New US policies for a New Taiwan
I have always been struck by the difference in priority
given to the Taiwan Relations Act by those who's
responsibility is the development of policy or the conduct of
the relationships between the U. S. the PRC, and Taiwan. If
one says in a discussion, or speech, or statement, that the
basis of our policy toward Taiwan is "the Three Communiqués
with the PRC and the Taiwan Relations Act", the chances
are good that that person's focus is the PRC. If on the other
hand, one says "the TRA and the Three Communiqués",
the chances are better that that person works on Taiwan
Its a reflection of the differences that have always existed
since 1979 between the Administration and most China watchers
in the private sector, and the Congress and those whose
sympathies are with Taiwan. It comes naturally, I suppose, and
was demonstrated so clearly by what transpired in fashioning
My fellow panelist Ambassador Feldman, has very ably
described how this came about, and the broad implications for
America's relationship with Taiwan. As Chairman of the
American Institute in Taiwan - authorized by the same TRA -
from 1990 to 1995, I have viewed that Act from the
implementation side. It is from that perspective that I would
like to discuss our subject today.
Some points that should be made: in some places the wording
is ambiguous, probably deliberately to maximize flexibility.
That has been bothersome on some occasions, but gratefully
convenient at other times. It nowhere uses the term "unofficial",
which has come to be the title of what we call the
relationship. And unavoidably, it was written in some places
in a way that reflected the situation in Taiwan at the time of
the writing, and which on occasion, complicates its use in
arguing for changes that reflect today's reality.
Another characteristic, less obvious from reading it in the
present, final, form fashioned by Congress, is the short term
expectation that the Administration had at the time of its
writing, with regard to the need for the Act. The Congress
changed that in redrafting the bill, but the policy decisions
made then and by succeeding Administrations long after that,
reflect this short term expectation. Many policy decisions
were, and in some cases still are, stop-gap measures that
clearly cannot be maintained over the long term .
Given the change in the relationship made by the U.S., there
is no question it was profoundly strengthened by the passage
of the TRA into law, and in that sense, it has served its
purpose very well. Where I want to focus is on areas where
problems have arisen, so that we can then talk about either
strengthening the Act, or pursuing some other means of
addressing the problems.
With regard to the sections dealing with security, for
instance, the Administration within three years after the TRA
was passed, negotiated and signed a third Communiqué
with the PRC that contradicted the TRA. The Congress was
concerned and called hearings, but ultimately accepted the
Administration's position that since the PRC had clearly
stated its intention to resolve its issue with Taiwan
peacefully, a gradual reduction in arms sales to Taiwan was
possible. Congress clearly didn't like it but could not
retract the agreement. It did work to "lock in",
through public disclosure, the six assurances given Taiwan,
and by getting other public assurances from the Administration
that the provisions of the TRA would be observed.
The struggle between the Executive and Legislative Branches
over the degree of authority each has over foreign policy has
existed since the constitution was written. That document does
not address this point though the Executive Branch is
generally granted pre-eminence in this field, while Congress
asserts its authority mainly by its control of the purse. The
TRA, in establishing itself as the basis for a foreign
relationship, was an exception, and the third communiqué
was seen as a challenge to it by the Executive Branch.
One result of this experience, therefore, was that the
Congress over several years made an effort to have the
administration publicly acknowledge that a law such as the TRA
took precedence over any communiqué. It never fully
succeeded in getting this acknowledgment in law, though
Secretary of State Christopher more recently did agree to send
a letter to Senator Murkowski to that effect. Not entirely a
satisfactory means of assuring future executive agreements do
not contradict domestic law.
Another issue involving the TRA in which the Congress has
not gotten its way is in the procedure for the sale of arms to
Taiwan. After the original one-year moratorium on sales
following the enactment of the TRA, the Administration
established a process for considering and then either
approving or rejecting specific requests from Taiwan. Congress
was notified only after the process was complete and the
commitment, or rejection, had been conveyed to Taipei.
Congress argued that they should be consulted before the
decision was made, but those members of Congress who pursued
this issue were unable to gain sufficient support in the whole
Congress to accept this view. As a result the precedent was
set and has been followed ever since.
Another shortcoming in the system is that the Administration
has taken advantage of the requirement in the law that it
should notify the Congress if a threat to Taiwan's security
exists. Only then would the two branches of government consult
on what to do about it. The result is that the Administration
has been very reluctant to even use the word "threat"
in describing the situation at any time with regard to
activities in the Taiwan Strait.
