Congress and Foreign Relations: The Taiwan Relations Act

The role of Congress in U.S. foreign policy is unique among the legislative bodies of the world. Our Constitution provides that the Congress, and especially the Senate, will be a source of independent judgment and a potential check upon the actions of the executive branch on such fundamental matters as the use of military force, the conclusion of international commitments, the appointment of principal policymakers, and the financing of military and diplomatic programs. The phrase "advice and consent" with respect to treaties and nominations aptly summarizes that role in general.

Presidents may resist that independent congressional role, often in the name of what they perceive to be the needs of "secrecy and dispatch," to use the phrase from the Federalist Papers. But they do so at their peril, and that of the country at large.

From time to time—even in such august publications as Foreign Affairs—respected figures may lament the constitutional facts of life and argue for a new institutional arrangement closer to the British system of semi-automatic majorities.1 In my view, however, the role of Congress in foreign relations has more often been a strength than a weakness of our democracy. It is the responsibility of the President, through his authority, leadership and skill, to forge support for his policies in the Congress as well as among the people. When he does not receive such support, it is probably because something is lacking either in the policy itself or in the President's presentation of it. In any case, I simply do not think that such wholesale revisions of the Constitution are in our future, even if they were in our interest.

One episode in our recent history which illustrates this unique role of the Congress is the series of events surrounding President Jimmy Carter's recognition of the People's Republic of China in December 1978. That action left in its wake a whole series of difficult issues concerning the future relationship between the United States and the previously recognized authorities of the Republic of China on Taiwan. Thus it was necessary for both Houses of Congress to participate in the framing and enactment of what became the Taiwan Relations Act of 1979, which was approved by the Congress on March 13, 1979 and signed by the President into law on April 10, 1979.

As one who participated in the congressional deliberations that led to the Taiwan Relations Act, I believe that a short review of its history and an evaluation of its significance may throw light not only on the central importance of the role of Congress in foreign policy—in a particularly difficult case—but on a number of issues that continue to be of concern in the ongoing relations of the United States both with the People's Republic of China and with the people of Taiwan.

II

President Carter's decision to shift official U.S. recognition from the Republic of China to the People's Republic of China had been foreshadowed by earlier negotiations, notably the Shanghai Communiqué of February 1972 subscribed to by President Richard Nixon and Prime Minister Zhou Enlai. But any actual move to formal recognition of the PRC had thereafter been in abeyance, with the Chinese side posing difficult conditions, especially concerning Taiwan. In the late fall of 1978, the PRC made significant concessions as to some of these points, agreement was reached, and President Carter decided that it should be concluded and announced at once, on December 15.

However, that announcement was made with only the briefest notice to congressional leaders. And in one particular respect, the giving of the required one-year's notice of the abrogation of the United States-Republic of China Mutual Defense Treaty, the President's action ignored a specific amendment adopted by the Congress only two months before, in the International Security Assistance Act of 1978, calling for "prior consultation" on "any proposed policy changes affecting the continuation in force" of that treaty. Inevitably, congressional leaders were not only exercised at this specific omission but felt serious concern about the adequacy of the terms agreed to between the President and the PRC as they affected the future of Taiwan and U.S. relations there. Neither on the manner and timing of the decision nor on the substance of the understandings reached had there been effective consultation. Thus, the situation contained the seeds of possible serious differences between the Congress and the Executive, and the possibility of the U.S. government as a whole not being able to arrive at a coherent ultimate position that would deal with all the elements of the problem.

Most members of Congress of course supported the President's recognition of the Beijing government as the government of China. I had myself called for a change in our policy toward mainland China back in 1970, and I welcomed the decision finally to establish normal diplomatic relations with the most populous country in the world. But the principal stumbling block to such action had always been our concern for the people on Taiwan and for their future as a society. We could no longer operate under the fiction that the government in Taipei was the government of all China, but neither could we ignore the fact that the people of Taiwan had been our friends and allies for decades and that we had assisted in protecting them from domination by the communist regime on the mainland. Judging from the mail I received on this issue, that is generally how most Americans saw it too.

