Harvey  J. Feldman

Remarks on "Taiwan National Security"
International Forum sponsored by
Taiwan International Interchannge Foundation
Taipei, Taiwan
November 7,1998

   In August 1977, the then Secretary of State, Cyrus Vance,
traveled to Beijing.  Shortly after taking office the previous
January, his boss, President Jimmy Carter, had stated as a goal
the full  "normalization" of relations between the United States
and the People's Republic of China - "normalization" being a
well-understood expression meaning the establishment of diplo-
matic relations with Beijing. Vance informed Deng Xiaoping that
the Carter administration was prepared to move rapidly to achieve
that goal. But, said Vance, the complexity of US commercial and
other ties with Taiwan was such that America would need to main-
tain a small contingent of American officials on Taiwan to manage
relations.
   Deng would have none of it.  Reading from the PRC's record of
the visit to Beijing of President Gerald Ford and Secretary of
State Henry Kissinger, he pointed to a promise of the American
side that after full normalization, no official US mission would
be maintained on Taiwan.  Deng claimed that Ford and Kissinger
had promised to meet the three conditions set as China's price
for agreeing to mutual establishment of diplomatic relations:
removal of all American forces from Taiwan; abrogation of the
Mutual Defense Treaty with the ROC; and the end of all official
governmental ties.
   A month later, in September 1977, recalled from my post as
Charge d'affaires at the American embassy in Bulgaria - my only
non-East Asia assignment in more than twenty years as a Foreign
Service Officer - to become Director of the Office of Republic
of China Affairs,  I was summoned to the office of the then
Assistant Secretary of State for East Asian and Pacific Affairs,
Richard Holbrooke.  Holbrooke said my most important assignment
was to devise a system whereby all essential US ties with Taiwan
could maintained, but in the absence of any official American
office.  I was neither to consult nor to inform anyone, and was
to present my report in not more than six weeks.  Thus began the
drafting of the document that later, after many changes and the
involvement of many more people, became the Taiwan Relations Act.
   That first attempt of mine hardly counted as legislative
drafting.  I described the kind of structure that would be needed
in order to protect our basic interests in Taiwan.  It was
patterned directly on the embassy we then had in being, but with
the various sections given new names, just so it would look a bit
different.  Though it would not bear any official name, the new
structure would have to carry out the traditional diplomatic
tasks -- negotiating, reporting on political and economic develop-
ments, providing consular, cultural and informational services.
In addition it would have to watch over such things as arms sales,
coordination of OPIC guarantees and Export-Import Bank financing,
sale of enriched uranium for Taiwan's nuclear power reactors, and
so on.  Staffing such an office would be a problem unless some
method could be found to detach government officials from their
normal duties and assign them to such an office.  Moreover, the
offices in Taiwan would have to report to an office in Washington
that would be separate from, but monitored by, the State Depart-
ment.  It would be best to set up a nominally independent founda-
tion.
   At that point, November 1977, the work stopped.  The Carter
administration had other things on its collective mind, chiefly
renegotiating the Panama Canal treaties and the Middle East peace
process, and no American administration seems able to concentrate
on more than two complicated matters at any one time.  But in
September 1978, with these issues concluded successfully, negotia-
tions began in earnest in Beijing.  Here personalities and
personal convictions took hold. The then National Security Advisor,
Zbigniew Brzezinski, was extremely eager to add what he thought of
as China's weight in the struggle against the Soviet Union.  His
assistant for East Asia Policy, Michel Oksenberg, believed esta-
blishment of diplomatic relations with Beijing had to be a princi-
pal goal of the Carter administration.  Neither was particularly
concerned about Taiwan and its fate.  When they thought about it
at all, it seems they assumed that following the switch in rela-
tions the ROC government would have no choice but to agree
reunification on PRC terms.  In their view, Taiwan's only signi-
ficance was as an obstacle to the close relationship with Beijing
which they considered a primary foreign policy interest.  So
shortly after negotiations with Deng restarted in  September 1978,
the US side accepted two-and-a-half of  Beijing's three conditions.
The best analysis that I know of the negotiation and its partici-
pants is contained in a study by Dr. Chang Chiu Chao-ling  of the
Academia Sinica.
   Condition One: The US accepted that all military forces would
be withdrawn.  Condition Two: It accepted that there would be no
official relationship with Taiwan following normalization.
   As for the half, Beijing was informed that national dignity
(and, unspoken, political ramifications at home) precluded abro-
gating the Mutual Defense Treaty.  Instead, the US side would
give one year's notice of intent to withdraw in accordance with
Article Eleven of the Treaty, thus allowing Washington to say
that the treaty had been terminated in accordance with its own
terms.
