Written by Jacques deLisle.
The US’s Taiwan Relations Act (TRA) will mark its fortieth anniversary in April 2019. Enacted amid the normalization of relations between the United States and the People’s Republic of China (PRC), and Washington’s acquiescence in Beijing’s requirement that the US sever diplomatic relations and terminate a mutual defense treaty with the Republic of China (ROC, Taiwan), the TRA has been a durable and effective foundation for American policy. Although the law and the policies it embodies and reinforces offend China, the TRA has fostered stability in US policy toward Taiwan and cross-Strait relations and, in turn, regional security. It has done so in three principal ways.
First, the TRA has provided functional replacements for what Taipei lost when Washington ended formal ties and the security pact in 1979. Mundanely, the law established pragmatic substitutes for the legal and diplomatic rights and relations that the ROC had possessed and otherwise would have lost. The TRA directed that Taiwan would continue to be treated in US law largely as if it were a state, and the ROC regime as if it were the government of a recognized state. It provided for Taiwan and the US to maintain the near-equivalent of embassies, consulates, and regional bureaus within foreign ministries, and for Taiwan to enjoy sovereign immunity, continued participation in international agreements and institutions, and other state-like powers and responsibilities under US law.
Symbolically, the TRA’s mandate of this “as if” status for Taiwan signaled ongoing US support for Taiwan’s robust, state-like standing in the world, mitigating perils posed by the inexorable trend of countries shifting diplomatic ties and recognition from Taipei to Beijing. The TRA became an early and important element in Taiwan’s now long-running strategy of seeking security through acquiring as much of the stature and attributes of statehood as it can get, without crossing Beijing’s redline by asserting full-fledged de jure independence.
Strategically, the TRA included a specific commitment—albeit one vesting discretion in the President—to sell arms to Taiwan, and a broader assurance that the US rejected China’s use of coercive means to achieve unification of Taiwan. Ironically, the TRA’s assertion of US interest in the human rights of the people of Taiwan—an expression of Carter-era US foreign policy that was a rebuke and warning to the authoritarian Kuomintang regime—soon resonated with a key basis for post-democratization Taiwan’s maintaining US support and garnering international stature by playing the “values card,” especially in the post-Cold War era.
Second, the TRA has served as a lodestar and a safe harbor for US leaders and policymakers, underpinning continuity in US policy that has been conducive to stable cross-Strait and triangular relations. The TRA’s fixity has given Beijing and Taipei less reason to fear, or hope for, significant change in US positions. 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 Bush’s Secretary of State’s statement that Taiwan “does not enjoy sovereignty”; from President-elect Trump’s acceptance of a congratulatory phone call from Taiwan’s President Tsai Ying-wen and his expressed skepticism about the US’s One-China Policy, to President Trump’s pledge to Xi Jinping that the US would maintain the One-China policy and declaration that he would not take another call from Tsai without consulting Xi—in all of these cases, US administrations have defused worries and expectations of policy shifts by denying that there had been, or would be, any change to US policy that was firmly grounded in the TRA and the three US-PRC Joint Communiqués (and, to a lesser extent, the Reagan-era Six Assurances).
Among these “sacred texts” of the US’s Taiwan and cross-Strait policies, the TRA is uniquely important. Unlike the others, it is US law. It binds the President and executive branch subordinates, who cannot lawfully disregard the TRA as they could the Communiqués or lesser policy pronouncements. Although modest in substantive requirements, the TRA has helped Presidents and senior officials to play a “two-level game,” with the TRA entrenched as a limit on their discretion to make policy changes sought by Beijing or Taipei. The TRA’s qualitatively higher status is greater still because, from the US perspective (although not from the PRC’s), the three Communiqués are mere foreign policy statements, not treaties creating binding international legal obligations.
Third, the TRA has served to limit the adverse impact of US Taiwan policy on US-PRC relations. Although the TRA rankles Beijing as a statement of what Beijing sees as Washington’s disregard for Chinese sovereignty and interference in China’s internal affairs, the TRA’s character as US domestic law creates “acoustical separation” that has deflected condemnation from Beijing and afforded Beijing an option to forego sharper confrontation. Substantively, the TRA expresses US support for Taiwan but only in the form of legislative directives to the executive branch and courts in the United States about how to engage Taiwan. Its operative provisions do not direct foreign policy behavior, 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 US’s international legal commitments in the Communiqués to accept “one China” and eventually end arms sales to Taiwan.
Recent developments raise concerns—still only incipient ones—about the continuing durability of the TRA and its singular place in US Taiwan policy and US-Taiwan-PRC relations. In 2018, Congress departed from long-prevailing practice and enacted laws addressing quasi-diplomatic and security ties with Taiwan. Where many prior bills had failed, the National Defense Authorization Act and the Taiwan Travel Act passed. They purported to declare US policy and urged the President to consider port calls in Taiwan by US Navy ships and reciprocal visits by high level officials of the US and ROC governments. Such laws do not change or challenge the TRA and, indeed, seek to enhance US support for Taiwan. And they do not require particular actions by the President or US foreign policy or defense officials. Yet, their passage may suggest a reduction in congressional confidence in the adequacy of existing commitments, especially under a mercurial and disruptive President. And the adoption of these or similar laws may begin to erode the distinctive place, and power, of the TRA in anchoring US policies that have supported stability in US-Taiwan-PRC relations and security for Taiwan and in the adjacent region.
Jacques deLisle is the Stephen A. Cozen Professor of Law at the University of Pennsylvania. He is also professor of political science and Director of the Center for East Asian Studies at Penn and director of the Asia Program at the Foreign Policy Research Institute. Image credit: CC by the Office of the President, Republic of China (Taiwan)