Answering Threats to Taiwan: Where Does Law Matter?

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The government of Communist China has insisted – and the U.S. government has officially acknowledged since 1979 – that Taiwan is part of China.  Does that mean international law imposes no limits on Chinese coercion or intimidation of Taiwan?  Do U.S. international agreements in the region require (or prohibit) U.S. military aid to Taiwan in the event of open conflict with China?  Would the President need authorization from Congress to deploy U.S. forces there if conflict seems imminent?  Our panelists will discuss the way these questions are likely to be viewed by other governments as well as by policymakers in Washington.   

Featuring: 

Michael Mazza, Nonresident Fellow, AEI

Mary Kissel, Executive Vice President and Senior Policy Advisor, Stephens, Inc.

Prof. Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director of International Programs, and Maurice A. Deane Distinguished Professor of Constitutional Law, Maurice A. Deane School of Law at Hofstra University 

Moderator: Prof. Jeremy Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University

To register, please click the link above. 

 

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Jack Capizzi:  Welcome to today’s Federalist Society’s virtual event. This afternoon, September 14, 2022, we are discussing threats to Taiwan and the question, “Where does law matter?” My name is Jack Capizzi, and I’m an Assistant Director of Practice Groups 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 give their remarks, we will turn to you, the audience, for questions. If you have a question, please just enter it into the Q&A feature at the bottom of your screen, and we will handle those questions as we can towards the end of the program. And with that, thank you very much for being with us today. Jeremy, I’ll turn it over to you.

 

Prof. Jeremy Rabkin:  Hi. I’m Jeremy Rabkin from the Scalia School at George Mason University. I’m just the host, really, to pitch a few questions and get the discussion going. I won’t go into any detail about the extensive credentials of our panelists but just a few facts about each to just help you situate who’s talking. Julian Ku is a professor at the Hofstra Law School and a graduate of the Yale Law School. Mary Kissel used to be on a Wall Street Journal editorial board and was a Senior Advisor to Secretary Pompeo in the State Department. Michael Mazza is at the American Enterprise Institute and has written extensively about US defense policy in the Asia-Pacific region.

 

In fact, all of the panelists have written extensively about the issues we’re going to talk about today, and they all have considerable direct experience or at least regional experience. Mike Mazza studied Chinese in Beijing. Mary lived in Hong Kong for a while. Julian was in Taiwan just a few years ago — right? — for a year on sabbatical. So they all have experience in the region and opinions about this and have been following it closely, so you won’t just get them spouting. But we do want to talk about the legal issues for a legal -- predominately legal audience and try to get some perspective on whether the arguments of lawyers and law professors will matter very much in this. Maybe not.

 

So I want to start with Julian. The UN Charter seems, on the one hand, to prohibit aggression but, on the other hand, to authorize a right of self-defense to member states. And the obvious question here is, if most countries in the world don’t recognize Taiwan as an independent state — it’s not a member of the UN, would a Chinese attack on Taiwan be, in the terms of the UN Charter, aggression? And would Taiwan have the usual rights that we associate with a country at war defending itself? And you have some analysis of that that could get us started?

 

Prof. Julian Ku:  Okay. So let me just start. Yes, this is a good example of why -- the question you raised -- and thanks, Jeremy, and thanks to the Federalist Society for hosting this conversation. This is a good example of where the law might matter in the question raised. Lawyers like to think we matter. We matter less perhaps than we think. But here’s an interesting example for Taiwan in the international, in particular.

 

As you point out, international law sets these rules,     the most important of which is that you can’t invade other states. You can’t commit aggression against other states. Now, sometimes, states break this rule. See Russia and Ukraine. But they’re condemned for it, at least by most countries. And it’s -- I think this is an important rule.

 

And Taiwan is in a weird situation because, as you mentioned, Jeremy, Taiwan is not a member of the United Nations. Taiwan is not recognized by most countries as a separate state, and therefore, those two features make it possible for China, the People’s Republic of China, to argue legally and politically that Taiwan, therefore, does -- would not have any rights to defend itself pursuant to the UN Charter or at least legally defend itself. And why this matters is because China’s view of Taiwan is that it’s part of China. And, so, if China used force to invade Taiwan, it would not violate the UN Charter, in China’s view, because Taiwan’s a part of China. It would just be occupying part of its own territory, just like the United States sent troops to put down a rebellion in Hawaii, I guess. I don’t know what the right analogy is — Puerto Rico?

 

And, so, that would be the normal -- and that’s the view of the Chinese government. And what’s -- and I think they would find some support in that from international law because of Taiwan’s lack of legal status. So here, where Taiwan is not a member of the UN and it doesn’t have recognition from other states, it’s a real problem for Taiwan. It’s a real dangerous one because, while states might choose to help Taiwan -- support Taiwan, a lot of states might choose not to. And because -- on the argument that, well, it’s not a state, and unlike Ukraine, there’s no one -- we’re not really sure what it is. And, so, this is why I think it is kind of really important for the United States to take this legal problem seriously.

 

Now, having said that, historically, the United States doesn’t worry too much about this, so we will defend countries -- we’ll invade countries if we think it’s the right thing to do for US interests and maybe moral interests. But the UN Charter hasn’t always acted as constraint. I would say, though, I think it would be a -- it is a huge problem for Taiwan, in the event of a Taiwan crisis where China invaded, because it would be very difficult or more difficult for the United States and for Taiwan to rally international support to get the kind of support Ukraine’s getting in terms of just arms, military support, but to get economic support, to -- or even get political condemnation. Now, maybe -- I’m glad that we have Mike and Mary here to give some perspective -- that is what I worry about. And I think this is a problem. 

 

And just to sort of explain -- Mike has written about this in much more detail -- Taiwan is not a member of the United Nations because it is the remnants of the exiled Republic of China, which lost the civil war in 1949 and has been in Taiwan ever since and until -- and has technically claimed to be a separate government. But it claimed that it’s still the remnant of the government that used to control all of China. And, so, in that civil war scenario, there are two governments but one state. And in that situation, the UN says, “Well, we’re going to recognize this government. There’s only one state called China. There are two governments. We now choose China as -- the People’s Republic of China, the Communist government -- as the government that will represent China, but we won’t recognize Taiwan because it is no longer representative of all of China.”

