The Enduring—If Troubled—Genius of the Taiwan Relations Act, 45 Years On

The Enduring—If Troubled—Genius of the Taiwan Relations Act, 45 Years On

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The Enduring—If Troubled—Genius of the Taiwan Relations Act, 45 Years On

The enduring, multifaceted, and partly accidental, genius of the Taiwan Relations Act lies in its somewhat Janus-faced qualities—its combinations of fixity and flexibility, boldness and reserve. In a time of fraught and rivalrous US-China relations and heightened concerns about the PRC’s coercion of Taiwan and potential cross-Strait crises, it is perhaps too easy to understate the TRA’s past and ongoing value. Adopted at a moment of apparent great peril for Taiwan, the TRA has been a significant and persisting pillar of US policies that have been critical to maintaining the status quo, avoiding conflict across the Taiwan Strait, and sustaining Taiwan’s autonomy. These attributes have been key to the TRA’s prior contributions and are still salient strengths in an increasingly difficult environment.

In its substantive content, the TRA had to accommodate the end of formal relations and the security pact between the United States and the Republic of China (ROC, Taiwan) that were necessitated by the terms of the agreement with Beijing to normalize US-PRC relations. At the same time, it helped to bring about—by writing into legislation—a “second best” or “lite” version of what Taiwan had just lost. In lieu of diplomatic ties, the TRA established an institutional structure for highly robust informal relations (through the American Institute in Taiwan [AIT], staffed by personnel seconded by the State Department); conferred the equivalent of the sovereign and diplomatic immunities enjoyed under US law by recognized foreign states and their entities and officials; authorized the continuation of commercial, cultural, and other relations; and reaffirmed support for a significant degree of international participation (including continued membership in international organizations). In the absence of a mutual defense treaty, the TRA stated that US policy is to maintain the capacity to resist force or coercion by China that would jeopardize the security of “the people on Taiwan,” to provide “arms of a defensive character” consistent with Taiwan’s needs, and to “make clear” the “expectation that the future of Taiwan will be determined by peaceful means.”

A pair of unchanged provisions in the TRA have evolved, with changing circumstances, into more compelling sources of US support for Taiwan and the status quo. As Taiwan became a vibrant, liberal democracy, the TRA statement of US opposition to determining Taiwan’s future by “other than peaceful means,” and its expression of US interest in the human rights of the inhabitants of Taiwan (which was, at the time, ominous for the then-authoritarian regime in Taipei) came into alignment with the broad and lasting—if somewhat inconsistent—theme in US foreign policy of support for democracy, human rights, and kindred values.

The TRA’s Distinctive Role in US Policy

Structurally, the TRA has held a distinctive and valuable place for the United States’ “One-China Policy” and its approach to cross-Strait issues—and in turn, US-China relations more broadly. It is unique among the four (or five) pillars of US Taiwan policy: the TRA and the three US-PRC Joint Communiqués (and the Six Assurances which accompanied the Third Communiqué, but which joined the pantheon only during the last decade and a half and were not officially declassified until 2020). In contrast to the Six Assurances (and many other, generally lesser statements of U.S. policy on Taiwan issues), the TRA is a long-public and highly authoritative—indeed, an act of Congress signed by the president— statement of US positions. In substance, it is more strongly “pro-Taiwan” than the communiqués, replete with provisions to which China would never agree (and which Beijing has regularly denounced). Moreover, it is devoid of the acknowledgements of Beijing’s (and, at the time, Taipei’s) “One-China” positions on which the PRC has long insisted and which are partly reflected in the three canonical US-PRC bilateral statements.  

Unlike the three communiqués, the TRA is a unilateral US creation and, indeed, a part of US domestic law. As such, it is better insulated from critique or pushback by the PRC. The PRC, unlike the US, regards the communiqués as treaty-like documents with international legal significance and, in turn, subject to the decentralized and multilateral rules of international legal interpretation. Although Beijing asserts that the TRA, like US Taiwan-related policies and practices more generally, violates US obligations under international law, China’s oft-repeated opposition to foreign meddling in another state’s exercise of its sovereign powers to make its own internal laws diminishes the force of Beijing’s TRA-targeting arguments. 

