As nearly all supporters of Taiwan agree, the Taiwan Relations Act (TRA) is a fine document. Those of us who were in Washington when members of Congress, State Department officials, and administration personnel were trying to craft the legislation can only marvel that the document signed into law as PL 96-8 on April 10, 1979, came into being at all, much less that it was able to bridge the sharp divisions among interested parties that preceded the final design. Several of those who provided input either hoped or feared that the TRA would be short-lived, easing the way for the absorption of Taiwan into the People’s Republic of China (PRC) after what was referred to as “a decent interval.”

By virtue of the fact that it has survived for 40 years, the TRA can be considered a success. No dead letter, it is frequently cited in support of the continuing U.S. commitment to Taiwan. Despite the care taken in its framing, however, the TRA is not a perfect document. What does it mean to say that the United States will supply to Taiwan such defensive arms as are needed to maintain a military balance in the Taiwan Strait? With a small fraction of the population of China and an even smaller fraction of China’s military assets, there is not and never can be a military balance across the Taiwan Strait without the United States military. And who is to decide which arms will be made available, in what quantity, and when? The TRA says that the administration and Congress will jointly decide, but in general, the administration has made those judgments with little input, and sometimes contrary to, the views of those members of Congress who have expressed opinions.

President Ronald Reagan gave the Six Assurances to Taiwan of which the third is that the United States would not consult with China in advance before making decisions about United States arms sales to Taiwan. Yet, the Six Assurances were treated as private: the official mantra has been that U.S. policy toward China is governed by the TRA and the Three Communiqués with the PRC, with no mention of the Six Assurances. And nearly every U.S. arms sale decision seems to be made with the probable reaction of the PRC taken heavily into account—the elephant in the room, as it were. As a Taiwanese student of the Sun Yat-sen Center for Science and Technology (CSIST), referencing Taiwan’s then-recent accomplishments in indigenous defense capacity, said to me some years ago, “Washington won’t agree to sell us what we want until we show that we can make it ourselves.”

These imperfections notwithstanding, most agree that the TRA should not be amended, since any suggestion that modifications are even being considered is sure to ignite a firestorm of rage from the PRC, followed by the now familiar pattern of increased military activity in the area, economic sanctions on the countries that have incurred Beijing’s ire, and arrests of its citizens on alleged spying charges.

What Can We Do to the TRA?

Recognizing these strictures, can anything be done to make the TRA better? As the PRC frequently reminds us, it is not a treaty. Could it be made into a treaty? Leaving aside the legal difficulties of concluding something akin to a security treaty with an entity whose sovereignty Washington has not acknowledged, and marshaling sufficient votes to pass if it were submitted to the Senate, treaty status would not actually provide better guarantees.[1] If the TRA has loopholes and ambiguities, so do treaties. To take one example, according to Article 5 of the U.S.-Japan Security Treaty:

Each Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations in accordance with the provisions of Article 51 of the Charter. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security. (emphasis added)

 Does anyone imagine that the PRC, a veto-wielding member of the UN Security Council, would be cooperative in taking the steps needed truly to restore or maintain peace and security? Even in the case of the North Atlantic Treaty Organization (NATO), regarded as the gold standard in mutual security, the relevant articles, number four and five, state,

ARTICLE 4 The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened.

ARTICLE 5 The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all; and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, (emphasis added) to restore and maintain the security of the North Atlantic area. Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.[2]

Moreover, even these limited guarantees should not give any NATO member a false sense of security. When President Donald Trump was questioned by Tucker Carlson on Fox News in July 2018 on whether the U.S. should go to war if Montenegro, which joined the organization in 2017, were attacked by Russia, he replied,

I’ve asked the same question. You know, Montenegro is a tiny country with very strong people. . . . They’re very strong people. They’re very aggressive people. They may get aggressive, and congratulations you’re in World War III. Now I understand that, but that’s the way it was set up.[3]

Time for a New Interpretation?

If the TRA cannot be amended or be made a treaty, perhaps it could be reinterpreted, as indeed the Japan government, in response to China’s rising power, has done to its peace constitution. Those who would like to do so might well consider the result of the Clinton administration’s 1993-1994 policy review. Buoyed by Clinton’s criticism of his rival, incumbent President George H.W. Bush, for “coddling dictators from Baghdad to Beijing,”[4] supporters of Taiwan had high hopes for his administration.

