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By Elizabeth M. Lynch, April 14, 2010

World leaders met this week in Washington, DC to discuss the danger of nuclear war.  But as the world becomes increasingly reliant on the internet and increasingly connected through it, another threat is beginning to loom large – cyberwar.  When noted technology giant Google is susceptible to cyber-attacks, that does not bode well for the rest of us.  How safe is the U.S. from a large-scale cyber-attack?  Today Chinese hackers attack Google’s servers, but what about tomorrow?  Will the next attack be on something more critical, like a U.S. power grid?

Dr. Adam Segal, Ira A. Lipman Senior Fellow, Council on Foreign Relations

To understand the complex issues underlying the world of hacking and cyber-espionage, and how it relates to U.S.-China relations, China Law & Policy sat down with a noted expert on both China and cyber-security, Dr. Adam Segal, the Ira A. Lipman Senior Fellow at the Council on Foreign Relations.   In this exclusive interview, Dr. Segal discusses the nature of the attacks on Google, the involvement of the Chinese government in the hacking world and the danger China poses to the U.S.’ cyber-security.  But as Dr. Segal makes clear, it is not a one-sided affair; the U.S. also plays a very active role in hacking and cyber-espionage, making it difficult to challenge China when something like the Google incident arises.  Dr. Segal also explores the need for international cooperation on these issues and the role that international law can play in containing the threat.  Unfortunately, as he points out, the world community is far from reaching any sort of agreement, leaving all nations susceptible.

Click here to listen to the interview with Dr. Adam Segal (read below for transcript)

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EL:  Can you just give our listeners a little bit of background on the hacking which lead to Google’s announcement in January that it was looking to leave China?  How widespread and sophisticated was the attack and what was the theft that Google referenced in its press release if you know at all?

AS: Google announced that it was going to be shutting down its business in China.  And what they said drove them to that decision was a hacking incident which seems to have two main components.  The first was, as you said, a kind of attack on Google’s intellectual property, its corporate knowledge and corporate property.  And the second was attacks on the G-mail accounts of human rights dissents.  Google said it traced those attacks back to China; it didn’t implicate the Chinese government.  Others, like the New York Times have traced it back to Shanghai Jiaotong University and a computer training institute but the source of it still remains a bit of a mystery.

There is some debate about how sophisticated the attacks actually were.  They were referred to as the Aurora attacks.  Google has consistently said that they were extremely sophisticated but a number of other security analysts have said that in fact they were fairly basic, that much of the code used has been floating around for a long time.  What the IPR that the Chinese got or were trying to get is unclear, Google hasn’t specifically said.  Some people seem to believe that it was basically that it was the data and databases that Google collects on its own users.  So basically the kind of core knowledge that Google extracts from what Google users do, how they do it, when they do it, which would be one of the most important kind of assets that Google has.

EL:  In tracing back, or Google saying that the attacks were traced back to China, why is that difficult to ascertain?  To what degree…Can you put a percentage on how accurate you can trace back an attack?

AS:  The problem is that you can continually trace back the attacks to certain computers or to certain networks or IP addresses, but often once you get there, some more poking around leads you to another computer behind that.  And the other thing is the hackers themselves can spoof the address that they are using.  I think there becomes a fairly high degree of certainty about where the attack might have come within a national network.  In some cases, even down to specific IP addresses.  But even then you don’t know who the hacker was that was involved and you don’t know the hackers relationship to any state organization or anybody else for that matter.

EL:  And in terms of China specifically, the cyber-hacking, how prevalent is cyber-hacking from China compared to other countries like Russia or even the United States?  Is China being singled out here?

AS:  I think China is being singled out in a sense.  I mean given that it was a high profile attack on a company like Google, but also given the state of U.S.-China relations right now, that it fed into a worsening tenor in the bilateral relationship.  But in raw numbers, for criminal activity, clearly Russia is very high up there and we saw the political uses of cyber-hacking in the case of the Georgian war and Estonia and some other high profile political cases.  And there is a large amount of hacking that comes from the United States and that’s actually one of the big complaints on the Chinese side – is that the Chinese are being scapegoated and they themselves are often victims of attacks and many of those attacks come from servers in the United States.  When you look at the number of bad ISP – Internet Service Providers – that are hosting botnets and other kind of zombies that are attacking, there are a large number of them that are in the United States.  So, China is also a victim.

EL:  Just focusing on just China and the hacking there, can you explain maybe a little bit more what the hacker community is like in China.  Is it an organized community?  And what motivates the hackers – do they do this just for fun or are they ever “hired” for their skills?  And also how do they determine targets – how was Google determined?  Was that just something for fun or for profit?

AS:  I think the community itself is incredibly hard to characterize.  It’s very diverse, it’s, I think, very decentralized.  The community represents kind of the similar community that there is in the United States and Russia.  There are what they called script-kiddies – people, teenagers who are doing it for fun or to show off or to see what they can actually accomplish.  There are criminals – people that are just hacking for financial gains.  There are what are called patriotic hackers – people that hack websites out of a kind of nationalistic feeling.  Then there are hackers that are probably employed by the Chinese government, probably by the military and the security agencies that are used to attack specific targets for political reasons.  And then there are hackers in the military that are thinking about how cyber would be used in an actual military conflict.

