John J. Tkacik, Jr. On Taiwan: The US Constitution and Recognition of Taiwan
Let me ask a question: What if President Biden exercised his exclusive constitutional authority and issued an explicit White House statement that “the United States does not recognize, and the United States has never recognized, the Chinese sovereignty over the island of Taiwan and the Pescadores. And furthermore, the United States has repeatedly informed both the Government of the People’s Republic of China as well as the United Nations Secretariat of this fact. “
Such a statement would have the added benefit of being true.
All of the Taiwanese policy of the United States is based on the 1951 San Francisco Peace Treaty, which left Taiwan’s international legal status undetermined. And in December 2021, the United States still does not take a position on the “sovereignty” of Taiwan. This “no position” posture is at the heart of what is called “our one-China policy”, a policy very often cited by US presidents, secretaries of state and other members of the US cabinet. , but its simple syntax masks a complex legal position.
The nomenclature “our only China” was invented on April 21, 2004 by Assistant Secretary of State for East Asian Affairs James Kelly, who explained during a public hearing of the House Committee on international relations – and I quote:
“The definition of one China is something we could go on for far too long for this event. In my testimony, I made the point “our only China”, and I didn’t really define it, and I’m not sure I can define it very easily. I can tell you what it is not. This is not … the only Chinese “principle” suggested by Beijing.
And since 2004, the phrase “our one-China policy” has been a term of diplomatic art that preserves a strict non-recognition of Chinese sovereignty over Taiwan unless and until the Taiwanese people consent. freely and without coercion. “Our One-China Policy” encompasses the legal obligations of the US president under the 1979 “Taiwan Relations Act”, as well as the elaborate formulas of the three US-Chinese joint communiques, and finally the written assurance from President Ronald Reagan to President of Taiwan Chiang Ching-kuo (蔣經國) that “the United States… have not changed their position regarding sovereignty over Taiwan”. These – the TRA, the Joint Communiqués, and the Six Assurances – are the cornerstone documents of US policy toward Taiwan.
In August 1982, President Ronald Reagan informed Chinese leader Deng Xiaoping (鄧小平), through US Ambassador to Beijing Arthur Hummel, that Reagan had assured the Taiwanese leader “any deal we make with Beijing will be founded. on the pursuit of Beijing’s peaceful intentions towards Taiwan. . Deng, who had never committed to a peaceful resolution of the Taiwan question, nevertheless agreed to continue selling American defensive equipment and services to Taiwan on this basis. Throughout the Reagan administration, the United States continued to sell weapons to Taiwan, including a complete production line for IDF jet fighters (自製 防禦 戰機 – 經 國 號 戰鬥機). Deng Xiaoping and the People’s Liberation Army agreed to close cooperation on matters weapons between the United States and Taiwan because, at the same time, the United States was also selling China a wide range of defensive systems, services and weapon upgrades, including a modernization contract $ 550 million avionics and fire control for an entire air squadron of 50 Chinese jet fighters, the J-8-II (殲 -8-II), in a project known as the “Peace Pearl” (“和平 珍珠 計畫” 又稱 “八 二 工程”). During administration Reagan, China, and the United States were strategic allies against the Soviet Union. As a result, Deng Xiaoping put aside his differences with Reagan over Taiwan in order to access US weapon technology.
But how is this “one China policy” relevant to the American diplomatic recognition of Taiwan as “Taiwan”? Answer: in the presidential power to grant or deny recognition by America of foreign claims of territorial sovereignty.
US presidents very rarely use this exclusive constitutional authority. Surprisingly, President Donald Trump was the only one to use this power constructively. It was his most effective instrument in getting Arabs and Israelis to adhere to his “Abrahamic Accords” in 2020 was the recognition, by the United States, of Israeli sovereignty over the Golan Heights and sovereignty over the Golan Heights. of Morocco on Western Sahara. More subtly, Trump moved the U.S. Embassy in Israel from Tel Aviv to Jerusalem and officially recognized Jerusalem as the capital of Israel. Yet he was careful not to place the embassy within the confines of East Jerusalem still held by the United Nations as under pseudo-international administration, nor to recognize the disputed parts of ancient Jerusalem as being under Israeli sovereignty. formal.