In this respect, the TRA is an impressive feat of acoustical separation. It is formally an act of domestic law-making, entailing no international commitments. It eschews positions on the nettlesome and provocative international legal and policy questions of whether Taiwan is a state and whether it is proper to accord it the privileges and powers of a state—including opportunities for formal diplomatic relations, membership in a security pact, or entitlement to sovereign immunity. Instead, it provides (merely) that Taiwan be treated in US law and practice as if it had many or all of those attributes—an arrangement that, of course, has practical implications for US-Taiwan ties, cross-Strait relations, and US policy toward China. 

The TRA is, thus, formally modest (concerning international legal issues) but substantively bold (in terms of articulating and embedding US Taiwan policy). In this respect, the TRA resembles the Anti-Secession Law (ASL, 反分裂國家法), which the PRC enacted in 2005 and which reads as an attempt to replicate (wittingly or not) this virtue of the TRA. The ASL, too, is formally an act of domestic legislation, and one with significant external implications, including the assertion of a right to use force to achieve “unification” with Taiwan. But there the resemblance mostly ends, and the contrast between the two constitutes another relative strongpoint of the TRA. The TRA assumes and accepts the status quo that existed in the real world circa 1979, and casts that status quo in sufficiently vague terms that the present-day reality remains consistent with the TRA’s framing and the asserted durable interest of the US in preventing coerced change.

With the TRA viewed in this way, the ASL looks like a funhouse mirror reflection. It is operationally restrained. Its conditional threat to use force would be triggered if Taiwan were to attempt secession, something which the ASL assumes has not occurred. But the ASL is—unlike the TRA—conceptually highly immodest in asserting Taiwan’s status as clearly a part of China or the PRC. This claim is, at minimum, in tension with the existing situation of a highly autonomous, arguably de facto independent, Taiwan. In this context, the ASL’s asserted right to use force looms as a potential trigger for conflict and instability, even absent a change in the actual circumstance across the Strait.

Consistency amid Change

While the text of the TRA has stood fundamentally unaltered since its enactment, it has been compatible with—and, indeed, facilitated—repeated adaptations of a largely stable US approach. This pattern has held amid circumstances that have been strikingly varied. Eight presidential administrations in the United States and five in Taiwan, as well as four different top leaders in Beijing, have brought significant shifts in each of the three parties’ respective approaches to cross-Strait issues. Behaviors by Beijing have ranged from once-seemingly-expansive offers of a now-discredited “one country, two systems” (一國兩制) model for Taiwan’s unification, to the fraught cross-Strait crisis of the middle 1990s, to seemingly open-ended tolerance for the status quo and support for peaceful development of cross-Strait relations, to reaffirmations of Beijing’s claims of rights to use force to achieve unification, to the adoption of escalating gray zone tactics, to an imperative to develop capabilities to take Taiwan by force. Taiwanese leaders’ approaches have ranged from the apparent flirtation with formal independence at some points during Chen Shui-bian’s (陳水扁) presidency and Lee Teng-hui’s (李登輝) characterization of the relationship between Taiwan and the mainland as akin to “state-to-state” relations, to Ma Ying-jeou’s (馬英九) agenda of rapprochement and “One-China, different interpretations,” or Chiang Ching-kuo’s (蔣經國) inherited commitment to a single China that included the mainland and Taiwan.

For the United States, the TRA’s felicitous mix of limitation and entrenchment have been an important part of this story of adaptation in the service of enduring, broad aims. The TRA purports to impose only relatively modest constraints on the president and the US administration. Under the terms of the law, the president retains great discretion on the timing and scale of any arms sales, the substance of the quasi-diplomatic relations Washington conducts with Taipei, and the extent and form of US support for Taiwan’s international participation and security. If the TRA had sought to do much more, it would have transgressed the norms and practices—and, in relatively extreme cases, the constitutional law of separation of powers—that accord the executive branch extensive power, discretion, and deference in foreign and national security affairs.

At the same time, the TRA’s stable content and its stature as federal law have been vital features as well. When US officials have strayed too far or too fast from the US’ relatively capacious and evolving “One-China Policy,” or have made statements that Beijing and other critics can cast a significant changes in US policy, they or their staff have been better able to walk back such missteps or rebut such characterizations because they could steer toward the “home base” or the “safe harbor” of the four (or five) venerable texts of the US’ Taiwan policy, with the TRA first and foremost among them. The most recent of many examples over the years include President Joe Biden’s repeated statements that the United States would defend Taiwan with military force in the event of an unprovoked attack by Beijing, as well as the ensuing statements of continuity in US policy in response to charges that Biden had scuttled the hoary doctrine of “strategic ambiguity.” An especially prominent, and broadly similar instance was the statement by President George W. Bush that he would “do whatever it takes” to defend Taiwan from a Chinese attack, and the assurances that soon followed, insisting that there had been no change in Washington’s Taiwan policy.