Of course, the important question is the relationship about all of these people and I don’t think we really have a very good idea.  Clearly, there is some blurring of boundaries of patriotic hackers and criminal hackers.  The system itself seems to be in many ways a kind of mirror of the system that has made China such a power in the global manufacturing which is that there are kind of contracts and subcontracts and subcontracts of what people do.  Somebody might be in charge of writing a very low-level code and that code is then packaged up and used by people above them, who may then might contract for a specific project or may sell it on the open market.  Certain things are just put out there on hacker websites and you can just download them and buy them just for your own thing.

Why Google was targeted.  If, as Google says that they were part of an attack that seems to have included at least 30 other technology companies, there does seem to be a push from Chinese intelligence community, from its espionage community, to try and get advanced technology from foreign companies.  So we have seen for at least five years, if not longer, pretty concentrated, focused attacks on defense contractors and other U.S. technology providers.  And then, once you add the attack on the dissidents as well, then that also seems to be one of the interests of the attacks.  But who was, who within the Chinese government organized it or put it in a larger strategy, I think that we really have no idea. 

EL:  I guess that raises kind of the other issue that has been floating around there with the Google incident and cyber-hacking in general, is to what degree is the Chinese government involved in some of these incidences?  I know Northrop Grumman issued a report last year to the US-China Economic and Security Commission analyzing the link between, hacking for military purposes, but this general hacking of corporations, could it be that the Chinese government is behind it?  And also, when you make this distinction of political hackers, would that be motivated by the Chinese government or is it just a by-product of the nationalism that seems very active in China right now?

AS:  I don’t think we know.  I think the most we can say is on the espionage side, it just matches, or it pushes in the same direction of a general concern we know that China has about technological dependence and wanting to gain as much technology from the West as possible.  That strategy I think has been in place for fifteen, twenty years.  That includes perfectly harmless, normal technology policy about how China is going to increase its own technological capabilities, goes from that to espionage and theft.  You would expect that that would include the normal type of espionage or bribing, stealing, theft of secrets from corporations, to now including cyber-espionage and attacks and those things.  So I would say that the government has a role in the sense that it has set this general direction of the policy and these concerns about technology and China’s desire for it.

Clearly the intelligence agencies probably have a sense of specific technology that they are concerned about and want to know more about.  So the hacking of the F-35 and the F-22 and those kind of things, those are clearly probably driven by government agencies who are looking at a potential conflict with the United States and want to know what those capabilities are.

But once you get to the level of Google – is there a government official that says, well if we hack Google, then we can give that information to Baidu [the popular Chinese search engine] and we can have a competitor, I don’t think we can know.  That clearly is a possibility but at this point, it may just be criminal.  It may be a criminal that turns around and says to Baidu – we can sell this to you.

On the dissident side, I think it is probably very similar also.  I think in some cases the security agencies may have….are targeting specific individuals who are using those capabilities.  In other cases criminal hackers go after people and then turn around and say to the intelligence agencies – we’ve got this person so either do something for us or pay us for the information.

EL:  In the press it has often been the Chinese government attached to this cyber-hacking, but does the Chinese government ever see this cyber-hacking as a threat to its own rule either from domestic hackers or from hackers in the U.S.?  Are the government agencies ever a victim of the cyber-hacking and cyber-espionage either domestically or from abroad?

AS: Yeah, I would think all of the time. I think, from the international perspective the Chinese basically assume that the United States is engaged in cyber-espionage all of the time.  And that given our capabilities, in particular the capabilities that exist in the NSA – the National Security Agency – that they are….we are probably getting more from them then they are getting from us, in the Chinese perspective, and that we are constantly hacking them.  So they point to that as well as to the discussions in the United States about creating a cyber-command in the military and discussions about controlling the commons and all these other things as kind of a representation of American hypocrisy.  We are talking about militarizing cyber-space while they are being hacked.  So I think yes, that’s clearly and issue from outside of China.

On the domestic front I think yes, that Chinese government agencies and corporations are being hacked.  There’s been a number of prominent cases of Chinese hackers spreading malware to try and steal identity numbers and virtual money from these multiple player games.  Very prominent hackers have been arrested and eventually imprisoned.  So I think that is part of the threat.

The other threat is of course is that, dealing with these patriotic hackers is a double-edged sword for the Chinese government.  There is a fear that while they are focusing externally, U.S. corporations or U.S. government websites, in the case of the Olympics on French websites and things like that.  But if their ire is turned inward then those people could hack Chinese government websites.   I think the Chinese government is very concerned and you can see that in discussions about their own cyber-security but also trying to develop new types of software.  The problem is that the Chinese is hyper-reliant in Microsoft, something like 90% of Chinese government offices use Windows.  A lot of that is pirated which means that it is not updated regularly for security patches.  So there is a lot of vulnerability.

EL:  You make this distinction between patriotic hacking, criminal hacking, commercial hacking, but under Chinese law itself, is hacking in general illegal?

AS:  It is.  There are laws on the books against hacking, criminal hacking, privacy laws.  Those were strengthened in

Cute & Cuddly until he infests your computer

December 2008 and then again in February of this year I think.  The Chinese announced that they were going again to try to strengthen anti-hacking laws, in particular the kind of punishment for hackers.  Also on-line privacy issues and some tort issues about privacy and defamation.  Like I said, there are prominent cases of hackers who have been arrested and fined.  This guy who wrote this malware called Panda malware I think it was, and was sentenced to I think 3 years and fined $18,000.  So there are domestic laws against it.

EL:  And do you think the domestic laws are sufficient in dealing with this?  And also how do Chinese laws compare to laws in the United States against hacking?

