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Taiwan Relations Act - the Legal Basis of Changing Dynamics between Taiwan and the US

On 3 December 2016, the US President-elect Donald Trump exchanged telephone conversations with Ms. Ying-Wen Tsai from Taiwan sparking a multitude of reactions from major news sources and social media all around the world. The Atlantic noted this as a “sharp breach of protocol” that could set off a crisis in the Sino-American relationship, even though the US “maintains a strong “unofficial” relationship with Taiwan”. Mr. Trump later publicized the occasion via Twitter that he spoke with the “President of Taiwan” and that it was “interesting” that he should not receive the call given the US is a main weapons provider to the island. Indeed, since 1990, US arms sales to Taiwan has totaled more than $46 billion serving as a source of friction between the US, China and Taiwan. While many are still speculating over the short-term and long-term consequences for Taiwan following this event, it is worth unpacking the legal basis and the extent of the relationship between Taiwan and the US to better assess what is at stake.

According to the US Department of State website, the 1979 Taiwan Relations Act that provides qualified commitment to Taiwan’s security is the “legal basis for the unofficial relationship between the United States and Taiwan, and enshrines the US commitment to assist Taiwan in maintaining its defensive capability”. The Act was born against the backdrop of the 1979 US-PRC Joint Communique that switched the diplomatic recognition from Taipei to Beijing, which not only recognized the PRC Government as the sole government of China, but also acknowledged that there is but “one China” and Taiwan is a part of China. The Act was then passed by the US Congress and signed by President Jimmy Carter following the official termination of relations between the US and Taiwan.

The Act contains 18 sections with the preamble stating “to help maintain peace, security and stability in the Western Pacific and to promote the foreign policy of the United States by authorizing the continuation of commercial, cultural, and other relations between the people of the United States and the people of Taiwan, and for other purposes.” The Definition refers to Taiwan as the “islands of Taiwan and the Pescadores” and the “governing authorities on Taiwan recognized by the US as the Republic of China prior to January 1, 1979”. The language in the Act suggests the terminology of “governing authorities” was used to avoid any legal sovereignty recognition or endorsement.

Section 2 states that the Act is necessary following the termination of governmental relations between the US and the governing authorities on Taiwan, while Section 3 provides the US will make available defense articles and services to enable Taiwan to maintain sufficient self-defense capability. Under Section 3(2), the President and the Congress determine the extent of the defense “solely upon their judgment of the needs of Taiwan”, while allowing the inclusion of the reviews and recommendations by the US military authorities. There is some strategic ambiguity over the wording of Section 3 as it enables the US to sell arms or offer defense services at its discretion, which potentially limits Taiwan’s ability to declare independence and to a certain extent prevent the PRC from pursuing unilateral unification.

A crucial yet often neglected provision in the Act is Section 4, which states that the absence of diplomatic relations or recognition shall not affect the application of the US laws to Taiwan, and that the Act is not to be construed as either excluding or expulsing Taiwan from continued membership in any international financial institution or international organization. This Section allows past agreements and the status quo of Taiwan to be preserved under US law, and it does not prevent Taiwan from being included in the international community under international law.

Perhaps of increased interest following Mr. Trump’s conversation is the effect of Section 13, which provides the President is authorized to prescribe rules and regulations “as he deems appropriate” to carry out the purposes of the Taiwan Relations Act. However, these must be transmitted to the Speaker of the House of Representatives and to the Committee on Foreign Relations of the Senate. Furthermore, under Section 14, there is congressional oversight to monitor the implementation of the Act; the US policies concerning security and cooperation in East Asia; as well as the legal and technical aspects of the US-Taiwan relationship.

Indeed, as noted by the Brookings Institute, an important precondition for the Taiwan Relations Act to remain effective is when both the US and Taiwan governing authorities act in concert sharing a common strategic goal. US’s commitment may wax and wane as much of the legal language contained in the Act provides for discretion and leeway, particularly as it has been clearly stated that the US foreign policy objectives are the ultimate concerns. According to China and Taiwan legal experts Professor Steven M. Goldstein and Randall Schriver, domestically in the US, there has also been long-standing debates over whether the Act serves as a virtual treaty acting as the key to the security of Taiwan, while some view it as progressive weakening and the reiteration of what was already present in existing US legislations or the Constitution.

Although some legislators in Taiwan like Freddy Lim hope that Trump’s perceived abrupt outspokenness would provide a breakthrough in traditional restrictions in Taiwan-US relations, it has now been revealed that the phone call had been months in the making. Stephen Yates, a national security official suggested that Taiwan was amongst the list of foreign leaders that Trump’s team planned to reach out early on. As noted by CNN, the US has traditionally followed a “one China” policy that is a “carefully managed and strategic arrangement designed not to anger Beijing”. However, with more prominent Republican figures coming to the surface as influencers behind the conversation such as Former Senator Bob Dole, the foreign agent for the government of Taiwan, it remains to be seen what functions were designed to be achieved following the phone call.

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