by Avery Goldstein

On June 17, 1999 the Foreign Policy Research Institute held a day-long conference to discuss the meaning and significance of the Taiwan Relations Act (TRA) at the dawn of its third decade as the U.S. law governing relations between Washington and Taipei. Rather than rely on delivery of papers summarizing research, FPRI invited a group of prominent experts on East Asian affairs to convene for a wide-ranging discussion about the TRA and its role in the complex relations among the United States, China, and Taiwan. While we did not anticipate events, some of the issues subsequently raised by the recent controversy over the remarks by ROC President Lee on Taiwan's status were explored at the conference. The conversation included give and take among panelists, as well as free-wheeling participation from an invited audience that included experts on many of the topics covered. No attempt was made to arrive at a consensus in response to the questions posed. On some matters there was broad agreement; on others, strong differences of opinion.

Panelists included: Thomas Christensen, MIT; Jacques deLisle, University of Pennsylvania Law School/FPRI; June Teufel Dreyer, University of Miami at Coral Gables/FPRI; Avery Goldstein, FPRI/University of Pennsylvania; Robert Ross, Boston College; Harvey Sicherman, President, FPRI; Arthur Waldron, University of Pennsylvania/AEI/FPRI; and Suisheng Zhao, Colby College. The Hon. Stephen Chen, Representative of the Taipei Economic and Cultural Representative Office, delivered the keynote address.

Participants agreed that the original reasons for drafting and passing the TRA were both legal and political. The legal rationale was most obvious. The U.S. needed a basis for arrangements to govern economic, diplomatic, and military relations with the government on Taiwan following the decision to recognize the People's Republic of China without maintaining formal diplomatic ties to the Republic of China. President Carter's administration had drafted a legal document to cover many matters, but the TRA prepared in the US Congress offered a more comprehensive treatment of the relevant legal issues. Although the TRA has not entirely prevented complications over the past twenty years, conference participants viewed the legal arrangements it established as relatively noncontroversial and generally effective.

Participants agreed that the political purposes and implications of the TRA have been more controversial. A central political motivation for the TRA was the fact that in 1979 Congress was unwilling to cede China-Taiwan policy to the White House for two broad reasons. One was the determination of Congress to reassert its role in the American foreign policy process. For some, this determination was rooted in unhappiness about executive branch dominance of policy during much of the US military involvement in Vietnam. For others, the determination was rooted in resentment of the frequently secret diplomacy that had characterized the Nixon-Kissinger years. With this background, in December 1979 Congress reacted harshly to the surprise announcement by the Carter White House that secret negotiations had resulted in an agreement to recognize the PRC, a decision about whose timing Congress had had little input, and a policy shift on which congressional opinion was divided. 

 TRA AS A CONSTRAINING FRAMEWORK

Congressional insistence on having its say about US policy toward East Asia and strong support among many legislators to ensure that the recognition decision would not sever long-standing American ties to Taiwan resulted in the drafting of the TRA. The TRA addressed not only legal, technical, and logistical issues, but also expressed the sense of the Congress that the U.S. retained an interest in the security of the people on Taiwan, justified continued arms sales to Taipei, and required consultations between the president and Congress to craft an appropriate response in the event Taiwan's security were jeopardized. Yet the TRA language governing arms sales and any US response to threats against Taiwan was vague, requiring only timely consultations between the executive and legislative branches. To the subsequent chagrin of some in Congress, the TRA did not fundamentally alter the reality that such decisions would in practice be dominated by the president and his advisers. Some participants expressed the view that such vagueness reflected a typical congressional preference to "have its cake and eat it too"-- in this case, avoiding responsibility for scuttling relations with either China or Taiwan, but insisting that the executive branch figure out how to square the apparent circle of pursuing the US interest in maintaining good relations with regimes on both sides of the strait. The result in the two decades since April 1979, however, has been that China policy and decisions about the closeness of US-Taiwan relations have been governed more by unilateral presidential decisions (e.g., joint communiques, public proclamations of intent, and private assurances to Beijing and Taipei) than by the language contained in the TRA.