AS:  I think they’re comparable.  I think the issue is with all laws in China has to do with implementation.  Clearly the issue for the United States or other countries, investigating hacking requires more cooperation from the Chinese about, who’s behind the attacks and actually following up on prosecution.  But I think within China, I suspect the issue is not the law per se but expertise….all the things we have in the United States about how do you prosecute cyber-crimes – expertise at the local level, resources, enough people staffing these kinds of issues.  From the Chinese perspective also, the U.S. hasn’t been all that helpful either.  I have heard a number of cases where the Chinese have turned around to the FBI and said –we think this hacking is coming from the United States.  And the United States has not been all that responsive from what I’ve heard.

EL: I guess cyber-hacking, it’s definitely a crime more without borders.  So how do you see international law or treaties coming into play here to battle the threat of cyber-espionage?

AS:  I don’t think there’s much to be done about espionage.  There’s no international treaties against espionage.  We engage in it, they engage in it, our allies engage in it.  I think that is likely to happen.  I think espionage we have to figure out how we are going to defend ourselves against.  The problem with espionage of course though is that it is hard to differentiate espionage from what could become vandalism or an attack.  So I think what we want to kind of agree on with the Chinese is that we know espionage is going to go on, but things like probing electricity grids, that should not be occurring or other kind of critical infrastructure.  We should be working on how do we declare those off limits.

On the criminal front there is a…the Council on Europe has this convention on cyber-crime.  I can’t remember how many countries have signed it now, it’s about I think 20 or 40, I can’t remember exactly.  But part of the problem is that most of the major players haven’t signed it; the U.S. has signed it, Japan has signed it but Russia hasn’t signed it.  Which goes a long way in defining consistent standards across national borders about what a cyber-crime is, how do you punish hacking, create a deterrent.  The problem with Russia, China things that we see as freedom of speech they see as a cyber-crime so that has been a problem in the case of Russia.  But the Chinese seem to be at least studying the Council on Europe convention which often kind of the first sign that the Chinese are moving toward international standards.  So I think that is a way to move forward.  And within Asia itself, ASEAN has had a couple of discussion about creating a similar kind of convention on cyber-crime in the region.

And then the other issue is this international convention on arms control, on cyber-war.  The United States has entered into discussions with the Russians about it.  That I think is very difficult and I think unlikely to be very useful because in the kind of traditional terms of arms control verification, inspection, those are all impossible with cyber-weapons.  So, that I think is useful just for talking for talking’s sake but will not result in any kind of concrete agreements.

EL: Just to follow-up on the convention on cyber-crime, you said that one of the problems is definition of terms.  Is that the only thing that would hold back a country like China or Russia from signing on to this kind of convention?  Or are there other factors?

AS: I think that’s a big one but I do think also that right now at least China and Russia find it politically and strategically useful to kind of have this arms-length relationship with hackers.  As we talked about earlier, this ties the government’s willingness to directly use or indirectly use hackers for their own political purposes makes it….right now that’s a reason for them not to crackdown too hard on criminal hacking.  So that is I think another reason why it has been hard to create a common ground.

EL:  Do you think that there is any space for having maybe a bi-lateral agreement between U.S. and China or a tri-lateral agreement between U.S., China and Russia about issues of cyber-espionage like not probing electricity grids or things like that?  Or do you think it would have to be global?

AS:  Well I think any convention would have to be global.  But I think there is a benefit for having these bi-lateral discussions only if because this area is newly emerging and policymakers I don’t think are particularly cognizant of all the risks and problems involved in any of these issues.  So just having a discussion with the Russians and the Chinese and others about what the potential rules of the road might I think are probably pretty useful.

EL: Absent any kind of global agreement, how best should the U.S. government and U.S. corporations deal with this issue of their own?  How can they better prevent it from happening?  Or can they?

Howard Schmidt - Cyber Czar

AS: That’s what we are struggling with now.  The United States finally has the cyber-czar in place, Harry Schmidt.  I think one of the big things that is still occurring in the United States is kind of a debate about what the best metaphor for this is, how do you think about this cyber-issue.  You have those like, the op-ed in the Washington Post several weeks ago by the former head of NSA, McConnell, about basically cyber-war and we’re losing it and his response was very much a militarization of cyber-space.  In fact he calls for something like the re-engineering of the internet so we can basically see where any attack is coming from.

And then you have Schmidt at a conference a couple of weeks ago saying – I don’t believe in cyber-war, I don’t think cyber-war is the right metaphor.  And you have those people talking about resilience and more of a public health model for how you respond to these things – you have to defend, you have to respond, you have to quarantine.

So I think we have this broad outline, we have this debate to settle in the States.  But the way we are moving is probably closer to the public health, well actually probably both tracks at the same time.  From the defense side I think you are beginning to see more traction on private-public cooperation, about definitions of standards – what does secure actually mean and how should it be implemented, more spending on R&D for cyber-security, more training of people and that’s a major issue is about getting people trained, more public awareness.  These are all domestic issues.

EL: And just a final question.  Since President Hu Jintao is in the United States, in Washington today, do you think in his side talks with President Obama, the issue of cyber-hacking and cyber-espionage will be coming up?  How important do you think the Administration views this issues especially in light of the fact that Secretary of State Clinton has openly talked about it?