 

What’s new and what’s difficult is that there is a sense that Taiwan should be something on its own, kind of like its own country, even if it’s called the Republic of China. But that legal argument has not really gotten much sway with anyone, including the United States. And the last question might be why does the United States not recognize Taiwan? Because that’s the deal we made. When we agreed to recognize China as the Republic of China -- I mean, China — the People’s Republic of China, Communist China — as the legitimate government of China, we agreed not to take sides on what the status of Taiwan was. We agreed to leave it ambiguous and not maintain relations with Taiwan.

 

And, so, part of the reason we’re in this situation is the decisions the United States made in the ‘70s to make a deal with Communist China to open relations with them but also to kind of cut back our relations with Taiwan. And, so, we’re living with the consequences of that deal now, which still might be the right deal to make. Nixon going to China seems like the right deal to make, but the cost -- one of the costs was that we had to give up our formal diplomatic relations and, I think, damage some of Taiwan’s international standing.

 

Prof. Jeremy Rabkin:  Let me start with Mary. If there is a confrontation over Taiwan, there are threats to Taiwan, there are demands against Taiwan, and Taiwan starts to make the sort of pleas that we’re now familiar with from Kyiv, “Help us. Help us. Send weapons.” I want to just focus first on the diplomatic side of this. Do we have good prospects of rallying at least our NATO allies or our closer allies in the Western Pacific, or do you think they would be a little bit intimidated by the legal situation that Julian just described?

 

Mary Kissel:  Well, first of all, thank you so much for having me. It’s really an honor to be on this panel, and I appreciate everyone who’s watching. And secondly, I should say that I currently work at Stephens as a Senior Policy Advisor, so I don’t want anyone to think that I’m unemployed. They are paying my bills. From a US point of view, while it’s interesting to debate the contours and confines of international law, ultimately presidents tend to act in America’s national interest. And as Julian pointed out, we have done so without treaties or even declarations from Congress many, many times, so really the question of whether or not we would come to Taiwan’s aid, I think, rests largely on a security and a political calculation.

 

We are not the only actors here, of course, and I would point all of the viewers to the statements out of Tokyo of late, which has effectively declared Taiwan an almost existential threat to the national security of Japan, and recall that we do have a defense treaty with Japan. So, if Japan were to get into a conflict with China vis-à-vis Taiwan, we may very well be pulled in in that fashion. Another important point, when we talk about the defense of Taiwan, I think it’s often very comfortable for us to speak as if the United States has the sole responsibility to arm Taiwan. Now, as the world’s largest superpower, of course we have an outsized capability to do that. But so too does Taipei, and Taiwan could have taken steps, whether it’s developing an indigenous defense industrial complex or making arrangements with other suppliers or putting more pressure on Washington to purchase weapons. They’ve had a very, very closed economy, which has limited their development and therefore the wealth that they have to go out and spend more money on defense.

 

But I just -- I wanted to make that clear because I -- when I hear these discussions, it’s often only from our point of view, and there is an important responsibility on Taipei’s part. Yes, Jeremy. Sorry.

 

Prof. Jeremy Rabkin:  Just say a word about whether you think the Europeans would follow us if we said we have to really commit to Taiwan.

 

Mary Kissel:  Well, we won’t know until the moment. Did anyone --

 

Prof. Jeremy Rabkin:  Well --

 

Mary Kissel:  Well, did anyone anticipate that Germany would ultimately arm Ukraine?

 

Prof. Jeremy Rabkin:  I think it’s really a question whether Germany is going to arm as opposed to talking about arming.

 

Mary Kissel:  That’s true, but by the same token, we are seeing some quite fundamental shifts in the behavior of nations, that Britain would be more forward-leaning than the United States and sending people to train in Ukraine. And that’s why I raised the question of Japan because Japan’s relationship, for instance, with Australia has really deepened over the last decade by lateral defense treaty and exchanges, and that is in large part due to Chinese aggression, and it has a lot to do with China threatening Taiwan.

 

Prof. Jeremy Rabkin:  Could you imagine in the midst of a crisis like this in which, let’s say, the United States is taking the lead in sending arms to Taiwan, that the UN actually denounces that as outside intervention, and if such a thing were either actually voted or anyway on foot, is your sense that the Europeans would be disturbed by that? Or would they say, “We’re past that? It doesn’t matter anymore what the UN says”?

 

Mary Kissel:  Well, China’s on the Security Council.

 

Prof. Jeremy Rabkin:  Yeah, but you could have a debate, and you could take this to the General Assembly.

 

Mary Kissel:  China has bought the loyalties of nations –

 

Prof. Jeremy Rabkin:  Yeah, and I’m just asking whether you think that -- you mentioned Germany would have confidence to say, “We don’t care anymore what the UN says. We just support our friends.”

 

Mary Kissel:  Well, no nation does things simply for support. They do it for the national interest, so that would be a calculation for Berlin if they think it’s in their national interest. It is interesting that the SPD-led government in Berlin has started to talk about reducing their dependence on China because of the lessons that they have learned in Ukraine. So there is a shift here going on. I’m not someone who would say that we’re going to decouple from China, and that will happen tomorrow. And Germany, of course, would support the United States.

 

I think that’s naïve. I’ve heard plenty of folks go -- say that in public. I just don’t think it’s workable. But at some point -- it may come a point here that if China decides to take a step like that, that nations will be faced with very difficult decisions. And there’s no way to know until it happens, and also the leadership of those nations at that time matters because the political leadership and the political spine matters an enormous amount. And we know that China will increase its aggression until it’s deterred. It’s like they’ll come, and they’ll punch you in the face. And if you take it, they’ll punch you again, and that’s how they operate.

