The Taiwan Relations Act (TRA) was enacted in 1979 to “to solve an unprecedented diplomatic problem: How to continue U.S. substantive relations with the people on Taiwan even though the U.S. government terminated diplomatic relations with the government in Taipei, as a precondition for normalization of relations with Beijing,”^[1] as Stephen Solarz, the former Chairman of the Subcommittee on Asian and Pacific Affairs of the House of Representatives, put it. This unique legislation has guided U.S.-Taiwan relations for 40 years—longer than many have anticipated. It is a remarkable accomplishment. However, the time-tested wisdom of TRA is also being challenged by many new developments, raising the question whether this durable framework remains adequate.

Its durability has been analyzed. Jacques deLisle attributes the success to three reasons: (1) the TRA created functional replacements for Taiwan; (2) as the most important “sacred text” governing U.S.-Taiwan and cross-strait relations, the TRA has provided policy stability; and (3) as a U.S. domestic law, the TRA has limited the adverse impact of U.S. Taiwan policy on U.S.-China relations.^[2]

In a piece written for the 30^th anniversary of the Taiwan Relations Act, I emphasized three characteristics: (1) the TRA has created a pragmatic exception for Taiwan, so the U.S. could treat Taiwan as a state and its governing authorities as a government (cf. Section 4); (2) the origin of the TRA reflected a rare “equilibrium” between the U.S. Congress and the executive branch that ensures executive-legislative joint responsibility for Taiwan’s security; and (3) the TRA was conceptually designed as a transitory piece of legislation enacted in tandem with a “status quo” constructed by the needs of U.S. foreign policy.^[3]

While the TRA contributed to Taiwan’s security, prosperity, and freedom, it did not increase Taiwan’s dignity. In the past 40 years, Taiwan has evolved into a vibrant democracy. Yet, the U.S. government still maintains self-imposed and outdated restrictions on conducting “unofficial relations” with Taiwan. Gerrit van der Wees argues that “the TRA is perpetuating Taiwan’s diplomatic isolation and lack of international status.”^[4] Meanwhile, the People’s Republic of China (PRC), under Xi Jinping, has worked actively to erase Taiwan’s already limited international personhood, to flex military muscles, and to compel unification under the “one country, two systems” formula. U.S. policy toward Taiwan, under the aegis of the TRA, the Six Assurances, and the Three U.S.-China Communiqués, needs an update.

Developments in U.S. Laws—and Attitudes—on Taiwan

The durability of the TRA contributed to both policy resilience and inertia. One of the Six Assurances stipulated that the United States would not alter the terms of the TRA.^[5] Historically, attempts to shift the TRA toward a more or less pro-Taiwan direction have not succeeded. One such example was the Taiwan Security Enhancement Act of 2000, passed overwhelmingly in the House of Representatives, but eventually tabled in the Senate.^[6] The unusual legislative-executive equilibrium achieved at the TRA’s onset, as discussed before, made it hard to deviate. Although implementation by the executive is important, Congress does monitor executive implementation and ensures a baseline. The two check and balance each other.

However, this historical pattern began to change in the past few years. In 2018, the 115^th Congress departed from long-prevailing practice and enacted several bills notably addressing quasi-diplomatic and security ties with Taiwan: the National Defense Authorization Act (NDAA),^[7] the Taiwan Travel Act (TTA),^[8] and the Asia Reassurance Initiative Act (ARIA).^[9] These laws purport to declare U.S. policy and ask the president to consider port calls in Taiwan by U.S. Navy ships and reciprocal visits by high-level officials of the U.S. and ROC governments, and conduct regular transfers of defense articles to Taiwan that are tailored to meet the existing and likely future threats from the PRC.

What explains this trend? Are these enacted laws supplementing or replacing the TRA? Both congressional-executive relations and U.S. relations with China in the Trump administration have changed from previous eras. Whereas support for Taiwan in Congress has always been strong and bipartisan, the executive branch (especially the State Department and the White House) typically has played a more cautious role as a brake because it implements laws and must deal with the repercussions from Chinese reaction. Typically, the executive branch is not keen on more pro-Taiwan legislative endeavors, and prefers to preserve as much executive discretion (and less legislative mandate) provided by a legal framework like TRA. For a bill to become law of the land, it must be introduced and passed in one chamber, sent to the other chamber and passed there, resolve differences, and finally be sent to the president for signature. For the first two years of the Trump administration (2016-18), there was a unified government, as Republicans controlled both chambers of Congress and the White House. The sponsors of these three acts—Cory Gardner, Steve Chabot, and Mac Thornberry—were all Republican lawmakers. The dynamics of legislative-executive relationship concerning Taiwan changed from occasional tension to more cooperation.