Two examples illustrate this potentially dangerous tendency.
Taiwan had for years been requesting the approval for purchase
of F-16s to replace the aging aircraft in the ROCAF inventory.
For more than ten years, successive Administrations had
refused to agree. Even when it became clear that the F-104's,
for instance, were dangerous to fly and spare parts were no
longer available. Reports to Congress by the Administration,
even when challenged by some concerned members, insisted that
aircraft replacements were not necessary, because, for one
thing, the threat from the PRC in air superiority did not
Another example was the dispatch of the carriers during the
missile crisis of 1996. We can recall that the PRC first fired
missiles at the time of the Legislative elections in late
1995. The Administration complained publicly but did not
consider the PRC exercises that the missile firing were
supposedly a part of, as a threat. Then in 1996, again there
were exercises but the missile were now being aimed much
closer. The Administration called them "irresponsible",
but again, even at a formal Congressional hearing called by
the then even more concerned Congress, the word "threat"
was not used. Later a second carrier was dispatched, with
repercussions in both Beijing and Washington that are still
being felt, but still without touching the "threat"
button that would call for initiating consultations with the
Congress under the TRA. In both cases other factors brought
the actions that resulted.
Two other important issues that received some attention in
the TRA used wording that was relevant at the time of the
drafting of the law, but now require an explicit
interpretation to make them applicable to today's Taiwan. As a
result they have been largely ignored.
Section. 2 (c) reads: Nothing contained in this Act shall
contravene the interest of the United States in human rights,
especially with respect to the human rights of all the
approximately eighteen million inhabitants of Taiwan. The
preservation and enhancement of the human rights of all the
people on Taiwan are hereby reaffirmed as objectives of the
Sec. 4. (d) 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 first is on human rights. Clearly at the time of the
drafting of the Act, there was concern in the Congress that
the people of Taiwan might not be given the right to determine
their own future. There was at that time, as we can recall, a
different political system on Taiwan. The situation, of
course, has changed. The principle remains the same, but
especially in the Administration, there now is a concern that
the precipitate exercise of this right might bring disaster
not only on Taiwan, but for the U.S. as well. Since the
missile crisis, there are some both in and out of the
Administration, and some in Taiwan as well, who would prefer
to drop this principle when it becomes convenient to do so by
accepting that the wording of the Section in the TRA makes it
no longer applicable.
The second issue is membership in international
organizations. Here again, the situation was different. Some
would interpret the language as making it the reverse of what
it is today. The actions of the ROC in the past permitted
succeeding Administrations to finesse the question of support,
and therefore the issue was never challenged. Today, they say,
the issue is not staying in the international organizations,
but getting in. The wording in the Section, however, does
include "exclusion" as well as "expulsion",
and could be interpreted in a different way. The present
Administration, in the Taiwan Policy Review of 1994, actually
took a step backward by formally stating it would not support
Taiwan's membership in international organizations that
require statehood, a distinction the TRA did not make.
The TRA required the executive Branch to render an annual
report on the U.S. relationship with Taiwan, but for only the
first two years. Thereafter, there has been hearings, on an
irregular basis, and usually with a specific issue within that
relationship in mind. In any event, a report from the
Executive Branch, even one that included AIT, would inevitably
present the Administration's views. Given the differences that
have always existed between the Executive and Congress on U.S.
policy toward Taiwan (the reason behind the Congress asserting
itself in drafting and passing the TRA), Congress is unlikely
to learn much about the issues that most concerns it without
considerable probing of its own. With the always busy
Congressional calendar, this has been a disincentive for more
The TRA left it up to the Secretary of State to "prescribe
rules as he may determine" to carry out the intent of the
law. Guidelines were developed by the Administration on how
U.S. Government personnel, AIT, and the Taiwan representative
office (then CCNAA) were to interact with each other to
conduct this "unofficial" relationship.
The guidelines contain matters that include meetings,
contacts, travel, correspondence, and terminology, among
others. They serve the purpose of keeping the relationship, in
appearances at least, as unofficial. It is a costly and
inefficient system, unilaterally developed on the U.S. side,
and based primarily on what the drafters thought the PRC would
think about all these various activities. None are mentioned
in the TRA, and on occasion, some new guidelines must be
developed to cover unanticipated situations (such as transits
through the U.S., or visits by senior level officials of the
ROC). Once established, of course, they set a precedence which
whenever one is changed, becomes an issue between the U.S. and
the PRC. They also quickly become a part of "policy".