 

So it will depend on many factors, but one thing is for sure. If Putin’s aggression in Ukraine doesn’t teach us a lesson that we need to get serious about deterring Beijing, then we’re in -- effectively, it’s sad to say, I think, inviting more aggression from that regime.

 

Prof. Jeremy Rabkin:  And some of it already has been directed at EU member states. Right? The Baltic states made some gestures toward Taiwan, and China really hit back, not militarily but with economic threats. I wonder which way that goes in Europe. Do they say, “We have to guard against that, or we have to avoid anything that will provoke that?”

 

Mary Kissel:  We don’t provoke aggression through deterrence.

 

Prof. Jeremy Rabkin:  By we, I was speaking in the voice of people thinking about this in Europe. Okay. So, Mike Mazza, what countries would be most crucial for us to have on our side in a confrontation with China over Taiwan?

 

Michael Mazza:  What’s the treaty allies? Most important, Mary’s already pointed to, is Japan, which is obviously right next door — dozens of miles away — and has a key national security interest in Taiwan’s ongoing de facto independence. Beyond Japan, I think Australia’s enormously important, potentially Korea. I think when it comes to the European allies, we don’t expect too much when it comes to any sort of military contribution. But we’ll take what we can get. But economic responses, as we’ve seen in response to Russia’s invasion of Ukraine, I think are things that we will hopefully be counting on. And ideally, we’ll be talking about what those would look like ahead of time so we’re not flying by the seat of our pants should a crisis erupt.

 

Prof. Jeremy Rabkin:  Could you just say a work about the actual treaty commitments that we have with the countries that you’ve named, particularly Japan and Australia and Korea? We have promised to defend them if they are attacked. We certainly have not promised to join them if they decide to come to the defense of a third party. So -- and they don’t promise to join us if we come to the defense of a third party. Right? So you say the treaty partners. Is it at all relevant that there are treaties there, or is that just a sign of, “We’re partners. Forget about the content of the treaty.”

 

Michael Mazza:  No, it’s relevant for a couple of reasons and less so for -- due to legal obligations, more so due to patterns of cooperation and the fact that in important ways our militaries are very deeply integrated. We operate much of the same equipment. We know how to work together, to fight together. And in the case of Australia, Japan, and Korea, they’re right there in the region. So even if they are not directly contributing to a fight should a fight happen, the United States is certainly going to be looking to depend on those countries to provide access to facilities and equipment. So, when it comes to -- for the -- what’s written in the treaties, I think that matters less here than the fact that we have decades-long relationships in which we have fought together, know how to fight together, and have important capabilities to bring to bear to solve this particular issues.

 

Prof. Jeremy Rabkin:  Just -- while we’re on this, that if the allies in the region, it seems to me that, on the one hand, they’re much more focused on this because it’s their neighborhoods. Of course, they care more about it. On the other hand, they’re more threatened, so they might be a little more cautious than we might be or that we might like them to be. Just -- I realize what Mary said is true. We won’t know until we see how it plays out, but, I mean, it’s true also in military matters as in diplomatic, but is your sense that they are likely to be, let’s say, more forward-leaning about this and eager to do something, or a little bit more reticent and really would need American prompting, which would be a kind of assurance that, yes, we’re in this?

 

Michael Mazza:  I think when you look at Japan and Australia in particular, trends are moving towards -- I think trends indicate the United States can be increasingly confident that they going to participate in some way. We’ve seen increasing statements, as Mary has pointed out, out of Japan suggesting that they’re increasingly concerned about the Taiwan Strait. In the case of all three of those allies, those particular allies — Japan, South Korea, and Australia — we’ve seen public joint presidential/prime ministerial statements raising the question of peace in the Taiwan Strait. That’s new and different. And the fact that our allies are willing to publicly talk about that, again, is suggestive of where they’re heading on when it comes to this question. Mary’s obviously right that we won’t know how they’ll react until they have to decide how to react. But I am more confident that there will be some level of partnership than I would have been even three or four years ago.

 

Prof. Jeremy Rabkin:  I teach a course on international law, and I acknowledge what all the panelists here have said, which is the United States doesn’t feel overly bound by it. I say that to my students, not in every class --

 

Mary Kissel:  But, Jeremy, neither does China say.

 

Prof. Jeremy Rabkin:  Yes, I’m fine. I wasn’t even saying it as a criticism. I was just -- a lot of international law is sort of like suggested guidelines. There would be no necessary -- it would not necessarily follow that you will pay a penalty. But, so, I would like to shift now to thinking a little bit about American law for which there sometimes are penalties, and even if there are not penalties that are handed down by courts, people take it more seriously because it’s our law. So -- at least, they take it more seriously in the United States. We have the Taiwan Relations Act, which was a substitute for the treaty with Taiwan that the Carter administration renounced.

 

Let me just start with Julian just to give it, again, a little bit of a legal setting for this. And then I’m going to ask everybody would it be helpful for us to make changes in the statutory framework of our relations with Taiwan? Julian, just set the stage for us. The Taiwan Relations Act is not actually a treaty. It’s an Act of Congress; therefore, Congress could change it. Help me with this. It has the same status as any other statute. Right?

 

Prof. Julian Ku:  Yeah, it’s -- it is a kind of unusual law, but you’re right. It’s an Act of Congress. It was passed essentially      in reaction to the Carter administration’s pulling out of the US -- with the US/Taiwan, effectively, defense treaty. So we had a defense treaty that obligated us to defend Taiwan like we do with Japan, and we abrogated that treaty, and Congress, really acting not necessarily with Carter administration support, passed the Taiwan Relations Act to try to stabilize Taiwan’s relationship with the United States. It’s not a mutual defense treaty. It does have certain obligations now, which require the US to provide Taiwan with defense articles or weapons of a defensive character, is the language they use.

