20 years Taiwan Relations Act

Taipei, 7 November 1998. At the Second International Symposium on Taiwan's National Security, which was held in Taipei on 7 November 1998, Mr. Nat Bellocchi, the former Director of the American Institute in Taiwan, gave the following analysis of 20 years of experience with the Taiwan Relations Act. The U.S. Congress passed the Act in 1979 after president Jimmy Carter decided in December 1978 to break diplomatic relations with the Kuomintang regime in Taipei.

New US policies for a New Taiwan

Nat Bellocchi

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 affairs.

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 the TRA.

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 exist.

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 United States.

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 frequent hearings.

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 policy.

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 written.

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, peacefully.

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 place?

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.

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