The Past and Future of US-Taiwan Relations: A Conversation With Lung-Chu Chen

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The Past and Future of US-Taiwan Relations: A Conversation With Lung-Chu Chen

Examining the legal basis for U.S.-Taiwan relations, and what needs to be changed in the 21st century.

The Past and Future of US-Taiwan Relations: A Conversation With Lung-Chu Chen

U.S. President-elect Donald Trump has cast a spotlight on Taiwan’s unique international situation, by speaking with the Taiwanese president and openly questioning the need for the United States to remain bound by the “one China” policy. To understand the implications of Trump’s statements, The Diplomat’s Shannon Tiezzi spoke with Lungchu Chen, Professor of Law Emeritus at New York Law School and a former senior research scholar at Yale Law School as well as the author of The U.S.-Taiwan-China Relationship in International Law and Policy.

U.S. President-elect Donald Trump made headlines around the world by speaking with Taiwan’s President Tsai Ing-wen. Can you set this conversation in context for us, based on both precedent and the existing framework of U.S.-Taiwan relations?

President-elect Trump’s telephone call with President Tsai certainly was a surprise. To my knowledge, it is the only exchange between a sitting Taiwanese president and a U.S. president-elect since President Carter derecognized the Republic of China government on Taiwan in 1979. That being said, there are certainly no laws to prohibit such a conversation. The fact is, the U.S. government, in particular the White House and State Department, has taken an overly deferential posture toward the PRC [People’s Republic of China] going back to the Nixon administration. By doing so, the United States hopes to avoid any confrontations that would destabilize the U.S.-China relationship or lead to conflict across the Taiwan Strait.

It is important to remember that Taiwan’s presidents are regularly in contact with the United States and the U.S. government officially and unofficially through the American Institute in Taiwan and various other channels. Sitting Taiwanese presidents have also visited the United States, usually in the context of stopovers on their way to other places. U.S. officials regularly visit Taiwan. The United States and Taiwan have strong informal relations. It is not as if Taiwan is a total pariah as far as the United States is concerned. In that regard, the telephone call is like any other show of courtesy between national leaders.

Mr. Trump has many smart and experienced people advising him as part of his transition who understand the history and the issues involved here. They certainly knew the symbolic effect that this call would have, and I trust they briefed Mr. Trump sufficiently on these things. Many people in China, Taiwan, and the entire world community will be watching closely as the administration makes its intentions clear in the coming months. The most important thing to remember is that Taiwan is a country, not a chip to be played in a game of big power politics. It is home to 23.5 million people who have chosen to live freely, democratically, and peacefully, and who have the right to self-determination.

What are the legal frameworks governing the U.S.-Taiwan relation from the American side? To what extent do past diplomatic pronouncements (the Three Communiques with the PRC or the Six Assurances to Taiwan) set binding limits on U.S. foreign policy today?

The foundation of U.S.-Taiwan relations is the Taiwan Relations Act of 1979. The TRA was passed by Congress and signed by the president. In other words, it is part of the “law of the land.” The TRA has a number of important provisions. First and foremost, it laid the groundwork for informal relations between the United States and the people of Taiwan. It established the not-for-profit American Institute in Taiwan to provide many of the services previously rendered by the U.S. embassy in Taiwan. The TRA also established a U.S. policy of providing Taiwan with arms of a defensive character and declared that the peace and stability of the Western Pacific were matters of U.S. interest. Importantly, the TRA also declared that the United States expects that Taiwan’s future will be decided by peaceful means. Congress passed the TRA because it was displeased with President Carter’s treatment of Taiwan, a U.S. ally, and his decision to allow the U.S.-ROC Mutual Defense Treaty to expire. The TRA was intended to be a functional equivalent of the Mutual Defense Treaty. Fundamentally, Congress was saying that the United States would not abandon Taiwan, and this remains a cornerstone of U.S. policy.