 

It does require the US to act and to sort of -- there’s some technical things which allow Taiwanese -- the Taiwanese government to continue to have relations with the United States on an unofficial basis. As a legal nerd, you might know the Taiwan government gets sovereign immunity, even though they’re not a sovereign, but they’re treated as if they were a sovereign. So there’s a lot of little things that are done to allow Taiwan to continue to work with the United States without officially being a government. And it’s really been important to stabilize because I think it -- it’s a useful way -- look, it’s not -- no one’s going to go to court to sue, to enforce this law. The president, in theory, is bound by it but is not -- the penalty is not there’s going to be litigation.

 

Prof. Jeremy Rabkin:  Yes, but just to be clear, it doesn’t obligate us to defend Taiwan.

 

Prof. Julian Ku:  Right. It does not obligate us. It does obligate us to provide weapons of a defensive character and to -- and set sort of policy approaches.

 

Prof. Jeremy Rabkin:  No.  And it also doesn’t actually authorize the president in advance to take military steps.

 

Prof. Julian Ku:  Yes. Right. There’s no -- it’s clearly written to avoid that question: does it authorize the president to take action to defend Taiwan?

 

Prof. Jeremy Rabkin:  So I’ll give you first bite at this quick. Would you like to see changes in that statute to make it more protective or even more stabilizing?

 

Prof. Julian Ku:  Yeah, I mean, look. I think it’s done a lot of good in sort of setting our policy. I have two minds about this. I -- they’re actually currently considering the Taiwan Policy Act right now, actually, in Congress, which would try to update and reform the Taiwan Policy Act. I’m not -- there have been ideas. Some members of Congress have proposed, essentially, a preauthorization to preauthorize presidential action to defend Taiwan in the event of a crisis. I’m a little nervous about that because blank checks to the president make me nervous as a constitutional lawyer.

 

But on the other hand, I do think that it is important to clear away legal obstacles to action by the president. And one thing that does worry me is that we will be in a Taiwan crisis, and the president will be like, “I got to go to Congress. Or do I have to go to Congress, or what will Congress say?” and then they won’t act. And, so, there is something to be said for giving the president more clear authority to act, probably you’d have to phrase it, “In -- only in the event of actual use of force against Taiwan and only in defense of Taiwan.” I don’t think we can authorize offensive action against the PRC mainland ahead of time. I just -- not ready to do that, even with me. I’m nervous about China. I’m not ready to authorize war against China quite yet. So I think -- but something like that would probably be more stabilizing, given how scary China is right now.

 

Prof. Jeremy Rabkin:  I -- we’ll get into this, I hope, in the next round. But what do we mean by offensive action against Taiwan, which covers a lot of possibilities? But just for the moment, if I understood you, you’re saying the Taiwan Relations Act is enough.

 

Prof. Julian Ku:  It’s not enough. I mean, it’s good, but I think that we can improve it. There are some things about it that aren’t -- don’t bother me, like the people -- the Taiwanese government is annoyed because they’re not allowed to fly their flag and things like that. I don’t really care that much about that. I think it’s okay, but I get that they --

 

[CROSSTALK]

 

Prof. Jeremy Rabkin:  If they are threatened, their flag will be flying all over the Twittersphere.

 

Prof. Julian Ku:  Yeah, you’re right. That’s true. That’s -- yes, that’s true. Although, I’m not sure that’s helped [inaudible 00:26:53] as much as it would, but I think they prefer the weapons and the [inaudible 00:26:57].

 

Prof. Jeremy Rabkin:  That’s what I said. Mary, are there things you would like to see enacted by Congress now?

 

Mary Kissel:  Well, I’m not a constitutional legal scholar, so I’ll have to defer to my esteemed colleagues on the legal questions. But I think it is important to note the -- that the Constitution, of course, splits the power to wage war between Congress and the president as Commander in Chief. And I tend to have an expansive view of executive power, probably from my Wall Street Journal editorial board days. But should we change how we view Taiwan under the Taiwan Relations Act or the One China policy, per say? I believe that it’s extremely important for us to acknowledge the reality of the relationships that we have as a nation for several reasons.

 

First of all, because you can’t construct sound policy based on lies. And secondly, you can never start to really convince the American people of a course of policy action without laying down arguments over long periods of time. And I think the Taiwan Relations Act and even Nixon going to China in our support for kicking Taiwan out of the UN, that was right at the time. But I think times change, and I believe that it’s      perfectly reasonable under the One China policy where we agree to disagree with Beijing to recognize the reality that Taiwan is an independent nation.

 

Prof. Jeremy Rabkin:  So I want to just -- as talk show hosts say, let’s make news. So your position is actually we should recognize Taiwan as an independent state.

 

Mary Kissel:  Is it not? And I know I’m not sure that I’m senior enough or important enough to make news, but I appreciate the compliment, Jeremy. This has been said by many, many other people, particularly my former boss, Secretary Pompeo, and the former Defense Secretary and others far more important than I am, but --

 

Prof. Jeremy Rabkin:  But I took it as news as a -- at least an implication that Secretary Pompeo might be willing to follow you.

 

Mary Kissel:  He already did it in Taipei.

 

Prof. Jeremy Rabkin:  Saying, “We should recognize Taiwan --

 

Mary Kissel:  Yes, he’s already said that. And look, again, I just want to go back to the more fundamental point because it doesn’t necessarily only apply to Taiwan. I think it’s important for us to recognize the character of the Communist regime in Beijing. I think it’s important that -- for us to recognize that Taiwan has never been run by the People’s Republic of China. And we need to be honest about that, and then we need to construct policy that deters Beijing because ultimately this entire discussion isn’t about a conflict; it’s about deterring conflict. In Nixon’s words — right? — “We want to wage peace, not war.” And, so, I tend to believe that the most important and effective way for us to wage peace is to see the world clearly and to incense and deter Beijing -- to deter Beijing from invading and to incense Taiwan to take steps to help itself and to arm itself.

 

Prof. Jeremy Rabkin:  Mike, would other countries in the region subscribe to the Pompeo doctrine?

 

Michael Mazza:  No. They may get there, though. Again, I think the kind of things, the kind of conversations we’re seeing in Japan and Australia, particular, are things we just wouldn’t see in the UN a few years ago. So I think presented with that proposal today, it would be a resounding no.