It became clear quickly that although President Carter was serious about maintaining "extensive, close, and friendly relations" with Taiwan, his Administration had given very little thought to the shape and substance of our future relations and to the legal framework necessary to carry it out. For most of us in Congress, therefore, the acceptability of the arrangements worked out with Beijing depended upon the establishment of a viable basis for our future relations with Taipei. We were prepared to accept the reality of Communist China and to develop a new relationship of mutual interest with its government and of friendship with its people, but we could not thereby accept that our ties to Taiwan would be dictated from the mainland. Most of us, I think, were prepared to risk the whole arrangement if certain principles could not be adequately preserved.

III

The Taiwan issue was the principal concern when the 96th Congress convened in January 1979.

It had already become clear that the question of relations with Taiwan would require legislation, but the draft submitted by the Administration was on its face sketchy and incomplete. Doubtless this reflected in part the fact that the negotiations concerning recognition had been carried out primarily under direction from the White House, with only a very small number of individuals involved for security reasons; at any rate, when the task of preparing draft legislation necessarily fell to relevant sections of the State Department, not always familiar with the underlying negotiations, their initial submission was, it is not unfair to say, hastily and in some respects poorly drawn, and thus vulnerable at once to criticisms that tended to accentuate the controversy.

As it happened, the 96th Congress also marked a significant transition in the Senate Foreign Relations Committee. Frank Church of Idaho became the new chairman of the Committee and I became the new ranking Republican. Furthermore, the Republican members of the Committee voted to exercise their right to a separate minority staff, ultimately amounting to one-third of the Committee's budget. Nevertheless, Senator Church and I agreed to approach this first issue as we subsequently sought to approach all others—in the spirit of bipartisan cooperation. I think that tone contributed substantially to the broad consensus later achieved in the full Senate on what became the Taiwan Relations Act.

The problem of Taiwan's future status was in some respects more a theoretical problem than a practical one. Although Beijing was now the de jure or legally recognized government of China as far as the United States was concerned, the authorities in Taipei were clearly the real or de facto government on Taiwan. Traditional international law on questions of sovereignty and recognition is in many ways a relic of past centuries, when relations between nations were far more formal and episodic than they have become in recent decades. The law is often too limited and inflexible to accommodate the range of different state and non-state entities that today make up the world community.

President Carter's announcement illustrated the necessary contradictions in applying the normal international legal standards to Chinese realities. He switched recognition of the government of China from Taipei to Beijing, which ordinarily should have made the communist government the immediate successor to all agreements made with the earlier government of China. Instead, however, the President announced that agreements with the government formerly recognized as the government of China would remain in force with the now "derecognized" government, including the Mutual Defense Treaty. The latter would continue to operate for a year beyond the date of derecognition in order to comply formally with the one-year's notice of termination provided for in the treaty itself. Thereafter, he said, "commercial, cultural and other relations" with Taiwan would be carried out on an "unofficial" and "nongovernmental" basis.

I give the Administration credit for this approach, which was something novel and not the way the Japanese and other countries had carried on relations with Taiwan. It was an imaginative formula which sacrificed theoretical consistency in favor of a preferable political outcome. But beyond the broadest generalities, the nature of this unofficial relationship was unclear. No one really knew what the limits of "officiality" were. The legislation proposed by the Administration to implement its approach was only a bare skeleton; it was left to Congress to consider what concrete undertakings were required to make it work.

IV

I approached this problem the way I approached most problems in my legislative career. The task was to devise a legal arrangement which took account of the necessities and subtleties of the problem at hand-the unique circumstances and particular interests involved. The fact that there are no precedents has always been more of a challenge to me than a stumbling block.

In the Taiwan case, in particular, Congress was in a better position than the executive branch to break new ground without ruffling diplomatic feathers. We set out to develop a new approach to our relations with Taiwan, but to do so within the bounds of the understandings reached with the mainland. The Chinese leadership, I am confident, understood and accepted the novelty of this arrangement in order to go forward with the larger and more important relationship.

The first issue confronted by Congress related to the characterization of the future relationship with Taiwan. The Administration's proposal called for the use of the word "unofficial" as a basic description, but this was strongly objected to by key members of the House and of its Foreign Affairs Committee. In the end, any adjective was omitted in favor of a preamble noting the President's action in withdrawing recognition from the Republic of China, with the body of the Act making specific provision for U.S. interests on Taiwan to be handled in the future by an "American Institute in Taiwan" (understood to be staffed by individuals not in official service but without labeling the Institute's status).

