authorization. So that’s sort of where the -- and then the definition of what would give rise to a war, there’s a lot of different factors. A major conflict where U.S. forces would be under attack, ground troops might be one factor you consider. So that’s the framework.

 

Now, I think there’s a broad -- so that’s why I think there is -- the Taiwan scenario’s tougher than some of the other scenarios we’ve seen because when you respond to an attack on U.S. forces, I think that’s clear you can respond. When you go to Taiwan and start fighting with Chinese forces there, that is -- is it likely to give rise to a war? Well, I kind of think it might—I mean, certainly under many conventional definitions. So that’s where I think a lot of scholars would say, yes, you do need authorization.

 

Now, there are some, like my friend -- it was probably my friend John Yoo at Cal Berkeley, who I -- would say probably not. “No. He doesn’t need authorization unless Congress wants to sort of hold him back.” But I think that there’s certainly going to be an argument, which I think would get some purchase in Congress, that we need to authorize anything beyond just defending U.S. forces, which I think everyone, even the most aggressive folks on the left -- that U.S. forces can defend themselves.

 

Prof. Jamil Jaffer:  Yeah. Got it. Okay. So we got some legal issues here, some question about whether the president needs to go to Congress or not. Looks like, at least in response, he doesn’t. If it’s going to be a longer-term conflict or if he is going to go defend Taiwan, maybe he ought to. Maybe he doesn’t have to. We have sort of that going on. So, Colonel Cancian, talk to us about another scenario. Give us another scenario. And we’ve already got eight questions in the chat, so we’re definitely going to be able to take some questions later on, folks. So go ahead, Colonel Cancian, next scenario.

 

Col. Mark Cancian:  All right. Well, the second scenario is really just like the first one, except that the Chinese do not attack U.S. forces. They only attack Taiwan. And, well, we do see they would -- maybe cyber intrusions, cyber-attacks on U.S. systems, but no kinetic action. So the question then is, “Okay, if the president wants to defend Taiwan with military force, now does he need to do anything different?” And again, I turn this over to the lawyers.

 

Prof. Jamil Jaffer:  All right. So, Julian, what about that? Only Taiwan, no attack on U.S. forces. Does the president need to go to Congress? And can he get around Congress or with help with Congress—whatever—if he has a U.N. resolution that says -- or does help with international law, if he has a U.N. resolution? What about Taiwan? And does Taiwan have a right to self-defense, and can they ask us to help them in the right of self-defense?

 

Prof. Julian Ku:  Okay.  All right. A lot of questions here. All right.

 

Prof. Jamil Jaffer:  A lot of questions. Multi-form question.

 

[CROSSTALK]

 

Prof. Julian Ku:  Let me work backwards there. So Taiwan should have the right of self-defense, but this is where Taiwan’s legal status under international law is the problem. It’s not a member of the United Nations, mostly because China won’t allow it to become a member of the United Nations. And therefore, the right of self-defense under the UN Charter only extends to members of the United Nations. And so, in theory, under this reading, they don’t have the right to self-defense under the UN Charter. Although, you could argue they certainly have the customary right of self-defense. But this is the problem for Taiwan and it’s what makes them different than Ukraine. Because they’re not a recognized state, they have, under international law, a weaker claim to self-defense and also, therefore, a weaker claim to invite other countries to assist them in self-defense.

 

Prof. Jamil Jaffer:  Which is a legit thing.

 

Prof. Julian Ku:  Which is a legit thing. So Ukraine has the right to ask other countries to help it defend itself, and there’s a right of -- the right of collective self-defense in international law under the UN Charter as well. So Ukraine is exercising all those things. In theory, Taiwan cannot use any of those international legal authorities. And this is actually one of the reasons why China is so aggressive about making sure Taiwan doesn’t get anywhere near the U.N. and has no recognition. It’s possible it’s to weaken this sort of claim it might make. Under international law, Taiwan is in a tough position. Finally, there will be no U.N. resolution on Taiwan allowing --

 

Prof. Jamil Jaffer:  Because?

 

Prof. Julian Ku:  Because China sits on the Security Council and has a veto.

 

Prof. Jamil Jaffer:  Right.

 

Prof. Julian Ku:  So that’s why there will be no -- so that’s why it is a tough spot. The U.S. acting to defend Taiwan legally under international law will be harder—in fact, it’d be very hard—but it may not matter that much because U.S. has acted before without the authorization of international law to use military force, most prominently in Kosovo in 1999 and Bosnia in ’75. And there’re several other examples as well. So U.N. authorization has not been -- well, frankly, Iraq arguably also was not authorized by the U.N. So U.S. probably would not be deterred by that alone. But other countries might, and that’s why it might matter. Other countries, like the Europeans, might a little more -- are less likely to get involved in military conflict than they would in Ukraine because of this international legal scenario.

 

Now, suppose the U.S. side itself -- I think the War Powers Resolution has been read a lot of different ways. But one way to read it is that it’s a little bit of a blank check for the president for 90 days. In other words, it seems to imply the president can use his own authorities under the Constitution, at least for 90 days, as long as you report to Congress. So there is some argument that the president could use force to defend Taiwan or to assist -- and certainly to send weapons to Taiwan but even to maybe provide defensive support to Taiwan—air support, naval support. All those things, I think, arguably could be done without going to Congress, at least under the 90 days.

 

But this goes back to the conversation we just had. If there’s a reason to think such actions would be likely to give rise to a war as defined under the Constitution or essentially a larger conflict, then I think congressional authorization is needed. I’ll just note that’s why since members of Congress, some of them have introduced authorizations for the use of force on Taiwan -- to defend Taiwan. They preauthorized this to avoid this problem because I think there is a good argument that the president, at some point, would need to get Congress on board to support Taiwan if the Chinese have not directly attacked the U.S.