 

Mary Kissel:  Right.

 

Michael Mazza:  But I also think that there is perhaps the possibility for a conversation where there wasn’t before.

 

Prof. Jeremy Rabkin:  So I wouldn’t say a lot of people, but some people in the West have been echoing the Putin line that Ukraine is not a real country because they just speak a dialect of Russian, and they’ve always been part of Russia, and never mind, it’s just not a thing. I think there’s a group of people saying that now with Ukrainian victories in the field. Good for them. Is there any disposition in the Western Pacific to say, “Oh, really. Taiwan is just a part of China because they sort of speak Chinese, and they eat a lot of the same food.” Does everyone take it as, of course, an elemental reality that it’s a separate country really?

 

Michael Mazza:  I think the truth is probably somewhere in between, and it varies country to country. Certainly, again, not to sound like a broken record here, but Japan and Australia don’t think of Taiwan as necessarily part of China. I don’t think South Korea looks at that as just an internal matter for China. But I think you are more likely to hear that sort of argument in places like Indonesia, in -- certainly places like Cambodia and Laos, which, at this point, those two are essentially Chinese-client states. The Chinese propaganda information warfare here has been extremely effective in some countries in the Asia-Pacific but has fallen flat elsewhere.

 

Prof. Jeremy Rabkin:  Just one more question related to this. Do you think, not even diplomatically but thinking about an actual military response of some kind, there are particular allies there that would be absolutely indispensable for us to act, like we need to have ports for our fleet. And, so, we absolutely have to have them onboard. If we contemplate any kind of -- even just a show of force, or could we do this all on our own?

 

Michael Mazza:  I think it’s pretty difficult to imagine this successfully without access to Japanese facilities, in particular. It’s just they’re right there, and without that access, we’re going to be fighting from very long distances with long and potentially vulnerable supply chains. We’re going to face that even with Japanese assistance, but it makes things a little bit easier.

 

Prof. Jeremy Rabkin:  And would you say that also about Australia?

 

Michael Mazza:  I think it’s less crucial, but, again, I do think we will expect to have or certainly want to have access to Australian ports, especially if we want to be doing things to -- if we want to be doing things in the South China Sea and the Indian Ocean, then access to Australia facilities is important.

 

Prof. Jeremy Rabkin:  Any other countries that we haven’t ticked off yet, like Singapore?

 

Prof. Julian Ku:  Well, isn’t the Philippines the most important country here? The --

 

Prof. Jeremy Rabkin:  Philippines is certainly nearby.

 

Michael Mazza:  Yeah, so Philippines -- yes, I leave it out because it’s very unclear, to me at this point, where the Philippines is going on this question, and perhaps Mary has more insight. I don’t know. I think we would certainly like to have access to those facilities. Those facilities are less well-developed, and we don’t have significant forces there already. But to the extent that we can kind of access the variety of air and naval bases that we have negotiated to have access to in peacetime, that would obviously be a good thing.

 

Prof. Jeremy Rabkin:  And Philippines has its own territorial disputes with China. Right? They’re a little bit sensitive to China taking over islands.

 

Michael Mazza:  It does. But what we’ve seen from the past president and this new president — I think we’re still sort of feeling out — is a tendency to seek positive relations with China in order to address that, rather than a sort of -- an approach which leans heavily on its relationship with the United States and on international law, frankly, in order to push back against Chinese encroaches.

 

Prof. Jeremy Rabkin:  Okay.

 

Mary Kissel:  Jeremy, may I jump in real quick?

 

Prof. Jeremy Rabkin: Yeah.

 

Mary Kissel:  I also think -- Mike is also raising an important point here, which I think is the domestic political dynamics between -- within the democracies in Asia. And Duterte, the prior Filipino president, was very pro-China, but then they had the dispute over China’s claims in the South China Sea, which were clearly ludicrous and were rejected by the Permanent Court of Arbitration in the Hague back in — what? — 2016, I think. And, so, their tune changed. And much will depend, if this conflict is started by Beijing, on how it is done. One might imagine that Beijing might attack Guam. Guam is a US territory. That’s US soil, and that would be an attack on the United States. That were that to happen, that could completely change the nature of such a conflict here.

 

Now, what would happen if shipping lanes were cut off and suddenly Jakarta saw their freedom of movement on the seas severely restricted? How would India react? Recall India just had a very violent set of clashes only two years ago on their border with China, and there’s no love lost now between India and China, if there ever were to begin with. But that’s deeply seated now, and it’s a very strong domestic political pressure on New Delhi. So there’s just many factors that go beyond just military capabilities and the confines of international law.

 

Prof. Jeremy Rabkin:  Yeah. Good. That sets us up for the last round of questions I wanted to pursue. Suppose China does threaten sea lanes, which people think they have been building a navy in order to do. Julian, the president, do you think, can he plausibly deploy the US Navy on his own say-so to protect sea lane? And I’m asking you both for legal analysis, not just your view but what is a plausible range of views on this. And also, just as a starting point, whether you think that debate would matter much if the president decided, “I’m doing it,” and just send out the --

 

Prof. Julian Ku:  Yeah, so let me play lawyer here. The -- probably the prevailing opinion is, with respect to the blockade -- I think blockade scenario      is very likely. We saw China’s recent military exercises. They’re kind of like a proto-blockade to show they could blockade Taiwan if they wanted to, and they could. So the legal question could be could the US Navy, under the president’s own authority, take action to break a blockade? And I think the question is without Congress, without going to Congress for separate authorization.

 

Prof. Jeremy Rabkin:  Yes.

