Prof. Pete Pedrozo on “Unpacking the Distinction: One China Principle v. One China Policy”
China’s bellicose reaction to U.S. Speaker of the House Nancy Pelosi’s visit to Taiwan has significantly increased tensions in the area. Earlier this week China’s ambassador to the U.S. complained that Amercian military activities in the Taiwan Strait had “gone too far”, and called upon the U.S. to “reflect on the true meaning of the One China Principle.”
This raises some obvious questions: What does international law permit U.S. forces to do in the Taiwan Straits? What is the “One China Principle”? How does it differ from the “One China Policy”? What exactly is the U.S.’s policy towards Taiwan? Given China’s aggression, should the U.S. increase arms sales to Taiwan?
To answer those questions and more, we have one of the world’s foremost experts on naval law as well as the Pacific region to help us: my friend Professor Raul (Pete) Pedrozo.
Pete, who is writing here in his personal capacity, is a retired U.S. Navy officer who currently holds the Howard S. Levie Chair on the Law of Armed Conflict, and serves as a professor of international law at the Stockton Center for International Law at the U.S. Naval War College.
So if you’d like to get a better understanding as to why tensions are rising in the Pacific, read on!
Unpacking the Distinction: One China Principle v. One China Policy
By Raul (Pete) Pedrozo
On August 16, 2022, China’s ambassador to the United States, Qin Gang, met with a small group of journalists in Washington, D.C. Citing “more than 100 navigations [per year] through the Taiwan Strait and Speaker Pelosi’s visit to Taiwan, Ambassador Qin indicated that U.S. military and political activities in the region had “gone too far” in the region.
He alleged that these activities were designed to embolden separatists in Taiwan and weaken the One China Policy and warned that America should “not underestimate the strong resolve…and capability of the Chinese government and people to defend its territorial integrity.”
In particular, he complained that Pelosi’s visit violated previous U.S. commitments to respect China’s sovereignty and cautioned that the United States must reflect on the true meaning of the One China Principle and refrain from further activities that might escalate tensions between Washington and Beijing.
He concluded the session by saying that he was not “telling lies” or “spreading disinformation,” but was “just telling the truth and the facts.”
The ambassador’s comments should be taken for what they are—Chinese Communist Party (CCP) propaganda. Despite the ambassador’s assurances that he is not “telling lies,” his claim that U.S. warships have transited the Taiwan Strait over 100 times in the last year is simply incorrect.
International law and U.S. activities in the Taiwan Strait
Over the past couple of years, U.S. warships have only transited the strait about once a month—29 total from 2020 to 2022. The USS Benfold transit on July 19, 2022, marks the seventh Taiwan Strait transit in 2022 (six ships and one aircraft).
But, even if U.S. warships and aircraft were to transit the strait 100 times a year, those transits would be permitted under international law as an exercise of high seas freedoms beyond the territorial sea of China and Taiwan.
China recently asserted that it exercises sovereignty, sovereign rights and jurisdiction over the waters of the Taiwan Strait consistent with the U.N. Convention on the Law of the Sea (UNCLOS) and that the term “international waters” does not appear in the international law of the sea.
While these assertions may be true, China does not have the legal authority to restrict transits through the strait beyond 12 nautical miles. The width of the Taiwan Strait ranges from 70 nautical miles to 220 nautical miles, and U.S. warships and aircraft only operate in this area. Accordingly, there is an exclusive economic zone (EEZ) corridor through the strait.
Thus, consistent with Article 36 of UNCLOS, all ships and aircraft enjoy high seas freedoms of navigation and overflight through the EEZ corridor. Regarding “international waters,” while the term does not appear in UNCLOS, it is used for operational purposes (see NWP 1-14M, ¶1.6) as a shorthand way of identifying all waters seaward of the territorial sea where high seas freedoms of navigation and overflight are preserved for the international community.
The term is not used or intended to describe a new maritime zone but rather to accurately depict the lawful navigational regime that applies. China’s obsession with the term is a clear use of legal warfare by the CCP to deflect attention from its attempt to enforce illegal maritime claims that diminish the right of all nations to freedom of navigation.