This particular and exclusive prerogative of the President of the United States is an instrument of such profound diplomatic significance that it is puzzling that American Presidents do not use it more often.
A few months ago, a group of Taiwanese academics and national security academics with whom I exchanged emails wondered how the United States would go about granting diplomatic “recognition” to Taiwan if that was necessary in a crisis situation. One observer asked, “So the United States would recognize Taiwan?” Like what? The ROC? “
The point was that the United States would hardly recognize Taiwan as the “ROC”. It would also not be a simple thing for the president to recognize a country by a name which he did not use for himself. The ROC government in Taipei, itself, is being compelled to declare itself independent by the very real prospect of war or some other almost equally unpleasant outcome. Of course, if ever military hostilities were to be unleashed on Taiwan, American recognition of Taiwan’s independence from China would be immediate but, unfortunately, of little deterrent value.
So the idea that Washington, even under the most charitable of circumstances, would recognize Taiwan diplomatically before the start of war or even near war, is far-fetched.
Not so far-fetched would be a “negative” presidential statement in the sense described above: “The United States does not recognize, and the United States has never recognized, China’s sovereignty over the island of Taiwan and the Pescadores ”. As I have documented in previous “one Taiwan” columns, for seven decades the United States refused to recognize even nationalist China’s sovereignty over Taiwan – despite a “mutual defense treaty between the United States and the Republic of China “which was explicitly limited to Taiwan and the Pescadores” administered by the Republic of China.
As the United States Supreme Court confirmed in Zivotofsky v. Kerry , under the Constitution, the recognition of foreign territorial sovereignty is the sole prerogative of the President. President George W. Bush, through Secretary of State Condoleezza Rice, informed the United Nations Secretariat in June 2007, whether the UN “insists on describing Taiwan as part of the PRC, or on the use of the nomenclature for Taiwan which implies such a status, the United States States will be forced to disassociate themselves on a national basis from such a position. So this is not a new position at all.
But today, in December 2021, given the rhetoric of China’s progressively aggressive force against Taiwan, coupled with the fulminations that “Taiwan belongs to all Chinese” (台灣 是 全體 中國 人民 共同 擁有 的 台灣) and that “The one-China principle is the universal consensus of the international community and the accepted standard of international relations” (一個 中國 原則 是 國際 社會 的 普遍 共識 和 公認 的 國際 關係 準則), Washington can either remain silent, go back and give up, or make public an authoritative statement of American policy that it absolutely is NOT the case.
True, the United States made certain statements to the Chinese leaders of the Carter administration that we would not be referring to Taiwan’s “uncertain” political status, but these statements were based on the commitment of Marshal Ye Jianying (葉劍英) in 1980 of “the fundamental policy of struggle for a peaceful resolution of disputes with Taiwan.” In the absence of such a “fundamental” policy, the United States is compelled to draw attention to Taiwan’s sovereignty. A US presidential reaffirmation of “our one-China policy” explicitly “separating the United States on a national basis” from the assertion that Taiwan is part of China, would come very close to diplomatic recognition of the status of China. State of Taiwan. The prospect should give Beijing food for thought; and if not, then maybe the game is already over.
On October 29, 1976, in a very, very secret conversation in the secretary’s suite on the seventh floor, Henry Kissinger asked his key associates, “If Taiwan is recognized by us as part of China, then it could become irresistible to them. Our assertion that we want a peaceful solution has no force. It is Chinese territory. What are we going to do about it? Arthur Hummel, deputy secretary at the time, replied: “Well, maybe the only solution will be an independent Taiwan. “
John J. Tkacik, Jr. is a retired U.S. Foreign Service officer who served in Taipei and Beijing and is now director of the Future Asia Project at the International Assessment and Strategy Center.
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