Thoughts on the Taiwan Relations Act

Thirty years ago this month, the U.S. Congress passed the Taiwan Relations Act, which President Carter signed on April 12th, 1979. This anniversary, with the hindsight of thirty years’ experience, is a good occasion to reflect on what the TRA has accomplished and what it means for the future.

Ironically, the parts of the TRA that were arguably the most successful are never discussed. And the parts that are most quoted are the least understood. The most successful, unremarked element of the TRA is the authorization of the American Institute in Taiwan. Once the United States terminated diplomatic ties, the mechanisms created for sustaining substantive relations became vitally important in ensuring that the two countries could promote shared interests. Contact among senior officials and a common strategic outlook are needed, of course, but day-to-day diplomacy is vital.

In 1979, there was no guarantee that AIT and Taiwan’s counterpart organization (first the Coordination Council for North American Affairs, later renamed the Taipei Economic and Cultural Representative Office) would operate smoothly and effectively. Today, thirty years later, there is no question that the two institutions met the 1979 challenge and will continue to do so in the future. As I can attest from my own experience, both countries appointed some of their best diplomats to direct the two offices and their subordinates have been outstanding. And as time passed, adjustments were made to improve diplomatic interaction.

Another little-noticed element of the TRA was the mandate to continue past agreements and preserve the status quo regarding Taiwan’s place in U.S. law. American statutes use general terms to refer to the beneficiaries of various government programs (such as “friendly country” or “friendly nation”). If the TRA had not issued an explicit mandate, bureaucrats in a variety of agencies might have inadvertently cancelled Taiwan’s participation in those programs. The result would have been confusion or worse.

The TRA provisions that are most cited but less understood are the security sections. Individuals who assert that the TRA requires that the United States sells arms to Taiwan and comes to its defense exaggerate the legal meaning of the act. In fact, to ensure that President Carter would approve the bill, the congressional managers quietly adjusted its language in a way that reduced the bill’s impact on Executive Branch policy.

Take arms sales, for example. First of all, in U.S. legislative practice, the Congress uses the word “shall” to ensure that the executive takes the desired action. But the TRA says that “the United States will make available to Taiwan such defense articles. . . .” That is more a statement of intention than a binding mandate for action. Second, there is no indication either in the legislation itself or the legislative history to indicate how, substantively, the U.S. government should decide Taiwan’s equipment needs. Obviously, U.S. sales to Taiwan would vary tremendously depending on the criteria used to gauge its requirements. Third, the bill seems to require that the administration take congressional views into account during the decision-making process. But it qualifies that “requirement” with the phrase “in accordance with law.” All administrations have therefore believed that the obligation to Congress is simply to notify it at the end of the process. In short, the TRA does not mandate the sale of arms to Taiwan because the Act is not self-enforcing in either a substantive or procedural sense.

Likewise, the TRA’s security-commitment falls short of a defense treaty. On the positive side, whereas the former defense treaty spoke only of armed attack as a pre-requisite for American defense of Taiwan, the TRA expands the number of contingencies that might trigger a U.S. response. On the other hand, most of the TRA language is rendered as statements of policy rather than law, and so lacks binding force. For example, the TRA only states a U.S. policy of having the capacity to resist coercion against Taiwan, not an explicit commitment to use those capabilities. The only thing that a U.S. administration must do in a crisis is report to Congress. The bias of the old treaty, therefore, was on the side of action; that of the TRA is less clear-cut.

If the TRA’s security provisions require less of the Executive Branch than appears on paper, what is its true impact? In my view, the Congress, by including the security provisions in the TRA, expressed its strong political commitment to Taiwan’s freedom and made clear what it thought American policy should be. Even when legislative language is clear and strong, it must be sustained by a political commitment. When the legislative language is ambiguous, a political commitment is essential.

But if political commitments are to have meaning over time, they must be reaffirmed as circumstances change. American presidents can do that through their statements and actions, as President Clinton did in 1996 in sending two aircraft carrier groups to the Taiwan area. Cooperation between our two defense establishments is another way. The goal, of course, is to ensure that Beijing has little or no doubt about U.S. intentions in a crisis.

The precondition for continual affirmation of the TRA’s commitment to Taiwan’s defense is that our two governments share a common strategic perspective. If the United States comes to believe that Taiwan has a contradictory strategic outlook, then the strength of our commitment will wane (if it is Taiwan that fears a strategic divergence, that is another problem). Clearly it is in the interests of both sides that strategic divergence not occur, whether because of misunderstanding or conflicting goals.

Two factors have complicated the task of maintaining a common strategic perspective in the last 20 years. The first was Taiwan’s democratization, which ended past constraints on expression of a Taiwan identity and on new ideas about how best to guarantee the island’s future. The other was the emergence of China, with which the United States shared a growing set of common interests. Of course, Beijing had its own ideas on Taiwan’s future. These two factors did not make it impossible to preserve strategic convergence between the United States and Taiwan, but they did make it more complex.

The 2003-2008 period demonstrated the problems that can result when the strategic perspectives of the two countries diverges. Today, on the other hand, we see a trend of strategic re-convergence, premised on the Taiwan leadership’s willingness to reassure Beijing that it does not intend to challenge the PRC’s fundamental interests. But the United States understands that Taiwan’s willingness to conciliate China is not capitulation. Washington understands that how Beijing approaches the Taiwan Strait issue will be a key indicator of what kind of great power it will be.

Taiwan’s policy of conciliation and reassurance has a reasonable precondition: that Beijing itself takes steps to significantly reduce the island’s sense of vulnerability. Whether the PRC will do so remains to be seen. In this context, it is correct for Washington to continue to take make an appropriate contribution to Taiwan’s security, as the Administration has affirmed.

In making their political commitment to Taiwan’s security thirty years ago, the authors of the TRA could not have imagined today’s circumstances. Yet the genius of their achievement was to create a legislative framework in which the essence of their political commitment could be applied to a new context. It is the task of today’s leaders—in both Taiwan and America—to create circumstances that ensure that this commitment is reaffirmed on a regular basis.

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