U.S. and the “One China Principle”
Qin Gang’s admonition that Washington should “reflect on the true meaning of the One China Principle” is also misplaced. Perhaps he should “reflect” on what the United States agreed to in the three Joint Communiqués to better understand the American position.
The One China Principle was first articulated in the 1972 Shanghai Communiqué and it states that there is one China, and that Taiwan is part of China. However, a careful reading of the three Joint Communiqués, the Taiwan Relations Act, and the Six Assurances clearly indicates that the United States has never subscribed to the One China Principle.
In the Shanghai Communiqué, the United States simply “acknowledged” China’s position, but did not subscribe to the One China Principle. The United States did, however, “reaffirm its interests in a peaceful settlement of the Taiwan question by the Chinese themselves.”
Similarly, in the 1979 Joint Communiqué establishing diplomatic relations, the United States “recognized” that the People’s Republic of China [PRC] as the sole legal government of China, but stated that it would “maintain cultural, commercial, and other unofficial relations with…Taiwan.”
U.S. recognition of the PRC as the sole legal government of China was consistent with UN General Assembly Resolution 2758 (1971), which recognized the PRC as the only legitimate representative of China to the United Nations. Both sides additionally reaffirmed the principles of the Shanghai Communiqué and the United States, once again, “acknowledged” (but did not accept) China’s position that there is but one China and Taiwan is part of China.
Finally, in the 1982 Joint Communiqué, both sides “reaffirmed” the principles agreed to in the 1972 and 1979 Joint Communiqués. The United States also “reaffirmed” its understanding regarding China’s policy to strive for a “peaceful resolution” of the Taiwan question as indicated in China’s Message to Compatriots in Taiwan of January 1, 1979, and the Nine-Point Proposal put forward by China on September 30, 1981.
Regarding arms sales, the United States indicated that it did “not seek to carry out a long-term policy of arms sales to Taiwan, that its arms sales to Taiwan will not exceed, either in qualitative or in quantitative terms, the level of those supplied in recent years since the establishment of diplomatic relations between the United States and China, and that it intends gradually to reduce its sale of arms to Taiwan.”
In short, none of the Joint Communiqués confirmed that the United States agreed with China’s One China Principle that there is but one China and Taiwan is part of China. The parties did agree, however, that the Taiwan issue would be resolved by “peaceful” means.
The Taiwan Relations Act
The Taiwan Relations Act (TRA) was adopted several months after the United States established diplomatic relations with China to help maintain peace, security, and stability in the Western Pacific and promote U.S. foreign policy by authorizing the continuation of commercial, cultural, and other relations between the United States and Taiwan (§3301(a)).
Among other things, the TRA reiterates the agreement between the United States and China in the Joint Communiqués on the importance of a peaceful settlement of the Taiwan issue.
Specifically, the TRA emphasizes that peace and stability in the Western Pacific area are in the political, security, and economic interests of the United States, and are matters of international concern (§3301(b)(2)). Moreover, the TRA makes clear that the U.S. decision to establish diplomatic relations with the PRC rests upon the “expectation” that the future of Taiwan will be determined by “peaceful means” (§3301(b)(3)).
The TRA also cautions that any effort to determine the future of Taiwan by “other than peaceful means,” including by boycotts or embargoes, would be considered a threat to the peace and security of the Western Pacific area and of “grave concern” to the United States (§3301(b)(4)).
To ameliorate these concerns, the United States will continue to provide Taiwan with arms of a defensive character in such quantity as may be necessary to enable Taiwan to maintain sufficient self-defense capability. (§3301(b)(5), §3302(a)).
In the event of any PRC threats to Taiwan and dangers to U.S. interests arising therefrom, the TRA directs the President to inform Congress of any threat to the security or the social or economic system of Taiwan so that the President and Congress can determine, in accordance with constitutional processes, appropriate action to be taken in response to any dangers to U.S. interests arising therefrom (§3302(c)).
The Six Assurances
It is also important to note that, during the negotiations of the third Joint Communiqué, the United States provided Six Assurances to Taiwan.