This also has to do with the changing attitudes of the executive branch. In the Trump government, many officials and advisors take a more critical view of China and want to address the long-term neglect of Taiwan by providing it with more support. These people appear less concerned about Chinese sensitivities. For example, in the past, proposals such as port calls in Taiwan by U.S. Navy ships or the exchange of high-ranking officials would have received the State Department’s preemptive opposition before Chinese condemnation.

After the 2018 midterm election with the House of Representatives changing hands to the Democrats, this new pattern still seems to hold. Several key committee chairpersons are members of the Congressional Taiwan Caucus. The historically present bipartisan support for Taiwan in Congress is now reinforced by bipartisan antipathy of China, which is also shared by the executive branch. The coalescence of these forces helps explain the passage of such laws as TTA, NDAA, and ARIA, which in the past would have most likely languished in a single Congress session, like the well-intentioned Taiwan Security Enhancement Act. However, certain important pro-Taiwan provisions of earlier single-session bills, such as strengthening military cooperation and permitting exchange of high-level officials, were eventually incorporated in the passed acts in 2018. The time for these ideas has finally arrived thanks to the fortuitous confluence of trends pointed out here.

Responding to Chinese Boldness

In recent years, American elite attitudes toward China have noticeably darkened. Many began to question the longstanding engagement policy, which has dominated the American (or Western) approach in dealing with China for 40 years and has not led to a more open and liberal China. Instead, China has become a strategic and economic competitor, posing threats to Western interests and values through sharp power or influence operations.

China’s assertiveness was even replicated in its approach toward Congress. In 2016, the Taiwan Travel Act was introduced to the U.S. Congress by Representative Steve Chabot and Senator Marco Rubio. The bill sought to address a shortcoming in U.S.-Taiwan relations: lack of high-level communication since 1979, when the U.S. started to restrict its officials’ visits to Taiwan. The absence of high-level communication complicated U.S.-Taiwan relations (in essence, alliance management). The need for understanding each side’s strategic intentions was made painfully clear during the 1995-6 Taiwan Strait Crisis, when the U.S. risked a military confrontation against China even though President Bill Clinton did not know his Taiwanese counterpart’s leadership style or strategic intentions, or pick up the phone to talk to him directly—all thanks to the U.S. self-imposed restrictions. Yet, trying to change this—under the unofficial framework—was politically difficult, and the executive branch certainly understood Beijing’s predictable reaction.

In August 2017, Chinese Ambassador Cui Tiankai sent a letter expressing “grave concern” to leaders of the House and Senate, demanding they block provisions related to Taiwan in the National Defense Authorization Act of that year, which included the Taiwan Travel Act as well as the Taiwan Security Act of 2017.^[10] In the letter, Cui stated that the legislation represents “provocations against China’s sovereignty, national unity and security interests,” and “[has] crossed the ‘red line’ on the stability of the China-U.S. relationship.” U.S. lawmakers perceived this wording, together with the Chinese threat of “severe consequences,” as inappropriate interference and “out of line.”^[11]

Both Members and aides took exception to Cui’s reproach. Ranking House Foreign Affairs Committee Democrat Eliot Engel (D-NY) said in response: “China carries out this kind of heavy-handed behavior with other countries around the world. It’s interesting to me that they now feel that they can get away with these kind of threats and vague pressure tactics with the U.S. Congress.”^[12] China’s heavy-handed tactics and direct threats to U.S. Congress through official communications backfired, by forcing Congress to make a show of force against perceived Chinese bullying.^[13] This may have contributed to the unanimous passage of the TTA. President Trump quickly signed it into law on March 16, 2018. The Chinese were reportedly taken aback that Trump did not veto it or “approve” it by refusing to sign within the ten-day period. In the past, China could expect that the U.S. government would help rebuff the pro-Taiwan Congress and restrain the adventurous Taiwan. Not anymore.

Lawmakers introduced several other bills aimed at strengthening U.S.-Taiwan relations or bolstering support for Taiwan: for example, Reaffirming the United States commitment to Taiwan and to the implementation of the Taiwan Relations Act, Taiwan Reassurance Act, Taiwan Allies International Protection and Enhancement Initiative (TAIPEI) Act of 2018, etc. Some express the sense of Congress. Others require cooperation from the executive branch. While not all of them will pass, and analyzing their prospect of passage is beyond the scope of this paper, the “exceptions” of 2018 may not have ended.

Regardless of their legislative fates, both of these pro-Taiwan bills and the three enacted laws of 2018 address the demonstrated shortcomings of TRA. As such, they should be seen as supplements or follow-ups to the TRA, rather than its replacement.

