Assessing the Congressional Intent of the Taiwan Relations Act

Assessing the Congressional Intent of the Taiwan Relations Act

Assessing the Congressional Intent of the Taiwan Relations Act

Through 2019, the United States and Taiwan are commemorating the 40th anniversary of the enactment of the Taiwan Relations Act (TRA) in April 1979. Without the benefit of hindsight, Congress was brilliant in crafting the legislation that has governed policy concerning Taiwan. Nonetheless, issues have persisted, including whether the law obligated arms sales or assistance to defend Taiwan and whether the TRA precluded military and other official contacts. An issue has been whether policy deviated from the law, and if so, how to reset policy. The Congressional intent is critical to ensure that policy is carried out into the future in adherence to the TRA.

While it sounds braggadocious for Congress, it was brilliant in crafting the TRA that has enjoyed bipartisan support, seen implementation by successive presidents, and promoted US and international interests under changing conditions for a prosperous and free Taiwan. [1] As an economic and security partner, Taiwan has contributed to the rules-based order. Taiwan uniquely has shown a better path of democracy for people in Chinese-speaking societies.

Nonetheless, important issues have persisted about the TRA. Clarity about the congressional intent helps to understand the TRA’s political and legal obligations in policy. It is crucial to ensure that policy has institutional compliance with the TRA, not subject to presidential or other individual whims. Congressional oversight and other actions continue to be critical, especially in any differences between the president and Congress over how to implement policy. Misperceptions could be dangerous in undermining stability. For example, it is a misperception that high-level military and other official visits are inconsistent with US policy. Since the first cabinet-rank visit to Taiwan after 1979 (US Trade Representative Carla Hills’ visit in 1992), long gaps in senior official visits blow them out of proportion.

How Would US Policy Adhere to the TRA’s Congressional Intent? 

(1) As P.L. 96-8, the TRA needs to regain the premier place in policy. The Foreign Relations Authorization Act for FY1994-FY1995 (P.L. 103-236) declared that Section 3 of the TRA (i.e., on arms sales) takes primacy over statements (i.e., the Joint Communiqué of 1982 with the People’s Republic of China, or PRC). Sometimes, officials including the secretary of state have failed to cite the TRA in referring only to the US “One-China” policy and the three US-PRC Joint Communiqués. The State Department‘s so-called “fact sheet” on Taiwan (dated August 2018) started by referring to the Joint Communiqué of 1979 then later cited the TRA. Congress saw improvement in David Stilwell‘s statement of March 2019 to the Senate Foreign Relations Committee for his nomination as assistant secretary of state for East Asian and Pacific Affairs. Familiar with Taiwan, Stilwell rightfully referred first to the TRA, then the Communiqués.

(2) It is not an egregious violation of policy to call Taiwan a country. Section 4(b)1 required that references to foreign countries in US laws “shall” apply to Taiwan. Under domestic laws, the United States treats Taiwan as a country, despite the lack of diplomatic recognition of the Republic of China (ROC). In 2012, Taiwan became the 37th country to join the Department of Homeland Security’s Visa Waiver Program. In November 2018, Secretary of State Michael Pompeo referred to Taiwan among eight countries given temporary allotments to import oil from Iran. In June 2019, the Defense Department‘s Indo-Pacific Strategy Report used “countries” in referring to Mongolia, New Zealand, Singapore, and Taiwan. This word is not a change in US diplomacy but is common-sense language in recognition of realities of official ties with a democratic country. In July, the administration formally notified Congress in a normalized process of proposed arms sales to Taiwan of M1A2T Abrams tanks, Stinger air defense missiles, and enhanced TOW 2B and Javelin anti-armor missiles. These programs, not a “package,” are government-to-government Foreign Military Sales (FMS).

(3) The TRA expected a peaceful process but not any particular outcome for the question of Taiwan. The TRA even did not discuss the “One-China” policy. US policy has been premised on Taiwan’s unsettled status. The Communiqués showed US-PRC differences. Section 2(b)(3) stated the US expectation that the future of Taiwan “will be determined” by peaceful means. US policy does not support Taiwan’s independence, as the State Department’s anodyne “fact sheet” noted. Nonetheless, non-support is neutral and does not necessarily mean opposition.

Lester Wolff, a representative who managed the legislation as the chairman of the House Foreign Affairs Subcommittee on Asian and Pacific Affairs, has explained that Congress did not attempt to determine Taiwan’s destiny, except to support self-determination for its people. [2] Wolff has stressed in interviews with me up to 2019 that the congressional intent is important because of the TRA’s ambiguity. [3] Congress wanted to ensure Taiwan’s viability, regardless of the US “One-China” policy. Congress sought to protect Taiwan’s integrity and its people’s ability to govern themselves (de facto independence), so that they are not put under the PRC’s autocratic, communist rule. Wolff has emphasized that Taiwan’s people should have faith in the United States.

