Lawfare

America Just Quietly Backed Down Against China Again

When China complained about a plan for the Navy to make port calls in Taiwan, Congress listened.

Three Taiwanese submarines at the Tsoying navy base in Kaohsiung, southern Taiwan, on Jan. 18. (Sam Yeh/AFP/Getty Images)
Three Taiwanese submarines at the Tsoying navy base in Kaohsiung, southern Taiwan, on Jan. 18. (Sam Yeh/AFP/Getty Images)

In June, the Senate Armed Services Committee passed an amendment to the fiscal year 2018 National Defense Authorization Act (NDAA) that would require U.S. Navy warships to conduct port calls in Taiwan — that is, to regularly dock, contrary to current practice, at Taiwanese ports for extended visits. The Chinese government quickly indicated its opposition: The amendment drew “solemn representations” from the ministry of foreign affairs, which denounced the U.S. government’s “erroneous actions on Taiwan-related issues.”

I have previously written about how, as a matter of law, Congress almost certainly lacks the constitutional authority to require the president to send the U.S. Navy on port calls to particular countries. But on merit, such port calls are a good idea since they would reassure Taiwan of the U.S. commitment to its security while placing China, which claims Taiwan is part of its own sovereign territory, on the defensive. A U.S. aircraft carrier visiting a Taiwanese port for an extended visit would be a tangible demonstration of the U.S. Navy’s commitment to maintaining a presence in and around Taiwan in the face of growing Chinese naval strength.

So there was plenty of reason to support a House version of the 2018 NDAA that would have simply required the secretary of defense to submit a report by fall 2018 on the feasibility of such Taiwan port calls. Such a provision is perfectly constitutional and would send a useful signal to China that the United States takes Taiwan port calls seriously.

But China’s opposition may have led to Congress further dilute the already watered-down House version of the “port calls” language. The Senate recently passed a final version of the 2018 NDAA that no longer requires a report but merely expresses the “sense of Congress” that the U.S. should “consider the advisability and feasibility of reestablishing port of call exchanges between the United States navy and the Taiwan navy.” A sense-of-Congress statement is not nothing, but it represents a substantial climb-down from mandating port calls or requiring the Pentagon to report on a plan for them.

Port calls in Taiwan are not going to make or break U.S.-Taiwan policy. But it’s notable that Chinese government opposition may have convinced Congress to back off its more aggressive support for this idea; it should remind us of the difficulty of managing foreign policy from the legislative branch. As I observed earlier this year, Congress has usefully intervened on Taiwan policy with several bills, including the Taiwan Travel Act and the Taiwan Security Act. But given Congress’s many legislative priorities, these bills are likely to languish in committee. The NDAA, by contrast, must pass every year to authorize military operations, which is why it is so disappointing the more aggressive port call provisions were removed.

On the other hand, just as Congress backs off its effort to manage Taiwan policy and push port calls, the Trump administration’s China team may finally be coming together behind the idea. After all, the individual most responsible for promoting the idea of U.S. Navy port calls in Taiwan, Randall Schriver, is likely to soon be confirmed to the position of assistant secretary of defense for Asia-Pacific affairs. In prepared answers to policy questions at his confirmation hearing in November, Schriver reiterated his support for port calls in Taiwan, even though the Pentagon has been neutral on this issue so far:

Since we reserve for ourselves the right to define our own One China Policy, commencing U.S. ship visits to Taiwan and vice versa can be included. The benefits of U.S. port calls to Taiwan would fall into the traditional justification for port calls to any other friendly country in the world — rest and relaxation for the sailors (which aids in recruitment and retention); minor repair and maintenance; port familiarization to assist in planning for a known contingency; and to support our political goals of supporting Taiwan and deterring China. If there are alternate views in the Department of Defense, I look forward to learning more about the counter arguments.

We will see whether Schriver’s views prevail within the U.S. government, where the State Department is likely to provide an opposing view in deference to what are likely to be vigorous Chinese government protests. But the baton on port calls, and Taiwan policy as a whole, is probably being handed over to the executive branch. For those of us outside the administration, whether such port calls happen will be an interesting signal of Schriver’s influence in shaping U.S.-China policy — and the ultimate direction of that policy in the Trump administration.

Julian Ku is the Maurice A. Deane Distinguished Professor of Law at Hofstra University in New York.

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