   When Deng was told this, he swallowed hard but in the end
accepted this change.  But he insisted that since the treaty
technically would continue in existence for one year after
normalization, during that year no new arms sales agreements
should be concluded.  The US agreed, so that during 1979 we
continued to have a Mutual Defense Treaty with a government we
no longer recognized but would not sell arms to that government.
Thereafter, from 1980 on, we would sell arms to a government which
we did not recognize and with which we had no treaty relationship.
Surely this was some kind of record, even for the arcane world of
diplomacy.
   The reason we did sell arms from 1980 on was, of course, the
Taiwan Relations Act, and so we now should finally discuss this
unique piece of legislation.
   On December 15, 1978, President Carter announced that on
January 1, 1979 the United States and the People's Republic of
China would exchange diplomatic recognition, and the United
States thereafter would maintain only informal cultural and
commercial relations with the ROC.  In the thirteen months since
my initial report to Assistant Secretary Holbrooke none of the
legislation that would be needed to maintain those relationships
had been prepared.  Now the work began in great haste.
   The amount of legislation required was truly enormous.  Today,
we take it as a matter of course that that the American Institute
on Taiwan can perform notarial services, handle visa and passport
matters, oversee the sale of arms, and while unofficial in name
nevertheless can represent the views of the United States govern-
ment to the government of the Republic of China.  But all of these
things required either the passage of new laws or the amendment of
older ones.  For under American law, arms could be sold only to
friendly governments.  Sale of enriched uranium for power reactors,
as well as OPIC guarantees and Ex-Im Bank loans are restricted to
friendly states, and we had ceased recognizing the Republic of
China as a state and its government as a government.
   What were we to do about the 60 or so treaties and agreements
that existed between the ROC and the US, dealing with everything
from trade to taxation to air travel?  Some lawyers had written
articles claiming that after the switch in recognition, all these
treaties and agreements would apply to the mainland, and not to
Taiwan.  Others had argued they simply would lapse.  Was either
view correct?
   The American Institute, fashioned after my recommendations to
Holbrooke, was a totally novel instrument. It is a private founda-
tion, incorporated in the District of Columbia.  By the way, I
signed the incorporation papers and paid the incorporation fee
which, if I recall correctly, was fifty dollars.  It was to take
over all the work of our former embassy and do other things as
well.  But it had no funds, and no personnel. It could not simply
take over the property of the now closed American embassy a start
work.  How could it function?  And David Dean, designated its
first Director, had to work without pay for the firs two months.
   Several people have criticized as totally inadequate the
initial State Department draft of what later became the Taiwan
Relations Act, yet that draft - and here let me boast that I co-
chaired the drafting committee with Senior Deputy Legal Adviser
Lee Marks - that draft  solved the problems that stood in the way
of a smooth continuation of essential travel, trade, investment,
and the new, officially unofficial relationship that was being
created.
   With regard to the problems of arms sales, OPIC guarantees,
sale of enriched uranium, Ex-Im Bank loans, there was a simple
and elegant fix.  "Whenever the laws of the United States refer
or relate to foreign countries, nations, states, governments, or
similar entities, such terms shall include and such laws shall
apply with respect to Taiwan."  In similar fashion the draft went
on to say that unless specifically terminated, all treaties and
agreements in force on December 31, 1978 will continue in force.
   The draft regularized and provided a legal basis for the
American Institute in Taiwan.  It would be governed by a Board
of Directors appointed by the Secretary of State.  It would be
staffed by officers and employees of the United States government
who, for the period of their service with AIT, would be nominally
separated from their agencies but their AIT service would count
toward their pensions, their medical insurance and other govern-
ment benefits would continue, and they even could receive promo-
tion hile serving  with AIT.  They were authorized to provide a
variety of consular services even though technically not consuls
or vice consuls.  And all agencies of the US government were
authorized to sell or loan property of any kind to AIT, which is
funded as a specific, named item in the State Department budget.
   In short, the State Department draft provided the basic
economic and cultural and functional skeleton of the TRA.  Under
it, trade, investment, travel and immigration could continue.
All the services provided by the former embassy would still be
available to ROC citizens and to visiting and travelling Americans.
Because the draft contemplated the ROC setting up in the US an
organization paralleling AIT, Taiwan too would have what Beijing
objected to as "an embassy under a different nameplate."  Arms
would continue to be sold, loans made and, because except for the
Mutual Defense Treaty all the existing treaties and agreements
would continue, the bilateral basis for all these relationships
would be maintained.
   I mentioned a few minutes ago that many legal scholars had said
that following the switch in diplomatic relations, treaties and
agreements would shift from the ROC to the PRC, and other had
argued that all would lapse.  How did we deal with this problem?
Simply by having the law say, in effect, They continue just as
they were.  Not only was there no generally accepted international
law on the subject, but when a law duly enacted says this, there
is no American court likely to say anything to the contrary. The
PRC, by the way, argued that ROC property in the US must be handed
over to them.  The answer we gave was: "Well, you can go to court
and sue for it if you wish."  They never did.
