Editor’s note:

One of the most complicated issues in contemporary international relations is the status of the self-governing island of Taiwan and its government in Taipei, formally called the government of the Republic of China. Is Taiwan a sovereign state? What is the legal relationship between the Republic of China (ROC) and the People’s Republic of China (PRC)? How much of US support for Taiwan is grounded in law and how much in policy? Does international law recognize Taiwan’s right of self-defense or the right of its friends to come to its aid?

During the 2024-2025 academic year, the U.S.-Asia Law Institute (USALI) is hosting a series of speakers to address these and related questions from different perspectives. The series began with a talk by Richard Bush, a nonresident senior fellow at the Brookings Institution. Bush led US engagement with Taiwan from 1997 to 2002 as chairman and managing director of the American Institute in Taiwan, the mechanism through which the US government conducts substantive relations with Taiwan in the absence of diplomatic relations. In a October 30, 2024 online talk at NYU Law, Bush explained the genesis and significance of the 1979 Taiwan Relations Act (TRA), a domestic law that turned 45 years old this year. What follows are excerpts from that talk, including questions from the moderator and audience and his responses. The content has been edited lightly for clarity and brevity. A recording of the program can be found here.

Revisiting the Taiwan Relations Act

By Richard Bush

A thread running through my remarks is the need to distinguish the TRA as law and the TRA as a signal of American political and policy commitment.

To set the context, it is important to identify the undertakings that the Carter administration made to the People’s Republic of China (PRC) in December 1978, which was before the bill that became the TRA was introduced in the Congress. These affected the legal and political status of the Republic of China and Taiwan in US policy.

The Carter administration did the following:

Recognized the government of the PRC as the sole legal government of China; established diplomatic relations with the PRC government; and terminated diplomatic relations with the Republic of China government. Among other matters, these decisions sharply constrained the possibility of Taiwan’s membership in state-based international governmental organizations.
Made a commitment to conduct relations with Taiwan on an unofficial basis. But it has neither defined what “unofficial” means nor negotiated with Beijing about the meaning.
Only “acknowledged the Chinese position” – a very vague term – that there was one China and that Taiwan was part of China. That is, the US did not recognize that Taiwan was part of the sovereign territory of the state of China, as it does for Tibet, for example.
President Carter reaffirmed unilaterally the US expectation that differences over Taiwan would be resolved peacefully.

Some observers might point out that section 4(a) of the TRA states: “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.” Doesn’t that mean, these observers might ask, that Taiwan is a country, nation, state and so on?

My answer, and, more importantly, the view of executive branch lawyers, is “no.” The section of the TRA where this provision is found is clearly concerned with the applications of US laws. That is, it was intended to clarify, as a matter of law, which US laws should apply to Taiwan and which should not. It was not meant to speak to Taiwan’s legal status. This provision mandated treating Taiwan as if it were a foreign country, nation, state, and government. But “as if” treatment is not the same as affirmatively recognizing the ROC as a government of China or Taiwan as a separate state.

Note that this is a much more practical way of achieving this objective than going through every law in the US code and inserting the word “Taiwan” along with “foreign country,” “nation,” “states,” etc.

The underlying message here is that the meaning of the TRA as law is a function of legislative construction – that is, how the words used in our laws limit or don’t limit the actions of the Executive Branch. Not all the provisions in a law necessarily have binding legal effect.

When the TRA says, “it is the sense of Congress,” that is all it is. When the TRA says “it is the policy of the United States to do A, B, C, or D,” that does not make it so.

So when the TRA says, “it is the sense of Congress,” that is all it is. When the TRA says “it is the policy of the United States to do A, B, C, or D,” that does not make it so. The executive branch makes foreign policy. The Executive may agree with Congress on doing A, B, C, or D but it is not carrying out policy because Congress requires it to do so.

To illustrate, let me turn to security issues. When the Carter administration’s initial draft of the TRA was introduced, many members of Congress were startled that there was nothing concerning Taiwan’s security. They therefore sought to amend the bill to assert as a matter of law that Congress would play an unprecedented role in policy making concerning Taiwan in partnership with the Executive Branch. Most important for them was arms sales and whether to come to Taiwan’s defense if it were attacked.

But these members failed in their effort because the managers of the bill, working with the Carter administration, wrote the language of key sections in such a way as to essentially maintain the inter-branch balance of power, in favor of the Executive.

The managers agreed with the Carter administration that if the security provisions that some members wanted were too strong, and if retained might scuttle the normalization deal with the PRC. But the managers were also willing to accommodate to the administration’s insistence that the TRA not encroach on the President’s constitutional powers. They wished to avoid a presidential veto.

The managers of the bill used legislative language to create the false impression … that the TRA contained a commitment to come to Taiwan’s defense.

So the managers of the bill, working with the administration, used legislative language to create the false impression that Congress would have a role in decisions on arms sales and that the TRA contained a commitment to come to Taiwan’s defense. But this language did not change the inter-branch status quo.

