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A nation must think before it acts.
Although the Taiwan Relations Act (TRA) and the policies it declares and underpins consistently offend China, the TRA has been a durable and fundamental pillar of Taiwan’s security for 40 years. It has helped foster stability in U.S. policy toward Taiwan and cross-Strait relations and, in turn, regional peace and stability through often-tumultuous times. There are many reasons that this has been so, but the TRA’s legal content and character are a significant part of the explanation.
Given its creation at a moment of great peril for Taiwan, the TRA’s effects are even more remarkable, yet despite its origins, it has been a durable and fundamental pillar of Taiwan’s security for four decades. When the TRA was adopted, prospects seemed dim of a functionally independent and relatively secure Taiwan. As part of the deal to normalize relations with the People’s Republic of China (PRC), the U.S. terminated its mutual defense treaty with the Republic of China (ROC) and thereby undercut the principal external guarantee of Taiwan’s security. Washington also severed diplomatic relations with Taipei, striking one in a series of blows to the ROC’s international status. The U.S.’s move came less than a decade after Taipei had lost the Chinese seat at the United Nations to Beijing and amid many governments’ moves to switch recognition from the ROC to the PRC. Although the lack of recognition and diplomatic relations has few necessary practical consequences, the existence of widespread recognition and diplomatic ties is an indicator—and an element—of the capacity to engage in international relations, which in turn is a key criterion for state status under international law and, more importantly, in the international politics that international law partly tracks and reinforces.
Beyond these international law-related blows to Taiwan, the broader politics of U.S.-ROC relations were grim for Taiwan. When the U.S. administration under Richard Nixon and Henry Kissinger had set in motion the forces that led to the ROC’s loss of formal security and diplomatic ties, it had done so amid expectations that Taiwan would be eventually absorbed by the PRC. In those circumstances, there seemed to be little need to find alternative means to protect Taiwan’s security and autonomy in the long run, or to grapple fully with the complex and fraught legal-political question of Taiwan’s status and sovereignty.
The Shanghai Communiqué that marked the first formal step toward these fundamental changes in U.S.-ROC relations set forth Washington’s acknowledgment of the view on both sides of the Strait that there was but one China that included Taiwan. The principle was reaffirmed explicitly in the 1979 second Communiqué that normalized U.S.-PRC relations, and prompted the TRA. Partly a product of the Chiang Kai-shek regime’s own position that there was but one China that included Taiwan (although the legal government was the ROC, not—as Beijing claimed—the PRC), the Communiqués’ framing built into U.S. policy (and PRC expectations about U.S. policy) an international law-related element adverse to robust state-like status for Taiwan and an implication that every time another government shifted recognition or diplomatic ties from Taipei to Beijing, it eroded a key component of Taiwan’s international stature and, in turn, security.
Some in the U.S. who sought to limit the damage to Taiwan turned to legal means. Some of Taiwan’s supporters in Congress sued, challenging President Carter’s termination of the mutual defense treaty without the Senate’s consent. This legal challenge failed, partly because it rested on a weak argument that the Senate’s role in consenting to the U.S.’s entering a treaty meant that the U.S. could withdraw only if the Senate-consented, and partly because U.S. courts are reluctant to wade into disputes between the president and Congress over major foreign and security policy issues.
The other, more successful legal initiative to limit the impact on Taiwan of the U.S.’s termination of the security treaty and formal relations with the ROC and establishment of ties with the PRC was the TRA. Several of the TRA’s substantive features have been important for symbolic and signaling, as well as practical, reasons.
The TRA’s arms sales provision, committing the U.S. to sell “arms of a defensive character” (based solely on judgments about Taiwan’s needs) and to maintain its own capacity to resist force or coercion that would jeopardize the security of the people on Taiwan, has provided a second-best alternative to the terminated mutual defense pact. This feature was bolstered by wider policy language in the TRA declaring that peace and stability in the region are interests of the United States and that the U.S. insists that the future of Taiwan be decided by peaceful means (in part, as a condition of the U.S. establishing relations with the PRC).
This provision and statements of U.S. interests and commitments have broader, if oblique, implications of U.S. positions concerning Taiwan’s status and, therefore, security. Resonance with principles of international law—and the related politics of international security—are much of the reason. It is perfectly permissible under international law to provide weapons or intervene forcibly on behalf of the government of another state, but it is not, under all but extraordinary circumstances, permissible to do so for a long-ousted government or a secessionist province.