 

Prof. Julian Ku:  And I think the range of opinions is mostly no — right? — from legal scholars. The -- but -- and the reason is the precedence for such an action aren’t really there. The precedence for a US action --

 

Prof. Jeremy Rabkin:  President Reagan against Libya in 198- --

 

Prof. Julian Ku:  Right. So the precedence for unilateral presidential actions have generally been air actions against land targets. They have not been -- and they’ve been for narrow purposes so Kosovo and Libya in 2011. And Libya, in 2011, the Department of Justice actually -- well, not the Department of Justice -- State Department said, “Well, because they can’t shoot back — because we were too far away because they were shooting from offshore — that’s not a conflict, and, so, we’re okay.” So there have been attempts, and the unilateral presidential actions have not, as to my mind, have not ever extended to navy actions against another country’s navy forces.

 

Prof. Jeremy Rabkin:  No. There is this famous episode where Gaddafi said the Gulf of Sidra belongs to Libya. If you look at a map, it’s hundreds of miles across. And President [inaudible 00:39:33]  said, “I contest that.” And he sent the Navy and basically said, “Try to exclude us.” And insanely, they tried. And then the Navy sent       the Libyan patrol boats. And everybody said, “That was good.”

 

Prof. Julian Ku:  It was, but I think that there would be interesting      -- I think the difficult thing would be a shooting war. So I guess the US -- the little details --

 

Prof. Jeremy Rabkin:  That was a shooting war. You just think they’re Libyan bullets, so they don’t matter.

 

Prof. Julian Ku:  Well, they didn’t really injure -- I think if the US Navy went in with a -- they were leading a convoy. They’re convoying, and they said, “Look. Shoot at us. We’re not going to shoot at you.”

 

Prof. Jeremy Rabkin:  Yes.

 

Prof. Julian Ku:  We can do that. And -- but I think if he launches offensive actions without sort of -- without -- that actually makes a difference. I think a lot of the legal opinions coming out of the Department of Justice emphasize a difference between offensive versus defensive action, so I think -- it’s a close call, but I think that would be -- it would be a difficult case to go after legally to justify a unilateral presidential action to attack Chinese naval forces --

 

Prof. Jeremy Rabkin:  Which it was a little bit before your time and even before my time, but President Roosevelt did this very extensively in 1940 and 1941. Right?

 

[CROSSTALK]

 

Prof. Julian Ku:  Right. A lot of people will agree that --

 

[CROSSTALK]

 

Prof. Jeremy Rabkin:       [     Inaudible 00:40:52] that were going to be attacked.

 

Prof. Julian Ku:  Yes. Now, he would say, “He can attack us.” He didn’t -- it was a -- they’re there convoying troops to -- that probably is the best example. Right?

 

Prof. Jeremy Rabkin:  And at the culmination of this, he ordered the Navy, “If you see a U-boat, sink on sight.”

 

Prof. Julian Ku:  Right. But that -- yes, he did, and that was one of the reasons why Republicans at the time condemned him as acting illegally. But --

 

Prof. Jeremy Rabkin:  But not afterwards.

 

Prof. Julian Ku:  Well, yeah, fair enough. Now, I will say the one thing that worries me here is that the most effective response to China would be to threaten it with offensive action, so the missile bases on the mainland are the main threat here because they don’t even have -- they could blockade by just threatening to use their land-based missiles. And, so, the US -- I think, clearly, the one line we can draw, offense action against the Chinese mainland, I don’t think the president could do that without Congress, both legally and politically. I don’t think any president I could imagine — even some of our recent presidents — could feel comfortable going if a -- of opening an action against the Chinese mainland without any sort of Congressional authorization, even though that would militarily, I’m told, be more effective. In other words, you want to knock out their missile bases and their air forces first, and that will allow, then, you to be able to protect Taiwan better. But -- and that will allow the US aircraft carriers to move in and -- so there are lots of things you could do that would make sense militarily, which I think are legally and politically not possible. And the general line is between      offensive actions, which are not predicated on responding to an action against US territory.

 

Michael Mazza:  Can I jump in here?

 

Prof. Jeremy Rabkin:  Yes. I wanted to ask you, when you jump in, just to respond to this point that Julian has made, which is that we -- it might be dangerous for us to try to protect merchant shipping if we had not taken out Chinese air capacity, capacity to attack it from bases on its mainland. Do you agree with that? Then, you can say anything.

 

Michael Mazza:  Yeah. Yes, that’s probably accurate. Right? So China can project an enormous amount of force from capabilities it has on the mainland, both into the air and to the sea. And, so, if we are avoiding those targets in a military conflict, then we’re putting ourselves at a disadvantage in important ways. The point I wanted to make is -- I mean, I agree with, I think, what Julian has sort of been getting at over the course of this conversation, which is that we need to think about ways to make it easier for the president to react quickly in the event of a conflict or crisis — right? — that that improves our deterrent position vis-à-vis China. And, again, I agree with that. But I also think we should be careful not to think of Congressional authorization as a roadblock exclusively because Congressional authorization, if the Chinese believe that it’s likely, actually significantly enhances our deterrent effect. Right?

 

And, so, this gets at something that Mary brought up earlier, which is the US president should be regularly, consistently making the case to the American people about US interests in the Taiwan Strait, why Taiwan’s independence is a key national interest of the United States so when the time comes, if it ever, God forbid, comes, the US president and his counterpart in Beijing can be confident he’ll have that Congressional authorization. Right? That’s enormously more powerful as a deterrent, I think, than a president having to go it alone — right? — than having China think about what the political situation in the United States might be. Right? So -- and presidents haven’t been doing this for a long time. And I think that we have failed to do that to our great detriment.

 

Mary Kissel:  Also, just from a political calculation here in the United States. Recall that President Obama didn’t get involved in the war on ISIS until you had Americans beheaded on video camera and streamed across the United States. If we had a conflict erupt between China and Taiwan, there are thousands of dual nationals, American citizens who are living and working in both countries and could potentially be caught up in that. We would be personally affected.

 

I’m not saying that that’s a reason why we would intervene. I think if we intervene, it would be because we see it as the first island chain and key of the defense in our — right? — our ability to protect the Pacific and those key shipping lanes. And if you let the first island chain go, then what comes next? You have that argument of a domino theory, but just to make the point that, to Michael, that -- to Michael’s point, there are just so many other issues that the president would need to consider here. And domestic politics will also matter.