AS:  I suspect it wasn’t brought up in these meetings if only because over the last two and a half weeks it has been a clear effort on both sides to try to get the relationship back on track.  Clearly the Administration’s major strategic concern right now is Iran and then with the currency being the second concern.  So those are the two issues, from what I’ve heard, were discussed in the meeting.  I suspect there were no reasons to bring up the cyber-issues because there are no solutions or discussion that is helpful to both sides at this point.  So other than just poking them in the eye with it, I don’t see why they would bring it up.  So I suspect it was not discussed.

EL: Thank you very much.  This was very interesting and I appreciate your time.

AS:  Thank you.

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By Elizabeth M. Lynch, April 2, 2010

In just a day, it appears that the bad blood that seemed to be spill between the U.S. and China is behind us.  Yesterday morning, China announced that it will participate in talks about sanctions against Iran, by late afternoon, President Hu Jintao of China announced that he will be visiting Wasnhington DC at the end of April, and this evening, the White House just issue a press release summarizing President Obama’s call with President Hu (text below).  Interesting turn events.  Does this signal a changed attitude between the two countries or perhaps just the natural ups and downs in a relationship between two powerful countries?

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By Elizabeth M. Lynch, February 18, 2010

The Dalai Lama at the U.S. Capitol

President Obama welcomes the Dalai Lama, Tibet’s spiritual leader, to the White House today. With this visit come renewed fears that U.S.-China relations are in a downward spiral.

Obama’s Meeting with the Dalai Lama will Not Harm U.S.-China Relations

The U.S. press has been adamant that President Obama’s meeting with the Dalai Lama will strain U.S.-China relations.  But this fear is misplaced.  Similar to the inevitability of U.S. arms sales to Taiwan, the Chinese government knows that a meeting with the Dalai Lama is a done deal – a U.S. president, at some point during his term, will invite the Dalai Lama to the White House.

Since 1990, every U.S. president has met with the Dalai Lama.  Obama’s meeting today is far from a surprise to Beijing; it’s what U.S. presidents do.  The topic even came up during President Obama’s visit to Beijing in November.  And the Obama Administration was fully aware that any contact with the Dalai Lama would elicit an angry response from Beijing.  It always does.

These recent events – the decision to meet with the Dalai Lama and China’s vocal response – in no way reflect a change in policy; it’s not a reflection of China flexing its muscles nor is it a reflection of a more hard-line approach by the U.S.  It’s merely just par for the course in U.S.-China relations; a rite of passage of sorts.

This isn’t to say that there has not been a change in the relationship.  The U.S.’ vocal critique of China’s internet censorship and the increasingly belligerent tone regarding China’s currency could show a stronger stance toward China.  Additionally, if China votes against sanctions against Iran or decides to abstain from Six-Party talks with North Korea, this could symbolize a China feeling stronger in the world.  But the rhetoric surrounding the Dalai Lama’s visit in no way represents a changed policy.

Beijing is Actually Happy about Obama’s Meeting with the Dalai Lama

President Bush & the Dalai Lama

Well, “happy” might be a bit of a stretch, but Beijing is, at the very least, satisfied with the concessions that President Obama has already made.  Beijing knows things could be much worse (for them at least).  In 2007, President George W. Bush welcomed the Dalai Lama to the White House, and in a public ceremony, awarded him the Congressional Gold Medal.  Never before had a U.S. president met the Dalai Lama in public; and to award him with one of the highest civilian awards, just added insult to China’s injury.

Needless to say, this enraged the Chinese government, and post 2007, Beijing went on a global rampage to end foreign governments’ meetings with the Dalai Lama.  According to an interview with Tibetan scholar Robert J. Barnett, China has been largely successful with its strategy: “[l]ast year, only two national leaders met the Dalai Lama….compared to twenty-one in the previous four years.”

The Map Room: Less Prestigious perhaps, But more Ornate

Comparatively, President Obama’s meeting tomorrow is much less confrontational than his predecessor’s.  President Obama will meet the Dalai Lama in private, and while the meeting will be held in the West Wing of the White House (not in the private residence as President Bill Clinton did and what the Chinese government would prefer), it will not be held in the Oval Office.  Instead, President Obama will meet the Dalai Lama in the less prestigious Map Room.  While this seems inconsequential to the American audience, this distinction is of high significance to China and is likely sufficient to placate the country.

So Why all the Hoopla?

In an interview with NPR, China historian Jeffery Wasserstrom explained the problem succinctly – both countries use this meeting to play toward their domestic audiences. If the U.S. president did not meet with the Dalai Lama, he would receive censure from Congress, human rights groups, and the public at large.  Last fall, prior to his trip to China, President Obama postponed a meeting with the Dalai Lama and received a lot of heat for it; the move was portrayed as a way to gain favor with China prior to his visit to Beijing.

Similarly, the Chinese government must cater to its domestic audience; part of that catering is to use angry rhetoric

Speaker of the House, Nancy Pelosi meets with the Dalai Lama; another meeting that angered beijing

against any government leader who meets with the Dalai Lama.  To its people, the Chinese government portrays the Dalai Lama as a separatist intent on splitting Tibet from China.  Mix this with the Chinese government’s emphasis on nationalism, sovereignty and Tibet as an integral part of China, and you have a dangerous game.  The Chinese government has created a self-fulfilling prophecy – by encouraging strong feelings of nationalism, the people then demand that the Chinese government act upon any perceived slights to this nationalism.  In the case of Tibet, even though much of the people’s feelings are manufactured by the government, if the Chinese government does not respond with sharp attacks against anyone who meets with the Dalai Lama, then the people will begin to question its legitimacy.