 

Prof. Jamil Jaffer:  Then, Colonel, I have a question for you. Does the U.S. today -- let’s say the U.S. today, there’s a conflict in the Taiwan Strait; the Chinese invade as you described in your scenario. And the president decides either, “I can do it on my own,” or, “I’m going to go to Congress,” and he gets authorization. Do we have the forces in the region today to effectively defend Taiwan and/or remove a Chinese force that has landed on Taiwan without a major buildup of forces like we had in the lead-up to the Gulf War?

 

Col. Mark Cancian:  The short answer is yes. Yes—not very convincing. I mean, the United States maintains a lot of forces in the Western Pacific. In our wargame, we have two aircraft carriers out there. We’ve got lots of aircraft, lots of bases, aircraft in Kadena, for example, in Okinawa, forces in Guam and Hawaii. But also, in a conflict, we would flow forces into it. So every couple of days, there would be another couple of aircraft squadrons arriving. Ships would be sailing from the West Coast, arriving -- I mean, it takes them about ten days/two weeks to get there. So I mean, the short answer is that, yes, the United States will be building -- will have some combat capability from day one, but then we’ll be building that up over time if the president wants to fight over Taiwan.

 

Prof. Jamil Jaffer:  Right. Big “if,” right? Big “if” to that, right? We’ve seen President Biden has said, when asked point blank, he said, “Yes, I would defend Taiwan with American troops.”

 

Col. Mark Cancian:  Right. But then this --

 

[CROSSTALK]

 

Prof. Jamil Jaffer:  But then three minutes later, the White House Staff -- right. Go ahead, say it, please.

 

Prof. Julian Ku:  And another president might answer that question differently, too.

 

Prof. Jamil Jaffer:  But, Mark, you were going to say -- what does the president -- so the president says yes, and then --

 

[CROSSTALK]

 

Col. Mark Cancian:  No. I was going to say the same thing. Right. The president says, “We’ll defend.” And then his whole staff jumps up and says, “Well, what the president meant was no. We haven’t changed the policy.”

 

Prof. Jamil Jaffer:  It is pretty amazing, right? Yeah.

 

Col. Mark Cancian:  He’s done like three or four times already.

 

Prof. Jamil Jaffer:  Yeah. And the question is are they intentionally being [inaudible 00:22:15] ambiguous to put China on the edge, or are they messaging to the Taiwanese, “Hey, we’re not going to be there for you, or we might be there for you”? Or do they really just not know -- are they really not communicating? We don’t know what -- this is either genius or disastrous. We’re not sure. All right. Give us the third scenario, please.

 

Col. Mark Cancian:  Okay, there we go. The question here is about preemption. And there’s a lot of talk about that, both on Taiwan and among the U.S. military. Here, you can see the situation, large number of troops, more than you would see in a regular exercise. The intelligence community believes that this is the beginning of an invasion. They tell you that their forecast is a slam dunk. We’ll put that before it. And now, the joint staff says, “The easiest thing for the -- the most effective thing we can do is to launch preemptive strikes against the Chinese while they’re still in port because they’re very vulnerable. Once they get out to sea, they’re much better protected. The time to strike is now.” So the question is, is there authority to do that? And, by the way --

 

Prof. Jamil Jaffer:  All right. So --

 

Col. Mark Cancian:  -- the joint staff will say that. There’s no question they will say that.

 

Prof. Jamil Jaffer:  Yeah. All right. So, Julian, what about that? So we’ve got a classic case of preemption, of gathering forces -- the gathering forces of evil are there. There’s a very real threat to the United States.

 

Prof. Julian Ku:  Well, okay.

 

Prof. Jamil Jaffer:  Can the president act if he wants to -- if he or she wants to?

 

Prof. Julian Ku:  Let me put it this way. So there is a -- under both U.S. and international law, there is a right of preemptive self-defense. But it’s very narrow for understandable reasons—so it doesn’t swallow the whole self-defense. So the general idea is that it’s got to be a threat that is almost immediate and it’s also directed at you. I think the problem we’re running into here is that if these forces are directed at -- in other words, we can see them getting ready to hit U.S. targets—either U.S. forces in international waters, U.S. forces in Japan or Guam or something—then I think the case for preemptive self-defense could be made, especially if you had intelligence that, “Yes, they’re about to strike or they’re preparing to strike; we’ll strike them.” I think that’s the case. The problem I’m running into here is --

 

Prof. Jamil Jaffer:  But, Julian, can I say a real quick -

 

Prof. Julian Ku:  Yeah. Yeah.

 

Prof. Jamil Jaffer:  -- real quick question? When you say the right, does that mean a right under international law or domestic law or both?

 

Prof. Julian Ku:  In this case, I think it would be both. So I think -- because the U.S. does have the right to defend itself under international law. But this is very difficult, and it’s very controversial. But if it’s immediate, if we see it coming, if there's reason to think they can’t prevent it otherwise, then yes, we can hit those forces. Here’s the problem, though. If the preemptive isn’t involved -- is to prevent an attack on Taiwan, that’s different. Now, if it was preventing an attack on a treaty ally, that might be -- like Japan. But Taiwan --

 

Prof. Jamil Jaffer:  Which Taiwan is not.

 

Prof. Julian Ku:  Right. But Taiwan itself is not -- we don’t even recognize it technically as a country, right? I mean, the U.S. doesn’t even recognize it as a country. So to claim the right to preemptive self-defense on behalf of an entity we don’t recognize as a country, which might be -- which the other country claims is part of them—their territory—is going to be tough under international law in this case.