For example, the next-to-final sentence of section 3(b) originally read: “The President and the Congress shall determine the nature and quantity of such defense articles and services based solely upon their judgment of the needs of Taiwan.” The administration opposed that language as drafted, but accepted addition of this phrase: “in accordance with procedures established by law.” It interpreted that final phrase as a reference to the Arms Export Control Act, which gives Congress a say only at the end of the decision process on arms sales, not at the beginning.

Regarding a security guarantee for Taiwan, these are the key parts of section 3(c): “The President is directed to inform the Congress promptly of any threat to the security or the social or economic system of the people on Taiwan . . . The President and the Congress shall determine, in accordance with constitutional processes, appropriate action by the United States in response to any such danger.”

The words used here (“is directed to,” “shall”) are employed in American legislative construction in order to impose a requirement on the executive. But the administration accepted this language because of the inclusion at the end of this phrase, “in accordance with constitutional processes,” which its lawyers believed did not supersede the president’s constitutional powers as commander in chief. Again, in their view nothing had changed. I would note that these two sections have never been legally challenged.

Having made these and other fixes, the managers of the bill then oversold the bill to members by deceptively claiming that it had it successfully asserted Congressional power vis-à-vis the Executive.

However, and it is a big “however,” even if the TRA as law did not mandate arms sales to Taiwan or constitute the functional equivalent of a defense treaty, the law was and has always been the expression of a broader American policy and political commitment to ensuring Taiwan’s safety, a commitment that remains powerful to this day. Yet it is a commitment that must be renewed as circumstances and administrations change.

The law was and has always been the expression of a broader American policy and political commitment to ensuring Taiwan’s safety, a commitment that remains powerful to this day.

A key achievement of the TRA as law – perhaps the key achievement – has to do with operationalizing the US commitment to conduct unofficial relations with Taiwan. The TRA authorized establishment of the American Institute in Taiwan as the unofficial mechanism through which Washington would conduct its substantive relations with Taiwan. Taipei set up a counterpart mechanism.

At its creation, AIT was very much an experiment in stealth diplomacy, but there is now general agreement that it has succeeded beyond expectations. It is less than Taiwan would have liked, of course, but Taiwan leaders have accepted that in this case substance is much more important than form.

In essence, Washington’s interactions with Taipei are government-to-government, but behind a façade of unofficiality. To repeat: in many respects, we treat Taiwan “as if” it were a state, even if Washington doesn’t take an official position that it is. Over time, as circumstances have changed, the boundaries of officiality and “as if-ness” have expanded.

The conduct of relations has thus become more like that in an official relationship, certainly more than when I was chairman. Five years ago, the Taipei Office of AIT opened brand new office building, which is one of the more handsome missions in the State Department’s inventory. The American flag flies in front (which was not the case 30 years ago). The great seal of the United States hangs above the doorway. US government personnel assigned to Taipei no longer have to resign their agency positions and then resume them after their tour is over.

Amid all these changes in the conduct of US-Taiwan relations, Beijing has never mounted serious opposition. The structure that the TRA created as a matter of law for the conduct of relations has increasingly been reinforced by a strong political commitment.

* * *

Q: Could you talk a bit about the context in which Congress wanted to enact the TRA? At that time Taiwan was not making silicon chips. What were the economic and social ties between the US and Taiwan that made Congress determined to protect Taiwan?
Bush: There were certainly social ties because even at that time there were a lot of people of Taiwan origin in the United States who had immigrated and were making a contribution to American society. I think the important context is more political and ideological. We had just begun the process of opening our relationship with the PRC. And nobody really had a sense of what it was going to mean in terms of China's behavior in East Asia, particularly towards Taiwan. Because we were placing a bet (on the PRC), Congress felt that we had to hedge that bet by making more clear what our security policy would be towards Taiwan going forward.

Q: What does the Taiwan Relations Act require the US government to do for Taiwan's defense? Does it require anything?

Bush: I don't think it does because the arms sales language, as in the TRA, is framed as within the ambit of the Arms Export Control Act, and that gives the administration the authority to decide. The language of the TRA does not specify the level of arms sales or which types of weapon systems should be included in the list. There were efforts to put that in, but they were sort of taken out in the legislative process. In terms of a specific binding requirement, I don't think it exists.

Q: Some people have assessed that the TRA and the weapons that have been provided to Taiwan by the US are the reasons that the PRC has not used force to date to gain control of Taiwan. Do you agree with that assessment?

Bush: For sure, US deterrence has dissuaded the PRC from considering use of force to achieve its political objective concerning Taiwan. Taiwan's own military contributes to that deterrence, and that has always been a factor. However, I think it's also true that Beijing has understood how hard it would be to, for example, conduct an amphibious invasion of Taiwan. This is the hardest military operation that any military can undertake. Moreover. I think that Beijing has made the correct calculation that Taiwan constitutes potential contributions to China's economic growth and modernization.