The End Result for Tibet

So the dance continues.  But the third wheel here is the Tibetan people.  For the U.S. and China, this is a symbolic game to placate their respective domestic audiences; but for the Tibetans, this is about survival.  With each new U.S. president and with each new meeting with the Dalai Lama, there is a hope that the situation in Tibet can be resolved.

The Dalai Lama has not been allowed to return to his homeland and minister to his people, and the with an influx of ethnically Han Chinese into Tibet and laws that limit the Tibetan’s religious practices, it is questionable if the religion, the culture, and the people will be able to survive.  At the same time, negotiations between Beijing and envoys of the Dalai Lama have been at a standstill for over 15 years now, with the Tibetan side refusing to budge on its demand for greater autonomy, not just for the land mass of Tibet, but for all areas in China where there is a large population of Tibetans (this would be a little like Puerto Rico asking for greater autonomy for the island of Puerto Rico and also the South Bronx, Spanish Harlem and other areas of the U.S. with large Puerto Rican populations).  The Dalai Lama’s envoys met with officials in Beijing last month, but again the talks proved fruitless.

For the past 20 years, the U.S. has relied on symbolic gestures in its dealings with Tibet and has done little to actually move the dialogue between the Dalai Lama’s representatives and Beijing forward (see Melyvn C. Goldstein, The Snow Lion and the Dragon: China, Tibet and the Dalai Lama).  There’s a lot of focus on the Dalai Lama’s visit to the White House, but there is never a discussion as to why.  What does this do?  Where does this get the Dalai Lama?

What’s at stake here is more than just a popularity contest and the time for symbolic gestures has long passed.  Both China and the Dalai Lama are entrenched in their positions and neither is going to budge, but to move forward, a compromise is needed.  And each side does want to move forward; the Dalai Lama wants to return to Tibet and provide for greater religious freedom for Tibetans, and the Chinese government doesn’t want to live with the constant threat of riots and protests in the region.  But at this stage, a third-party, like the U.S., needs to step up to the plate to help negotiate a compromise – symbolic meetings won’t do the job.  Without the role of a third-party, there will never be progress.

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By Elizabeth M. Lynch, February 2, 2010

In yesterday’s New York Times, Helene Cooper argued that the Obama Administration’s recent announcement of over $6 billion in arms sales to Taiwan shows a “new toughness” toward Beijing and perhaps even a “fundamentally new direction” in the Administration’s China policy.  But, by focusing on the arms sales, Ms. Cooper overemphasizes the event.  U.S. arms sales to Taiwan are far from novel or tough, and some may argue, periodically required under U.S. law.

Similarly, Beijing’s angry reaction was predictable.  In fact, for each prior Administration’s arms sales to Taiwan, the Chinese government has responded in much the same way: postponement of military-to-military meetings, issue formal protests with U.S. officials, and saber-rattling for the domestic consumption.  However, Beijing’s recent threat of sanctions against U.S. companies involved with the arms sales is new and serious.  But this is more a reflection of China’s growing confidence and less a reflection of a changed or “tough” U.S. policy toward China.

Why Does China Care so Much about Taiwan?  Isn’t it a Separate Country?

Nope, scrap that vision from your mind.  Taiwan is not a separate country, at least not in the eyes of the Chinese, Taiwanese or U.S. governments.   The People’s Republic of China (a.k.a. the mainland) views Taiwan (a.k.a. “The Republic of China”) as a renegade province and any relations between Taiwan and other countries is viewed as interference in the mainland’s domestic affairs.  While Taiwan has largely developed as an independent society, it agrees with the mainland’s assessment that there is only “one China.”  The Taiwanese government has never called for independence and the Kuo Min Tang party (pronounced Gwo min-dang and a.k.a. “the Nationalists” or KMT), which has ruled Taiwan for most of Taiwan’s separate existence, also espouses the view of “one China” and that eventually, the mainland and Taiwan will reunite.  The difference is who rules this reunited China.  For Taiwan, it’s the KMT; for the mainland, the Chinese Communist Party (CCP).

All of this stems from World War II.  After the War ended in 1945, the KMT and the CCP resumed their civil war, a civil war that was put on hold to fight the Japanese invasion from 1937 to 1945.  By 1949, the CCP’s victory was certain and the KMT government fled to the province of Taiwan to continue the Republic of China.

Thus began the baffling existence of two Chinas – the communist People’s Republic of China on the mainland and the KMT’s Republic of China on Taiwan.  Each China claimed that it was the “official” and “rightful” China and the other a mere province; each forced the international community to recognize only one China – either China on the mainland or China on Taiwan – hence the birth of the “one China” policy.

The U.S. continued to ally itself with the KMT and the Republic of China, recognizing Taiwan as the official China and all but denying the existence of the mainland.  But starting in 1972, with President Richard Nixon’s historic visit to the mainland, relations between the U.S. and the PRC began to improve and in 1979, the U.S. switched recognition of China from Taiwan to the mainland.

Obama’s Arms Sales to Taiwan Is Par for the Course in U.S.-China Relations

The Obama Administration’s recent announcement of arms sales to Taiwan follows a long line of arms sales by the U.S.  Almost every president since 1978 has sold arms to Taiwan.  In fact, the U.S., under the 1979 Taiwan Relations Act (TRA), is required to sell defensive arms to Taiwan.  In 1979, after changing recognition to mainland China, the U.S. did not want to leave its former ally completely open to attack or takeover.  As a result, Congress passed the TRA.