The ineffectiveness of the TRA in practice as a tight constraint on presidential prerogative and the uncertain constitutionality of congressional attempts to bind the president in exercising his role as commander in chief (much as in the case of the War Powers Act) notwithstanding, most participants suggested that the TRA has played an important role by establishing a political framework that affects decision-making in Washington, Taipei, and Beijing. Despite its lack of standing in international law, this domestic US law provides the clearest formal statement of American interest in the well-being of the people on Taiwan. For US presidents, this creates a political reality (formal recognition of the PRC, but the expectation that the US will not simply ignore actions Beijing might take that jeopardize Taiwan's security) that becomes part of deliberations about a wide range of US policy decisions in the region (including, though not limited to arms sales and the process of cross-strait negotiation). For leaders on Taiwan, the TRA confirms the US interest in the island's security and the expectation that a substantial segment of the political leadership in Washington DC, particularly in the US Congress, will remain sensitive to those interests, despite the termination of formal diplomatic ties and the security treaty that had been in place since 1955. Indeed, Taiwan's view, in light of the China policy crafted during the Nixon/Kissinger years and the Carter administration's recognition decision, was that US backing increasingly depended on the island's friends on Capitol Hill rather than in the White House. For leaders in Beijing, the TRA signaled that China's Taiwan policy would continue to be conditioned by the reality that diplomatic recognition notwithstanding, the US had not irreversibly agreed to refrain from intervening in a resolution of cross-strait relations and, thus, that Beijing's options would be constrained by the way Washington decided to employ its overwhelming capabilities in the region. 

 POLITICAL SUPPORT FOR TRA

One of the enduring features of the US experience with the TRA, participants suggested, has been the bipartisanship that characterizes its congressional base of support. Because it could at once be viewed as a method to facilitate the new relationship with the PRC, an expression of US support for the human rights of the people on Taiwan, a restatement of support for a Cold War ally, and a reassertion of Congress's role in the foreign policy process, the TRA gathered and retained the support of legislators across the American political spectrum. Such bipartisanship may well have grown broader still over the past twenty years, even as its basis has shifted with the end of the strategic calculus that informed US China policy during the Cold War and with the emergence of a more critical view of China's domestic politics following the tragic events of June 1989.

Despite providing a consistent framework that was sufficiently ambiguous to permit presidents to adjust US China policy with changing circumstances, participants emphasized the dramatic international political changes (the end of the Cold War and China's growing military power) and domestic political changes in Taiwan (democratization and the growing role of islanders in the political leadership) that have gradually altered the significance of the TRA. In the immediate aftermath of recognition, Sino-American strategic alignment against the Soviet threat contributed to the credibility of US assurances to Beijing that the TRA was not designed to thwart Chinese aspirations, and induced a willingness on the part of the Chinese to at least temporarily set aside disagreements about the continuing US Support for Taiwan (especially arms sales). By the 1990s, the unifying common adversary had disappeared, US perceptions of China had aken a turn for the worse after Beijing's bloody suppression of demonstrations in 1989, China's economic modernization and assertiveness in regional disputes were increasing American worries about the PRC's future capabilities and intentions, and Taiwan was well on the way to building a prosperous democratic society. The result was a strengthening of the US commitment to live up to the spirit of the TRA. By chance or by design, the TRA in the mid-1990s had become a key element of a post-Cold War US foreign policy that places heavy emphasis on fostering the spread of democracy and hedging against potential threats to the status quo in Asia.