 

Prof. Jamil Jaffer:  Yeah. Can I follow up, though? Let’s say Taiwan had a right of preemptive self-defense—which, I understand because they’re not a country, maybe they don’t, right? If they had a right of preemptive self-defense, could they invite others to help them preempt?

 

Prof. Julian Ku:  Yeah. I think that’s right—they could. And that’s why, for instance, the Japan scenario might be easier because if Japanese see them about to hit a military base in Japan or the Philippines or whatever, it’s not unreasonable for the U.S. to say, “Okay, we will act on your behalf in this case and will invoke that right of collective self-defense,” which is in the UN Charter, for instance. The Taiwan scenario is tough. Again, I think that’s why Taiwan -- its weird status is actually a problem.

 

Now, again, I think we might see the president take action anyways, but it would come at a cost, and the cost here is that international public opinion. I’m not talking about just Europe. But actually, we’ll start with Europe, first of all. But then other countries in the world, like India or Southeast Asia, other countries you might need their support for something. This would be tough if you really fly in the face of -- because they will all see this as, “Okay, the next time the U.S. is going like, ‘Oh, we see you immobilizing a few ships. We’ll come blow them up, too.’” So that’s why it’s a very dangerous tool to invoke if you want to invoke this principle.

 

Prof. Jamil Jaffer:  So, Mark, from a military perspective, has the U.S. invoked this idea of preemptive self-defense other than -- and I guess Iraq, too, arguably. Right? Is that the only scenario? Have we taken advantage of this before -- other examples of that? Is part of the war on terror maybe constitute that, where we’re taking out terrorists who are planning? Talk to us about preemption.

 

Col. Mark Cancian:  I mean, I think you’re right. So in 2003 with Iraq, I think that -- and I think that some of the rationale for the counterterrorist campaign, the global camp, is sort of an argument about preemptive strikes.

 

Prof. Jamil Jaffer:  Future terrorist attacks, yeah.

 

Col. Mark Cancian:  Future -- yeah. That’s right. Because these terrorists are planning something in the future, therefore, we attack them now. We aren’t attacking -- because I’m pretty sure we’ve attacked some groups that have not yet attacked us or not attacked us [inaudible 00:28:03] they would. But that’s the only ones I can think of off the top of my head.

 

Prof. Jamil Jaffer:  No, I think that’s right.

 

[CROSSTALK]

 

Prof. Julian Ku:  And can I just say -- Iraq is really different -- Iraq was a much weaker case for preemptive self-defense because the argument was the WMDs they have, they might use against -- it wasn’t like, “We have evidence they’re currently planning to use existing weapons to hit us.” That was not the preemptive self-defense argument in Iraq. It was, “We think they have these weapons which they might use one day,” but it turns out they didn’t have them anyways. But even if they did, that was sort of -- that’s why it’s a tough case. This would be a much better case. If we had evidence—they’re literally mobilizing—that is more where you normally do see preemptive self-defense. But even that is very careful -- it’s a very difficult argument. I think this would be the hardest one to do under both international and [inaudible 00:29:00] law.

 

Prof. Jamil Jaffer:  Interesting. So we have about ten minutes before we go to the audience for their questions. So, Mark, give us another scenario.

 

Col. Mark Cancian:  All right. Okay, so people, there’s been some thought that China might use something like a pandemic to declare a containment zone—not a blockade, of course, because that has a lot of legal baggage. We’ll talk about that later. But here, you can see a scenario where they use force in a way, but they have a rationale that’s related to public health. So question -- I mean, is there -- is there some international body that can sort of adjudicate this? Is there any international law that applies in this situation like this -- let’s accept that it’s a pandemic, or you could imagine a couple of other kind of similar situations.

 

Prof. Jamil Jaffer:  Yeah. This is similar, Mark, to what we did around Cuba when the Cuban Missile Crisis happened—the so-called quarantine where we cut off traffic and challenged the Soviets to come across the line.

 

Col. Mark Cancian:  Well, that’s right. And we used the word “quarantine” quite consciously because, of course, a blockade is an act of war.

 

Prof. Jamil Jaffer:  Right. Right. So, Julian, there are restrictions around blockades in the UN Charter. Talk to us about that.

 

Prof. Julian Ku:  Yeah. So this is a -- a blockade would be a use of force. So that would be --

 

Col. Mark Cancian:  And let me say the next scenario’s about blockades.

 

Prof. Julian Ku:  Right, yeah.

 

Col. Mark Cancian:  So there will be an opportunity to talk about that.

 

[CROSSTALK]

 

Prof. Julian Ku:  This one would be -- this one would be kind of -- and there’s actually some -- in recent weeks, the Chinese Coast Guard has suggested they would conduct inspections of vessels going to Taiwan in some cases, and that would be the scenario where they would assert some administrative health-related authority to just inspect. They’re not going to block you, but maybe they’ll inspect all ships heading into Taiwan to assert their authority over Taiwan in that respect. So I think in this case, this is where I think the U.S. would not necessarily have to use force. They could essentially escort—this is the old Persian Gulf in the 1980s scenario -- they could say, “We’re going to escort commercial shipping -- what we believe is an illegal or inappropriate quarantine.”

 

Now, international law does not define what counts as a quarantine in terms of a treaty. There are rules on how you have to treat people when you declare such a quarantine. Our old friends at the World Health Organization have defined, in international health regulations, all the conditions and limitations. And you have to give -- you have to be very careful in imposing any restrictions on travel. There are some limitations here, not necessarily ones that would be -- but in general, I would say states have broad authority, like we saw during COVID, to just impose quarantines to stop travel. And it doesn’t really violate any international rules very clearly, although some people argue it does.

