Mon, Jan 01, 2024 page8

• John J. Tkacik, Jr. On Taiwan: Taiwan’s Constitution and America’s ‘One China’ Policy

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  Merry Christmas and a Happy New Year! Last Monday was Christmas and, of course, in Taiwan, December 25 is also remembered as “Constitution Day,” marking the adoption of the Republic of China Constitution in Nanking on that date in 1947. Despite the exile of the National Government in Nanking to Nationalist-occupied post-war Taipei and the permanent dissolution of political bands across the Strait in 1949, the 1947 Constitution still encompasses a profound legacy for Taiwan. It is a legacy most important for the twelve supplementary constitutional amendments, the Additional Articles of the Constitution of the Republic of China (中華民國憲法增修條文), adopted after 1990 which have made Taiwan the most democratic country in Asia.

  The late President Lee Teng-hui (李登輝) stressed to me, the last time we talked privately in 2007, the legitimacy of the Republic of China as an “orthodox successor state” (正統的繼承國家) to the old “Republic of China” on the China mainland and its constitution.

  He believed this legal point was crucial. Between 1990 and 2000, President Lee himself, in an extraordinary feat of statecraft, engineered a complete overhaul of the ROC constitution. In those years, he executed a series of complex and exquisitely sequenced supplementary constitutional amendments which restructured the Republic of China’s defined territory as the “free area” in which the entire population would enjoy a fully representative democracy; in those amendments, the populace of Taiwan’s “free area” was made distinct from peoples of all other jurisdictions. Constitutionally, Taiwan (including Penghu and the outer islands) was politically independent of China. For over three decades, the Republic of China’s public stance has been that “China is a neutral historical, geographical, and cultural name” and that, immanent within the context of the word “China,” there coexist “two sovereign, independent and mutually non-subordinate nations.”

  

  In 1961, the new American president, John F. Kennedy, wrestled with the status of China and “Formosa” in his first encounter with British prime minister Harold Macmillan. Kennedy was adamant that Communist China be kept out of the United Nations. At the time, Macmillan’s Britain recognized the central people’s government in Peking (北京) as the sole legal government of China, but inasmuch as Formosa’s status had been declared unresolved at the Japan Peace Treaty in 1951, Britain held, too, that the status of Formosa was unsettled. Macmillan had no desire to recognize “China’s” claim to Formosa. (Unto this day, the United Kingdom continues its nonrecognition of Chinese sovereignty over Taiwan despite establishing full diplomatic relations with Peking in 1972.)

  To get around the issue with his American counterpart, Macmillan explored a “successor state” resolution in the United Nations which would declare both the People’s Republic in Peking as well as the ROC’s exile government in Taipei to be legitimate “successor states” to the defunct “Republic of China” which had collapsed in 1949. Macmillan mused to Kennedy that “there are two countries, each claiming control of the other,” but in reality neither had such control. The Americans suggested a UN General Assembly resolution that “would merely state that two countries have succeeded to the rights of China and automatically they would have the right to be members in the United Nations.” For Kennedy, this had the advantage that it guaranteed Peking would not seek to enter the UN. For Macmillan, Britain could claim to back Peking’s entry into the UN. But the stumbling block, said the British, was that it was not “practical unless Formosa became a separate independent country without any pretense of any rights to the mainland.” Kennedy’s UN ambassador Adlai Stevens suggested that the US could “make clear it backs Taiwan as a sovereign country with a right to a seat in the United Nations, and let others worry about Peiping (北平).” Alas, under instructions from Generalissimo Chiang Kai-shek (蔣介石) the old ROC government in Taipei absolutely refused this. It is remarkable that sixty-two years later, the issue of Taiwan as an independent country is still at the center of what American diplomats still oxymoronically refer to as “our ‘one China’ policy.”