The TRA establishes functional substitutes for the legal rights and responsibilities and diplomatic relations that the ROC possessed before 1979 and would have lost. The TRA directs that Taiwan would continue to be treated in U.S. law largely as if it were a state, and the ROC as if it were the government of a recognized state maintaining formal relations with the United States. The TRA provides for Taiwan and the United States to maintain the near-equivalents of embassies and consulates (the American Institute in Taiwan (AIT) and the Taipei Economic and Cultural Representative Office and Taipei Economic and Cultural Offices) in one another’s territories. It also provides for Taiwan to enjoy attention from State Department staff (seconded to the Washington office of AIT), sovereign immunity in U.S. courts, continued capacity to be a party to international agreements with the United States (as well as U.S. support for Taiwan’s participation in international organizations), and other state-like powers and obligations under U.S. law.
The “as if” status for Taiwan signaled ongoing U.S. support for Taiwan’s robust, state-like standing both with the U.S. and in the world. This signal helped ameliorate the threat posed by the inexorable trend of states’ shifting diplomatic ties and recognition from Taipei to Beijing. The TRA thereby became an early component of what would become post-derecognition Taiwan’s now long-running pursuit of security through acquiring as many formal and informal attributes of sovereign statehood as possible, without crossing Beijing’s redline by asserting formal, de jure independence.
These symbolically significant provisions of the TRA also addressed seemingly mundane matters with much practical significance for Taiwan’s ability to function internationally. Absent the enjoyment of the state-like powers, privileges, or responsibilities that the TRA confers, Taiwan and Taiwanese entities and individuals would have found it much more difficult to undertake the level and range of economic engagement with the United States that has occurred. Without the TRA’s commitment to U.S. support for ROC access to international economic accords—including, in recent years, the World Trade Organization, a still-unfinished bilateral Trade and Investment Framework Agreement, and, before the U.S. opt out, possibly the Trans-Pacific Partnership—Taiwan would have faced more serious obstacles to the international economic integration that has been vital to its economic success.
The TRA’s declaration of a U.S. interest in the human rights of the people in Taiwan—which for a time read as a rebuke and warning to the authoritarian regime in Taipei—soon resonated with a vital basis for post-democratization Taiwan’s ability to maintain U.S. support and garner international status. This “values”-focused provision resonates with Carter-era foreign policy principles that have persisted and periodically have become more prominent in the years since, including during the wave of global democratization that accompanied the end of the Cold War and Taiwan’s democratization. In this context, the TRA’s human rights provision has supported Taiwan’s ability to invoke its now-long-strong record on human rights and democracy in its quest for international stature.
In addition to its content, the TRA’s singular ability to entrench U.S. policy toward Taiwan issues has been a key to its effectiveness in helping Taiwan attain a measure of security. This entrenchment has several salient features. The TRA generally and the specific provisions that do most to enhance Taiwan’s security and status have been remarkably enduring and stable, surviving for 40 years with no fundamental change and with few changes of any sort. Despite periodic calls for the U.S. to abandon Taiwan or acquiesce in its Finlandization, on one hand, or bills in Congress to require significantly stronger support and clearer commitments to Taiwan’s security, on the other, the TRA has remained largely unscathed as an anchor for U.S. policy. Unlike many laws, it has not been gutted through executive branch interpretation or willful neglect.
Although modest in substantive requirements and leaving the executive branch with substantial discretion and room for interpretation, the TRA also has served as a lodestar and a safe harbor for occasionally wayward U.S. leaders and policymakers. From the Clinton administration’s invitation permitting Lee Teng-hui to deliver a Taiwan-status-boosting speech at Cornell University, to President Clinton’s seemingly “pro-China” “three noes” (expressing non-support for Taiwan independence, two-China or one-China-one-Taiwan policies, and Taiwan’s membership in states-member-only organizations); from the second President Bush’s remark that he would do “whatever it takes” to help Taiwan defend itself, to Secretary of State Colin Powell’s statement that Taiwan “does not enjoy sovereignty”; and from President-elect Donald Trump’s acceptance of a congratulatory phone call from Taiwan’s President Tsai Ing-wen and his expressed skepticism about the U.S.’s One-China Policy, to President Trump’s pledge to Xi Jinping that the U.S. would maintain the One-China policy and declaration that he would not take another call from Tsai without consulting Xi, U.S. administrations have defused worries and expectations of policy shifts by denying that there had been, or would be, any change to U.S. policy that was firmly grounded in the TRA, as well as the three U.S.-PRC Joint Communiqués and, to a lesser extent, the Reagan-era Six Assurances.
Compared to the other “sacred texts” of the U.S.’s Taiwan and cross-Strait policy, the TRA is uniquely embedded because of its status as U.S. law. It binds the president and executive branch subordinates, who cannot lawfully disregard the TRA as they could the three U.S.-PRC Communiqués, or any number of lesser statements of policy issued during the past 40 years. Unlike the Communiqués, the TRA is not negotiable with Beijing, or Taipei. The TRA’s qualitatively higher status is greater still because, from Washington’s perspective (although not from Beijing’s), the three Communiqués are mere foreign policy statements, not treaties creating binding international legal obligations. Unlike the similarly unilateral Six Assurances, the TRA has always been fully public and consistently acknowledged as a core part of the canon of U.S. Taiwan policy. Because of this high formal place in U.S. law, the TRA has helped presidents and senior administration officials to play a “two-level game” in which they are (at least ostensibly) constained from making lasting or fundamental policy changes, including ones sought by Beijing or Taipei.
