US Secretary of State Rex Tillerson, in response to a question from US Senator Ben Cardin, said in a written statement on Feb. 1 that the Three Joint Communiques, the Taiwan Relations Act (TRA) and the “six assurances” provide the foundation for US policy toward Taiwan and China.
As required by the TRA, the US will continue to provide Taiwan with arms of a defensive character and help maintain its capacity to resist any resort to military force or other forms of coercion that would jeopardize the security or the social or economic systems of Taiwan, he said.
“The US commitment to Taiwan is both a legal commitment and a moral imperative,” Tillerson said.
This is the first time the US Department of State has clearly described its legal commitment to Taiwan based on the TRA.
However, if the US intervenes in a cross-strait conflict and helps Taiwan resist Chinese military forces as required by the TRA, would that contravene the “one China” policy established in the three communiques? This is a question that needs further clarification.
First, the TRA does not deny that there is “one China.” Since the US, through the Three Communiques, “recognizes the Government of the People’s Republic of China as the sole legal government of China,” it will not use the TRA to extend dual recognition to the Republic of China (ROC).
A US court ruling in a lawsuit between the State Bank of Pakistan and the International Commercial Bank of China (now Mega International Commercial Bank) also established that the TRA does not recognize the ROC.
How can the US recognize that there is “one China” and still intervene in a cross-strait conflict without contravening the principle of non-intervention and international law such as UN General Assembly Resolutions 2131 and 2625 — the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States?
This means that for the US, recognizing “one China” does not mean that Taiwan is a part of China, but rather remains a temporary entity that enjoys special international rights. It can therefore rely on the TRA to help Taiwanese maintain the assets, natural resources and basic human rights that they have had since Taiwan was occupied by the ROC.
As history has taught us, an entity with special rights such as Taiwan must be protected by international law, or it would easily be destroyed by external powers.
However, Taiwan has never been placed under UN trusteeship, nor has the UN Security Council issued any resolutions protecting Taiwanese.
As leader of the allied nations since 1945, the US had to unilaterally create the TRA to have a legal basis for acting as the world’s police and protecting Taiwan’s special status.
This can be verified by looking at the similarities between the defensive actions the TRA demands from the US, and the collective self-defense rights stipulated in the Sino-US Mutual Defense Treaty that expired on Dec. 31, 1979.
An example of this was when the US sent an aircraft carrier group to the vicinity of the Taiwan Strait during the 1996 Taiwan Strait crisis.
The TRA is against any military force to change Taiwan’s status for very specific reasons, one of them being “the human rights of all the approximately 18 million inhabitants of Taiwan.”
According to the TRA, “the preservation and enhancement of the human rights of all the people on Taiwan” are among the US’ objectives.
The human rights that the TRA protects include the right of Taiwanese to self-determination, and the right to build a new, independent nation based on Articles 2 and 5 of the UN Charter and other jus cogens — peremptory norms — of international law.
Chris Huang is an associate professor at National Tsing Hua University’s Institute of Law for Science and Technology.
Translated by Tu Yu-an
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