On the evening of Feb. 9, US President Donald Trump spoke on the telephone for 45 minutes with Chinese President Xi Jinping (習近平).
A “senior US official” said it took only five minutes for the Chinese leader to mention Taiwan.
“I would like you to uphold the ‘one China’ policy,” Xi is said to have requested.
Trump replied: “At your request, I will do that,” and the issue was laid to rest.
That evening, the White House issued a news release saying that, among the “numerous topics” discussed: “President Trump agreed, at the request of President Xi, to honor our ‘one China’ policy.”
Immediately, news outlets worldwide reported that Trump had abandoned his support of Taiwan and embraced the “one China” principle.
Was this “fake news?”
The White House release clearly stated that what Trump had agreed to honor was not Beijing’s “one China” principle, but rather “our ‘one China’ policy.”
“Our ‘One China’ policy” has been a specific diplomatic formulation followed by the US Department of State for at least 15 years — usually accompanied by the explanation that it is “based on the Taiwan Relations Act [TRA] and the Three Communiques.”
Beijing’s “one China” principle is an entirely different creature that insists that Taiwan is an integral part of Chinese territory over which the Beijing government has sovereignty in international law.
So, what exactly is “our ‘one China’ policy based on the Taiwan Relations Act and the Three Communiques?”
Perhaps the most authoritative articulation of “our ‘one China’ policy” is in a formal testimony to the US Congress by then-US assistant secretary of state for East Asian and Pacific affairs James Kelly on April 21, 2004.
Kelly briefed the House of Representatives’ International Relations Committee on the 25th anniversary of the signing of the TRA — the legislation that sets the legal basis for the conduct of defense, commercial, cultural and other normal foreign relations with Taiwan in the absence of formal diplomatic recognition of the government in Taipei.
Among the defining sections of the TRA, the section central to its legal authority, §3303(a), (b)(1), 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.”
The 2015 US Supreme Court decision Zivotofsky v. Kerry, quoting the solicitor general of the US, said that the TRA “treated Taiwan as if it were a legally distinct entity from China — an entity with which the United States intended to maintain strong ties.”
For the purposes of US law, Taiwan is a “country, nation, state, government” to be legally treated like any other.
In Zivotofsky, the judicial branch posited the question of how the executive branch of government viewed China’s claim that “Taiwan is a part of China.”
The court’s decision said: “The solicitor general explains that the designation ‘China’ involves ‘a geographic description, not an assertion that Taiwan is … part of sovereign China.’”
Then-US Supreme Court justice Antonin Scalia wryly endorsed this ruling, writing: “Quite so.”
So what is the legal force of the Three Joint Communiques, particularly the Dec. 16, 1978, communique in which the US “acknowledges the Chinese position” that Taiwan is part of China?
The court in Zivotofsky says: “According to the solicitor general, the United States ‘acknowledges the Chinese position’ that Taiwan is a part of China, but ‘does not take a position’ of its own on that issue.”
Therefore, the TRA is necessarily the core legal component of “our ‘one China’ policy.”
Indeed, the TRA — the foundation of the policy — emphasizes that US relations with Taiwan are separate from its relations with China.
In the course of his 2004 testimony to the US Congress, Kelly used the expression “our ‘one China’” five times, explaining that “the TRA, along with the three communiques and our ‘one China’ policy, form the foundation for the complex political and security interplay among China, Taiwan and the United States.”
Note that Kelly’s statement gave precedence to the TRA before the Three Joint Communiques.
“This is a unique situation, with sensitive and sometimes contradictory elements,” Kelly said.
Puzzled about this, one member of Congress asked the obvious question: “Can the evolution of full-fledged democracy on Taiwan and the clear emergence of a sense of Taiwanese identity meld with the principle of ‘one China,’ or are they in stark contrast with each other?”
Without hesitation, Kelly responded: “In my testimony, I made the point our ‘one China,’ and I really did not define it. I am not sure that I very easily could define it. I can tell you what it is not. It is not the ‘one China’ policy or the ‘one China’ principle that Beijing suggests and it may not be the definition that some would have in Taiwan, but it does convey a meaning of solidarity of a kind among the people on both sides of the [Taiwan] Strait that has been our policy for a very long time.”
Still not convinced? The US Department of State also made a confidential representation to the UN in August 2007, when then-UN secretary-general Ban Ki-moon asserted that, under the terms of UN General Assembly Resolution 2758 of October 1971: “The United Nations considers Taiwan for all purposes to be an integral part of the People’s Republic of China.”
To this, the US mission issued a counter-demarche saying: “The United States reiterates its ‘one China’ policy which is based on the three US-China Communiques and the Taiwan Relations Act, to the effect that the United States acknowledges China’s view that Taiwan is a part of China. We take no position on the status of Taiwan. We neither accept nor reject the claim that Taiwan is a part of China.”
According to documents in the WikiLeaks database, then-US ambassador to the UN Zalmay Khalilzad reported to the US secretary of state on Aug. 16, 2007: “Ban said he realized he had gone too far in his recent public statements and confirmed that the UN would no longer use the phrase ‘Taiwan is a part of China’ as reported reftel.”
If “our ‘one China’ policy” is good enough for the US Supreme Court and the UN, then I suppose we should all agree that it is good enough for Trump.
The main point is: The phrase “our ‘one China’ policy based on the Taiwan Relations Act and the Three Joint Communiques” is a proposition entirely distinct from Beijing’s “one China” principle.
The TRA is the controlling legal core of “our ‘one China’ policy,” while the Three Joint Communiques are diplomatic imprecisions in which, according to the solicitor general of the US: “The United States ‘acknowledges the Chinese position’ that Taiwan is a part of China, but ‘does not take a position’ of its own on that issue,” and the US believes “the designation ‘China’ [involves] a geographic description, not an assertion that Taiwan is … part of sovereign China.”
John Tkacik directs the Future Asia Project at the International Assessment and Strategy Center in Alexandria, Virginia.
The article was first published in The Global Taiwan Brief.
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