 

Prof. Jeremy Rabkin:  One the questions that the viewers have sent in is should we think of Taiwan mostly as a liability, that we’ve talked about them for a long time as if they were independent, so it would be embarrassing to let them go, or you’re now saying it’s a domino in a series. The questioner asks, “Should we think of it as a strategic island close to China, which is helpful to hold for a coalition that is, let’s say, an anti-China coalition?”

 

[CROSSTALK]

 

Michael Mazza:  I think the United States has multiple interests when it comes to its relationship with Taiwan. And, so, we can think of that in sort of your classic geostrategic terms. Right? It’s the unsinkable aircraft carrier, as MacArthur called it. We can think about the economic importance. Right? It’s a small country — 23, 24 million people — but it’s a top ten trading partner. Everybody’s talking about semiconductors now, but even beyond semiconductors, it’s long been an important US partner and has an important position in global supply chains.

 

And if you focus on things like human rights, democracy — what we consider to be universal values — then Taiwan’s survival as a thriving democratic state is important. So you’re going to sort of pick what argument you like best, but there’s a -- there’s something that can appeal to just about anybody.

 

Prof. Julian Ku:  Yeah, I’ll just say quickly I think that the -- I think the political mobilization within the US is really important, and Congress is actually very friendly toward Taiwan, usually more friendly, frankly, than the State Department in many cases.

 

Mary Kissel:  True.

 

Prof. Julian Ku:  And, so, I think that -- but building that political argument, making the argument -- and Congress can reflect that political consensus through statutes and through things like the Taiwan Allegiance Act and maybe in the updates to it. So that can be helpful -- and really helpful. The one thing that worries me, though, is I’m -- when I’ve had conversations, which are very few, with folks in China, when I have them recently, I try to make this point that you don’t want to mess with America when Congress and a president are on the same page. Right? You don’t mess with us, especially when that happens. But I’m not sure people in China, that the scholars I’ve talked to recently are deterred by that. They’re like, “Well, yeah. We kind of assumed that everyone’s onboard with that.” And, so, it does worry me. I don’t know how much more deterrence we can get, but I’d still like to make sure that we do everything we can do to deter China as much as possible.

 

Prof. Jeremy Rabkin:  This is another question that was sent in by a viewer that follows directly from what you said. Question is “Putting aside military threats or military actions, what kind of threats could we make to deter China that they would take seriously in Beijing? Could we substantially cut off energy supplies, limit their exports? Are there threats that we could make that they would take seriously?” That’s for anyone who has an opinion about it.

 

Mary Kissel:  I don’t think it’s about threats. I think it’s about the actions that we take. They don’t really look at what they say -- we say only. They look at what we do.

 

Prof. Jeremy Rabkin:  Yes, but we would like to deter them from threatening Taiwan. And deterrence aims to prevent something from happening, so it’s in advance      if they’re doing it. So -- and I’m not sure we would do a lot before they do something, right?      So      we want to put on the table, “If you do this, we can do that.”

 

Mary Kissel:  Deterrence is will plus capacity, so the first thing we can do is speak honestly about Taiwan and what it is, which is to my earlier remarks, and the second is we can increase military capacity.

 

Prof. Jeremy Rabkin:  I know, but I say -- could we -- let’s just talk about Chinese exports. A lot of them go to the United States. We almost certainly could live without almost all of them. A lot of them go to other countries that may say, “No, thank you. We don’t want to really get involved in it.” So we might have difficulty organizing economic sanctions that would bite.

 

Mary Kissel:  China’s Achilles’ heel is its energy, the lack of energy --

 

Prof. Jeremy Rabkin:  Fine, so the energy. Could we really stop countries in the Middle East from sending oil to China?

 

Mary Kissel:  Well, that’s why we need to incent places like Saudi Arabia and the Gulf nations and -- to our side because they are straddling the United States and China. It’s why we need to exert an enormous amount of additional pressure on the Islamic Republic of Iran, which is an energy producer and a significant exporter to China, which we are not doing. I think one of the mistakes that --

 

Prof. Jeremy Rabkin:  We haven’t been doing too well with sanctions on Iran.

 

Mary Kissel:  No, but -- Professor, I think you raise an important point that we tend to think of these issues as solely bilateral problems. But they’re not because that’s not how the world works. So we saw this very clearly with the announcement of the no-limits partnership between Russia and China. We see it very clearly with Iran arming Putin for his invasion of Ukraine. Right? When we talk about Taiwan and China, things that we do in other geographies matters.

 

So how do you deter China? Well, you arm Ukraine so that they can win quickly instead of letting this drag out for months on end with thousands of lives lost. You actually impose a serious set of sanctions on Russia to cripple its economy. You pressure India into helping us do that. It’s not just about the specific statutes or what Congress says that we can or cannot do vis-à-vis Taipei. It’s a much more complex question, and I just think that’s important for viewers to think about when we’re thinking about how do we wage peace in Asia-Pacific. How do we deter China?

 

Prof. Jeremy Rabkin:  I totally understand the argument that you’re making, and I am very sympathetic to it. I would like to draw on your experience of the last few years. Do you think it makes it easier to bring other countries along with us if we openly acknowledge, “Yes, you’ll be helping Ukraine in your neighborhood.” But it’s not just about that. It’s about our geostrategy in the Western Pacific, which maybe, even Olaf Scholz doesn’t care that much about and gets a little bit rattled if we bring that up while discussing Ukraine.

 

Mary Kissel:  I think we have to be honest about who our reliable partners actually are in Europe and Asia, and that changes over time. And I don’t think that, if you talk to our partners behind closed doors, they will frankly acknowledge, even the French, we need American leadership. It’s very important. It’s important, too, to give them political top cover within their own nations to deal with their own domestic political constituencies. But we have ready-and-willing partners. Look at the new Liz Truss government in the UK. In some respects, they’re more forward-leaning than we are.

 

Prof. Jeremy Rabkin:       Also on Ukraine.    