A much more serious issue was posed by the fact that the Administration's proposed legislation said nothing about our interest in the future security of Taiwan. Most of us in the Congress accepted the President's decision to end the formal security relationship with Taiwan as embodied in the Mutual Defense Treaty. Although a group of legislators led by Senator Barry Goldwater of Arizona challenged in the courts the President's authority to do so on his own authority, even Senator Goldwater said that he would have voted to accept the proposed termination if the question had been formally put before the Congress. In any event, the Supreme Court ultimately sustained the view, which I for one had maintained from the outset, that the President did have the authority to do what he did in this case, to wit, terminate the Mutual Defense Treaty in accordance with its terms.

Yet while we did not seek to reconstruct a defense agreement with Taiwan, we did insist on making perfectly clear the assumptions and expectations of the United States regarding the future of the society there. In certain respects, the assurances written into that legislation go well beyond anything we have put into our defense treaties. The latter generally refer to assistance in resisting "armed attack" only. But I was particularly concerned with other dangers which in fact seemed more realistic than an outright invasion from across the straits. The language finally adopted in the House-Senate Conference, therefore, referred to U.S. concern for activities which jeopardized not only the security, but also "the social or economic system, of the people on Taiwan."

Debate in the Committee and in the Senate on this issue centered on the appropriate characterization of U.S. concern for Taiwan's security. On the basis of the broad overall assurances just alluded to, I was prepared to accept language that considered "any effort to resolve the Taiwan issue by other than peaceful means" a matter of "grave concern" to the United States. My colleague and friend Senator Charles H. Percy of Illinois (now chairman of the Committee) thought that such language was not strong enough to convey the seriousness with which such an effort should be viewed by the United States. Both in Committee and on the Senate floor, he pressed an amendment to characterize such coercion against Taiwan as a threat to the "security interests" of the United States. But majorities in both houses of Congress accepted the Administration's judgment that such a change would unnecessarily convey an intention to reenact the security agreement itself, thus violating one of the understandings with Beijing. In any event, I felt that this point was not as critical as the broader definition of the threats themselves.

Closely related was the issue of future U.S. transfers of military equipment to Taiwan. Although the final negotiations between the Administration and the PRC had succeeded in achieving the omission of any condition rejecting continued U.S. supply of military equipment, the Administration's draft legislation made only passing reference to future supplies. Both the practical and psychological consequences of leaving the issue in this posture were the targets of strong objections by key members of both the House and Senate, some of whom wished provisions that would not only have committed the United States to automatic large-scale transfers of military equipment but would have interposed the Joint Chiefs of Staff as the judge of the adequacy of such supplies.

My own view was that a reasonable undertaking would be for the United States to state its intention to "make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capability." And this was the language ultimately accepted by the Senate and the House of Representatives in conference.

But there were in addition a host of specific problems that had important legal and practical implications brought forcibly to the attention of the Congress both by outside legal experts and by private concerns. The provisions in the Administration's draft legislation were not adequate to preserve existing agreements with Taiwan, to assure the government there of a right to sue and be sued in our own courts, to maintain the legal status quo for contracts, assets and investments, and to establish the unofficial "American Institute in Taiwan." In each case we consulted closely with outside experts and with representatives of the people most affected by such provisions to make them more explicit and therefore more reliable. We found that both statutory arrangements and judicial precedents supported our ability to create a workable mechanism of unofficial relations with unrecognized entities.2 This is another function which Congress is often better placed to fulfill than the personnel of the executive branch. We are used to discussing such matters candidly in public sessions and taking the views of a wide assortment of people into account. Such openness and responsiveness are not always possible for those in the diplomatic ranks.

Finally, brief mention should be made of one apparently small issue, which the Congress nonetheless felt had substantial importance for the morale of our friends on Taiwan. This concerned the status of the Twin Oaks property in northwest Washington that had been occupied over a long period as a residence by the Ambassador of the Republic of China. Prior to President Carter's decision of December 15, that property had actually been conveyed to a group of private U.S. citizens organized as the "Friends of Free China." It was the decision of the Congress, in which I concurred, that this arrangement should not be upset, and provisions to preserve it were thus included in the Act.