The TRA authorizes quasi-diplomatic relations between the U.S. and Taiwan.  For example, instead of having an official embassy on Taiwan, the TRA allows for the “American Institute in Taiwan.”  Additionally, and more importantly, the TRA established the U.S.’ responsibility toward Taiwan if it is threatened.  At issue here is the TRA’s requirement that the U.S. periodically sell defensive arms to Taiwan.

In announcing arms sales to Taiwan, the Obama Administration is merely following its obligations under the TRA.  Additionally, the Obama Administration has not acquiesced to Taiwan’s request for F-16s.  During the George W. Bush Administration, Taiwan repeatedly requested the purchase of F-16s.  Similarly, Taiwan put out feelers with the Obama Administration to see if there was a possibility that they could purchase F-16s.  Again, Taiwan was told not to put in a formal request for F-16s.

The F-16s are a big issue since they are not “defensive” arms; Beijing would very much view a sale of F-16s to Taiwan as going a bit too far.  But Obama’s package to Taiwan merely includes the usual: Patriot missiles, Black Hawk helicopters, mine-hunting ships and information technology.

If the Obama Administration wanted to use the Taiwan arms sales requirement to “toughen” its stance to Beijing as the New York Times claims it has, the Administration would have acquiesced to Taiwan’s request for F-16s.  Instead, it merely sold similar arms to Taiwan that President George W. Bush sold in 2008.

This is not to say that the Obama Administration does not have a strong China policy.  Secretary of State Hillary Clinton’s recent policy speech on internet freedom was a robust critique of countries like China that censor their internet and partake in cyberhacking.  This follows President Obama’s strong and public criticism of internet censorship while in China this past November.  The New York Times would have done better to focus its argument on the Administration’s novel and forceful rhetoric on internet freedom vis-à-vis China.

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By Elizabeth M. Lynch, January 28, 2010

State of the Union addresses are mandated by the Constitution, and like most requirements in life, are often dull.

Barach Obama's first State of the Union

The speech usually turns into a laundry list of the President’s priorities with little rhetorical flair.  Often the most exciting part is when the TV cameras pan the audience and catch Senators and Congress members misbehaving.  This year it seems as if everyone Congress member was “tweeting” on their blackberry.

So to spice it up a bit, we at China Law & Policy decided to analyze President Obama’s first State of the Union address in terms of China.

Not surprisingly, President Obama’s speech focused mostly on the domestic agenda.  But China was mentioned twice, although both times only briefly.   China was first mentioned in regards to the technology behind its fast trains.  Similarly, when President Obama brought up China a second time, it was in regards to its technological advancement and that the U.S. must not fall behind.  In both instances, China was used more as a foil than anything else.

More compelling were the points when China wasn’t named but perhaps should have been.  In terms of trade partners, President Obama stated that he wanted closer ties with Panama, South Korea and Colombia.  But this is likely less of a snub to China than the fact that the Obama Administration is waiting on Democrats in Congress to approve free trade agreements with these three nations.

China was also absent when President Obama discussed the nuclear threat from both North Korea and Iran.  In fact, no other nation was mentioned and while President Obama was very forceful in threatening the two countries with increased sanctions, his actions appeared rather unilateral.  This is in contrast to his predecessor; in George W. Bush’s 2003 State of the Union address, the President specifically mentioned China as necessary to reach a peaceful solution on the Korean peninsula.

Does this mean that the U.S. is not receiving China’s support on this front?  It’s hard to tell.  Given the American public’s focus on the economy, health care and the corruption culture of Washington, it’s not surprising that President Obama’s speech had very little focus on foreign policy.  To draw any conclusions from the little he did say is speculative, but at the same time is something to be aware of and to watch.

Click Here for a Transcript of the State of the Union Address

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By Elizabeth M. Lynch, December 7, 2009

Our last posting about the upcoming global climate change negotiations was not very positive; in fact very few analysts have been positive.  But the past week has proved interesting, with both the United States and China issuing carbon reduction plans, forcing us to reconsider our previous notion that Copenhagen will produce little results.

The U.S. and China Issue their Respective Climate Control Plans

Right before Thanksgiving, President Barack Obama announced that the U.S. will be attending Copenhagen with a promise to cut emissions of greenhouse gases (GHG) by 17% from 2005 levels by 2020.  While it is a step forward that the U.S. will be attending the climate change talks with specific targets, those targets are still very much provisional.  Any targets coming out of the climate change talks will require Congressional approval post-Copenhagen.   While the 17% cuts proposed by the White House are identical to the GHG emission targets found in the House of Representative’s climate change bill passed in June, that bill has been languishing in the Senate, and will likely face an uphill battle once the Senate turns its attention from health care to climate change.   So whether the 17% cuts become a reality remains to be seen.

The day after the U.S. announcement, China issued a “carbon intensity target” reduction of 40-45% by 2020 to bring to Copenhagen.  While this looks huge on paper, in reality, it would allow GHG emissions to increase while China’s economy continues to grow, albeit GHG would grow at a lower rate.  Carbon intensity measures carbon emissions per unit of gross domestic product (GDP), so if your GDP skyrockets ever year, like China’s does at a rate of 8% a year, you can actually increase your absolute greenhouse gas emissions, and still show a 40-45% reduction by 2020.  Julian Wong on the Green Leap Forward also gives a good description of the math behind this.  China expects its GHG emissions to peak around 2035, a time that many experts believe is too late.