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- First, the United States would not set a date for termination of arms sales to Taiwan.
- Second, the United States would not alter the terms of the TRA.
- Third, the United States would not consult with China in advance before making decisions about U.S. arms sales to Taiwan.
- Fourth, the United States would not mediate between Taiwan and China.
- Fifth, the United States would not alter its position about the sovereignty of Taiwan which was, that the question was one to be decided peacefully by the Chinese themselves and would not pressure Taiwan to negotiate with China.
- Sixth, and most importantly, the United States would not formally recognize Chinese sovereignty over Taiwan.
The historical context of the three Joint Communiqués and the TRA makes clear that the United States has never agreed to China’s assertion of a One China Principle.
Moreover, continued adherence to the One China Policy and reduction in the provision of defense articles and services to Taiwan is contingent on the agreed understanding that the future of Taiwan will be determined by peaceful means.
However, as evidenced by China’s increasingly aggressive behavior and threats towards Taiwan, Beijing has not lived up to its end of the bargain. For example, in 2018, there were no Taiwan Air Defense Identification Zone (ADIZ) incursions by the PRC.
Yet, between 2019 and August 2022, there have been nearly 2,200 incursions, primarily by PLA fighters (957), but also by H-6K nuclear-capable bombers. In 2021, there were 972 incursions; during the first eight months of 2022, there have already been 827.
As Chinese aggression accelerates, so must U.S. arms sales to ensure Taiwan can defend itself.
Reaction to Speaker Pelosi’s visit
China’s irrational and intense response to Speaker Pelosi’s visit to Taiwan in August 2022 has also been disproportionate and highly antagonistic. Between August 3 to 15, PLA aircraft entered the Taiwan ADIZ on 252 occasions, 185 of which crossed the median line of the Taiwan Strait.
Although China does not officially recognize the existence of the de facto center line, both sides have traditionally respected the unofficial boundary line—between 1954 and 2020 there were only four reported PLA incursions across the line.
The center line would also serve as the point of departure for any future negotiated boundary settlement. In addition to these provocative intrusions across the median line, PLA naval and air forces conduct large-scale military drills and live-fire exercises in six areas around Taiwan, raising speculations that China was practicing for an invasion of the island.
The PLA also launched 11 short-range ballistic missiles that landed in waters northeast, east, and southeast of Taiwan, one of which flew directly over Taiwan. Five of the missiles landed in Japan’s exclusive economic zone, a highly provocative act which sends an apparent warning to Japan not to interfere in the Taiwan issue.
In addition to continued economic coercion by the PRC, the PLA Eastern Theater Commander stated on August 10 that regular combat patrols and military exercise in the sea and airspace around Taiwan will be the new normal, essentially strangling the democratic stronghold.
Concluding thoughts
Clearly, if either party should reassess its commitments under the Joint Communiqués, it is China. The CCP has obviously not lived up to its commitment to settle the Taiwan issue by peaceful means and its bellicose reactions to the Pelosi visit reaffirm that they have no intentions of settling the issue peacefully.
Based on China’s actions, the United States is justified in walking away from its previous commitments and abandoning the One China Policy. On this basis, the United States should increase arm sales to Taiwan.
That does not mean that the United States needs to recognize Taiwan’s independence. But it does mean that, consistent with Points 5 and 6 of the Six Assurances, the United States will continue to guarantee that Taiwan’s future will be decided by the Taiwanese people, not by the CCP.
About the author:
Captain Raul (Pete) Pedrozo, U.S. Navy (Retired), is the Howard S. Levie Chair on the Law of Armed Conflict and professor of international law at the Stockton Center for International Law, U.S. Naval War College. Prof. Pedrozo was the former senior legal adviser at U.S. Pacific Command and served as special assistant to the Under Secretary of Defense for Policy.
Disclaimers:
The views and opinions expressed in this article are those of the author and do not necessarily reflect those of the U.S. Naval War College, the U.S. Department of Defense, or the U.S. Government.
The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University. (See also here).
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