The TRA is entrenched—and entrenches U.S. Taiwan policy—also because of features of U.S. constitutional law and politics, specifically the separation of powers. Policy proclamations from the executive branch, joint communiqués, or statements issued by officials of the U.S. and other governments, and the like, are actions by one branch of government—albeit the dominant one in foreign affairs. They thus can be altered or reversed by the unilateral action of that same, single branch. As the litigation over Carter’s termination of the U.S.-ROC mutual defense treaty made clear, even binding international agreements can be changed by the president alone without the consent of the legislative branch.
As legislation passed by Congress and signed by the president, the TRA is qualitatively different—inalterable until subsequent legislation changes it. Separation of powers-related politics further insulates and entrenches the TRA and its policies. Although the president is relatively dominant in foreign affairs and Congress often shirks its limited responsibility by leaving the president to take the risk of foreign policy failures, much of the time, U.S. policy concerning Taiwan has not been an area where Congress has been strongly inclined to cede power or duck controversial issues. The relatively robust textual provisions in the TRA concerning presidential reporting, congressional review, and congressional oversight reflect at least an intention by the TRA’s framers to bind and monitor the president on Taiwan policy.
Recently, Congress has become exceptionally active, departing from the long-prevailing pattern of considering but not passing legislation relating to Taiwan’s status and security. In 2018-2019, Congress passed, and the president signed, a National Defense Authorization Act, the Taiwan Travel Act, and the Asia Reassurance Initiative Act. Making declarations of U.S. policy and urging—but not purporting to require—the president to take action, these laws call for possible mutual port calls by the American and Taiwanese navies, reciprocal visits by high-level officials of the U.S. and ROC governments, and enforcement of “all existing commitments” consistent with the TRA, the three Joint Communiqués, and the Six Assurances (as well as taking steps to counter efforts by Beijing to change the status quo and to support efforts by Taiwan to strengthen asymmetric defense capabilities).
Another, more accidental aspect of the TRA has contributed to entrenching U.S. policy commitments to Taiwan. The TRA regularly generates moments of political focus. Its arms sales provision has meant that there will be relatively regular requests and offers of tranches of weapons sales, which are a tangible and symbolic reaffirmation of the U.S.’s support for Taiwan’s security, even more so in the face of the opposition and denunciation that inevitably issue forth (albeit with varying intensity) from Beijing. The TRA—a pivotal and largely unchanged law—has a strongly commemorated enactment date. Every decade or half-decade anniversary brings statements of celebration of, and support for, the TRA from official Taipei and official Washington. This year, the TRA’s 40th birthday is especially pointed, coming less than a year after the opening—and just weeks before the official opening—of the new USD 255 million AIT complex in Taipei’s Neihu district.
Finally, despite consistent umbrage from Beijing, the TRA has helped to limit the impact of U.S. Taiwan policy on U.S.-PRC relations. Although the TRA rankles Beijing as a reflection and source of what Beijing sees as Washington’s disregard for Chinese sovereignty and interference in China’s internal affairs, the TRA’s character as U.S. domestic law creates “acoustical separation” that has deflected condemnation from Beijing and afforded Beijing an option to forego sharper confrontation. The TRA’s expression of U.S. support for Taiwan are legally operative “only” in the form of legislative directives to the executive branch and courts in the United States about how to engage Taiwan. The TRA does not direct foreign policy behavior, with the partial exception of arms sales, where the TRA gives the president much formal and greater de facto discretion. And the TRA expresses no position on the hot-button issues of statehood or sovereignty for Taiwan. Because the TRA formally is “merely” domestic law, the PRC can dismiss it as incapable of altering what Beijing regards as the U.S.’s international legal commitments in the Communiqués to accept “one China” and eventually end arms sales to Taiwan.
To be sure, the TRA can, and does, face criticisms from nearly all sides. But seeking to remedy its shortcomings or perceived faults through amendment would put at risk much that Taipei and Washington should and do value, and that has been at least tolerable to Beijing. Opening so fundamental and long-stable a pillar of U.S. policy on so volatile an issue could move in unpredictable and ultimately undesirable directions. Moreover, legislation that brings significant amendment—or supersession, or even major supplementation—of the TRA risks eroding the distinctive place, and therefor the unique power, of the TRA in defining and maintaining U.S. policies that have brought stability in U.S.-Taiwan-PRC relations, security and autonomy for a now-impressively-democratic Taiwan, and stability in the wider region.