Instead, the new president, seemingly enticed by the prospect of expanding economic relations with the PRC, moved quickly to establish good relations with those he had only recently criticized. The policy review, rather than reinforce the TRA, represented a step backward. For example, whereas the TRA says that “nothing in this Act may be construed as a basis for supporting the exclusion or expulsion of Taiwan from continued membership in any international financial institution or any other international organization,” the Taiwan Policy Review narrowed this commitment: It supported Taiwan’s membership in international organizations “where statehood is not a prerequisite.”[5] The administration also stated its strong opposition to congressional leaders legislating authorization for visits by high-level Taiwan government officials to the U.S., or reciprocal visits from high-level U.S. officials to Taiwan, saying that “[the administration] will make judgments as to what level of visitor best serves our interests” and that it was prepared to establish only a sub-cabinet economic dialogue. Even those meetings were to take place outside of government offices.

Oddly, since the Taiwan Policy Review was a clear assertion of the administration’s right to determine what the TRA had seemed to envision as subject to joint oversight by the president and Congress, there seemed to be little concern from the legislative branch, which normally carefully guards against its prerogatives being infringed by the executive. A small concession to Taiwan allowed the name of its representative office in the U.S. to be changed from the unwieldy and misleading Coordination Council for North American Affairs to its current title, the slightly less unwieldy and misleading Taipei Economic and Cultural Representative Office (TECRO)—all while maintaining that nothing about U.S. policy had changed.

Given the dissatisfaction with the 1994 document, the general feeling among Taiwan’s supporters toward the TRA is best summed up as “if it ain’t broke, don’t fix it.” Still, times have changed. During the last quarter-century, the convergence between the PRC and ROC that some American policymakers hoped would allow an amicable settlement of cross-Strait differences has turned into divergence. As Taiwan’s democracy became ever more firmly established, China’s government became increasingly autocratic domestically and expansionist internationally. This development, in turn, engendered the possibility that, just as the 1994 review had reinterpreted policy in ways that seemed negative to Taiwan, it would be possible to reinterpret policy in ways favorable to Taiwan.

U.S.-Taiwan Relations under Trump

For those who favor such a reinterpretation, the Trump administration has been a decided improvement over its predecessor. In response to bellicose statements by Beijing with regard to Taiwan, the U.S. has several times sent navy ships through the Taiwan Strait, an action that had been exceedingly rare since U.S.-PRC normalization in 1979. Although international law clearly allows U.S. warships peaceful passage through the Strait, Beijing strenuously objects.

In early 2018, Congress passed and Trump signed PL 115-135, the Taiwan Travel Act (TTA), which states explicitly that “since the enactment of the TRA, relations between the U.S. and Taiwan have suffered from insufficient high-level communication due to the self-imposed restrictions that the United States maintains on high-level visits with Taiwan.” The TTA added a sense of Congress statement that such visits should be encouraged and that they should take place with appropriate respect for the dignity of such officials, meaning an end to the humiliating ruling that meetings could not be conducted inside government offices.

As 2018 ended, Trump signed PL 115-409, the Asia Reassurance Initiative Act (ARIA), which states officially for the first time that the U.S. will “faithfully enforce all existing commitments consistent with the TRA, the three Joint Communiqués, and the Six Assurances agreed to by President Ronald Reagan in July 1982” (emphasis added). The ARIA further called for the U.S. to counter efforts to change the status quo, to support the efforts of Taiwan to develop and integrate asymmetric capabilities, and to encourage the travel of high-level officials to Taiwan in accordance with the TRA. There is no mention of the 1994 policy review’s restrictions.