The Three Joint Communiques and President Reagan’s Six Assurances are also important, although they are subordinated to the TRA. Legally speaking, the Three Communiques of 1972, 1978, and 1982 are, at most, sole executive agreements, although there is a strong argument to be made that the Communiques are, in fact, less than executive agreements. To begin with, they are not formatted as agreements and do not specify the legal obligations of either party. Furthermore, none of the Communiques was transmitted to Congress, as required for executive agreements under law. In form and substance, the Communiques are best described as statements of diplomatic intent. In fact, they are not included in the State Department’s annual publication of U.S. Treaties in Force. They certainly are not treaties, despite the PRC’s occasional claims to the contrary. They allowed the United States and the PRC to paper over certain disagreements in order to proceed with the normalization of relations. In reality, they have minimal impact on the content of U.S.-Taiwan relations in the present day. And it is unlikely, in my opinion, that China today would sever ties with the United States over Taiwan, although that may have been the case in the 1970s and ’80s. The relationship is much more complex and interdependent than it was before.

If there were a conflict between the TRA and one of the Communiques, the provisions of the TRA would prevail as a matter of U.S. constitutional law. I elaborate this in chapter 5 of my book. In fact, the Senate called hearings after President Reagan issued the 1982 Communique because on its face, the Communique, which projects a gradual reduction in U.S. arms sales to Taiwan, appears to be at odds with Section 2 of the TRA, which requires arms sales to provide for Taiwan’s defense. This raised serious constitutional issues at the time. The State Department dispatched John Holdridge to Capitol Hill to argue that the TRA, in the Executive’s view, required the United States to sell sufficient weapons to Taiwan to meet its defensive needs. If China acted peacefully, then Taiwan’s defensive needs would be less, and weapons sales would fall accordingly. By this logic, if China acted aggressively toward Taiwan, arms sales would also increase. Around the same time, President Reagan issued his Six Assurances to the ROC government on Taiwan, which promised, among other things, that the United States would not formally recognize Chinese sovereignty over Taiwan, would not set a date for the ending arms sales to Taiwan, and would not alter the terms of the TRA. The Third Communique and the Six Assurances should be read together.

Interestingly, in some respects over time the Six Assurances to Taiwan have exerted more influence over U.S. policy than the Third Communique. The Six Assurances have been reaffirmed by each successive presidential administration and by Congress as recently as May of this year. The most recent Republican Party platform also endorsed the Six Assurances and the Taiwan Relations Act in language that is unequivocal. The United States continues to provide large amounts of defensive weapons to Taiwan, as Mr. Trump observed on Twitter recently.

The TRA is the cornerstone of U.S. policy toward Taiwan and China. It has contributed greatly to Taiwan’s domestic stability and its democratic transformation. Even though it was passed almost 38 years ago, the TRA still enjoys tremendous support in Congress. There’s no reason to think that U.S. support for Taiwan will wane in the near future.

Taiwan’s situation is unique in the world: a peaceful, democratic self-governing entity that, for political reasons, struggles to gain any recognition in international bodies. Given that unique situations, which aspects of international law are most relevant for Taiwan’s situation, and how do they apply?

First and foremost is the principle of self-determination as enunciated in Article 2 of the UN Charter. Article 2 states that the UN’s purposes include the development of friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. This principle is carried forward in Article 21 of the Universal Declaration of Human Rights, which states that the will of the people shall be the basis of the authority of government, as well as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, both of which uphold self-determination as fundamental human rights in their first articles. The second is the principle of peaceful settlement of disputes, as articulated in Article 1 of the UN Charter. The application of these two principles to Taiwan’s case should be obvious. The future of Taiwan must be decided in accordance with the will of the Taiwanese people, and it must be done so peacefully without resort to force. These are fundamental principles in international law.

The next major area concerns Taiwan statehood. Let me start by saying that Taiwan is, in theory and in fact, an independent, sovereign state. This has become increasingly clear over time as the political systems of Taiwan and China have diverged fundamentally. For many people in Taiwan, Taiwanese statehood is taken for granted because the countries are so obviously separate. Under contemporary international law, there are four criteria for statehood. These are embodied in the 1933 Montevideo Convention on the Rights and Duties of States, which is commonly regarded as expressing customary international law. These are, namely: control over a defined territory, a permanent population, maintenance of an effective government, and the ability to conduct foreign relations with other states. The Montevideo Convention is meant to provide an objective formula for the recognition of states. In this regard, it enjoys widespread acceptance. However, there are difficulties when effective power processes keep an otherwise viable state from gaining recognition from other states. This is the case with Taiwan. As it stands, there are only a small number of countries that recognize Taiwan diplomatically, in addition to the Holy See. Most countries that have relations with Taiwan do so informally, as is the case with the United States. The PRC uses its economic resources and big power status as leverage to discourage other countries from establishing formal diplomatic relations with Taiwan.