(4) The TRA did not characterize the bilateral relationship as unofficial or official. The State Department’s so-called “fact sheet” has been wrong and unrealistic to claim that the TRA “provides the legal basis for the unofficial relationship between the United States and Taiwan […].” In fact, Section 2(b)(1) declared that it is US policy “to preserve and promote extensive, close, and friendly commercial, cultural, and other relations between the people of the United States and the people on Taiwan, as well as the people on the China mainland and all other peoples of the Western Pacific area.” Congress objected to use of “unofficial” for the relationship. Wolff has confirmed that the TRA did not call the relationship “unofficial,” while stressing that “indeed, the TRA is official policy passed by Congress.” The TRA allowed ambiguity.

Thus, the TRA is not an excuse to limit military and other official engagement. Relaxing or removing restrictions on contacts with Taiwan’s officials would reset policy in compliance with the TRA’s stipulation to promote this relationship. An important option is to change the State Department’s policy of self-imposed restrictions on contacts between the executive branch and Taiwan’s officials that can be counter-productive for communication and cooperation. Senior officials on both sides have pursued direct communication instead of the American Institute in Taiwan chairman’s indirect, inadequate interventions. The Taiwan Assurance Act (S. 878, H.R. 2002) would require the president to review the State Department’s Guidelines on Relations with Taiwan as a part of that policy.

(5) The TRA called for the pursuit of parallel ties with Taipei and Beijing. As seen in the latter language of Section 2(b)(1) above, the TRA was not anti-China. The TRA did not promote ties with Taipei as a tool to deal with Beijing. On the eve of switching US diplomatic recognition from the ROC to the PRC, some members of Congress visited the PRC in the second half of 1978. In July 1978, an important congressional delegation led by Wolff met with PRC paramount leader Deng Xiaoping, who gave an assurance about respecting Taiwan’s reality in working toward a peaceful resolution, but without renouncing the possible use of force.

(6) While the TRA provided for a legal and political obligation to assist Taiwan’s self-defense, the law did not require in advance that the United States “shall” help to defend Taiwan. Section 2(b)(6) stipulated that it is policy to maintain the US capacity to resist any resort to force or other forms of coercion that would jeopardize the security, or the social or economic system, of people on Taiwan. Nonetheless, Congress did not intend necessarily to avoid helping to defend Taiwan. According to Wolff, the TRA is not an absolute guarantee for Taiwan’s defense, because Congress intended to subject any future decision on an act of war to action by Congress, not only the president. [4] Senator Jacob Javits explained that Congress did not seek to reconstruct a defense agreement with Taiwan. Still, Congress considered broad threats. [5] The TRA cited coercion as well as force, because China could apply an embargo or other coercion short of military force.

(7) It follows that the TRA embodied an expectation of Taiwan’s self-defense. Section 3(a) stated that the United States will make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capability. The TRA entailed mutual obligations in security, as Wolff confirmed. The TRA did not mean a US-only obligation but expected Taiwan to maintain its self-defense. [6]

(8) Section 3(a)’s language also provided the legal and political obligation for arms sales to Taiwan but did not require that such assistance “shall” be offered. Relatedly, Section 2(b)(5) stipulated policy to provide Taiwan with arms of a “defensive character.” This phrase has been misconstrued to delay or deny approvals for weapons systems, even though weapons cannot be simplistically labeled as offensive or defensive and Taiwan’s military strategy is inherently defensive against China’s threats. As a representative who led the congressional debate on arms sales, Wolff has stated the expectation that they involve “state-of-the-art defense equipment.” [7]

(9) Congress intended that China has no role in determining defense equipment or its quality or quantity to be offered to Taiwan, Wolff confirmed. [8] Not simply a statement of policy, Section 3(b) required that the president and Congress “shall determine” the nature and quantity of defense articles and services “based solely” upon their judgment of Taiwan’s needs. However, past administrations did not adhere always to normal decision-making based solely on Taiwan’s defense needs, for example, by withholding notifications to Congress of FMS in so-called “packages” out of considerations for China.

The main point: It behooves policymakers in Washington to adhere to the TRA’s congressional intent to promote a normal partnership with Taipei in parallel with dealing with Beijing. The TRA’s ambiguity allows for flexibility in engagement with Taiwan, contrary to the State Department’s claim of “unofficial” ties to excuse self-imposed restrictions on contacts.

[1] At a hearing in October 2011 of the House Foreign Affairs Committee, Assistant Secretary of State Kurt Campbell called the TRA one of the most important acts of “legislative leadership” and foreign policy in US history.

[2] Lester Wolff, Jon Holstine, and John Brady III, A Legislative History of the Taiwan Relations Act, Vol. 4. (Arlington, VA: Pacific Community Institute, 2004).

[3] This article’s references to views of Lester Wolff are based on the author’s interviews by phone and in person, March 2017 to February 2019.

[4] Ibid.

[5] Jacob Javits, “Congress and Foreign Relations: the Taiwan Relations Act,” Foreign Affairs (Fall 1981).

[6] The Defense Department issued a speech at the annual US-Taiwan defense industry conference in 2005 in San Diego, stressing that “under the TRA, the US is obligated to ‘enable’ Taiwan to maintain a sufficient self-defense, but the reality is, it is Taiwan that is obligated to have a sufficient self-defense.”

[7] This article’s references to views of Lester Wolff are based on the author’s interviews by phone and in person, March 2017 to February 2019.

[8] Ibid.