Other than Chinese abrasiveness, the passage of the TTA, ARIA, and NDAA may also belie a reduced congressional confidence in the adequacy of existing commitments, especially under a mercurial and disruptive president.^[14]

If such “exceptions” continue to increase, one needs to ask whether they result from a particular confluence of factors (in other words, the Trump policy toward China and the more cooperative congressional-executive relationship are exceptions, rather than the rule) or point to a need for a paradigm shift.^[15]

What’s Next?

The TRA has provided an enduring framework for maintaining and improving U.S.-Taiwan relations for 40 years. It can be and has been flexibly implemented. Protecting the substance of U.S.-Taiwan relations and Taiwan’s interests through a unique domestic law was an ingenuous statecraft that compartmentalized the more nettlesome issues about Taiwan’s sovereignty (undoubtedly contributed by the diplomatic limbo imposed by U.S. de-recognition in 1979) and international personality. However, through practice, it has shown that Taiwan’s dignity remains constrained and vulnerable under the current U.S. policy framework—one China policy based on those sacred texts, of which TRA is the most important. Encouragingly, the Trump administration and Congress have begun to take a more active approach toward Taiwan’s international space and push back against China’s diplomatic squeeze of Taiwan.^[16] Whether these measures will be sufficient remain to be seen.

Looking into the next decade, will the TRA remain adequate for accomplishing those goals its framers intended for? While the basic framework has worked well, the “TRA paradigm” may need a robust upgrade. If a new paradigm is better than a series of addendums, then what would it be? Is it time for the U.S. to rethink its one China policy?

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^[1] U.S. Congress, House of Representatives, Subcommittees on Human Rights and International Organizations and on Asian and Pacific Affairs, Implementation of the Taiwan Relations Act, Hearing and Markup, May 7, June 25, and August 1, 1986 (Washington, D.C.: Government Printing Office, 1987) p. 1.

^[2] Jacques deLisle, “The 40th Anniversary of the Taiwan Relations Act,” Taiwan Insight (18 March 2019), https://taiwaninsight.org/2019/03/18/the-40th-anniversary-of-the-taiwan-relations-act/.

^[3] Vincent Wei-cheng Wang, “The Taiwan Relations Act at 30: Enduring Framework of Accidental Success?” Taiwan Review, vol. 59, no. 4 (1 April 2009), https://taiwantoday.tw/news.php?unit=4,29,31,45&post=4360.

^[4] Gerrit van der Wees, “Taiwan relations beyond the 40th anniversary of the Taiwan Relations Act,” Taiwan Insight (28 March 2019), https://taiwaninsight.org/2019/03/28/taiwan-relations-beyond-the-40th-anniversary-of-the-taiwan-relations-act/.

^[5] H.Con.Res.88 – Reaffirming the Taiwan Relations Act and the Six Assurances as cornerstones of United States-Taiwan relations. 114^th Congress (2015-16). https://www.congress.gov/bill/114th-congress/house-concurrent-resolution/88/cosponsors.

^[6] The text can be found at http://usinfo.org/sino/taiwan_enhance.htm.

^[7] H.R.2810 – National Defense Authorization Act for Fiscal Year 2018. 115^th Congress (2017-18). https://www.congress.gov/bill/115th-congress/house-bill/2810/text.

^[8] H.R.535 – Taiwan Travel Act. 115^th Congress (2017-18). https://www.congress.gov/bill/115th-congress/house-bill/535/text.

^[9] S.2736 – Asia Reassurance Initiative Act of 2018. 115th Congress (2017-2018). https://www.congress.gov/bill/115th-congress/senate-bill/2736/text.

^[10] S.1620 – Taiwan Security Act of 2017, 115th Congress (2017-2018), was read twice and referred to the Committee on Foreign Relations on 7/24/2017, but did not pass. It was another one of those single-session bills. https://www.congress.gov/bill/115th-congress/senate-bill/1620/all-actions?overview=closed#tabs

^[11] Josh Rogin, “China threatens U.S. Congress for crossing its ‘red line’ on Taiwan,” The Washington Post (12 October 2017); and Charlotte Gao, “China’s Lobbying Against the Taiwan Travel Act Backfires,” The Diplomat (17 October 2017).

^[12] Rogin, “China Threatens.”

^[13] Gao, “China’s Lobbying.”

^[14] deLisle, “The 40^th Anniversary.”

^[15] Thomas Kuhn, The Structure of Scientific Revolution (University of Chicago Press, 1970).

^[16] Concrete actions include: the United States government summoned U.S. ambassadors to Panama, Dominican Republic, and El Salvador, the three Western Hemisphere countries that cut diplomatic relations with Taiwan, for home consultation; the TAIPEI Act ;and Secretary of State Mike Pompeo’s testimony that the U.S. would use everything in its toolbox to help Taiwan keep its remaining diplomatic allies.