Wed. Oct 5th, 2022

Prof. ST Hsieh

Director, US-China Energy Industry Forum

626-376-7460

[email protected]

August 20, 2022

Recently, Professor Pfister has written a series of US-China relation with a focus on Taiwan. It is timely! We should pay attention to the status of “Taiwan Strait,” as it is now the world’s most combustible hot spot other than Ukraine, which is already under fire, literally. President Biden should take the lead and negotiate with President Xi for a new US-China Framework which is fully recognized by all branches of the US government which could be the best “guardrails” for the next 50 years. President Biden will not have to run for reelection in 2024 because he will be recognized/remembered by the world as the greatest leader of our time.

US and China should manage the Taiwan issue carefully. US and China had a very friendly and mutually beneficial relation during the World War II. The end result was the unconditional surrender of Imperial Japan. But the following cold war between the Soviets (Communism) and the US (Capitalism) pitched Taiwan into an unexpected global spotlight. The sudden broke out of Korean War, there is no peace treaty yet, US policy of the time was to formally recognize Taipei, which was the seat of Republic of China (ROC) and the Peoples’ Republic of China (PRC) seated in Beijing was isolated from the west as an outcast. DC and Beijing maintained a hostile relation for almost 20 years where Taipei was recognized as the seat of power for “China.” It was the high time of cold war, so the world was black vs white meant ROC in Taipei is the “Legitimate China” no matter the size of population or governance, while PRC in Beijing was rejected as “Illegitimate China” as an outcast.

But ideology difference aside, smart politicians always face the reality of changing geopolitics. As such, President Nixon, a Republican, and Dr. Kissinger surprisingly established a brand-new US-China relation with Chairman Mao and Premier Zhou Enlai 50 years ago. It was a breakthrough and kept US and China on talking terms without any real crisis.

Fifty years ago, it was a different world then, Taiwan was an important issue but neither PRC nor the US was focused on Taiwan as a major military hot spot. Thus, all the framework documents such as the Three Joint Communiques between the US and China did address Taiwan issue but only in terms of general principles rather than specific actions or set any time limit. Several issues were intentionally remained to be “gray” and each side was free to publicly making interpretations as one wishes, and the other side won’t register any contest. It was a wise design, but it is also a “kick the can down the road” approach. The expectation is future generations are smarter than us now.

But nothing lasts forever, especially “good times!” US and China both are dealing with new realities now, Taiwan has increasingly become a “sharp focus” as the chance of military confrontations escalated recently. The foundation of US-China relation: Three Joint Communiques, Taiwan Relation Act (TRA), and the Six Guarantees need an overhaul. They should be clarified, re-drafted, and certified by all parties.

A major issue is the validity that a cross-over of US domestic legislations and edicts applied to foreign relation. Specifically, the US actions toward Taiwan, are based on TRA, Six Guarantees, and ton of existing US legislations. But the US “acknowledged” Taiwan as a part of China. Of course, China does not accept these US “laws,” especially when these Taiwan related legislations passed the US Congresses term after term with stronger and stronger languages condemning China. Unfortunately, because the Three Joint Communiques did not go thru the US congresses so, for US Congresses these communiques are not binding and can trash them anytime. Or they are completely ignored by the US Congress most of the time. The net result is that the Three Joint Communiques are only recognized by the US Administrations when they deal with China. In the sense that the only document recognized by both the US and China is the Three Joint Communiques. While China fully embraced the joint communiques when it deals with the US, they are only partially embraced by the US Administrations. To the extreme, some US conservative politicians do not recognize Beijing as a “legitimate government” at all.

This reality puts the US Administrations in an awkward position dealing with China, because China is a member of the United Nation. However, US Administration is only one of the three branches of the US government. Often it gives the US Administrations some wiggle room because essentially US diplomats, even the President of the US, can leverage with Chinese counterparts: I simply do not have that authority.

However, “when the rubber hits the road” who is going to represent the US for making big deals? It is a critical challenge for the US leadership on the global stage! US Administration does not have any credibility anymore, case in mind the Paris Climate Change Agreement or the JACPOA Iran nuclear deal.

Intrusiveness of Taiwan Relations Act

James W. Pfister Sat, August 20, 2022 at 1:00 AM

After the United Nations recognized the People’s Republic of China (herein PRC), seating the PRC and removing the Republic of China (herein ROC), located on the island of Taiwan, as the government of China, on Oct. 25, 1971, the United States recognized said PRC as the government of China effective Jan. 1, 1979, withdrawing recognition of the ROC and giving its one-year notice of termination of the Mutual Defense Treaty with the ROC.            

There was a Joint Communique on the Establishment of Diplomatic Relations between the People’s Republic of China and the United States on Dec. 16, 1978. Sen. Barry M. Goldwater, former Republican presidential candidate in 1964, filed suit on Dec. 22, 1978. It was dismissed. Congress passed the Taiwan Relations Act (herein TRA) on April 10, 1979, which by its terms related back to Jan. 1, which President Jimmy Carter signed, saying that it “contains all of the authority that I requested in order to enable us to maintain unofficial relations with the people on Taiwan.” An earlier draft by Carter had been rejected as not strong enough.

My thesis is that the U.S. never intended to let go of Taiwan. It has undermined PRC sovereignty over Taiwan from the beginning of its relationship with the PRC in 1979. This is shown by both the Joint Communique and the TRA.

The Joint Communique states, after it recognizes the PRC “as the sole legal government of China,” that, “within this context, the people of the United States will maintain cultural, commercial, and other unofficial relations with the people of Taiwan.” These “other unofficial relations” have included arms sales and, I believe, just as strong a commitment to defend Taiwan as the prior defense treaty. The Joint Communique also states the U.S. “acknowledges” the Chinese position “that there is but one China and Taiwan is part of China.” It does not use the word “accepts” or its equivalent.

The TRA is not a document in international law. It is a mere U.S. statute, a unilateral statement. I believe it is inimical to the notion of PRC sovereignty over Taiwan. First, the TRA creates structure which connects the U.S. with Taiwan, the American Institute in Taiwan and, for Taiwan, the Coordination Council for North American Affairs, renamed in 2019 the Taiwan Council for U.S. Affairs.

Second, the TRA is the functional equivalent of the prior Mutual Defense Treaty, if anything more detailed. While the treaty said in Article 5 (the trigger clause) the U.S. would respond to an armed attack by meeting “the common danger in accordance with its constitutional processes,” the TRA uses language in Section 2(b)(4) as “a threat to the peace and security of the Western Pacific area and of grave concern to the United States.” “Grave concern” language is very serious as a threat. In Article 2(b)(5) the TRA says that the U.S. will “provide Taiwan with arms of a defensive character,” and Article 2(b)(6) says the U.S. will maintain the capacity “to resist any resort to force or other forms of coercion that would jeopardize the security, or the social or economic system, of the people of Taiwan.” Note the U.S. threatens the use force to maintain Taiwan’s capitalist, democratic system.

Third, of course, there is the human rights mantra, our ideology. We say at Section 2(c): “The preservation and enhancement of the human rights of all of the people on Taiwan are hereby reaffirmed as objectives of the United States.”

It makes you wonder who is claiming sovereignty over Taiwan, the U.S. or the PRC? The PRC might say: With friends like these, who needs enemies? Indeed, we state the purpose of the TRA in Section 2(a)(2) is: “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.”

We are like a suitor who cannot let go. We are a stealth aggressor, claiming the right to defend and control an entity 100 miles off the PRC coast, which the U.N. recognizes belongs to the PRC.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at [email protected].

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