Zachary Keck

US Policy and International Law: Taiwan’s Friend

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Zachary Keck

US Policy and International Law: Taiwan’s Friend

Both U.S. policy and international law make attacking Taiwan illegal and defending it legal.

Editor’s Note: This is a guest post by Michael Turton and Brian Benedictus about the legality of the U.S. and Japan coming to Taiwan’s defense. It is the last piece The Pacific Realist will feature in this fruitful debate. The initial post sparking the debate is available here, and follow-ups in the debate can be found here, here and here.

Julian Ku’s two recent pieces in The Diplomat contending that a PRC invasion of Taiwan would be legal and that the U.S. and Japan both recognize that Taiwan is part of China betray a shocking lack of understanding of U.S. policy on Taiwan and its international status. Ku asserts:

“I get that this is a complicated issue, but I don’t think I am ‘misreading’ historical documents when I write that 1) the U.S. recognizes the PRC as the government of China and that the U.S. accepts that Taiwan is part of China, and 2) Japan recognizes the PRC as the government of China (see the 1972 Joint Communique), and Japan accepts that Taiwan is a part of China. Sure, neither country recognizes that Taiwan is a part of the PRC, but both the U.S. and Japan have made clear that China is a single legal entity that includes Taiwan, and that the PRC is the sole government in charge of this entity.”

Actually, this is not a complex issue; it is a simple issue: the U.S. does not recognize that Taiwan is part of China. Any version of China. Rather, the U.S. position is that the status of Taiwan has yet to be determined. It has been that way for more than six decades.

U.S. Taiwan policy is laid out in scores of scholarly and popular books, articles, and U.S. government publications, all publicly available. For example, the most recent Congressional Research Service (CRS) document on U.S. policy towards Taiwan by experts Shirley Kan and Wayne Morrison defines U.S. policy succinctly:

“The United States has its own ‘one China’ policy (vs. the PRC’s ‘one China’ principle) and position on Taiwan’s status. Not recognizing the PRC’s claim over Taiwan nor Taiwan as a sovereign state, U.S. policy has considered Taiwan’s status as unsettled.”

This policy emerged in 1950 as a response to Chinese intervention in the Korean War and is laid out in the June 27 and Dec 27 statements of President Harry Truman. The latter states:

“The Cairo Declaration of 1943 stated the purpose to restore ‘Manchuria, Formosa and the Pescadores to the Republic of China.’ That Declaration, like other wartime declarations such as those of Yalta and Potsdam, was in the opinion of the United States Government subject to any final peace settlement where all relevant factors should be considered. … Also, the United States believes that declarations such as that issued at Cairo must necessarily be considered in the light of the United Nations Charter, the obligations of which prevail over any other international agreement.”

This understanding subjects the agreements at Cairo to international law and the UN Charter and guided the U.S. position on the Treaty of San Francisco (TOSF), the peace treaty with Japan, inked in 1951. Under Chapter 2, Article 2, Section B of the treaty, it states that Japan “renounces all right, title, and claim to Formosa and the Pescadores.” The treaty did not state that the previous treaties which granted Japan territories from prior agreements were invalid, which effectively nullifies the claim made by both the PRC and ROC that Taiwan reverted to ROC control following the 1943 ROC declaration that it was unilaterally nullifying the Shimonoseki Treaty that ceded Taiwan to Japan “in perpetuity.” The TOSF also did not explicitly state the sovereignty status of Taiwan after Japanese reunification. The Treaty simply leaves the question of Taiwan’s sovereignty open, for resolution at a later date. 60 years later, it remains unresolved.

Sadly, public confusion on this is rampant, thanks to Richard Nixon. Up until 1971, it was the annual habit of the State Department to publicly testify before Congress that the U.S. saw Taiwan’s status as unsettled. Nixon, like so many U.S. policymakers eager to permanently sell out Taiwan to obtain some transient concession from the PRC, secretly agreed that Taiwan was part of China, and said “There will be no more statements made — if I can control our bureaucracy — to the effect that the status of Taiwan is undetermined.” Hence the U.S. position went underground, at least as far as the State Department is concerned. Today if you ask a U.S. diplomatic official what the status of Taiwan is, you will likely receive an inedible word salad consisting of “one China, the Communiques, the Taiwan Relations Act”, and so forth. This lack of clarity leads, inevitably, to confusions like Ku’s, though it does spare U.S. diplomats much friction with Beijing.

However, despite its lack of public iteration, this policy that Taiwan’s status is unsettled remains alive and well. In 2007, then ROC (Taiwan) President Chen Shui-bian sent a letter to UN Secretary General Ban Ki-moon asking the UN to admit Taiwan. Ban replied that Resolution 2758 said that Taiwan was part of China (it does not). The U.S., Japan and several other nations notified Ban that this was not their position and that, for them, Taiwan’s status is unsettled. Moreover, every day in the U.S. this policy is implemented: just this week the Taiwanese wife of one of us was naturalized, and her place of birth was listed as Taiwan. Period. Not China. The U.S. government states of Taiwanese: “Such applicants’ Certificates of Naturalization are issued showing Taiwan as country of former nationality. USCIS does not issue certificates showing ‘Taiwan, PRC, ‘Taiwan, China,’ ‘Taiwan, Republic of China,’ or ‘Taiwan, ROC.’”

In this light, Ku’s remark that “We can futz all we want with this language, but let’s go with the most natural reading” is rather astonishing, as if Ku, a specialist in international law, were unaware that the wording of documents like the U.S. and Japanese Communiques were precisely chosen and reviewed countless times and have specific and identifiable meanings for all concerned, which have nothing to do with the “most natural reading.” The clear intention of the Shanghai Communique is that the U.S. “acknowledges” that China wants Taiwan, but does not accept that Taiwan is part of China. This wording thus supports the longstanding U.S. policy of “strategic ambiguity” on the U.S.-Taiwan issue, another U.S. policy stance Ku somehow failed to mention.

Washington (and Tokyo’s) policy that Taiwan’s status is unsettled is thus critically important: it provides a legal and ethical basis for the U.S. to intervene in a PRC attack on Taiwan. Because Taiwan’s status is unsettled, any PRC attack on Taiwan would be a violation of the UN Charter, which calls for self-determination and democratic self-rule for territories (Article 73) and decolonized territories (UN Declaration on Decolonized Territories), and for nations to refrain from using force to settle international disputes. Thus, the people of Taiwan are not “secessionists” whose island the PRC can legally and violently assault and annex. They are a population in legal limbo, waiting for the rest of the world to catch up with their desire to form an independent and democratic Taiwan.

Michael Turton blogs at The View from Taiwan. Brian Benedictus is a Washington D.C.-based foreign policy analyst specializing in East Asian security issues and is also an Asia-Pacific Desk analyst for Wikistrat.