 

But the only international law would be that you have to sort of do so in a humane way, that you don’t just throw people in camps and let them starve to death or something. So I think in that case, U.S. and China make -- so the U.S., I think, in this scenario would have to not necessarily use force but would probably -- could, I think—and could presently do so without Congress—order U.S. forces to escort commercial shipping into Taiwan and to defy this quarantine. Now, that would be dangerous, but I don’t think he needs to go to Congress for that action, and nor do I think it would --

 

Prof. Jamil Jaffer:  So, Julian, let me --

 

[CROSSTALK]

 

Prof. Julian Ku:  -- would necessarily be a problem.

 

Prof. Jamil Jaffer:  Well, let me press a little bit on that. So I assume that we’re probably reflagging these ships because U.S. flagged ships like we did in the Persian Gulf. Is that right? So if we’re doing that, would we trigger the War Powers Resolution? Because the War Powers Resolution is triggered when you put armed military equipment into a scenario where they might be in hostilities. Right? If China’s declared, “You cross this line, we’re going to hit you,” and then we intentionally cross the line with armed forces, does that trigger a War Powers notification? If so, president’s got 90 days, then what?

 

Prof. Julian Ku:  Yeah. So I think that -- I think there’s certainly a good argument that it would trigger the War Powers Act. I’m not sure that, in the 1980s, the Reagan administration actually did trigger -- they did report to Congress when they did not surrender.

 

Prof. Jamil Jaffer:  I don’t remember, yeah. I don’t think they did.

 

Prof. Julian Ku:  I don’t think they did. Because I think they wanted to avoid a 90-day limit on what they were doing. And they also -- and they were right that they weren’t attacked, largely speaking. Right? So it wasn’t really introducing forces and hostilities. That’s a tough line, but I think you can make a good argument that --

 

Prof. Jamil Jaffer:  Well, [inaudible 00:33:41]. Okay. All right. Sorry, go ahead, Julian, do you have something more?

 

Prof. Julian Ku:  No, no. That’s it.

 

Prof. Jamil Jaffer:  Great. All right. Mark, give us our last scenario, please.

 

Col. Mark Cancian:  Okay. And here’s the classic blockade scenario. And you can see the bullets here. Did a lot of speculation that China might do this more likely course of action than an invasion, searching for contraband. And, of course, the idea that they might narrow it to military hardware rather than just a general blockade. That might be a -- they might do that as a way to assert their sovereignty, their power over Taiwanese transportation without going full bore on blockade and getting into energy and food and all the other things that go with that. So classic blockade requirements here. The general question -- what does international law require for a blockade? I mean, would they be meeting it here? But Taiwan’s a special case. So over to the lawyers.

 

Prof. Jamil Jaffer:  All right. So, Julian, last question -- sort of the last set of questions to you before we go to the audience. International law of blockade, what do we think?

 

Prof. Julian Ku:  Well, so it’s not like -- so a blockade is -- I think China would not call this a blockade because they would argue they’re just imposing rules on their own territory, right? So we’re just imposing --

 

Prof. Jamil Jaffer:  Internally.

 

Prof. Julian Ku:  -- internal rules. And so it would be analogous to what the U.S. did during the Civil War against the South. The U.S. did not call it a blockade. But it was a blockade, right?

 

Prof. Jamil Jaffer:  But it was a blockade, right? It was a blockade. Right.

 

Prof. Julian Ku:  In fact, the U.S. sort of followed international rules at the time in a British-related way. But that was essentially what was going on. So I think the international law, essentially -- the only restriction on a blockade is that it’s a use of force. It’s like you have to be justified to use it. You have to be justified to use force. It’s just like striking their -- hitting their military bases. It’s an act of war, basically.

 

Now, China, again, would say, “We’re not an act of war because we’re just imposing a rule on our own territory.” So I think that the U.S. would treat it as a use of force. But, again, I don’t think there’s much legal remedy for the U.S. in that scenario because the U.S. would say, “This is outrageous. This is a blockade.” But then China would say, “Well, no, it’s not a blockade. We’re just imposing sovereignty over our own territory.” I think this is a really bad scenario. We need to think more about this scenario, which I think is a better one for China and a tougher one for the U.S. because we don’t have a great response here, I think. Right?

 

It would be very hard to mobilize international opinion, especially if they say, “We’re just searching for military items, not for -- we won’t interdict commercial shipping.” The problem is that the U.S. doesn’t really have a good justification in this instance for using force at all. And it would be very difficult for -- the president, I think, would still have some general authority to support and escort -- to do the same thing—to escort ships in and to defy the blockade. But I think, from a legal perspective, again, the U.S. would be in a tough spot, I think, to argue.

 

And again just because I see some of the questions like -- why do we care what the law means here? One, because international -- other countries care a lot about these rules, and so to the extent we ignore them, that’s bad. And two, I think, domestically, we want to make sure we have some legitimacy for what the president’s doing legally. And so, this one’s a tough scenario for the president. I think he can act -- he could act to send the U.S. Navy to escort ships like before. It’s just the same problem, I think, which is that there’s going to be a very high likelihood of some sort of military conflict arising out of it.

 

Prof. Jamil Jaffer:  Great. All right. So we’ve now sort of heard from both our military expert and our legal expert on these five scenarios that we’ve laid out. We have almost two dozen questions in the chat from various members of the audience. So I’m just going to sort of jump into them in a rough order that I can sort of divide here. So one of the questions is back to our original scenario. And there are two questions I’d like both of you to address; and I’ll start with you, Mark. One, Jared Vance asked, “If the U.S. lost two carrier strike recruits off the bat, how are we going to replace those to come back and win?” [Inaudible 00:38:19] very good on the offensive and might be able to defer for the U.S. Navy support given its sub fleet and its long-ranged cruise missiles.