The question of statehood has enormous implications beyond state-to-state recognition. This is because statehood is a requirement for membership in most international organizations, including the United Nations. This means that Taiwan, and therefore the Taiwanese people, are unrepresented in most international forums. There are some organizations that do not require statehood for membership. But the PRC has used its influence to frustrate and minimize Taiwan’s participation in these. Where Taiwan is allowed to participate, it often is forced to adopt a degrading name such as “Chinese Taipei,” as in the Olympics and the World Health Assembly. The United States, to its credit, has supported Taiwan’s efforts to participate in international organizations such as the International Civil Aviation Organization and other bodies where statehood is not a requirement for membership. However, more can and should be done.

In my book, I advance the theory of the evolution of Taiwan statehood which explains how Taiwan has evolved from a militarily occupied territory into a full-fledged state through four distinctive phases. From 1895 to 1945, Taiwan was a colony under Japanese rule. From 1945 to 1952, Chiang Kai-shek’s ROC forces carried out a military occupation on Taiwan on behalf of the Allied Powers. After the entry into force of the San Francisco Peace Treaty with Japan in 1952, Taiwan’s legal status remained undetermined. Between 1952 and 1987, the ROC continued its military occupation on Taiwan without legitimacy and lawfulness, imposing martial law on, and depriving the fundamental freedoms and rights of, the Taiwanese people. The fourth stage of Taiwan’s evolution took place from 1988 to the present, following the end of martial law. During this period, President Lee Teng-hui, a native-born Taiwanese, inspired a dramatic transformation on the island and started a process of democratization and Taiwanization which continues to this day. As a result of this transformation, Taiwan’s international status has shifted from undetermined to determined. I call this effective self-determination. It is self-determination in action. The Taiwanese people have been empowered to elect their president and congressional representatives on a regular and periodic basis. The Taiwanese people have — in the language of article one of the two international covenants on human rights — exercised their right to freely determine their political status and freely pursue their economic, social, and cultural development. In my view, the theory of the evolution of Taiwan statehood is a straight-forward application of international legal principles and is applicable to other comparable cases as well.

In your book, you argue for Taiwan eventually becoming a normalized state. How would it be possible to achieve that end without China making good on threats to declare war should Taiwan seek formal statehood?

The first order of business for Taiwan should be to rectify its name. There is a joke that the letters ROC could stand for the Republic of Confusion. Sometimes Taiwan is called one thing, sometimes another. It could be Chinese Taipei or some other confusing name. The Republic of China label was superimposed by the Chiang Kai-shek regime along with a foreign constitution. Neither reflects the reality of today. A name rectification is a way to dispel whatever ambiguities and confusions that have accumulated and been condoned over so many years. And it would affirm Taiwan’s status as an independent political entity. China has said that a change in name is tantamount to a declaration of independence. Of course, Taiwan’s government isn’t even permitted to fly the ROC flag when Chinese officials visit. China has done everything it can to obliterate Taiwan’s identity. To Taiwanese, especially young people, this is an absurdity. They were born in Taiwan, they grew up there. If you ask any young person in Taipei or elsewhere in Taiwan they will tell you that they are Taiwanese, not Chinese. Who has the right to tell the Taiwanese people what should be the name of their country? What could be more undignified? The United States no longer uses the name ROC and hasn’t done so since the adoption of the Taiwan Relations Act. As a political entity Taiwan is known as Taiwan worldwide. It should formally adopt a name that reflects this.

