- The Taiwan Relations Act at 40:A Troubled but Durable Legal Framework for U.S. Policy
Four decades after its enactment, the Taiwan Relations Act (TRA) remains a relatively effective and distinctly legal framework for U.S. policy toward Taiwan, cross-strait relations, and, in turn, U.S.-China relations. Adopted amid the normalization of relations between the United States and the People's Republic of China (PRC), and reflecting Washington's acquiescence in severing diplomatic relations and terminating a mutual defense treaty with the Republic of China (ROC) in Taiwan, the TRA mitigated the consequences for Taiwan of a new era in U.S.-PRC relations.
The TRA has provided a sustainable and adaptable basis for ongoing, although diminished, U.S.-Taiwan relations. Although the TRA is a law, its contributions have been largely political. The TRA has faced challenges and shown shortcomings, which have worsened as it moves toward the half-century mark. Yet it is unlikely to be supplanted or significantly supplemented. Attempts to supersede or greatly alter the TRA could undermine its persisting virtues. The remaining sections of this essay address each of these claims in turn.
A Second-Best Substitute for Diplomatic and Security Ties
The TRA has provided "second-best" substitutes for what Taiwan lost when the United States severed formal ties in 1979. It offers an incomplete stand-in for the mutual defense agreement, committing the United States to sell "arms of a defensive character" based "solely" on judgments about Taiwan's needs and to maintain the United States' own capacity to resist force or coercion (implicitly by Beijing) that would jeopardize the security of the people of Taiwan (secs. 2(b), 3). Broader policy language in the TRA—that peace, security, and stability in the region are U.S. interests, and that the United States insists that the future of Taiwan be decided by peaceful means (sec. 2(b))—has bolstered the narrow and largely discretionary arms sales pledge and embedded U.S. regional security policy in formal legislative language. The TRA's interaction with international legal principles retains a [End Page 35] foundational element and legitimizing precondition of the former alliance: it is lawful to provide weapons to the government of another state and to use defensive force on its behalf, but it is not (except under rare circumstances) permissible to do so for a long-ousted national government or a would-be secessionist province.
The TRA provides an incomplete alternative to diplomatic relations and associated legal rights and responsibilities. It mandates that Taiwan be treated under U.S. law largely as if it were a state, and the ROC as if it were the government of a recognized state maintaining formal ties. Specific commitments include Taiwan and the United States maintaining quasi-embassies and quasi-consulates in one another's territory, Taiwan having sovereign immunity in U.S. courts, and Taiwan retaining the capacity to be party to international agreements with the United States (secs. 4–11). The TRA also backhandedly supports preserving, incompletely, Taiwan's status in the international system, declaring that the TRA is not to be "construed as a basis for supporting the exclusion or expulsion of Taiwan from continued membership" in any international organization—as had occurred, with dramatic effect on the ROC's international stature, at the United Nations in 1971 (sec. 4(d)). With its mandate that Taiwan enjoy such status in U.S. law and policy, the TRA made an early and lasting contribution to what has become Taiwan's long-running pursuit of security through acquiring or retaining as many attributes of sovereign statehood as possible, including strong informal relations with states and membership or participation in international organizations.
The TRA has been uniquely important in entrenching U.S. policy toward Taiwan. Unlike the other "sacred texts" of the United States' Taiwan and cross-strait policies (the Three Communiqués and, on some accounts, the Reagan-era Six Assurances), the TRA is a U.S. law. It binds the president and executive branch subordinates, who cannot lawfully disregard or change the TRA as they could the Three Communiqués or lesser policy statements. From Washington's perspective, the communiqu...