The Taiwan Relations Act at 45: Incremental Clarity of Intent

The Taiwan Relations Act at 45: Incremental Clarity of Intent

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The Taiwan Relations Act at 45: Incremental Clarity of Intent

This year marks the 45th anniversary of President Jimmy Carter’s signing of the Taiwan Relations Act (TRA) as law of the land in the United States. An extraordinary legislation enacted by the US Congress to legally govern the informal relationship between the United States and Taiwan following the severance of official diplomatic ties, the TRA has provided both an enduring legal framework and a set of policy guidance that has helped to preserve peace and promote prosperity across the Strait for nearly half a century.

Following the normalization of relations between the United States and the People’s Republic of China (PRC), the passage of the TRA codified sui generis American obligations and commitments to Taiwan. US policy toward Taiwan, however, was not created in a vacuum. In fact, the US normalization of relations with the PRC was predicated on severing diplomatic ties with the Republic of China (ROC)—Taiwan’s official name—and abrogating the US-ROC Mutual Defense Treaty. While the normalization of ties was established on a set of clear expectations that formed the basic tenets for bilateral ties, the conditions under which these relationships have unfolded have evolved significantly. Simply put, 2024 is not 1979.

Notwithstanding the constantly changing geopolitical environment, the legal framework and policy guidance provided by the TRA afforded a high degree of flexibility, allowing Washington to maintain the “status quo” across the Taiwan Strait when either Taipei or Beijing tested the limits of its boundaries. In 1994, the US government released the results of its first and only formal and comprehensive review of its Taiwan policy. However, it has been 30 years since the United States has done something similar. Accordingly, in this special issue of the Global Taiwan Brief commemorating the 45th anniversary of the TRA, we asked six experts to provide their assessments of the legislation’s bandwidth, durability, and applicability in the 21st century.

Taiwan Policy Review at 30

As cross-Strait relations began to thaw in the early 1990s, the US government conducted its first and only official and comprehensive review of US policy toward Taiwan since the switch in diplomatic recognition. The Taiwan Policy Review (TPR, hereafter “Review”) recalibrated the policy approaches of the United States toward Taiwan while leaving the basic framework of policies toward the PRC and Taiwan fundamentally unchanged. Specifically, the TPR laid out—among other proposals—nine policy adjustments to the United States’ approach to its relations with Taiwan. The Review was a prescriptive list defining some of the parameters of existing policy and what the executive branch proposed to do to enhance the conduct of relations between the United States and Taiwan in light of changing circumstances.

Equally significant, however, the TPR was not a prohibitive list of what the executive branch cannot or will not do. As noted by Winston Lord, who was then assistant secretary for East Asian and Pacific Affairs, the TPR was intended to “enhance our unofficial ties with Taiwan. Our goal is to reinforce the success of the fundamental policy approach […] which has promoted peace and growth in the region while accommodating changing circumstances in ways that advance US interests.”

While the United States and Taiwan’s efforts at maintaining the status quo have helped to preserve peace and prosperity across the Taiwan Strait over the last 45 years, these policies appear increasingly untenable in the wake of China’s growing belligerence. Through both military and non-military meansemploying both political and legal warfareBeijing has unceasingly and aggressively sought to change the status quo. With both the TRA and TPR long past, it is worth asking a basic but essential question as to whether a new review is necessary to ensure that the policies and approaches undertaken by the TRA remain fit for their purpose of ensuring peace and security across the Taiwan Strait.

Incremental Clarity of Taiwan Policy under Trump and Biden

Over the past 30 years, China’s actions have grown increasingly aggressive vis-à-vis Taiwan and the world, forcing the United States to take a hard look at updating its policies and practices to better reflect objective reality.

Clarifying Policy and Updating Contact Guidelines

In 2020, the US government declassified the Reagan Administration’s Six Assurances, along with several internal memos and cables, which provided context behind the key policy decisions of the era. Indeed, as President Ronald Reagan made clear in a 1982 memo, the US commitment to Taiwan’s self-defense is “conditioned absolutely upon the continued commitment of China to the peaceful solution of the Taiwan-PRC differences.” To further clarify the stance taken by the US government and to justify some of the adjustments in the US government’s approach to Taiwan policy over recent years, then-Assistant Secretary of State for East Asia and Pacific Affairs David Stilwell delivered a major Taiwan policy speech in late August 2020 that highlighted these points:

What we are doing […] is making some important updates to our engagement with Taiwan to better reflect these policies and respond to changing circumstances. The adjustments are significant, but still well within the boundaries of our “One-China Policy.” […] We feel compelled to make these adjustments for two reasons. First, because of the increasing threat posed by Beijing to peace and stability in the region, which is a vital interest of the United States. […] The second reason we have been focusing on our engagement with Taiwan is simply to reflect the growing and deepening ties of friendship, trade, and productivity between the United States and Taiwan.

Beijing’s actions, which have become increasingly coercive, unilateral, and detrimental to US interests, necessitated adjustments to the changing circumstances. Accordingly, Washington began to gradually remove the self-imposed restrictions on conducting its informal relations with Taiwan. In 2021, the Trump Administration lifted all “contact guidelines” with Taiwan. (The Biden Administration inevitably released new guidelines of its own in April 2021.) But, as the invitation for Taiwan’s representative to attend President Biden’s inauguration made clear, some of the self-imposed restrictions had stayed off the books.