When I speak of normalizing Taiwan’s status, I mean to say that relations with Taiwan should be conducted on the basis of reality, taking into consideration all relevant factors. As far as the United States is concerned, the bargain that President Nixon struck with China in 1972 no longer serves its purpose. The cost to Taiwan, a U.S. ally, is too high. And it has led to an absurd result. I think Mr. Trump put his finger on this when he remarked that it’s unusual that the U.S. president-elect should not accept a congratulatory telephone call from the leader of a nation that buys billions of dollars of U.S. weapons. To most people, this must seem like a common sense approach. The same can be said when Taiwan is forced to participate in official meetings or the Olympic Games using a degrading name such as Chinese Taipei. In this new era of Donald Trump, we all need to start telling it like it is, and that goes for Taiwan as well.

Everyone knows that Taiwan’s statehood is a very delicate and contentious issue for the PRC for historical and political reasons. Interestingly, Mao Zedong himself voiced support for Taiwan independence at one time. This was reported by journalist Edgar Snow in the first edition of his book Red Star Over China in 1937. However, once Chiang Kai-shek and the Kuomintang (KMT) established a regime in exile on Taiwan and entangled it in the Chinese civil war, the PRC held fast to the myth that Taiwan was a part of China since time immemorial. In point of fact, the PRC government has never controlled or governed Taiwan for a single day since its establishment in 1949. Even before that, the Qing emperor ceded Taiwan to Japan under the Treaty of Shimonoseki in 1895. It remained a Japanese territory for 50 years. I, myself, was born a Japanese citizen in Taiwan during this time. When hostilities came to an end in the Pacific, Japan surrendered Taiwan to the Allied forces. Supreme Commander General MacArthur then delegated Chiang Kai-shek to undertake a military occupation on behalf of the Allied Powers. All during this time, Taiwan remained a Japanese colony until the San Francisco Peace Treaty with Japan took effect in 1952. Under the Treaty, Japan gave up all rights, titles, and claims to Taiwan, but the Treaty does not specify to whom Japan was ceding the territory. Consequently, Taiwan’s legal status was undetermined. I explain in my book that its status has evolved since 1952 and that Taiwan is now properly regarded as a state.

All of this is to say that China’s territorial claims over Taiwan have no foundation in history or international law. They are based in fiction and propped up by the threat of force. When the PRC government threatens to attack Taiwan, a threat which is in direct violation of the UN Charter, it is China that is violating international law, not Taiwan, and not the United States. The PRC has refused again and again to renounce the use of force against Taiwan. This is unworthy of a permanent member of the Security Council. And yet it has been tolerated.

Apart from its ongoing threats of force, China has waged a successful campaign to crowd Taiwan out of the international community through intimidation and economic leverage. This is detrimental to the common good. Taiwan must be able to participate in and make contributions to the international community in every conceivable arena  Today, Taiwan is excluded from discussions about aviation safety, world public health, and other shared problems to which it could contribute tremendously. Taiwan is not a member of the United Nations, even though it would be among the largest members in terms of population and gross domestic product.  One very important step would be for Taiwan to reapply for membership to the United Nations under the name of Taiwan. Taiwan is, to paraphrase Article 4 of the Charter, a peace-loving state, able and willing to carry out UN Charter obligations. It should be admitted as a matter of principle. Law, justice, and the common good are on the side of Taiwan. Taiwan and its UN friends must persevere — try, try, try until they prevail — and appeal to the conscience of all humankind, in the face of China’s predictable opposition by abusing its veto power in the UN Security Council.

In practical terms, if China continues to oppose Taiwan’s efforts to normalize its status, then a democratic solution is to hold a plebiscite on the question in full view of the world community. I devote the final chapter in my book to a proposal for an internationally supervised plebiscite on Taiwan’s future. This is not a radical idea by any means. The UN Charter recognizes self-determination as a fundamental right of all peoples. Plebiscites have long been used as a procedure for ascertaining the will of a people with respect to the disposition of territory. And in recent years there have been referendums and plebiscites all over the world. We have seen them in Timor-Leste, Kosovo, Quebec, South Sudan, and Scotland, and most recently in Great Britain concerning its membership in the European Union. Before the end of World War II, it was widely assumed that a plebiscite would be held in Taiwan, as a former colony of Japan, to determine the island’s future status. I wrote a lengthy article on the subject in 1972 with Professor Michael Reisman of Yale Law School. So, in actuality, the idea is quite well established. In the book, I call for the establishment of a plebiscite commission in Taiwan consisting of experts from Taiwan and other countries with responsibility for formulating and administering the plebiscite. This is something both the United States and China should both support so that the issue can be conclusively and convincingly resolved. It is also a face-saving measure. We shouldn’t be naïve in believing that power politics would play no part. But the international community, and China in particular, would have great difficulty in ignoring the outcome, whatever it may be.

