China, Taiwan, and Law as Pre-Commitments

Various blogpundits are warning that China’s new anti secession law is just a prelude to a pending invasion of Taiwan. As a descendant of a Taiwanese mother and Chinese father, with friends and relatives on both sides of the Taiwan Straits, I’ve been worried about such a conflict breaking out for years. On the other hand, since people have been telling me about this impending invasion since I was 3 years old, I am not exactly panicking.

Putting aside my personal interest, the China-Taiwan crisis is also an interesting study in the use of law as a pre-commitment device in the conduct of international relations. For instance, why does China even bother with passing a law that requires the government to use “non-peaceful means and other necessary measures to protect China’s sovereignty and territorial integrity” if Taiwan declares independence? (it’s even scarier in the original Chinese: 非和平方式及其他必要措施，捍卫国家主权和领土完整)

That already has been the policy of China for decades and I don’t think anyone will try to sue to enforce this law against the government. The anti-secession law is a pre-commitment device: it signals to the Taiwanese that even if our leadership goes wobbly, this law will require them to act against you.

China is not the only country using law as a pre-commitment. The U.S. also has a weird law called the Taiwan Relations Act that requires, in the event of a threat to Taiwan, that the “President and the Congress shall determine, in accordance with constitutional processes, appropriate action by the United States in response to any such danger.” This law requires the U.S. government to do what it already does anyway and, in fact, requires almost nothing, but it signals to the Chinese that the U.S. will take an attack on Taiwan a lot more seriously.

Even Australia and New Zealand may have unwittingly signed a pre-commitment to Taiwan in their ANZUS mutual defense treaty with the U.S. Article IV requires the countries to deem an “ armed attack in the Pacific Area on any of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes. “ But Article V defines “armed attack” as including attack on a treaty party’s “armed forces, public vessels or aircraft in the Pacific.” Well, suppose the U.S. Navy is attacked by Chinese forces invading Taiwan. Seems like an “armed attack” to me.

None of the laws or treaties mentioned here are justiciable in any court I can think of. Nor should they be. In fact, these examples should remind us that not all law is about enforcement and courts or even the “rule of law”. Sometime law is expressive and symbolic. But this does not mean these laws and treaties are utterly meaningless. In fact, they illustrate the importance of using law and treaties as a signaling device or a pre-commitment device. In the case of the China-Taiwan Question, such laws and treaties usefully signal how far each side will go and, perhaps, help to maintain the precarious balance of power in the region.