January 26, 2004
U.S.- China Commission
Hall of the States
Suite 602
444 North Capitol Street NW
Washington DC 20002-4999
Dear Commissioners:
I am quite pleased to comply with your request (dated January 14th, but which reached me only on January 23rd) to participated in a public hearing on February 6, 2004. I provide below answers to the six questions put to me in your invitation letter.
1. What role does the TRA establish for the Congress in U.S. policy toward Taiwan?
The TRA is unique in foreign policy. In it, the Congress established firm parameters defining major htmects of U.S. relations with both the People’s Republic of China (PRC) and with Taiwan. As examples, the law:
n states that the establishment of diplomatic relations with the PRC is tied firmly to the expectation that Taiwan’s future will be settled by peaceful means only;
n invoking language taken from the United Nations Charter, states that any attempt to determine Taiwan’s future by other than peaceful means, including by boycott or embargo, is to be considered a threat to the peace and security of the western Pacific area and a matter of grave concern to the United States;
n directs that the U.S. shall provide Taiwan with arms sufficient for its defense needs, and that the U.S. shall maintain forces in the area sufficient to deal with “any resort to force or other forms of coercion” against Taiwan;
n states that “preservation and enhancement” of human rights on Taiwan are objectives of the United States.
Having set forth these objectives with great specificity, the law gives the Congress a clear oversight role vis-à-vis Taiwan. Thus, “the President is directed to inform the Congress promptly of any threat to the security” of Taiwan. It is the Congress and the President who, jointly, are to determine the nature and quantity of defense articles and services for Taiwan. The Congress goes on to modify a number of American laws in order to provide for the continuation of a complex, international relationship with Taiwan. And, in establishing the American Institute in Taiwan to carry out that relationship, it sets forth general Congressional oversight as well as requirements for reporting to the Congress as may be necessary.
Having stated these things, it is necessary to point out that in 1995 and 1996, when the PRC fired missiles into the immediate vicinity of the island republic’s two major ports, Keelung and Kaohsiung, the then President did not inform the Congress of the threat to Taiwan as required by law. That such a threat existed was made plain by the despatch of two aircraft carrier battle groups to the vicinity of Taiwan.
2. Has the Congress been fully briefed on the complete historical record and arrangements regarding U.S. policy toward Taiwan (such as the historical records of the “three communiques” and the background papers supporting the TRA? Are there important documents in the non-public historical record that would shed important light on U.S. commitments to Taiwan?
Congress itself must be the best judge of whether it has been fully and appropriately briefed by successive administrations since the passage of the TRA. The legislative record of the Act exists and makes plain the intent of the Congress in the continuing relationship with Taiwan under the TRA. See Lester L. Wolff and David L. Simon: Legislative History of the Taiwan Relations Act, published by the American Association for Chinese Studies and St. John’s University, Jamaica, N.Y., 1982. Additionally, James Mann’s About Face (Alfred A. Knopf, New York, 1998) provides excellent background information on the negotiations which led ultimately to the establishment of diplomatic relations with the PRC, and the Shanghai, Recognition, and August 17 communiques. My own article, “Taiwan, Arms Sales, and the Reagan Assurances” (American Asian Review, XIX, No. 3, Fall 2001) provides background on the Six Assurances given Taiwan by President Reagan, and includes previously unpublished letters from President Reagan to Taiwan’s President Chiang Ching-kuo. One of these letters states that in the event it becomes clear that a peaceful resolution of Taiwan’s status is no longer PRC policy, the communique of August 17, 1982 will be considered null and void.
Are there other documents still unpublished, or kept secret by successive administration? Undoubtedly so.
3. How would you describe the debate over Taiwan’s status under international law? Is its status finalized or does it remain an “undetermined question?”
As is generally known, in the Peace Treaty of 1951, Japan abandoned all right and title to Taiwan but did not convey its rights, acquired under the Treaty of Shimonoseki in 1895, to any other state. Since that time during the Truman administration, the formal position of the United States has been that Taiwan’s status remains undetermined – this despite informal statements by President Nixon in conversation with Mao Zedong agreeing that Taiwan is part of China.