 

Mary Kissel:  Particularly on Ukraine, and that’s excellent. But it’s also important to note there is deep bipartisan consensus on the threats that we face from Communist China, from the Islamic Republic of Iran, from Putin’s regime in Russia and -- on Capitol Hill. And that was unthinkable even a few years ago. I think that’s a really important development because, ultimately, national security should not be a partisan issue. It’s an American issue.

 

Prof. Jeremy Rabkin:  Yes.

 

Mary Kissel:  And I think that’s an excellent, excellent development.

 

Prof. Jeremy Rabkin:  Yes, although one might say it’s a sign that actually the situation is deteriorating, so everyone now recognizes that the threat is greater, and we’re not really up to it. So I would like just -- we have just a few minutes left to ask each of you to just summarize how anxious you are. Would you say the threat level is — I don’t remember the color scheme that we used to have for this — but we should all be concerned, actively concerned, anxious, very, very disturbed, or full on panicked. Take your choice. You want to start, Mary, speaking about the threat to Taiwan.

 

Mary Kissel:  I wouldn’t say that I’m panicked, but I’m probably far more concerned about a potential China action than most analysts      are simply because I think American deterrence has been severely eroded over the last couple of years, and -- so I’m not panicked, but I’m deeply concerned.

 

Prof. Jeremy Rabkin:  Yeah, we do not look very serious viewed from outside. Right? Only we know that we’re really serious about getting to the bottom of the Mar-a-Lago stolen papers wherever they are. I didn’t expect to say anything about that. Julian.

 

Prof. Julian Ku:  All right. I’m actually, at moments, especially during the exercise, I was kind of close to panic. I’m very easily panicked. But -- then I talked to my relatives in Taiwan who are never panicked. And they annoy me because they’re never panicked. And I’m like, “You should be panicking.” Right? But -- and the reason they’re not panicked is they’ve seen this before.

 

But I think, for me, I’m kind of -- I take it very seriously. I do think the Chinese government is much more dangerous than sometimes we acknowledge on this issue, and their actions in Hong Kong gave them kind of a good, cheap and easy victory. Now, it cost them, in terms of Taiwan, people now in Taiwan are afraid of them, but I really do worry that’s what we’ll -- that something like Hong Kong could happen at Taiwan. And it worked for them on Hong Kong. The Chinese government has -- I think can say it’s a success for them. And that worries me that they’re going to be tempted to try to pull something similar with Taiwan.

 

And it will be harder to do, but the temptation to get some sort of peaceful, costless, bloodless victory in Taiwan like we did in Hong Kong is something that I think worries me. And that’s why I’m maybe, not on the edge of panic, but getting toward the edge of panic, I guess.

 

Prof. Jeremy Rabkin:  I think it’s good to bring up Hong Kong because there was a legal commitment by China not to do that -- to do what they did. Right? To      just completely swallow      her up and say, “Now, it’s Chinese, and we do whatever we want.” And the world’s reaction to China’s, basically, tearing that commitment was pretty insouciant. Right? There were a few speeches. A few people said, “Tsk, tsk.” But really there wasn’t -- the world said, “It’s your country,” even if --

 

Prof. Julian Ku:  It’s not just the world, just American companies. We’re still -- everything’s still kind of normal. And I think that worries me. I can imagine a world where -- after Taiwan invasion scenario, all the banks get back to business, and things get back to normal, kind of like they have with Hong Kong. And that seems like -- that part panics me because I see what happened to Hong Kong. The world can live with what, to me, seemed inconceivable      when I was living in Hong Kong. A Communist dominated Hong Kong seemed inconceivable, and now, we just assume, “Oh, that’s normal.” And that’s what worries me about a future for Taiwan.

 

Prof. Jeremy Rabkin:  Yes. So, Mike Mazza, you are putting your hopes on Japan, a country which can be unleashed to take back Sakhalin and divert the Russian from Ukraine.

 

Michael Mazza:  I -- never put your hope in Japan. Look, I, too, am -- I’m very concerned. I think we’re going to find out in the not-too-distant      future what happens when an unstoppable force meets an immovable object. Right? I think peaceful unification is not in the cards at any conceivable timeframe. Right? Taiwan has no appetite, and things are only moving in the opposite direction. I think unification, annexation of Taiwan is only becoming more important to Xi Jinping. He’s made it clear this is central to his animating vision.

 

And this happens at a time when the PLA is becoming increasingly capable, when the balance of military power across the Strait continues to deteriorate, and at a time when -- now, I think the Biden administration, at times, in particular the president, talks a big game, but there is no urgency when it comes to our own defense spending and other -- or our diplomacy to match the rhetorical urgency that the administration has adopted when it comes to Taiwan.

 

Prof. Jeremy Rabkin:  And you think the time frame for when we need to be most anxious is probably within the life of the Biden administration, like the next three -- almost two years.

 

Michael Mazza:  No, I -- well, I wouldn’t be shocked, but no. I like to think of this as a sort of a ten-year drama. I wouldn’t be surprised if we face something, a crisis a little sooner. If it’s 15 years from now, it      wouldn’t shock me either. But I think this is not some distance far off proposition at this point.

 

Prof. Jeremy Rabkin:  Well, it makes a difference if this comes to a head when Tony Blinken is our valiant spokesman or in the succeeding Pompeo administration when Mary Kissel is the voice speaking for us.

 

Michael Mazza:  It does. It does.

 

Prof. Jeremy Rabkin:  Okay. Well, good luck to Taiwan. Good luck to Japan, to Australia, to all our allies and friends and especially to the United States. And I also want to thank The Federalist Society for sponsoring this event.

 

Michael Mazza:  Thank you. 

 

Prof. Julian Ku:  Thank you. Thanks, Jeremy.

 

Jack Capizzi:  All right. Yes. Well, yes, on behalf of The Federalist Society, thank you all for participating. You can give us listener feedback if you want at info@fedsoc.org. And, yes, that’s all for today. So we are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.