On the evening of Thursday, February 9, 2017, President Donald J. Trump spoke for 45 minutes by phone with People’s Republic of China (PRC) State Chairman, Xi Jinping. According to a “senior US official”, it took only five minutes for the Chinese leader to mention Taiwan: “I would like you to uphold the ‘One China’ policy,” Chairman Xi requested. The President replied, “At your request, I will do that.”
And the issue was laid to rest.
That evening, the White House issued a press release announcing that, among the “numerous topics” discussed, “President Trump agreed, at the request of President Xi, to honor our ‘one China’ policy” [emphasis added]. Immediately, hundreds of news outlets reported across the world that President Trump had abandoned his support of Taiwan and embraced the “One-China” principle.
Fake News? The White House release clearly stated that what the President had agreed to honor was not China’s “One-China” Principle,” but rather “our ‘One China’ policy.”
Indeed, “our ‘One China’ policy” has been a specific diplomatic formulation followed by the US Department of State for at least the past 15 years—usually accompanied by the explanation that it is “based on the Taiwan Relations Act and the Three Communiqués.”[1] Beijing’s “One-China” principle is an entirely different creature that insists that Taiwan Island is an integral part of Chinese territory over which the Beijing government has sovereignty in international law.
So, what exactly is “our One China policy based on the Taiwan Relations Act and the Three Communiques”?
Perhaps the most authoritative articulation of “our ‘One China’” is in a formal testimony to the US Congress by then-Assistant Secretary of State for East Asian and Pacific Affairs James Kelly on April 21, 2004. Secretary Kelly briefed the House International Relations Committee on the 25th anniversary of the signing of the Taiwan Relations Act is the legislation that sets the legal basis for the conduct of defense, commercial, cultural and other normal foreign relations with Taiwan in the absence of formal diplomatic recognition of the “Republic of China” government in Taipei.
Among the definitive sections of the TRA, the section central to its legal authority states: “Whenever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan” at §3303(a), (b)(1), [emphasis added].
The 2015 Supreme Court decision, Zivotofsky v. Kerry, quoting the Solicitor General of the United States, observes that the TRA “treated Taiwan as if it were a legally distinct entity from China—an entity with which the United States intended to maintain strong ties.” For the purposes of United States law, Taiwan is a “country, nation, state, government,” to be treated juridical exactly like any other. In Zivotofsky , the Judicial Branch posited the question of how the Executive Branch viewed the People’s Republic of China’s claim that “Taiwan is a part of China.” The Court’s decision recorded that, “The Solicitor General explains that the designation ‘China’ involves ‘a geographic description, not an assertion that Taiwan is . . . part of sovereign China’,” an explanation that the late Justice Antonin Scalia wryly endorsed, writing, “Quite so.”
So, what is the legal force of the “Three Communiqués,” particularly the December 16, 1978, communiqué in which the United States “acknowledges the Chinese position” that Taiwan is part of China? The Court in Zivotofsky points out that “according to the Solicitor General, the United States ‘acknowledges the Chinese position’ that Taiwan is a part of China, but ‘does not take a position’ of its own on that issue.”
The Taiwan Relations Act is, therefore, necessarily the core legal component of “our ‘One China’ policy.” Indeed, the Taiwan Relations Act—the foundation of “our ‘One China’ policy” emphasizes that US relations with Taiwan are separate from its relations with China.
Indeed, in the course of his 2004 testimony to the US Congress, then-Assistant Secretary of State for East Asian and Pacific Affairs James Kelly used the term “our ‘One China’” five times. Mr. Kelly explained that “The TRA [Taiwan Relations Act], along with the three communiqués and our one China policy, form the foundation for the complex political and security interplay among China, Taiwan and the United States.” (Note that Secretary Kelly’s statement gave precedence to the TRA before the “Three Communiqués.”) Mr. Kelly continued, “This is a unique situation, with sensitive and sometimes contradictory elements.”
Puzzled about this, one member of Congress asked the obvious question: “can the evolution of full-fledged democracy on Taiwan and the clear emergence of a sense of Taiwanese identity meld with the principle of One China, or are they in stark contrast with each other?”
Without hesitation, Secretary Kelly responded:
… In my testimony, I made the point our one China, and I really did not define it. I am not sure that I very easily could define it.
I can tell you what it is not. It is not the one China policy or the one China principle that Beijing suggests, and it may not be the definition that some would have in Taiwan, but it does convey a meaning of solidarity of a kind among the people on both sides of the Strait that has been our policy for a very long time.
Still not convinced? The State Department also made a confidential representation to the United Nations in August 2007 when UN Secretary General Ban Ki Moon asserted that, under the terms of UN General Assembly Resolution 2758 of October 1971, “the United Nations considers Taiwan for all purposes to be an integral part of the People’s Republic of China.”
To this, the United States Mission issued a counter-demarche saying:
The United States reiterates its One China policy which is based on the three US-China Communiqués and the Taiwan Relations Act, to the effect that the United States acknowledges China’s view that Taiwan is a part of China. We take no position on the status of Taiwan. We neither accept nor reject the claim that Taiwan is a part of China.
According to the Wikileaks database, the US ambassador to the UN, Zalmay Khalilzad, reported to the Secretary of State on August 16, 2007, “Ban said he realized he had gone too far in his recent public statements, and confirmed that the UN would no longer use the phrase ‘Taiwan is a part of China,’ as reported reftel.”
If “our ‘One China’ policy” is good enough for the Supreme Court and the United Nations, then I suppose we should all agree that it is good enough for President Trump.
The main point: The phrase “our ‘One China’ policy based on the Taiwan Relations Act and the Three Communiques” is a proposition entirely distinct from Beijing’s “One China Principle.” The Act itself is the controlling legal core of “our ‘One China’ policy,” while the “Three Communiqués” are diplomatic imprecisions in which, according to the Solicitor General of the United States, “the United States ‘acknowledges the Chinese position’ that Taiwan is a part of China, but ‘does not take a position’ of its own on that issue” and, indeed, the United States believes “the designation ‘China’ involves ‘a geographic description, not an assertion that Taiwan is . . . part of sovereign China.’”
[1] My database has dozens of hits for “our ‘One China’”, beginning with “U.S. Department of State Daily Press Briefing Index, 1:10 p.m. — Thursday, June 27, 2002, Briefer: Richard Boucher, Spokesman.”