In my opinion, it is time for the world community to take a principled stand in favor of self-determination and human dignity for Taiwan. Every effort must be made to present a case to the conscience of all humankind. In the 21st century an issue of this kind is not solved by force. It has to be negotiated. When push comes to shove, I believe China would be better off accepting its duty to uphold peace and security as a permanent member of the Security Council rather than pursue an illegal military campaign which would be immediately condemned. The key is that the Taiwanese people must be given a voice to express their wishes about their shared destiny and future development.

How would you recommend the incoming Trump administration frame its approach to Taiwan? And what should Tsai’s strategy be for handling relations with Washington?

Both President-elect Trump and President Tsai have many competent and experienced advisers around them. I trust that they will weigh their options carefully with the benefit of the expertise of both governments.  From my own perspective, I hope that all decision makers, in the United States and Taiwan, and also China, take to heart their countries’ shared interests in regional and global peace and security, which are matters of paramount concern. The ultimate aim should be the fulfillment of the Taiwanese people’s right to self-determination and fundamental human rights. It bears repeating that Taiwan is not a chip to be played in a game of big power politics.

I do hope that this historic telephone call will be the first step toward normalizing U.S.-Taiwan relations. Prior to 1979, when the United States had diplomatic relations with the Republic of China government on Taiwan, the United States and the PRC maintained liaison offices. These operated as de facto embassies. When the United States and the PRC normalized relations, the liaison offices became their respective embassies. Similarly, the United States maintains the not-for-profit American Institute in Taiwan, while Taiwan has its Taipei Economic and Cultural Representative Office in the United States. This arrangement has lasted 37 years. The U.S. president could move to elevate these instrumentalities to the status of embassies, which would be a major and immediate step toward normalizing relations. As we have seen with Cuba under the Obama administration, the process of normalization can happen quite rapidly.

I make a number of recommendations of policy alternatives for the United States in my book. The Trump-Tsai telephone call was an excellent start, and I would encourage them to keep this relation going and to establish a relationship of mutual trust to serve as the basis for future engagement. Official contacts should be enhanced at all levels of government. President Clinton undertook a Taiwan policy review in 1994. Now would be the right time for a new evaluation in light of today’s conditions. It is especially timely to reappraise the outdated U.S. One China Policy. The Taiwan Relations Act can be reaffirmed and strengthened. And the United States must continue to support Taiwan’s participation in international organizations. The United States and Taiwan should complete a free-trade agreement, something which has been under discussion for some time.

For President Tsai, it is essential to work to strengthen Taiwan both internally and externally. The United States can be a good friend, but you have to help yourself. First of all, Taiwan must break away from its economic dependence on China, which was exacerbated during Ma Ying-jeou’s presidency and did tremendous harm to Taiwan’s economy. The Taiwan government is certainly focused on this. Internally, Taiwan needs to have a constitution tailored to the needs and expectations of the people living in Taiwan. The current ROC constitution was created in 1946 on mainland China and devoted to governing the whole of China. There have been certain amendments, but overall the document is outdated and unreasonable for a country of Taiwan’s size. China, of course, has said that changing the constitution is tantamount to a declaration of independence. This is an absurdity that has gone on too long to the detriment of the Taiwanese people.

With regard to China, I think it is important to emphasize that China has a great deal to gain from positive engagement with Taiwan. China’s greatness as a nation must not stop at military might and economic wealth. Fostering peaceful cross-strait relations on the basis of mutual respect and mutual benefit, with respect for the universal values of human rights, would enhance China’s prestige in the long term and would be a source of pride, I believe, for Chinese people around the world.

I write in my book that the United States, Taiwan, and China all have a role to play in building a world order based on human dignity and human security. What is good for Taiwan should be, and is, good for the world community as a whole. I hope both presidents will adopt this as their motto.