 

Are we concerned about that from a military strategy perspective? And what about—from both a military perspective from you, Mark, and from you, Julian, a legal perspective—what about a shock-and-awe campaign and response to an attack on U.S. warships? So we got our carriers that have been sunk. What if we just go and -- can we legally, and would it be advisable militarily to engage in a significant responsive strike to demonstrate that we’re not going to take this going? So, Mark, I’ll start with you on both those questions.

 

Col. Mark Cancian:  Yeah. On the question about how is the United States going to win after losing two carriers right off the bat, my short answer is going to be read our report because we do talk about that at some length. The short version is that the United States will be bringing in reinforcements from the West Coast and eventually from the East Coast. Although the major tool for striking the Chinese fleet will be bombers with long-range anti-ship missiles. When we ran our game, I mean, they were the real workhorses. They did tremendous damage to the Chinese fleet. U.S. submarines were also extremely effective. We just don’t have enough of them. The shorter-range aircraft, they also were effective. They had to get very close, though, and that’s why we lost hundreds of them. So that’s the short answer about how do we deal with the Chinese? I’m sorry. Now, the second part of the question?

 

Prof. Jamil Jaffer:  Yeah. The second question was, let’s say we decide -- these two carriers are sunk. Would it be militarily advisable -- and I don’t want the legal answer.

 

Col. Mark Cancian:  Shock and awe. Shock and awe.

 

Prof. Jamil Jaffer:  Shock and awe. Yeah, thank you.

 

Col. Mark Cancian:  I mean, the answer is probably, but I don’t think it’s feasible against the Chinese. To really do shock and awe, you have to have overwhelming military force. It’s something you might do against Iraq. It’s something you might do against Serbia. But the Chinese military abilities are just so great that the idea that we could overwhelm their defenses and rain destruction onto Beijing is just not feasible. So that’s one set of problems. I don’t think it’s feasible for China. The other set of problems is not clear it really works because we tried to do it against Iraq, and they hung in there.

 

Prof. Jamil Jaffer:  Right. Interesting. All right. Yeah. Makes sense. And, I mean, China’s the world’s largest standing army, now the world’s largest navy, maybe not as deep water as Blue Waters are but still problematic. All right. So, Julian, what about as a legal matter? Any thoughts on the question of whether a shock-and-awe-type response -- I get the sense you might say it would not be appropriate. But talk to us about whether it would be appropriate under international law and domestic law.

 

Prof. Julian Ku:  Right. I think -- in both cases, I think it would be really tough to justify. Under U.S. law, an offensive assault on another county without U.N. authorization, with any congressional authorization, that’s really just since not happened in this way. And I think there’s really no precedent for that at this scale. I mean Iraq, Congress authorized it. The U.N., we said authorized it. Kosovo’s the only example of this where we really tried to go after a country without congressional or U.N. authorization. So that’s the one example we have out there.

 

I defer to Mark on whether -- but I agree with him. I don’t think it would actually help. But I think, legally, it would be -- again, there’s some -- you could, in theory -- think about if you really pushed your mind to say, “Okay, we can do this for 90 days or something under the War Powers Resolution.” But I think it’d -- it would be a tough argument. There’s not a lot of precedent for it. Kosovo’s our best precedent for such a situation. And that didn’t even work either exactly, to be honest, just on a practical level.

 

Prof. Jamil Jaffer:  So one of our attendees asked how the U.S. Taiwan Relations Act figures into our decision-making. So this is the statute passed in the aftermath of our decision to sort of adopt a one-China policy, and Congress got together, and I think maybe even—I don’t know if there was a presidential veto threatened or actually enforced—enacted the Taiwan Relations Act. What is the Taiwan Relations actually, and what relevance, if any, does it have here?

 

Prof. Julian Ku:  Yeah. That’s a good question. So it was enacted not over the veto but with a lot of concern by President Carter’s administration when we recognized China -- the PRC as the government of China and broke off relations with Taiwan. This was sort of a way just to keep Taiwan afloat. And it requires U.S. to maintain unofficial relations and also—most importantly for this conversation—provide Taiwan with weapons so that it could defend itself and then also to maintain the capability to help defend Taiwan but does not obligate the U.S. to defend Taiwan in any way nor does it authorize the U.S. to defend Taiwan in that scenario. It just sets the policy that -- the U.S. policy is we seek a peaceful resolution of this dispute, and we oppose any use of force or coercion. But it doesn’t necessarily require the U.S. to do anything in a scenario.

 

Prof. Jamil Jaffer:  Yeah. Got it. Okay. Mark, any thoughts on that issue?

 

Col. Mark Cancian:  No, I’m going to leave that one to the lawyers.

 

Prof. Jamil Jaffer:  All right. We’ll leave it to the lawyers. There you go, all right.

 

[CROSSTALK]

 

Prof. Julian Ku:  Well, I’ll just say that -- this is not -- we have no treaty with Taiwan. Some of the questions asked -- this is all we have with communism. We have no treaty obligation. This is not Japan. This is not the Philippines. This is not Korea. We have free obligation with Taiwan.

 

Prof. Jamil Jaffer:  There was a historical treaty with Taiwan, right? But that was aggregated by the -- right?

 

Prof. Julian Ku:  We literally formally said, “We’re no longer going to follow this anymore,” in 1979.