Incremental Clarity on the Defense of Taiwan

While the United States has not had a mutual defense treaty with Taiwan since 1979, provisions within the TRA—especially Section 2(b)(4-6)—can be read to indicate a broad commitment to Taiwan’s defense. Despite the political signal sent by President Biden’s statement of intent to come to Taiwan’s defense in the event of an unprovoked attack—a statement he has now made four times—his declarations have been erroneously labeled in binary terms of whether or not they indicated unconditional, explicit guarantees that the United States would defend Taiwan in the event of an invasion. The decision of whether, when, and how to commit military force is more accurately described as a spectrum rather than an either-or proposition.

The debate over ambiguity versus clarity is intrinsically intertwined with other issues. The key is whether there is a sufficient level of clarity necessary to satisfy a minimum threshold of reciprocal commitments to establish a division of labor between the United States, Taiwan, and other potential coalition allies.

Non-Position on Sovereignty of Taiwan and Affirming its Agency

Moreover, the Biden Administration has made it clear that the United States does not take a position on the sovereignty of Taiwan. When asked if Taiwan is part of China under Washington’s “One-China Policy,” State Department Spokesman Ned Price responded: “We don’t take a position on sovereignty, but the policy that has been at the crux of our approach to Taiwan since 1979 remains in effect today.” Indeed, nothing in the Taiwan Relations Act, the Six Assurances, or the Three Communiqués could be read to indicate that Washington has ever accepted PRC claims of sovereignty over Taiwan. Those documents at most only acknowledged the Chinese position.

At the same time, not taking a position on sovereignty does not equate to US support for Taiwan’s independence. The president himself has stated that he does not encourage Taiwan’s independence and that the United States does not support the independence of Taiwan—refuting the views expressed by some that the United States is emboldening so-called secessionist sentiments in Taiwan. To be clear, President Biden stated: “We have made very clear we support the Taiwan [Relations] Act, and that’s it. It’s independent. It makes its own decisions.” He reiterated this position again when he stated: “And that there’s [the] ‘One-China Policy,’ and Taiwan makes their own judgments about their independence […] we’re not encouraging their being independent […] that’s their decision.” Essentially, the president’s acknowledgment of Taiwan’s agency to make its own decisions concerning its status is commonsense and consistent with longstanding US policy to refrain from taking a position on sovereignty over Taiwan. This is a matter for the people of Taiwan to decide—a necessary but insufficient clarification of US policy.

Necessary but Insufficient: Looking Forward to the Next Decade

While a majority of Americans believe that the US security relationship with Taiwan does more to strengthen than weaken US national security, a key question that remains is whether the United States should change how it executes, implements, and conducts its engagement with Taiwan in the face of the PRC’s destabilizing efforts to change the status quo. Could this be done without a declaratory change in US policy toward Taiwan or a revision of the TRA? Should the United States embrace an explicit clarification of US commitments to Taiwan? While there are merits to both approaches, there are also obvious risks.

It is worth noting that some US scholars now argue that the United States and Taiwan should offer “credible assurances” to Beijing to avert war. However, this proposal ignores the Congressional intent of the TRA, advances a critical strawman argument by framing deepening ties with Taiwan as so-called “unconditional commitment,” and places undue emphasis on the “does not challenge” clause of the 1972 Shanghai Communiqué. It is doubtful whether Beijing can ever be credibly assured, as it was never assured to begin with. Instead, Beijing was weak and felt compelled to accept conditions that it could not change at the time. Furthermore, past attempts to “credibly assure” Beijing only led to policies that can only be described as creeping deference to the PRC’s “One-China Principle,” and self-imposed restrictions on the conduct of relations with Taiwan.

Measured caution toward a wholesale declaratory change in US policy as advanced by former Secretary of State Mike Pompeo is that it could ultimately weaken Washington’s ability to influence cross-Strait developments—assuming Beijing’s behaviors could be modulated. Ryan Hass of the Brookings Institution noted with concern that explicit US support for Taiwan’s independence would diminish US influence on cross-Strait developments and could lead to more not less instability. This is a fair concern given the success Washington has had in maintaining peace in the Taiwan Strait under the current approach, but it raises the question of whether this strategy will be sustainable in deterring conflict in the mid- to long-term.

Whichever path the US government chooses, it is perhaps instructive to remember the words of the late Congressman Lester Wolff, a principal author of the TRA, who wrote the following in the pages of The Legislative Intent of the Taiwan Relations Act: A Dilemma Wrapped in an Enigma:

Countless times over the years the TRA has been called upon to render judgement over changing circumstances or events. It has met those demands and survived without serious amendment because of the ambiguity, which was built in, that provided for adaptation to current conditions […] [I]t was conceived as a device to enhance peace in the region and protect the political integrity of a people’s right to choose. Those people are the people of Taiwan. [1]

A carefully calibrated US policy should actively create conditions for the resolution of political differences between the two sides of the Taiwan Strait in a manner that best advances US interests and furthers its values. Against the backdrop of Beijing’s growing belligerence and Taipei’s strategic importance as a reliable democratic ally in the Western Pacific, economic partner, and technological powerhouse, a serious rethink of practice and policy is in order. Whether it involves updating the Taiwan Relations Act, reconsidering the US “One-China Policy,” or something else, it is in the interest of the United States to continue to gradually adjust the practice of its policy toward one that more accurately reflects the objective status quo in the Taiwan Strait with incremental clarity of intent.

The main point: For 45 years, the Taiwan Relations Act has served as the central pillar of US policy toward Taiwan. However, with Beijing continuing to grow in power and aggression, a comprehensive review of the US approach to Taiwan has become increasingly necessary.

[1] Lester L. Wolff, The Legislative Intent of the Taiwan Relations Act: A Dilemma Wrapped in an Enigma (Xlibris US, 2020): p. 537.