Although both the U.S.’ and China’s plans are far from perfect, at this stage, something is better than nothing from the world’s two largest greenhouse gas emitters.  And China has made concerted and sincere efforts thus far to increase its energy efficiency and reduce its greenhouse gas emission rate.

Now that China has set Some Targets Will it Be Able to Measure Them?

China is not known for reliable government statistics and while there has been notable improvements, its ability to

Copenhagen remains a game of Chinese chess

accurately measure and report its greenhouse gas emissions, and thus be held accountable to international commitments, has remained an issue leading up to Copenhagen.  Currently, China lacks the capacity – both technical and institutional – to provide such reliable data.

However, China has recently agreed to some cooperation with international and U.S. bodies to assist with developing its capacity to accurately measure its GHG emissions.  The U.S.’ Environmental Protection Agency (EPA) and its Chinese counterpart, the National Development Reform Commission (NDRC), signed a memorandum of cooperation (which is a step up from a memorandum of understanding) to work on China’s capacity issues concerning its ability to measure its emissions output.

But as Charlie McElwee over on the China Environmental Law blog notes, the EPA-NDRC memorandum currently lacks particulars and will likely go nowhere without being fully fleshed out.  At Copenhagen, the U.S. and the E.U. need to pressure China to work more closely with foreign bodies in developing its capacity.  It is important that Copenhagen does not conclude without a detailed plan to develop China’s capacity.  Additionally, this capacity development, especially in terms of institutional development and the ability of China to enforce its environmental regulations at the local level, could potentially influence the enforcement of regulations in all fields of law, providing for greater rule of law in China.

China though will not make this access easy; China has already begun to use this as a bargaining chip for greater financial assistance from developed countries for its climate change policies.  China’s climate change ambassador, Yu Qingtai, announced recently that China will only allow foreign verification of its GHG emissions if it receives outside financial assistance: “Actions would be measurable, reportable and verifiable if (international) support is measurable, reportable and verifiable.”  China’s stance on this should not be surprising.  It has repeatedly asked for international financial support for its efforts to curb its GHG emissions since the current climate crisis has largely been a result of the developed world’s past actions and not because of China’s development (it’s the future environmental crisis that China will largely play a role in if things remain as is).  China’s argument is understandable and rings true.

Fortunately, the Obama administration remains open to discussing a financial commitment.  China appears ready to bargain – if the U.S. wants the access to assist China with developing its technical and institutional capacity, which is necessary for any agreement out of Copenhagen to truly succeed, it must be ready to bargain as well and provide some financial assistance.

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By Elizabeth M. Lynch, November 23, 2009

Originally Posted on the Huffington Post.

 Beijing, China – The U.S. press has not been kind to President Barack Obama and his recent visit to China.  Claiming that the U.S.’ tone has become conciliatory toward China, that the trip “yielded precious little” and even oddly comparing the Obama Administration’s behavior on the visit to a one-party, authoritarian regime, the U.S. press has all but designated the trip a failure.

But the trip was most certainly not a failure and in many ways fulfilled the U.S. press’ predictions – an event filled with a huge agenda covering a multitude of global issues, likely offering few deliverables, and probably playing down, at least publically, human rights.

So if the trip confirmed the press’ earlier predictions, then what’s got their panties all in a bunch?  Perhaps the one thing that upsets the press more than anything is a lack of access, and on this trip, the press certainly played second fiddle.  Questions were not taken from the press during last Tuesday’s press conference and very little other access was offered to the President.  But with only a day and a half in Beijing, this trip was not really about the press.

But in measuring President Obama’s trip based solely on their access, or lack of, the U.S. press has failed to report on some pretty substantial results of President Obama’s trip to China.  In what you likely will not find in other media outlets that are still licking their wounds from an alleged snub, below are some of the surprising deliverables from the visit.    

1.  Increased Military-to-Military Contact and High Level Military Exchanges

If the lack of communication between the U.S. and Chinese militaries does not keep you up at night, well it should.  The U.S. has a better relationship with Russia’s military than it does with China’s, but has more potential to cross paths with China’s because of the U.S.’ military presence in Asia.  Without proper channels of communication between the two militaries, a small skirmish can easily become a major crisis, as President Obama knows from his first months in office when Chinese navy ships circled and threatened a U.S. navy vessel in the South China Sea. 

Adding to the lack of communication is China’s broad interpretation of its “exclusive economic zone” (EEZ). A country’s EEZ extends 200 miles from the coast and gives the country sovereign rights over economic activities in those waters (usually the country uses its economic zone to search for natural resources).  By China’s broad definition, its sovereign rights in the EEZ expand outside of the economic realm, permitting it to interfere with other countries’ ships that enter its EEZ.  The U.S., as well as most other countries, perceives the EEZ as providing solely economic sovereignty for the coastal state, allowing other countries’ ships free access.  For the U.S., this also includes ships that are conducting military surveillance on the coastal state (for an excellent assessment of these different interpretations, see Margaret K. Lewis’ “An Analysis of State Responsibility for the Chinese-American Airplane Collision Incident”).  Needless to say, these different interpretations only add to the tensions between the two militaries. 

In the U.S.-China Joint Statement issued last week, much needed progress was made on the military front, especially in terms of communication.  High level exchanges between the U.S. and Chinese militaries will continue, with the Chief of the General Staff of the China’s People’s Liberation Army, General Chen Bingde, visiting the U.S. and both Secretary of Defense Robert Gates and Chairman of the Joint Chiefs of Staff Admiral Michael Mullen making a trip to China.