 

Prof. Jamil Jaffer:  Okay. Yeah, got it. Okay. So Jared Vance asked what the secondary effects of the U.S. sidestepping international law to defend an unrecognized state would be. Would it cause nations to cut ties with us? Would we have any sort of legal liability, not that there’s an enforcement mechanism at all? Are we violating international law if we, in fact, go defend Taiwan and it’s not a recognized -- since it’s not a recognized state? And really, could we solve that problem -- somebody else asked the question: could we solve that problem by simply affording them in some morale as afforded diplomatic recognition? Would that be enough, or do you actually have to be a member of the U.N.? Is it sufficient that somebody recognizes them as their own? So, Julian, I’ll start with you on that one.

 

Prof. Julian Ku:  Yeah. That is a good point. I’m not a huge we have to follow international law no matter what. I think it’s just a -- the Second-Order consequence is real, which is that as we saw in Iraq and as we’ve seen in Ukraine, it can make a huge difference in getting international support for the U.S. actions if it’s consistent with international law. And if it’s not, it actually weakens the effectiveness of the U.S. response and its ability to get allies. Any response to Taiwan’s going to really need support of Japan, ideally Korea, and the Philippines and Australia, and then Europe as well. And all those countries are really going to care a lot about the international law angle. Now, that’s why we need --

 

Prof. Jamil Jaffer:  And India.

 

Prof. Julian Ku:  India, too. Right. That’s true. Although, they’re a little bit -- right. And they actually have a whole other view of this. But in any event, all those countries matter, and international law is an important way to sort of mobilize the international support for Taiwan. That’s what worries me because it’s going to be much harder to do for Taiwan than for Ukraine, at least from a legal perspective. Now, one solution -- I think there is the recognition button, so to speak, where the U.S. and, I think, Japan recognize Taiwan as an independent country. There’s even an argument that we should let the Chinese know that’s what we would do if they did invade Taiwan—we would recognize it.

 

Now, that doesn’t make it a member of the United Nations, but it does arguably give it a different status. And so, at least for our purposes, we are defending a state and it does have a customary right of self-defense. And so, that would help, I think, legally. It might also provide a little bit of deterrent to China as well. So I think that would be a partial solution to the problem. And I think we’d have to make the argument that it has all the rights and obligations of the state. Something like the argument that we made for Kosovo, which it’s under attack, it’s facing this potential genocide or humanitarian disaster, and therefore, it should be independent to preserve their human rights and security. We kind of made that argument for Kosovo. Not all countries in the world bought that argument, but a lot of countries did, including the European countries. So I think that’s probably the scenario we’re looking at here, which is the sort of a Kosovo -- we need Taiwan to be independent to protect its human rights and to protect its civilian population’s argument.

 

Prof. Jamil Jaffer:  Yeah. And, Mark, do you have any thoughts on this question whether, from a military perspective, it makes more sense for the U.S. to either recognize Taiwan now or before it goes into defensive war in favor of Taiwan?

 

Col. Mark Cancian:  I’m going to leave the question about independence and recognition to the lawyers. But from a military point of view, what you do need to do is to get as much equipment onto Taiwan as possible. Stationing forces there is probably not in the cards because of diplomatic sensitivities. There’s been a lot of talk about --

 

[CROSSTALK]

 

Prof. Jamil Jaffer:  I mean, Nancy Pelosi couldn’t even go there, I mean much less --

 

Col. Mark Cancian:  There you go.

 

Prof. Jamil Jaffer:  -- much less stationing forces there.

 

Col. Mark Cancian:  There you go.

 

Prof. Jamil Jaffer:  She did, but yeah.

 

Col. Mark Cancian:  But there’s been talk about prepositioning U.S. equipment on Taiwan. Technically, it would be U.S. But, of course, in an emergency, we might just give them the keys to the warehouses. So from a military point, that is really important because what we found in the wargame was that unlike with Ukraine, where we’ve been able to ship vast quantities of weapons and munitions during the war, you can’t do that with Taiwan. The Chinese defensive bubble over Taiwan is just too powerful. Taiwan has to start the war with everything it’s going to need for at least the first month and maybe for two months.

 

Prof. Julian Ku:  Yeah. And I’ll just say one or two things, Jamil. One is that there --

 

Prof. Jamil Jaffer:  Yeah, please.

 

Prof. Julian Ku:  -- are reports that there are 200 U.S. military advisers already in Taiwan right now. And that number is --

 

Prof. Jamil Jaffer:  Yeah. And another hundred more on the way.

 

Prof. Julian Ku:  Right. And now they’re creeping up. Second, I think the most obvious way to make this clean from a legal perspective is recognize Taiwan, even if other countries don’t, get as much support as you can, and then start putting U.S. troops there. Right? As a sovereign country, now it can defend it. The problem with that approach is that it might -- that fact itself might trigger the war. And you don’t want to be the one that triggers the war. Right? The U.S. doesn’t -- the U.S. cannot be the one that started this fight. So ironically, the best thing we could do for Taiwan from militarily might run up against -- might cause the war in the first place. That’s the dilemma in this situation.

 

Prof. Jamil Jaffer:  Well, but isn’t this the whole problem, Julian, that we’ve been having this conversation for years, right? And the Biden administration, in particular, is so concerned as they have been in the Ukraine as well of triggering the Russians to do more and provoking the conflict. But I mean, doesn’t Ukraine just demonstrate that you’re not going to move the needle on whether China goes in or not? What’s going to happen is you’re going to actually provide a better defense if and when the time comes, right? I mean, is this really something to worry about—this parade of horribles, this sort of class of lawyer panic of “We can’t do anything because it might cause all these downstream consequences?”

 

Prof. Julian Ku:  Yeah. That’s fair. Although, on the other side, China’s much more cautious than Russia and has a lot more to lose. And I’ll just point out that also they’ve been waiting 70 years, and they haven’t done anything, right?