V

The final version of the Taiwan Relations Act passed both Houses by overwhelming majorities. While its provisions were still being considered in committee, there took place the visit to Washington of a high-level PRC delegation led by Vice Premier Deng Xiaoping, and when Deng met informally with members of the Senate Committee he made it clear that the PRC found certain already publicized aspects "unacceptable." In particular, he objected to the U.S. commitment concerning continued supply of "defense articles and defense services" for self-defense purposes, and also rejected any idea of a PRC commitment not to use force to reincorporate Taiwan into the PRC in fact—while indicating that the PRC had no present intention of so proceeding.

I understand that PRC leaders continue periodically to ask the Administration for revision or repeal of the provision for self-defense supplies. However, I think they also understand that this and other commitments in the Act, as well as the other aspects of our continuing (but nongovernmental) relations, are part of the basis on which the United States agreed to go forward with diplomatic relations and a broader relationship with the mainland. Certainly in the two-and-one-half years since the Act became law, relations between China and the United States have developed far beyond our long-standing preoccupation with the Taiwan issue. Both countries accepted what was then a genuine compromise, and both thereby advanced their larger national interests. It was also the culmination of a slow but sure process which as a politician I would call "glacial," a massive and decisive political shift by small increments over a long period of time. I doubt that minor disagreements or diplomatic pique can change the reality of this shift.

At the same time, I am concerned that we not extend our relationship with the mainland further or faster than the traffic can and should bear. I have been to the mainland twice, in 1975 with Senators Pell and Percy and again in 1979 with Senator Church and other Senators. In addition, I have high consideration for the former Chinese Ambassador to the United Nations, now their Foreign Minister, Huang Hua. The Chinese are a great people, a resilient and resourceful people. But they are currently engaged in an historic and very delicate transformation: politically, socially and economically. We must be careful that we do not mislead them into expecting a relationship which we cannot maintain over time, for the eventual letdown could derail this important internal process—a process which it is strongly in our interest to encourage, whatever gains we may also seek in the diplomatic arena.

Finally, the shift in recognition by President Carter, combined with the efforts of Congress to ease and stabilize the shock to Taiwan in the Taiwan Relations Act, has not resulted in an erosion of our fundamental relations with the people there. In fact, once the initial tremors had passed, the economy has continued the extraordinary and dynamic growth which has made it one of the most prosperous societies in Asia.3 U.S. trade and investment in Taiwan have flourished. Furthermore, in accordance with the unofficial mechanisms devised under the Act, several new agreements have been concluded and the shipment of certain defensive weapons was resumed. Experience has therefore shown that the relationship can continue to exist without interfering in the fundamental question of Chinese sovereignty.

I do not suggest that Congress deserves all the credit for the eventual outcome of our China policy. The Chinese, including the authorities and people on Taiwan, have made it work, as have the able members of our own diplomatic corps and civilian groups. But I do think the experience of devising a workable new relationship, with both the mainland and the people of Taiwan, illustrates that the Congress can and does play an important and constructive role in this process—including the all-important function of helping the American people to understand and accept a complex adjustment in our foreign relations.

1 I have in mind Lloyd N. Cutler's article, "To Form a Government," in the Fall 1980 issue of this journal.

2 In particular, there is a useful line of cases based upon our experience in dealing with the Soviet Union prior to U.S. recognition. See, in particular, Wulfson v. Russian Socialist Federated Soviet Republic, 23 N.Y. 372, 138 N.E. 24 (1923). A good summary of the legal precedents was provided to the Committee in the testimony of Professor Victor Li. "Taiwan," Hearings Before the Committee on Foreign Relations, United States Senate, 96th Congress, 1st sess., February 5, 1979, Washington: GPO 1979, p. 144, 150-51. Professor Li was briefly retained as a consultant to the Committee to advise on these matters.

3 Taiwan's economic successes have been examined in a number of studies, including a report last year by the staff on the Senate Foreign Relations Committee entitled "Implementation of the Taiwan Relations Act: The First Year" (June 1980).