Thus, in the Taiwan Policy Review, almost all of the changes
dealt not with substance, but with matters that are included
in the guidelines. In fairness, Taiwan's own priorities often
seem to be more on the guidelines than on the substance of
Much of the TRA is taken up with many administrative matters
connected with the establishment of the American Institute in
Taiwan. While policy matters are determined by government and
implemented by AIT, administrative matters are often caught in
between the requirements of law regarding the private,
non-profit corporation character of AIT, and the government
regulations that deal with money and other administrative
matters. This is of little interest to Taiwan but should, at
some point in the future, a means of changing or superseding
some elements of the TRA be found, administrative matters
should be included as well.
During the twenty years of TRA experience, there have been
countless times when amending the TRA was discussed. It rarely
went beyond a brief discussion, however, because it was always
almost instantly dismissed as a non-starter. It was, and
remains, conventional wisdom that trying to amend the TRA
carries with it too many risks, regardless of whether the
objective was to strengthen it, or undermine it.
The normal practice for a member of Congress who wishes to
redress some problem that involves the TRA, or is connected
with the relationship in some way, is to introduce a
non-binding resolution. That conveys to the Executive Branch
the sense of Congress, but does not require the Administration
to heed it. In some cases an amendment is added to another
unrelated bill that would have the same effect, but would not
be called an amendment to the TRA. It is, in other words,
difficult for Congress to amend the TRA without opening it to
efforts by the Executive Branch to change it to their liking.
Likewise, it is not easy for the Executive to neutralize the
Act by amending it without taking the same risk. The Taiwan
Policy Review, an Administration initiative, however, while it
made several "policy" changes, were in fact, with
one exception, making changes in the non-substantive
guidelines not covered in the TRA. The exception was the
non-support for Taiwan's membership in the international
organizations, which arguably runs counter to the TRA Sec. 4.
The most important policy established by the TRA was the
commitments on the security of Taiwan Though it is the law,
the wording is open to interpretation, so realistically it
will remain meaningful so as long as the Congress stands
behind it. As time diminishes the number of members of
Congress who took part in the passage of the TRA, the personal
interest of members of Congress, or when they are preoccupied
on other matters, the ambiguity of the language will offer
opportunities for those who might want to weaken that
commitment. But it still remains the pillar of our
relationship with Taiwan.
In terms of policy, the second most important element of
the TRA is the commitment to retain all the laws and
regulations necessary for continuing the commercial, consular
and cultural relations between the U.S. and Taiwan that
existed before. That has permitted the relationship to blossom
both in mutually beneficial commerce but in people to people
relations that is such an important part of that relationship.
That the relationship grew so much during the first decade
of the TRA is a tribute to the efforts made by both sides on
the two important issues of arms sales and commercial/cultural
relations. This emphasis continued in the second decade. But
Taiwan has changed, and other issues that result from Taiwan's
democratization need addressing. The government and its
officials, which have normally been referred to as "authorities",
are now as legitimate as any found anywhere. The society,
broadly speaking, is as open as any found anywhere. And the
conduct of its foreign affairs as subject to the will of the
people as found in any democracy.
Given this transformation of Taiwan into an entirely
different kind of entity, what are the challenges that now
face the U.S. - Taiwan relationship in the future, and has the
TRA any role to play in efforts to adapt other policies to the
new realities? My answer to the latter is yes, but not with
the idea of changing the TRA. As we have seen, that carries
with it many difficulties and is therefore unlikely. By
placing our focus on that possibility, we would be making the
TRA a roadblock to change rather than a basis for it.
More likely is the use of the TRA, with its statements on
various policies toward Taiwan, as support for separate
commitments on specific issues. For example, the TRA contains
the two paragraphs, referred to above, which are directly
relevant to the changes that have taken place on Taiwan, i.e.
Section 2 on human rights, and Section 4 on international
organizations.. They were written at a time when Taiwan was
different than it is today. So was the entire Act. But on some
issues, where there was political will, the language was
interpreted to accommodate to the circumstances of the day.