The TRA also has helped enable US leaders and officials to play—if often only implicitly—a two-level game. In the face of pressure from Beijing to accommodate its demands or interests on Taiwan issues, the TRA provides a convenient constraint as a long-standing and legally binding act of Congress—more formidable than mere US foreign policy precedents, past practices, or even the three joint communiqués which, in the US view, the president would be legally free to cast aside.

Recent Developments and Future Paths

Given the TRA’s history as the legislative foundation of US Taiwan policy, what are we to make of the surge since 2016 of laws addressing Taiwan policy, which has occurred after decades of frequently introduced but almost-never-passed legislation? Many of the laws from the last several years—including the Taiwan Travel Act, the TAIPEI Act, the Asian Reassurance Initiative Act, and provisions in several National Defense Authorization Acts (NDAA)—can be fairly characterized as “pro-Taiwan” in the sense of advocating continuing, and in some respects, strengthened US support for Taiwan, its security, and its participation in international affairs. Much of this legislation explicitly reaffirms the TRA and its aims. Much of it is consistent with the principal policies and practices pursued by presidential administrations of both parties. Virtually all of it follows the TRA’s template of not purporting to seriously constrain executive branch discretion in foreign affairs. These new laws rarely go beyond urging the administration to adopt policies or take actions that would be more supportive of Taiwan, or ostensibly authorizing the president to take steps the president is already empowered to take (such as increasing arms transfers, ordering port calls by US ships, allowing contacts between higher-level US and ROC officials, or pressing other states to maintain diplomatic ties with Taiwan or support its participation in international organizations), or requiring reports from executive branch officials that might trigger additional, likely similar, legislation.

Sharper or more inflexible commitments to Taiwan in legislation that revises or supplements the TRA can only do so much to address the mounting challenges for US policy that stem from the PRC’s growing economic and military prowess, the US’ waning relative power and correlative need to collaborate with friends and partners in the region and beyond who do not have uniform views of Taiwan’s place in their own security, increased skepticism in Taiwan about US capacity and will, and China’s expanding reliance on escalating gray zone tactics and misinformation targeting Taiwan’s democracy as means to pressure Taiwan. Among other issues, the relative precision and fixedness of legislative language—or, at least, legislative language with any bite—is poorly suited to addressing such issues.

Moreover, the recent and possible future proliferation of “pro-Taiwan” lawmaking risks doing more harm than good. Such laws—even ones without substantial novel content—can imperil the TRA’s stature as a lodestar and an anchor for US policy and a shield against pressures for unwelcome or unwise changes to policy. Some elements in the recent wave of legislation can be too easily, and sometimes persuasively, framed as heavy on symbolism and light on substance, needlessly provocative toward the PRC—or facilitating feigned outrage from Beijing—while doing little to protect Taiwan’s security and the US’ interests in Taiwan’s security. Congressional statements of stronger commitments to Taiwan also can reinforce the concern raised by critics that US policy pays too little attention to the principle that deterring an adversary from undertaking unwanted actions requires not only the “stick” of credible threats of negative consequences, but also the “carrot” of assurances of better outcomes for the adversary if its behavior is compliant.

The TRA has never been more than one particularly important instrument in the US toolkit for seeking peace, stability, and deterrence of coerced change in the cross-Strait status quo. This remains true in today’s newly difficult environment. The understandable quest for effective means to achieve increasingly elusive or imperiled ends need not—and should not—lead us to discount either the past and continuing utility of the TRA, or the risks that would attend disregarding or undermining the benefits that derive from its singular place in US policy.

The main point: Despite major changes in Taiwan, cross-Strait, and US-China relations and global geopolitics, the Taiwan Relations Act has consistently served as a foundational element of US policy. Recent legislative efforts to reaffirm or strengthen the US-Taiwan relationship—while intended to be beneficial—could risk undermining the TRA’s enduring strength and are not effective means to address current challenges.