The Taiwan Relations Act at 35

Editor’s Note: On April 16, 2014, Richard Bush gave a presentation at “The Taiwan Relations Act After 35 Years,” an event hosted by the Carnegie Endowment for International Peace.

I wish to address three topics today:

The TRA as law
The TRA and Taiwan Human Rights and Democracy
The TRA and Cross-Strait relations

The TRA as Law

To properly evaluate the TRA as law, it is important to assess its language from the point of view of legislative construction. From this point of view, the TRA is extremely important in creating legal authority for establishing the institutions necessary to continue substantive relations with Taiwan in the absence of diplomatic relations and for continuing the application of laws and agreements. Thus, without the TRA, the U.S. government had no authority to spend money on the American Institute in Taiwan.

On the other hand, and from the point of view of legislative construction, the TRA doesn’t say what we think it says in other areas, its statements of policy are just that: statements. More significantly, the sections on security – providing arms sales and somehow committing the United States with the defense commitment – are written very carefully. For example, Section 3(b)  states that “The President and the Congress shall determine the nature and quantity of such defense articles and services based solely upon their judgment of the needs of Taiwan, in accordance with procedures established by law.” It appears that the TRA gives Congress a special role in deciding which U.S. weapon systems to transfer to Taiwan. And in early 1979, some members of Congress wanted to create just such a role. But the terminal phrase of the sentence I cited (“in accordance with procedures established by law”) is interpreted to refer to the Arms Export Control Act, which severely limits the role of Congress in arms sales decisions.

Indeed, in the TRA there is no binding legal requirement that the government of the United States either sell arms to Taiwan or come to its defense. Put differently, the security provisions are not self-enforcing in either procedural or substantive terms. These provisions represent more a political and policy commitment than a binding mandate.

What was going on here? It’s my understanding, based on conversations with the people involved in the drafting of the TRA, that its authors sought to manipulate language to create the impression that the TRA was a lot tougher than it was. One reason was to ensure that President Carter didn’t veto the bill. Another was to deter Beijing. Yet another was to reassure Taipei. Again, these provisions represent more a political and policy commitment than a binding mandate. I will come back to the significance of that in a minute.

Human Rights and Democracy

The TRA’s provision on human rights – clause three of section 2 – is another one that is less than meets the eye: The latter sentence reads, “The preservation and enhancement of the human rights of all the people on Taiwan are hereby reaffirmed as objectives of the United States.” From the point of view of legislative construction, that is a pretty weak statement. And indeed, Sen. Pell and Rep. Leach each sought to get a much tougher position, one that would require action on the part of U.S. officials, but they had to make do with this provision.

But Sen. Pell and Rep. Leach were joined later by Sen. Kennedy and Rep. Solarz – the so-called Gang of Four – in a concerted to press for democracy and human rights in Taiwan. The language of the TRA on human rights provided a convenient cover for this activity, but the absence of Clause 3 of section 2 would have not stopped any of them from promoting these objectives.

Congressman Solarz was particularly important in this effort because he was chairman of the House Asian Affairs Subcommittee from 1981 through 1993, and so had the power to convene hearings and move legislation. The strategy that emerged was to illuminate the contrast between the ideals of the Republic of China government and the ruling Kuomintang on the one hand, and the practice of the regime on the other. Solarz effectively helped to legitimize people in the dangwai whom the KMT regime had sought to delegitimize. In time, the ROC government realized that it had to accommodate liberals like Solarz and Leach.

The first thing I did for Solarz was to draft a speech on democracy and the future of Taiwan, which he delivered to a dangwai audience in Taipei in August 1983. The key point of the speech, which was his idea not mine, was that a democratic Taiwan would have a better claim on the support of the U.S. than one that was not. There is subsequent evidence that one of the reasons that President Chiang Ching-kuo started the process of democratization was to create a new, values basis for U.S.-Taiwan relations. In effect, he accepted Solarz’s offer.

Of course, the main credit for Taiwan’s democratization does not go to the TRA and the Gang of Four but to the dangwai opposition and reformers within the KMT. But I like to think that the Gang of Four’s efforts were not trivial. Again, the TRA provided something of a rationale for their activity but it was not a necessary precondition.

Cross-Strait Relations

The authors of the TRA did not contemplate that the frozen, mutually hostile situation between the PRC and ROC of the late 1970s might change for the better. Nor did they contemplate that Taiwan might become a democratic system that acted for itself in relations with China and the United States. Nor did they imagine that U.S. government might someday conclude that the policies pursued by a democratic Taiwan might endanger its own security and undermine the U.S.-Taiwan relationship. But all these things did happen. Note the irony here: just because Taiwan was a democracy wasn’t enough. Washington hoped that Taiwan’s democratic system would foster policies that made sense from the perspective of U.S. interests.

But the spirit of the TRA, as expressed in statements of policy, remains as relevant today, in changed circumstances, as it did 35 years ago:

• The emphasis on peace and stability in the Taiwan Strait area;
• The expectation that the future of Taiwan will be determined by peaceful means;
• The American intention to regard “any effort to determine the future of Taiwan by other than peaceful means, threat to the peace and security of the Western Pacific area and of grave concern to the United States.”

Conclusion

I said before that when it comes to Taiwan’s security, the TRA expresses more a policy and political commitment than a self-enforcing legal mandate. Does that mean that the TRA is irrelevant or unimportant? Not at all. Much of U.S. policy is not enshrined in law. Even if the TRA were more binding, U.S. decision-makers would still have discretion in how to implement the mandate. But my conclusion has several implications.

At a minimum, the success of the TRA has been due in part to the tireless efforts of individuals in the U.S. government to implement it in ways that are consistent with the law’s commitment. The late David Dean and James Lilley come to mind. Needless to say, countless officials on the Taiwan side have played their part.

Second, because the TRA is more policy and political commitment than binding mandate, that commitment must be renewed by new groups of leaders to address new circumstances that weren’t contemplated in 1979.  This means that within the U.S. government that commitment must be applied in ways that are relevant to current requirements and conveyed through statements of policy, use of diplomatic and other resources, and ensuring appropriate readiness to use those resources.

Moreover, it requires individuals both inside and outside the U.S. government to formulate and articulate rationales for U.S.-Taiwan relations that are appropriate for new situations, and to beat back the assertions of others that Taiwan is no longer important to the United States. Taiwan officials and scholars have their role to play here.

Third, as before, Taiwan can do its part by creating new reasons for the United States to renew and make relevant the TRA’s political commitment. Essentially, that’s what Chiang Ching-kuo did when he began the process of democratization. Also, the policies on which Ma Ying-jeou campaigned before the 2008 election are another example. His premise was that Taiwan could promote good relations with China and the United States at the same time without harming its fundamental interests, an approach that both the Bush and Obama Administrations endorsed.

Hence, we should not treat the Taiwan Relations Act as an icon or sacred text that is important simply because it exists. It was crafted to deal with a specific set of circumstances and in some respects is actually less than it seems. Its policy and political commitments must be reaffirmed and renewed to meet the challenges of new situations. But the last thirty-five years demonstrate that this is eminently possible.

On the other hand, it reflected a policy and political commitment that can be a touchstone today if that commitment is renewed and made new to cope with today’s realities.