  For example, last week, several American news outlets revealed that the November 15 summit between President Biden and Chinese State Chairman Xi Jinping (習近平) at the Asia-Pacific Economic Cooperation (APEC) forum in San Francisco was not as stress-free as we first thought. After the summit, Biden reiterated long-standing US policy. “We maintain an agreement that there is a ‘one China’ policy,” he said, adding, “I’m not going to change that. That’s not going to change.”

  We now know that President Biden was responding to Chairman Xi’s assertion during the meeting that “China’s preference is to take Taiwan peacefully, not by force.” According to participants at the meeting, Xi also said that “US military leaders who say that Xi plans to take Taiwan in 2025 or 2027 … were wrong because he has not set a time frame.” Few will take comfort in that.

  I don’t want to tell President Biden what US policy toward Taiwan is. After all, he alone is the one who makes foreign policy. But repeatedly over the past three years, the US State Department has explained to the press, in its publications and in testimony before the US Congress, that America’s long-standing policy on Taiwan is rooted in President Carter’s “Taiwan Relations Act,” President Reagan’s “Six Assurances” and President Nixon’s “Shanghai Communique” and its amendments.

  So, I shall take the State Department stance at face value; I lift the following points verbatim from those documents. And in light of Taiwan’s constitutional legitimacy let me deliver the following explication of what President Biden calls “our ‘one China policy’”:

  1) the United States decision to establish diplomatic relations with the People’s Republic of China on January 1, 1979, continues to rest upon the expectation that the future of Taiwan will be determined by peaceful means;

  2) the United States has never altered its position regarding sovereignty over Taiwan, a position that the United States has held since the San Francisco Peace Treaty of 1951, that the status of Taiwan is undetermined;

  3) in this regard, I acknowledge that President Nixon told Premier Zhou Enlai (周恩來) on February 22, 1972, “There will be no more statements made — if I can control our bureaucracy — to the effect that the status of Taiwan is undetermined…” but I nonetheless would remind the State Department that President Nixon last “controlled the bureaucracy” 49 years ago and one might assume that Nixon’s successors never considered themselves bound by the conditions of Nixon’s secret deals; to the contrary;

  4) For the past 45 years, US policy has been explicit: that any effort to determine the future of Taiwan by other than peaceful means is a threat to the peace and security of the Western Pacific area and is of grave concern to the United States;

  5) The United States recognizes the People’s Republic as the “sole legal Government of China” and yet “maintains cultural, commercial and other unofficial relations with Taiwan” — as Ambassador Leonard Woodcock told Vice Premier Deng Xiaoping (鄧小平) on December 15, 1978, and as Deputy Secretary of State Warren Christopher assured the Senate Foreign Relations Committee in open session on February 5, 1979, “part of the ‘other relations’ is our capacity to continue the sale of defensive arms to Taiwan, which is an important aspect of security.”

  6) The United States maintains, and will continue to maintain, the capacity to resist any resort to force or other forms of coercion including embargoes, blockades and boycotts, that would jeopardize the people on Taiwan;

  7) The US “acknowledges” the People’s Republic of China’s position that “there is one China, and Taiwan is part of China,” but as the Department of State spokesman has pointed out innumerable times, “we take no position on the status of Taiwan. We neither accept nor reject the claim that Taiwan is a part of China;”

  8) However, the Taiwan Relations Act specifies that “Whenever the laws of the United States refer to foreign countries, nations, states, governments or similar entities, such terms shall apply to Taiwan”;

  9) Finally, the term “Taiwan” includes “the governing authorities on Taiwan recognized by the United States as the ‘Republic of China’ prior to January 1, 1979, and any successor governing authorities.”

  So, give a New Year’s cheer for the “the governing authorities on Taiwan recognized by the United States as the ‘Republic of China’ prior to January 1, 1979,” and for “any successor governing authorities,” and for the Constitution and all its supplementary amendments from which those governing authorities may spring in the future.

  John J. Tkacik, Jr. is a retired US foreign service officer who has 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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