   But while it did all these worthy and necessary things, the
State Department draft did not provide for the continuing poli-
tical and defense relationship with Taiwan.  That was the wonder-
fully creative contribution of the 96th Congress.
   Carter's December 15th announcement took the Congressional
leadership by surprise. The President and leading members of his
administration had promised to consult on any change in recogni-
tion and the previous July he had signed the a bill which included
a sense of the Congress resolution calling explicitly for such
consultation.  But there was neither consultation nor advance
notice.  The leaderships, Democratic as well as Republican, were
extremely angry.  Taiwan's supporters, and there were many in
both parties, were appalled. And of course many Republicans were
eager to embarrass a Democratic president.  As a result, there
quickly emerged a broad coalition which, in the end, included
almost every senator and every representative.  Although its
membership has changed over time through death, retirement or
defeat at the polls, that broad, almost unanimous coalition
remains in being to this very day.
   Offended by the absence of any security guarantee in the draft
which the President sent forward in mid-January 1979, as well as
by his agreement to conclude the normalization process on Deng
Xiao-ping's terms, Congress embarked on an extraordinary interven-
tion.  As it finally emerged, the Taiwan Relations Act in reality
was a treaty imposed by the Congress through legislative action.
Moreover, it was a treaty which would set the terms and limita-
tions by which successive administrations would have to abide
in conducting relations with both Beijing and Taipei.
   The security assurances codified into law by the TRA are
generally familiar:
      ....peace and stability in the area are in the political
security and economic interests of the United States and are
matters of international concern (emphasis added);
      ....the United States decision to establish diplomatic
relations with the People's Republic of China rests upon the
expectation that the future of Taiwan will be determined by
peaceful means;
      ....the United States will 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;
      ....the President is directed to inform the Congress
promptly of any threat to the security of the social or economic
system of the people on Taiwan;
   And most important of all,  the United States would consider
      ....any effort to determine the future of Taiwan by other
than peaceful means, including boycotts or embargoes, a threat
to the peace and security of the Western Pacific and of grave
concern to the United States.
   The language "threat to the peace and security of the Western
Pacific" echoes the similar language in the United Nations Charter,
especially in Article VII which deals with  acts of aggression.
The statement that peace and stability in the area are internat-
ional concerns underlines the link to Article VII and directly
contests the PRC contention that the question of use of force
against Taiwan is an internal matter.
   The Act also contains language that is less well known publicly,
but also of key importance for America's East Asia policy, as well
as for Taiwan:
      ....the United States will maintain the capacity to resist
any resort to force or other forms of coercion that would jeopar-
dize the security, or the social or economic system of the people
on Taiwan.
      ....the preservation and enhancement of the human rights of
all the people on Taiwan are hereby reaffirmed as objective of
the United States.
      ....the President and the Congress shall determine the
nature and quantity of Taiwan's defense articles and services
based solely upon their judgement of the needs of Taiwan.
      ....nothing in this Act may be construed as a basis for
supporting the exclusion or expulsion of Taiwan from continued
membership in any international financial institution or any other
international organization.
      ....the foreign affairs committees of House and Senate are
expressly required to monitor not only implementation of the TRA
but also "the continuing relationship between the United States
and Taiwan."
   As it emerged from Congress, the TRA placed Taiwan in a unique
position.  A government no longer recognized would continue to be
treated as the government of a friendly state for all purposes of
American law.  It would have standing in American courts; its
assets in the United States were confirmed in its sole possession;
for purposes of the Immigration and Nationality Act it would be
treated as a separate country.  Most importantly, its peaceful,
uncoerced future was stated explicitly as a matter of grave
concern for the United States, and the Congress gave itself the
equally explicit role in monitoring the way successive administra-
tions would behave toward Taiwan.
   To say President Carter was not pleased would be putting it
mildly.  He considered vetoing the bill when it came to his desk,
but he was advised that the votes in the House (339-50) and the
Senate (85-4) indicated that such a veto probably would be over-
ridden.  In the end he signed it.
   Carter, and all the presidents who have followed him, have had
to live with the tension between the promises, explicit and
implicit, made to the PRC in the three communiques on the one
hand, and the plain language of the TRA on the other.  Sometimes
there is an obvious contradiction - for example between the
section of the TRA dealing with arms sales to Taiwan and the
August 17, 1982 communique which President Reagan was persuaded
to sign.  Sometimes there is a contradiction between communique
language a the actions of an administration - for example when
President Bush authorized the sale of F-16s to Taiwan despite
the August 17 communique.