In regards to differing definitions of the EEZ, the Joint Statement alludes to this issue, showing that the two sides likely discussed and acknowledged the problem (From the Joint Statement: “The United States and China agreed to handle through existing channels…maritime issues in keeping with norms of international law and on the basis of respecting each other’s jurisdictions and interests”).  Granted they failed to reach a compromise, but this is not an issue that will be easily solved.  Just discussing this sensitive topic is progress. 

2.  Both Public and Private Discussion of Human Rights

Interestingly, a press that largely ignored this issue prior to President Obama’s trip is making a big deal of his “silence” on human rights violations in China.  Last I checked though, freedom of speech is usually regarded as one such right and President Obama discussed this issue rather bluntly and passionately at the Shanghai town hall.  While it is debatable as to whether focusing on freedom of expression on the internet is sufficient to assist China with a development of a civil society and a rule of law, it is difficult to argue that President Obama did not publically bring up the subject of human rights. 

Furthermore, in his letter written to China’s Southern Weekend newspaper, President Obama stressed the importance of a free press.  True, this letter was not permitted to be circulated to a wider audience, but it portrays the President’s continued emphasis, both publically and privately on human rights.

The Joint Statement also discusses human rights in general and calls for the next official human rights dialogue between the U.S. and China to be held by the end of February 2010 in Washington, D.C.  The Joint Statement also stressed the importance of rule of law in China and agreed to reconvene the U.S.-China Legal Experts Dialogue (see the Dui Hua Foundation website for further background).  With the increasing push back by the Chinese government in the area of rule of law, especially as it pertains to civil rights and civil liberties, deepening cooperation is an important deliverable.

It is true that the Obama Administration has opted more for a strategy of quiet engagement on this issue.  Whether the approach is effective remains to be seen.  This past summer, the Administration was able to secure the release of public interest attorney Xu Zhiyong through behind the scenes pressure on the Chinese government.  However, almost immediately after President Obama left China, the Beijing police apprehended and beat public interest lawyer Jiang Tianyong (pronounce Geeang Tian-young) as he was walking his 7 year old daughter to school.  While Mr. Jiang has since been released, he is under very tight surveillance.  Perhaps if President Obama had mentioned the plight and importance of public interest attorneys in China, the arrest of Mr. Jiang might not have happened.  Or maybe it would have.

Either way, the U.S. press’ conclusion that President Obama “soft-peddled” human rights on his trip does not appear to ring true.  Human rights was certainly discussed, both publically and privately, it just appears that perhaps China was not listening. 

3.  Clean Energy and Climate Change

As expected, the U.S. and China entered into a series of cooperative agreements pertaining to clean energy and climate change technology.  While neither side agreed to emission targets, the level of detail provided for in the issued agreements was more than anticipated.  Most interestingly, the U.S.’ Environmental Protection Agency and China’s National Development Reform Commission signed a memorandum of cooperation to help China develop its capacity to measure its greenhouse gas inventories.  This is no small feat.  China’s does not currently have the capacity to accurately measure its greenhouse gas emissions and thus, if it was to agree to emission targets, would be unable to provide verifiable data.  China’s lack of capacity on this front has rightly been a sticking point for many in the U.S. Congress, preventing the passage of domestic climate change legislation that would be used to bind the U.S. internationally.

This memorandum of cooperation is the first step to enable China to agree to emission targets and for the rest of the world to believe them. 

President Obama’s visit to China was certainly not overly exciting but it was far from the failure that the U.S. press has made it out to be.  It also does not signify the U.S.’ decline as some alarmist media outlets have claimed.  Instead, the visit was a series of tough negotiations between two global powers.  Both had winning issues and losing ones.  And in the end, President Obama likely walked out with a little more than expected.  For me, that’s an accomplishment.

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By Elizabeth M. Lynch, November 19, 2009

THE WHITE HOUSE

Office of the Press Secretary

_____________________________________________________________________________________________

FOR IMMEDIATE RELEASE

November 17, 2009

U.S.-China Joint Statement

November 17, 2009

Beijing, China

At the invitation of President Hu Jintao of the People’s Republic of China, President Barack Obama of the United States of America is paying a state visit to China from November 15–18, 2009.  The Presidents held in-depth, productive and candid discussions on U.S.-China relations and other issues of mutual interest.  They highlighted the substantial progress in U.S.-China relations over the past 30 years since the establishment of diplomatic ties, and they reached agreement to advance U.S.-China relations in the new era.  President Obama will have separate meetings with Wu Bangguo, Chairman of the Standing Committee of the National People’s Congress and Premier Wen Jiabao. President Obama also spoke with and answered questions from Chinese youth.

Continue reading 'The Deliverables from Obama’s Trip – US-China Joint Statement'»

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By Elizabeth M. Lynch,

THE WHITE HOUSE

Office of the Press Secretary

_________________________________________________________________

For Immediate Release                        November 17, 2009

JOINT PRESS STATEMENT BY PRESIDENT OBAMA

AND PRESIDENT HU OF CHINA

Great Hall

Beijing, China

12:37 P.M. CST

PRESIDENT HU:  (As translated.) Your Excellency President Obama, and dear friends from the news media, ladies and gentlemen:  I’m very happy to meet our friends from the press and media.  To begin with, I would like to extend on behalf of the Chinese government and people a warm welcome to President Obama on his state visit.  Welcome to China.

Continue reading 'Presidents Obama & Hu – Joint Press Conference – Nov. 17, 2009'»