For these two issues, however, no change in the TRA would be
necessary, but policies that better accommodate to democratic
Taiwan could be pursued with the support of the Act as
In human rights, for example, there was considerable
disappointment in Taiwan when President Clinton made his
statement on the three no's in Shanghai. In rationalizing the
statement, the Administration claims that it represents no
change from the past. In at least one sense, it does. From
1979 to 1995 it was standard policy by all who dealt with the
PRC and Taiwan, that the U.S. does not respond to questions of
support or non-support of independence. U.S. policy has
remained that the two sides were to determine Taiwan's status,
The rationale behind this approach is that while there was
always a concern that the U.S. could be dragged into a
confrontation with the PRC if this was mishandled, and
therefore a good reason to hope no unilateral change by either
side would be tried, the U.S. in this way would also avoid not
supporting a fundamental human right- the right of people to
choose their own future.
Now that there has been an explicit statement from the U.S.
in this matter, I believe there should also be an explicit
statement that any change in Taiwan's status should have the
consent of the people on Taiwan. If one reads the hearings and
the subsequent comments by drafters of the Act, it shows that
such a position was clearly the intent of Sec. 2 (c).
Arguments that this requirement is implicit in the U.S.
position that there be a peaceful resolution, does not
sufficiently cover this commitment.
Likewise with the issue of Taiwan's membership in
international organizations. The U.S. has said, both in the
Taiwan Policy Review of 1994, and in the Shanghai statement
made by President Clinton, that it would not support Taiwan's
membership in any international organization that requires
statehood. Since that statement in both instances was not
challenged directly by the Congress, it is unlikely that the
policy could now be turned around. More so as the
Administration would claim rightly that it would create a
serious strain in the U.S. - PRC relationship.
The TRA could still be used, however, as a basis for
beginning the process of seeking support for some kind of
participation by Taiwan in the international community. There
are alternatives that could avoid contradicting the commitment
made in the U.S. statement on not supporting Taiwan's
membership in international organizations, by supporting not "membership"
but some other form of participation, for example.
In the U.S., it is understood in government and among
experts that Taiwan is fully qualified , and even needed, to
participate in the international community. It is also clear,
however, that it is PRC objections that prevent this issue
from being equitably addressed. There may be other means of
accomplishing the same purpose. Even more important is the
need to encourage the U.S. to adopt a different public stance
toward this issue in its relationship with the PRC.
Instead of moving toward a more closer identity with the PRC
position on the Taiwan Strait issue, without changing U.S.
policy, it could alert the PRC that the U.S. believes
Beijing's policy toward Taiwan is dangerously outdated. That
the democratic political system that now exists on the island
is irreversible, and that no viable resolution, whatever it
might be, is realistic without the consent of the people on
Taiwan. Justifying support for some kind of participation by
Taiwan in the international community should be seen in this
light, and would not contradict the long-standing U.S.
commitment that a resolution of the issue must still be
decided by both sides.
This would require more political will in Washington than
the recent past has shown. Beijing's strong opposition is no
small obstacle to overcome. Still a more realistic approach by
the U.S., and hopefully by the international community, that
recognizes the changed circumstances democracy has brought to
Taiwan, but which does not seek to interfere in the ultimate
resolution of the differences on the two sides of the Strait,
might gradually take hold.
The Taiwan Relations Act has demonstrated its worth in
making available the means for Taiwan to defend itself, which
is its most fundamental necessity. The U.S., under the TRA,
also encouraged democracy, and helped Taiwan in its efforts in
developing the expansion of its economy to international
dimensions. But as experience has shown, the TRA leaves great
room for interpretation, and it depends greatly on the
attention, and the interest, of the Congress. That will
continue to be the case. But will the TRA be equally effective
in helping Taiwan cope with the changes that continue to take
The economy of the PRC, even with the enormous problems that
make its growth so uncertain, has already grown to a point
where it has international, and especially regional,
influence. The globalization of economics, even with the
problems that has encountered in recent months, has put Taiwan
at a disadvantage in dealing with the increasingly important
international organizations. And its democratization has
forced domestic political factors to be given a much higher
priority in its international relations.
The TRA has not been useful in developing new American
policies that can recognize the legitimacy of the democracy
that now already exist on Taiwan, and the need to correct its
exclusion from the international community of which it is a
part. These are the most important commitments Taiwan needs
from the international community, including the U.S.
In the meantime, Taiwan has its own very difficult
challenges to meet. None is more important than gaining a
reasonable domestic consensus on the relationship with the
PRC. Too often, the objective in seeking consensus is expected
to be on a final resolution of this issue (an expectation
generated in no small part by the PRC). But a consensus on an
interim arrangement leaving open the free choice of the people
on Taiwan for the future, might do much to garner
international support for the two issues, human rights and its
place in international organizations, mentioned in the TRA.