   This tension continues to the present day.  It is an artifact
of what I believe was the basic mistake made by President Carter
in accepting the PRC's three conditions instead of insisting
that both realism and American interests required the U.S. to
continue to maintain an official relationship with the ROC.  Had
he done so, we would have escaped the tortuous exercise that
comes from having to operate a foreign policy which denies that
Taiwan is a nation and its government is a government, while
both American law and manifest reality say it is both.
   This unreality takes its worst form in statements such as
President Clinton's three no's, enunciated in Shanghai last
June: the U.S. will not support Taiwan's entry into international
organizations that make statehood a requirement for membership;
the U.S. will not support Taiwan's independence; the U.S. will
not pursue a "two Chinas, or one China one Taiwan policy."  The
administration said there was nothing new here, but as PRC
officials pointed out immediately after Clinton spoke, taken
together Clinton's statements logically must mean that Taiwan is
only a province of China and not a state.  After all, Mr. Clinton
has said it lacks the qualifications necessary for independence
or statehood, and since the U.S. has recognized the PRC as the
sole legal government of China, the U.S. necessarily must agree
that Taiwan is a province of the PRC.
   The TRA says nothing explicitly about Taiwan's status....and
yet in fact it does.  Not only does it say that for all purposes
of American law Taiwan is a state and its government is the
government of a friendly state, it also says that any attempt to
use coercive force against Taiwan would be a matter of interna-
tional and American concern,  which  means that as far as American
is concerned, using force against Taiwan cannot be regarded as a
domestic concern of the People's Republic of China.
   There is also the interesting section 4(d) of the Act, which
reads:
   "Nothing in this Act may be construed as a basis for supporting
the exclusion of expulsion of Taiwan from continued membership in
any international financial institution or any other international
organization."
   The language is phrased negatively, but the legislative history
of the TRA makes very plain that Congress intended affirmative U.S.
support for Taiwan's continued membership in such organizations as
the World Bank and the International Monetary Fund.  Which of
course must mean that Congress considered Taiwan fully qualified
to belong to them.
   The United States wants to have useful and cooperative relations
with the People's Republic of China.  And of course we hope the
People's Republic of China wants to have useful and cooperative
relations with us.  Which is to say, these matters should be
reciprocal, avoiding the present situation in which we are told
that to have those useful and cooperative relations, we must take
account of and act in accordance with Beijing's sensitivities and
needs - including those relating to Taiwan - but Beijing need
not take account of American sensitivities and needs - including
those relating to Taiwan.
   In his excellent book, East and West, former Hong Kong governor
Christopher Patten points out the Chinese leadership in Beijing
"did not require to be led in their negotiations by intellectual
titans to know that if they pushed hard enough, the British would
give....The trouble was that because Britain's bottom line was so
often abandoned, the Chinese assumed that it would always be
abandoned."  Unfortunately, all too often in its dealings with
the PRC, the Clinton administration has emulated the British
pattern of negotiation.
   If we are to act in accordance with the spirit as well as the
letter of the Taiwan Relations Act, we should do the following:
   * Return to the former policy of saying we take no position
on what the final status of Taiwan should be, because this is a
matter for negotiation between the two sides.  Reiterate that
the U.S. can accept any solution that is arrived at peacefully,
without coercion of any kind, so long as it is acceptable to the
people of Taiwan.  In the absence of such agreement, the status
quo must continue, and continue without threats.
   * Even though it is a neuralgic point for the PRC, the United
States should continue to press for a renunciation of the use of
force against Taiwan.  As stated in the TRA, the U.S. decision
"to establish diplomatic relations with the People's Republic of
China rests upon the expectation that the future of Taiwan will
be determined by peaceful means"; and that "any effort to
determine the future of Taiwan by other than peaceful means,
including by boycotts and embargoes [would be considered] a
threat to the peace and security of the Western Pacific and of
grave concern to the United States."
   * Obey the implicit injunction of the TRA to support Taiwan's
membership in international financial institutions and other
international organizations.  Beijing's continuing campaign to
squeeze Taiwan utterly out of international life, including the
work of purely humanitarian organizations such as the World Health
Assembly (a conference held under auspices of the World Health
Organization), as well as technical bodies in fields such as
telecommunications, aviation a maritime transport, cannot be
defended and certainly should not be accepted.  The United States
should cease its passivity and support membership in such organi-
zations as a matter of law, as a matter of realism, and as a step
which is in the interest of the proper functioning of those
organizations themselves.
   In short, it is time for the Executive branch of the American
government to recognize, as the Congress did in writing the TRA,
and as it continues to do, that Taiwan's existence as a multi-
party democracy, and a  free market economy - matters the fruit
of so much work and so many sacrifices by the people of Taiwan -
respond to important U.S. interests and must be protected.  A
policy which takes account only of our interests vis-a-vis the
PRC, and fails to take account of our substantial interests in
Taiwan's democracy and its future, cannot be considered realistic.