From Beijing's perspective, however, the TRA looked increasingly like part of a broader US effort (including revision of security arrangements with Japan and Australia) to foster close relations with others in East Asia in order to block China's emergence as a great power. As such, the TRA looked less like an annoying temporary arrangement for a problem whose resolution had been postponed (Beijing's view circa 1979), and more like an arrangement of frustratingly indefinite duration. Participants noted that the occasionally intense disagreements between Beijing and Washington about Taiwan may reflect an underlying problem in Sino-American relations as they bear on this issue. Several participants noted that many American political leaders fail to appreciate the depth of China's nationalist sentiment on this issue. Those emphasizing this view pointed out that Beijing sees the Taiwan question as a nonnegotiable sovereignty issue that is especially sensitive because of China's experience with foreign infringements on its political and territorial integrity beginning in the early nineteenth century (including the cession of Taiwan to Japan in the Treaty of Shimonoseki following China's defeat in the 1894-1895 Sino-Japanese War). To the extent leaders in Washington fail to grasp how large the issue looms in China's thinking, American policymakers may believe that finessing the Taiwan question with vague formulations about Taiwan's status reflect Beijing's pragmatic willingness to "agree to disagree." Yet, from China's perspective, setting aside the issue may instead reflect only an inability to reach agreement at the moment, and a willingness to postpone the matter while higher priority issues are addressed, but with the expectation that the matter remains an important item that must be addressed when the time is ripe. 

 THE TRA AND US INTERESTS

Participants noted that for two decades the ambiguity of the TRA had served the US interest in neither provoking China nor abandoning Taiwan. The status quo that it has reinforced encouraged both Beijing and Taipei to search for a peaceful resolution of their differences, and provided a context that both permitted and encouraged Taiwan's leaders to promote democratization of their political system in ways that have solidified the US interest in the island's Continued security. Less clear, some noted, is the extent to which these US interests (peaceful cross-strait relations and democratization) will remain compatible. As Taipei's policy is increasingly shaped by public opinion on the island and the dynamics of competitive party politics, cross-strait politics have grown more complex. When the TRA was drafted, it was conceivable that cross-strait relations Could be managed by a small group of the political elite in Taipei and Beijing who shared a unifying vision reflecting the nationalist aspirations of Chinese dating to the early twentieth century. Now that Taiwan has become democratic, any agreement must be politically sustainable among a constituency without recent ties to the mainland and that expects its preference for continued autonomy to be respected.

Though the political dynamic in the authoritarian PRC obviously differs from that on democratic Taiwan, participants also emphasized the way the changing political character of the regime on the mainland is complicating cross-strait relations. Participants noted especially the growing importance of nationalism as an ideological underpinning for China's foreign policy, now that discredited Marxism has lost its inspirational value. While democratization on Taiwan makes any deal for reunification difficult, nationalism on the mainland increases the imperative to press for reunification. Such contradictory pressures pose a threat to the sustainability of the status quo, the US interest partly embodied in the TRA.

Participants speculated about the potential consequences for US policy and cross-strait relations in the event of democratization on the mainland, however implausible it may be in the short term. Participants sharply disagreed about the likely consequences of such a development. Some suggested that democracy on the mainland might foster a political culture that would be more tolerant of the idea of self-determination for Taiwan, thereby rendering a resolution of the problem a simple technical matter (e.g., through some combination of plebiscite and elite negotiation). Others suggested that, to the extent Chinese nationalism is a genuine reflection of public, as opposed to manipulated elite, opinion on the mainland, democratization might increase pressure for competing political leaders in Beijing to pursue reunification. Those who anticipated the continuation of cross-strait tension regardless of political democratization on the mainland noted also the importance of generational change that may result in the emergence of more strident nationalistic voices with growing influence in China and Taiwan. Some suggested it is unclear whether the US would retain an abiding interest in the outcome of a dispute between two democracies. Others pointed out that the US commitment to the security of the people on Taiwan, reflected in the general language of the TRA, has multiple bases. These include ethical obligations rooted in the role the US played in facilitating the island's post-World War II autonomy. The resulting economic and then political modernization of Taiwan mean that even if strategic obligations or political litmus tests become less relevant, it will remain difficult for Washington to write off the US commitment to the people of Taiwan most visibly embodied in the TRA.

Avery Goldstein is director of FPRI's Asia Program and Associate Professor of Political Science at the University of Pennsylvania.