In fact, in the three communiques signed with the PRC, the United States stated no position of its own with regard to Taiwan’s status, in effect remaining agnostic. Thus among the United States, the PRC, and Taiwan, there are three completely different views.
The PRC asserts what it calls “the One China Principle” which, in its latest iteration has it that both Taiwan and the mainland are part of one China, and that the only legitimate government and international representative of that one China is the PRC government in Beijing.
Taiwan’s position has taken several different forms over the past dozen years. At present, it goes something like this. The government on Taiwan is the direct and legal successor to the Republic of China government established in 1911, and therefore is a sovereign entity, but one which has governing authority only over Taiwan and associated islands (Chinmen, Matsu, etc.). The PRC has never ruled on Taiwan, Taiwan is not a part of the PRC, nor is a part of any other state. Former President Lee Teng-hui once stated that Taiwan has a “special state-to-state” relationship with the PRC, more or less analagous to that between East and West Germany prior to reunification. The current President, Chen Shui-bian, has stated that there is a separate state on each side of the Taiwan Strait. In the historical record of more than four millenia, there have been many occasions where the broad entity “China” was made up of several states or, in fact, kingdoms. So asserting that there are separate “states” on each side of the Taiwan Strait could be taken to mean no more than that Taiwan is not part of the People’s Republic of China, though it could still be a part of some broader entity.
In the Communique of January 1, 1979, recognizing the People’s Republic of China as the sole legal government of China, the United States acknowledged (i.e. expressed its understanding) that the PRC claims there is but one China of which Taiwan is a part. But the United States stated no view or position as to Taiwan’s status. In the Six Assurances, President Reagan assured President Chiang Ching-kuo that there had been no change in the American position.
The United Nations regards Taiwan as a province of the People’s Republic of China. Though it has seated non-stated such as the Palestinian Authority, under PRC pressure it refuses any recognition of Taiwan’s separate status, even asserting, from time to time, that Taiwan is represented internationally by the government in Beijing. This should demonstrate that such decisions are political and not legal.
Some countries, in establishing diplomatic relations with Beijing, agreed with the view that Taiwan is a part of China. Others refused to do so. Some twenty-seven countries, most of them quite small, accord diplomatic recognition to Taiwan as the Republic of China.
In international practice, countries are free to make their own determination as to international legitimacy or statehood. In that connection, the most widely used test of statehood is given in the Montevideo Convention of 1931: an entity is a state within international law if it has defined territory, defined population, and has the ability to enter into international agreements. Clearly Taiwan, a member of the World Trade Organization, the Asian Development Bank, and other international bodies, meets the Montevideo test.
Finally, please note that at one minute before midnight December 31, 1978 the United States recognized the Republic of China on Taiwan not only as a state but as the sole legitimate government of China. At one minute after midnight January 1, 1979, it no longer did so. Yet no change took place on Taiwan. In every way except with regard to its diplomatic relationship with the United States, it remained exactly what it had been. Moreover, the fact that the United States does not recognize Cuba does not mean that Cuba is not a state, or lacks international personality.
4. How does the proposed Taiwan referendum comport with U.S. commitments under the TRA?
Whatever one may think of its salience or wisdom, the referendum now under discussion on Taiwan has no bearing upon those commitments, nor is it in conflict with them.
5 Please discuss how U.S. military relations with Taiwan were intended to be conducted under the TRA, including the role of Congress in this process. Are they in fact being conducted in this manner?
It is clear from the Senate and House reports on the bill that became the TRA that the Congress intended to be a full partner in carrying out military relations with Taiwan. A typical quote is that of Representative Broomfield, who at the time was the ranking Republican member of the House Committee on Foreign Relations: “…it is the committee’s intent that the President should inform the Congress of anticipated dangers (emphasis added), and not await their actual occurrence.” See Wolff and Simon, op.cit., p144. It should be clear from the events of 1996 that they are not being conducted in this manner.
6. Are there any examples known to you where the U.S. Congress has shared formally with the Executive Branch its assessment of Taiwan’s military needs as specified in the TRA, Section 3(b)?
As far as I am aware, the Congress has done so only in the form of non-binding resolutions.
Respectfully submitted,
Harvey J. Feldman
U.S. Ambassdor, retired
Senior Fellow, The Heritage Foundation