The American Constitution and Recognizing Taiwan

January 26, 2022
Taipei Times


The American Constitution and recognizing Taiwan

Taipei Times
Mon, Dec 20, 2021 page 8
Let me pose a question: What if President Biden were to exercise his exclusive constitutional authority and issue an explicit White House statement that “the United States does not now recognize, nor has the United States ever recognized, the sovereignty of China 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 Secretariat of the United Nations of this fact.”
Such a statement would have the added advantage of being true.

America’s entire Taiwan policy is based on the San Francisco Peace Treaty of 1951 which left Taiwan’s international legal status undetermined. And as of December 2021, the United States still takes no position on Taiwan’s “sovereignty.” This “no position” posture is at the heart of something called “our one China policy,” a policy very often invoked by American presidents, secretaries of state and other U.S. Cabinet officers, but its simple syntax masks a complex legal position. 

The “our one China” nomenclature was coined on April 21, 2004, by then-assistant secretary of state for East Asian affairs, James Kelly, who explained to an open hearing of the House Committee on International Relations — and I quote: 

“The definition of ‘one China’ is something that we could go on for much too long for this event. In my testimony, I made the point ‘our one China,’ and I didn’t really define it, and I’m not sure I very easily could define it. I can tell you what it is not. It is not ... the one China ‘principle’ that Beijing suggests.”

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 assent to it freely and without coercion. “Our one China policy” encompasses U.S. president’s legal obligations under the “Taiwan Relations Act” of 1979, as well as the finessed formulae of the three U.S.-China joint communiques, and finally the personal written assurance of President Ronald Reagan to Taiwan President Chiang Ching-kuo (蔣經國) that “The United States ... has not altered its position regarding sovereignty over Taiwan.” These — the TRA, the joint communiques and the Six Assurances — are the pillar documents of U.S. policy toward Taiwan.

In August 1982, President Ronald Reagan informed Chinese leader Deng Xiaoping (鄧小平), through the U.S. ambassador in Beijing Arthur Hummel, that Reagan had assured Taiwan’s leader “any agreement we reach with Beijing will be predicated on a continuation of Beijing’s peaceful intentions toward Taiwan.” Deng, who had never pledged to resolve the Taiwan question peacefully, nonetheless agreed to continued U.S. sales of defensive equipment and services to Taiwan on this understanding. Throughout the Reagan administration, the United States continued to sell arms to Taiwan including an entire production line for Taiwan’s IDF (自製防禦戰機 - 經國號戰鬥機) jet fighters. Deng Xiaoping and the People’s Liberation Army acquiesced to close US-Taiwan arms cooperation because, at the same time, America was also selling China a broad array of defensive systems, services, and weapons upgrades including a $550 million avionics and fire-control modernization contract for an entire air wing of 50 Chinese jet fighters, the J-8-II (-8-II), in a project known as “Peace Pearl” (“和平珍珠計畫” 又稱 “八二工程”). During the Reagan Administration, China and the United States were strategic allies against the Soviet Union. Accordingly, Deng Xiaoping set aside his differences with Reagan over Taiwan in order to gain access to U.S. weapons technology. 

But how is this “our one China policy” relevant to U.S. diplomatic recognition of Taiwan as “Taiwan”? Answer: in the presidential power to grant or withhold America’s recognition of foreign claims of territorial sovereignty.

American presidents very rarely use this exclusive constitutional authority. Surprisingly, President Donald Trump has been the only one to have used this power constructively. It was his most effective instrument in drawing both Arabs and Israelis to embrace his “Abraham Accords” in 2020 was recognition, by the United States, of Israeli sovereignty over the Golan Heights, and of Morocco’s sovereignty over Western Sahara. More subtly, Trump moved the U.S. embassy in Israel from Tel Aviv to Jerusalem and formally recognized Jerusalem to be the capital of Israel. Yet, he was careful neither to place the embassy within the boundaries of East Jerusalem still held by the United Nations to be under pseudo-international administration, nor to recognize disputed parts of old Jerusalem to be under formal Israeli sovereignty.

This peculiar and exclusive prerogative of the President of the United States is an instrument of such profound diplomatic significance that it is baffling that U.S. presidents do not employ it more often.

A few months ago, a group of Taiwan scholars and national security academics with whom I exchange emails pondered how the United States would go about granting diplomatic “recognition” to Taiwan if it were necessary in a crisis situation. One observer asked, “so, the United States would recognize Taiwan? As what? The ROC?”

The point was that the U.S. would hardly recognize Taiwan as the “ROC.” Nor would it be a simple thing for the President to recognize a country by a name it did not use for itself. The ROC government in Taipei, itself, is constrained from declaring itself independent by the very real prospect of war or some other result almost as nasty. Of course, if military hostilities were ever unleashed on Taiwan, U.S. recognition of Taiwan’s independence from China would be immediate but, unfortunately, of little deterrent value.

So, the idea of Washington, even under the most charitable of circumstances, recognizing Taiwan diplomatically before war started or even near-war, is far-fetched.

Not so far-fetched would be a “negative” Presidential declaration along the lines described above: “the United States does not now recognize, nor has the United States ever recognized, the sovereignty of China over the island of Taiwan and the Pescadores.” As I have documented in previous “one Taiwan” columns, for seven decades the United States has refused to recognize even Nationalist China’s sovereignty over Taiwan — despite a “US-ROC Mutual Defense Treaty” which was explicitly limited to Taiwan and the Pescadores “administered by the Republic of China.” 

As the Supreme Court of the United States confirmed in Zivotofsky v. Kerry [2015], under the Constitution, recognition of foreign territorial sovereignty is the sole prerogative of the President. President George W. Bush, via Secretary of State Condoleezza Rice, informed the United Nations secretariat in June 2007, if the U.N. “insists on describing Taiwan as a part of the PRC, or on using nomenclature for Taiwan that implies such status, the United States will be obliged to disassociate itself on a national basis from such position.” So, this is not by any stretch a novel position.

But today, in December 2021, given China’s progressively aggressive rhetoric of force against Taiwan, coupled with fulminations that “Taiwan is owned by all Chinese people” (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 norm 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, roll over and give up, or make public an authoritative statement of U.S. policy that this is emphatically NOT the case.

To be sure, the United States made certain statements to Chinese leaders in the Carter Administration that we would not allude to Taiwan’s “unsettled” political status, but those statements were predicated on Marshal Ye Jianying’s (葉劍英) 1980 pledge of “fundamental policy of striving for a peaceful” resolution of differences with Taiwan. In the absence of such a “fundamental” policy, the United States is obliged to raise attention to Taiwan’s sovereignty. A U.S. presidential restatement of “our one China policy” explicitly “disassociating the United States on a national basis” from the assertion that Taiwan is part of China, would be very close to diplomatic recognition of Taiwan’s statehood. The prospect of which should give Beijing pause; and if not, then perhaps the game is up already.

On October 29th, 1976, in a very, very secret conversation in the secretary’s suite on the seventh floor, Henry Kissinger asked his top aides, “If Taiwan is recognized by us as a part of China, then it may become irresistible to them. Our saying we want a peaceful solution has no force. It is Chinese territory. What are we going to do about it?” Arthur Hummel, assistant secretary at the time, responded, “Well, down the road, perhaps, the only solution is an independent Taiwan.”

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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