 

Prof. Jamil Jaffer:  Fair.

 

Prof. Julian Ku:  And so, I think it’s a tough call. I’m leaning more these days toward we’d need to be a little more aggressive because Ukraine has taught us, like we said, that, “Look, you could do all -- it didn’t help deter Russia just to be a little bit weak.” On the other hand, from a political and international perspective, the U.S. cannot be the one that started the war. Taiwan cannot be the one that started the war. And we’ve built up 70 years of this sort of stasis, that if the U.S. is seen as the one that upsets the status quo, it’s going to make it really hard, both within the U.S. and also outside the U.S., to mobilize any support for Taiwan. So even if you thought that was the best action, it would still be very difficult to pull off.

 

Prof. Jamil Jaffer:  I mean, of course, the Chinese are going to say that no matter what, like the Russians did. “Oh, it was NATO’s fault that we went into Ukraine.” Right? It wasn’t -- or, “They started it.” Right? So, Mark, what about that? I mean, from your perspective, from a military perspective, should we be finding a way, whatever that way is—recognition or something else—to put more American forces on Taiwan now to get ahead of this problem?

 

Col. Mark Cancian:  Of course, the answer to that is a lot depends on whether you change your policy, and that is that we will defend Taiwan. Because if you put U.S. forces on Taiwan, I mean, you are now pretty much committed to its defense. So the idea of we’ll just put some forces there, but we’re not making any commitments, you’re kidding yourself. You’re going to be joining.

 

On the legal side, as I said, the key thing is being -- having the equipment on Taiwan ahead of time and then perhaps even having troops there ahead of time or at least being able to reinforce before the war begins. Now, what’s the legal framework you need for that? Again, I’ll turn that over to the lawyers. But having that equipment on Taiwan is hugely helpful. One of the things we’ve found was that if Taiwan has access to large numbers of anti-ship missiles, for example—harpoon being one that the navy uses—that’s very helpful because they can launch things from the island. They’re very survivable because they can move around. And they can really wreak havoc with the Chinese invasion forces. So having that sort of equipment on Taiwan—either whether we give it to them, we sold them a lot, or it’s U.S.—that makes a big difference.

 

Prof. Jamil Jaffer:  Interesting.

 

Prof. Julian Ku:  Yeah. I’ll just say, legally, we have been sending them weapons of any kind -- of every kind as long as they were defensive over the last 60 years, so there will be no -- 50 years. So there will be no sort of real problem. I mean, the Chinese think it’s all terrible and all illegal. But at least with respect to the status quo, we have been sending them weapons of this type. So it wouldn’t break with that practice. That sounds like that’s probably the most important interim strategy is just to preposition as much stuff as we can. The Taiwanese are not the Afghans. They have a real army. They have a real government. They’re really motivated. We can turn over a lot of weapons to them and preposition a lot of stuff there. And I think it would probably be -- it could be used and helpful in that respect.

 

Prof. Jamil Jaffer:  Yeah. It’s interesting. There’s some --

 

Col. Mark Cancian:  If I can jump in and make a quick distinction here, though.

 

Prof. Jamil Jaffer:  Yeah, Mark. Please.

 

Col. Mark Cancian:  Up until recently—really, until January—everything that the Taiwanese got, they bought. Now, we have to allow them to buy it, but they would give us money, and we would give them weapons after. In January, the president got the authority for drawdown—the same thing he has for Ukraine. That is, he can now take U.S. equipment and send it to Taiwan. So a very different kind of situation. And then there’s a third consideration, which is we put stuff on Taiwan, and it’s technically “ours,” but it’s available to them. I think we have different legal situations on --

 

Prof. Jamil Jaffer:  Right. Right. And some of the perks, of course, is either financed by the U.S. or provided in grant form, and then they buy it from us. So it’s something that varies in various pieces. You’re exactly right.

 

Col. Mark Cancian:  I don’t think the Taiwanese get any grants. I mean, I think they just pay --

 

Prof. Jamil Jaffer:  Don’t get an answer to that. Yeah. Okay. So our next question then, I think -- Julian, I think you sort of already answered this one, but I want to double tap this one. So Maurice Emmer asks, “Do we really think the Chinese—the Chinese Communist Party—is really worried about -- that they’re gazing at their own naval about -- like ‘What are the legal limits to what I can do?’ I mean, they’re probably not concerned about international or domestic law. Why should we be?”

 

Prof. Julian Ku:  Okay. Fair enough. I think that -- yeah, I think you’re right. They are concerned about it because, again -- for the same reasons we are, not because they are -- international law has some abstract significance but because they want to be able to mobilize international support for them. And even more than Russia, they need that because they’re so embedded in the global econ. So they don’t want -- so they need at least some plausible legal argument. Now, they have one because their argument’s very simple.

 

Prof. Jamil Jaffer:  It’s ours.

 

Prof. Julian Ku:  It’s ours. We can do whatever want.

 

Prof. Jamil Jaffer:  It’s ours.

 

[CROSSTALK]

 

Prof. Julian Ku:  [Inaudible 00:55:13] doesn’t matter, so we’re done here.

 

Prof. Jamil Jaffer:  Go pound sand, right.