The assumption since 1979 was that somehow enough incentives can be formulated by Beijing to get Taiwan to agree to unification on China's terms. That has never worked out.

The assumption since 1979 was that somehow enough incentives can be formulated by Beijing to get Taiwan to agree to unification on China's terms. That has never worked out. One of the key reasons is that Taiwan became a democracy in the early 1990s, so the people of Taiwan gained a seat at the table of any negotiations. The worry is that because China has not been able to gain its objective through negotiations, it may resort to force. Actually, has used a different approach for more than eight years, and that is coercion, which is sort of in between persuasion and warfare. But the one thing that the PRC has not done, even in the wake of strong opposition to its terms for unification is, make Taiwan a better offer.

Q: The Department of State website has a page on Taiwan in which it says clearly: we do not support Taiwan independence. But the Taiwan Relations Act actually doesn't mention Taiwan independence or whether Taiwan is a state or not a state. It says only that the US policy is that Taiwan's future should be determined peacefully and that the human rights of its people should be respected. Why didn't the Taiwan Relations Act mention Taiwan's status?

Bush: I don't recall in my research reading that this was an issue on the minds of members. The communique by which two countries recognized each other and established diplomatic relations is the place that one country would express reservations on territorial issues regarding the other. In the normalization communique of 1978, I think we did express a reservation when we said the United States acknowledges, not “recognizes,” acknowledges the Chinese position that there is one China, and that Taiwan is a part of China. The clear implication of this is that the legal status of Taiwan has yet to be determined.

Q: During the current session of Congress, 42 bills have been introduced that have Taiwan in the name. There's the Taiwan Relations Reinforcement Act, the Protect Taiwan Act, the Taiwan Invasion Protection Act, the Taiwan Security Act, the Taiwan International Solidarity Act, the Stand with Taiwan Act, and so on. What is your assessment of these bills?

Bush: To assess any of these pieces of legislation, you have to read the fine print and see what their purpose is, but also be very cognizant of the language that is used. Congressional legislation may just for the most part express sentiments or make suggestions or authorize something that's already going to be done. My sort of survey of the legislation that's been introduced over the last few years - I haven't gone through each bill in detail - is that a lot of it is an expression of sentiment and making suggestions. Often there's one requirement in the bill, and that is (for the Executive Branch) to submit a report. Congress does have the power to (demand) a report.

Q: Returning to the question of arms sales, what was the commitment that President Ronald Reagan made?

Bush: You're referring to the August 1982 communique concerning arms sales. It was the issue that was left over from normalization. And what the communique says - and I think it was a terrible communique - is that the United States would cap the quality and quantity of arms sales to Taiwan, and then would gradually reduce the value of arms sales until a final resolution, whatever that meant. This did cause a lot of concern because it suggested that maybe Taiwan over time would become weaker and weaker and more vulnerable to PRC action. The end result was that because of changing circumstances, particularly the fall of the Soviet Union and the availability to the PLA of advanced weapons systems from Russia, it was felt that the United States just had to go ahead and act in ways that some, including the PRC, might say, were contrary to the spirit, if not the letter, of that communique. I think that communique is essentially a dead letter. Our commitments at the time were premised on a belief that China really was going to pursue a peaceful policy. I think that premise is debatable by now in terms of PRC capabilities and in terms of some PRC behavior.

Q: Is it accurate to state that, as a practical matter, the US president alone decides the extent of US assistance to Taiwan?

Bush: It's a little more complicated than that. When I say the president, I really mean the executive branch. The process is that the Department of Defense, in consultation with Taiwan's military leaders and based on its own assessment of the defense situation vis-a-vis China, receives a request from the Taiwan side for things that they would like to acquire. The Pentagon makes its own judgment of what is needed. That is discussed in the inter-agency process. And then a final decision is made as to what to offer Taiwan.

Q: By the president?

Bush: By the president, yes. There can be political pressures from Congress, from defense contractors and others. There was lobbying in 1992 that led President George Herbert Walker Bush, in the context of the 1992 election campaign, to decide to provide F-16 s to Taiwan. Once the president makes a decision, and the arm sales are notified to Congress, then Congress has 30 days (under the Arms Export Control Act) to try to pass a resolution of disapproval if there is desire to do so. If a majority of both houses passes (a resolution of disapproval) and it gets sent to the president, the president can veto it, and then Congress is in a position where it has to try to override. So Congress does have a role. But, as I suggested before, the role is mainly at the end of the process, not at the beginning, which is what I think some people in Congress wanted in 1979.

* * *

Richard Bush is a non-resident senior fellow at The Brookings Institution and former chairman and managing director of the American Institute in Taiwan.

Suggested citation:

Richard Bush, “What Does US Law Say About Taiwan: Revisiting the Taiwan Relations Act,” USALI Talking Points, November 24, 2024, https://usali.org/publication/what-does-us-law-say-about-taiwan.

The views expressed are those of the speaker, and do not represent those of USALI or NYU.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.