In late March 2019, the head of the American Institute in Taiwan (AIT) visited Taiwan’s Ministry of Foreign Affairs for the first time. At a joint press conference, ambassador-equivalent Brent Christensen and Minister of Foreign Affairs Joseph Jaushieh Wu announced the establishment of an annual dialogue mechanism on democratic governance.[6] Speaking in mandarin, Christensen declared, “We could not ask for a better partner.” In the same month, State Department Principal Deputy Assistant Secretary Patrick Murphy told Voice of America that China had been busy changing the status quo in the Taiwan Strait, including imposing military threats against Taiwan, poaching its diplomatic allies, and pressuring other nations to reduce its international space.[7]

While progress unquestionably has been made in undoing the objectionable parts of the 1994 policy review and returning to the original sense of the TRA, so far the revisions have remained largely verbal or on paper. As always, actions speak louder than words—and actions are needed. The informal opening of the new $255 million AIT office in June 2018 was a symbolic commitment of U.S. support, but, despite clearly expressed views from Congress, no high-level U.S. official attended, likely because of concerns from within the State Department about China’s reaction.

What could be done to raise the level of commitment beyond praise for Taiwan’s successful democratization, acknowledgement of the need for more people-to-people exchanges, and clichéd assurances about working together to achieve regional peace and prosperity?

• Send high-level personages to the April 10 celebration at the new AIT.
• Rename TECRO with a title comparable to AIT: the Taiwan Institute in America. Indeed, Japan instituted just such a change more than two years ago.
• Make sure that the U.S.-Taiwan defense dialogue is meaningful and has operational significance.
• Reiterate that Congress and the president will, in consultation with Taiwan, decide what weapons are to be sold, without reference to the opinions of the Chinese government, and ensuring that Congress exercises the role in arms sale decisions that the TRA grants to it.
• Continue to respond to Beijing’s bellicose statements and salami tactics with U.S. policies and actions. Joint U.S.-ROC exercises can be explained, as the Chinese government frequently does, as preparation for humanitarian assistance and disaster relief operations.
• Consider port calls for American navy ships and coast guard vessels at Taiwan ports, and Taiwan’s navy and coast guard at U.S. ports.
• In response to bellicose statements or action by the PRC, send a U.S. aircraft carrier through the Strait.
• End references to the Clinton administration policy position that a solution must have the assent of both the PRC and Taiwan. U.S. policy should state only that the solution must be peaceful and have the freely expressed consent of the people of Taiwan.

Taken together, these should provide assurances that, ten years from now, we may gather to commemorate the first half century of the Taiwan Relations Act.

---

[1] “Treaties” in the U.S. constitutional sense require ratification. But most “treaties” in the international law sense that the U.S. makes are done as “executive agreements” and not submitted to the Senate. Treaties/international agreements are common with entities that are not sovereign states. The U.S. has international agreements that include Taiwan, Hong Kong, the EU, and so on. Security treaties, however, are generally not done with non-states (and even more so with “provinces” of other states).

[2] Treaties that combine the “Article 51” and “report to the UNSC” clauses leave the state parties to the treaty a lot of room to maneuver. The Article 51 right to self-defense predates the UN Charter and survives its adoption. It is available to states without their having to go to the UNSC. And the treaties (including as quoted here) say, or leave room for parties to say, “We will report to the Security Council, but we’re going to keep on using force until we decide that the UNSC has done enough.”

[3] Christian Gomez, “Trump Questions NATO “Article 5” Mutual Defense Clause,” The New American, July 18, 2019, https://www.thenewamerican.com/usnews/foreign-policy/item/29573-trump-questions-nato-article-5-mutual-defense-clause.

[4] Nicholas D. Kristof, “China Worried by Clinton’s Linking of Trade to Human Rights,” New York Times, October 9, 1992, https://www.nytimes.com/1992/10/09/world/china-worried-by-clinton-s-linking-of-trade-to-human-rights.html.

[5] American Institute in Taiwan, “Appendix 74 — U.S. Taiwan Policy Review I” (1994), https://www.eapasi.com/uploads/5/5/8/6/55860615/appendix_74_–_u.s._taiwan_policy_review__i__1994_.pdf.

[6] Stacy Hsu, “Taiwan, US to hold annual dialogue,” Taipei Times, March 20, 2019, http://www.taipeitimes.com/News/front/archives/2019/03/20/2003711817.

[7] “China changing ‘status quo,’ US official warns,” Taipei Times, March 24, 2019, http://www.taipeitimes.com/News/front/print/2019/03/24/2003712071.