 

Prof. Julian Ku:  Right. And that’s why it’s so -- that’s why, right now, they spend so much time saying, “It’s part of China, part of China, part of China.” Everyone agrees ahead of time it’s part of China, which means they can essentially do what they need to do if they need to. So I don’t think that -- so they do care about it, not because they care, but because it helps them get allies or support. I mean, this argument is going to work. I mean, countries like Brazil aren’t even convinced when there is international argument, like Ukraine is being invaded. Brazil’s like, “Yeah, whatever.” Right? But they’re certainly not going to be moved by the Taiwan scenario in that situation where China has really laid the groundwork where a country like Brazil has already agreed that Taiwan’s part of China in their negotiations with China. So Brazil’s like, “Well, what am I supposed to do? It’s part of China.” So that’s why it does matter, and we need a way -- what I’ve been calling for in some of my work recently is a strategy to start planning for that scenario, not the military scenario, but the legal public relations battle that the U.S. has got to fight if it really wants to intervene.

 

Prof. Jamil Jaffer:  Yeah. So, look, we’ve only got about four minutes. And I see you guys have been so popular that we have actually more questions now than when we started. We still have 21 -- we’ve answered 6 questions, and we have 21 still remaining. We’re obviously not going to get to all of them, so I apologize to everybody in the audience for not getting to -- I’m going to take one or two more. So I’ll start with Gary Turner. Gary asks, “How did this idea, Julian, that you laid out, that U.S. naval forces on water can’t respond to an attack launched from mainland China other than defensive -- how does that reconcile with the fact that we have U.S. land forces stationed overseas, Germany, South Korea and the like? And they’re almost certainly going to have to respond to the whole idea back in the ‘80s was they’re there to respond to an attack launched from Russia or North Korea. What about that?”

 

Prof. Julian Ku:  Well, I think the scenario there is it’s not so much the U.S. forces, it’s the country they’re in. And I think -- so if they’re in Germany, they’re in treaty alliance with Germany. If Germany’s attacked, they have the right to work with Germany to defend itself by attacking the country that’s attacking Germany. Again, this goes back to the Taiwan problem. So that’s why if these U.S. forces are in Japan, I think it would be a lot easier to justify an attack on China itself in retaliation. The problem really is this whole scenario of -- now, I understand you’re in international waters, you’re being attacked, you can go after -- and I think you can go after those particular sites that are attacking you. Like when Iran shoots potshots at us, we can take shots at where they’re shooting us from. We can’t take out Tehran.

 

Prof. Jamil Jaffer:  I think we go further. I think we go further. I think this is an issue we’d probably debate, right? I think [inaudible 00:57:47].

 

Prof. Julian Ku:  I’m sure we would. I’m sure we would.

 

Prof. Jamil Jaffer:  Yeah. So, Mark, what about your perspective on this from a military perspective? How do we think about -- is there a difference between U.S. naval forces in the South China Sea and Taiwan Strait and these U.S. land forces in Europe and South Korea from a military perspective? Do you have that same sense that Julian does?

 

Col. Mark Cancian:  Yeah, that’s right. I mean, the naval forces are in international waters. Now, of course, they have a right to be -- not to be molested there, but that’s different from U.S. forces on the territory of a treaty ally where we are bound to each other to defend each other.

 

And there’s the whole collateral damage thing that might not have a legal basis, but in public opinion, it’s -- firing missiles at something in the middle of the ocean is different from firing missiles at a base which has people around it.

 

Prof. Jamil Jaffer:  Yeah. So the last question I’m going to take is from David Edelstein. David asks, “Doesn’t a blockade have to be fairly successful to be legal? So would the PLA Navy have to have the capacity to actually impose an effective blockade in order for it to be actionable as a blockade?” Julian, I’ll start with you.

 

Prof. Julian Ku:  Well, yeah. Technically, there is a requirement. They actually have to be able -- you can’t just declare it and don’t do anything, and then it’s not really a blockade, and then no one’s really obligated to abide by it. But as they said, in this scenario, they’re not going to call it a blockade under international law anyways. So I’ll leave it to Mark whether they have the capability to do it. It sounds like they do. But the legality of it matters in the sense that, if they’re not actually enforcing the blockade, then countries don’t really have any obligation to respect it. Seems obvious, but I think actually they -- I bet they did. They have the capacity.

 

Prof. Jamil Jaffer:  Yeah. So, Mark, you --

 

Col. Mark Cancian:  Yeah.

 

Prof. Jamil Jaffer:  -- so, Mark, you have to have the last word. Does China have capacity to institute the kind of blockade you laid out in scenario five, and isn’t that the most likely scenario? And if so, from a military strategy, what do you think the U.S. ought to do if China imposes a blockade of Taiwan—an actual effective blockade?

 

Col. Mark Cancian:  Yeah. I mean, the answer to the first one is absolutely. I mean, they have built a large, powerful navy. And there’s no -- and Taiwan’s pretty small, so there’s no question that they could impose a blockade that would meet the tests of effectiveness. During the Civil War, U.S. did that and was -- for the first couple years, it wasn’t really clear that this was effective enough. But the Chinese could do that.

 

What would be the best approach to the United States? I mean, this is a longer conversation, but the short answer -- I mean, as we were hearing, the U.S. does not want to be the one who shoots -- fires the first shot. We want to make them fire the first shot. Now, reflagging tankers, escorting ships, doing stuff like that might put them in the position where they have to take the first shot. But I think who shoots first is hugely important, again, because of the -- getting the rest of the world on your side. I mean, to the extent you want to have sanctions, for example -- which would be very hard with China, but it’s going to be impossible if people think that you are the aggressor.

 

Prof. Jamil Jaffer:  Yeah. Well, that’s a wrap, guys. Thanks to Colonel Mark Cancian of CSIS, Professor Julian Ku, thank you for being here. Thank you to The Federalist Society International Law and National Security Practice Group. Please check out The Federalist Society at fedsoc.org. Thanks, everybody, for joining us, and have a great afternoon.

 

Prof. Julian Ku:  Okay. Thanks, bye-bye.

 

 

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