The US Congress in the past few years has passed legislation in support of Taiwan, including “an act to direct the [US] Secretary of State to develop a strategy to obtain observer status for Taiwan in the International Criminal Police Organization [Interpol] and for other purposes” and the National Defense Authorization Act for Fiscal Year 2017 providing for military exchanges between Taiwan and the US.
The Taiwan Travel Act bill is the latest addition to this legislative drive. Taiwanese officials and the public have embraced this development with enthusiasm.
In the public eye, this is a welcome development, as it apparently affirms the US’ commitment to Taiwan time and again. Yet, in the eye of a constitutional law student, these congressional acts should be treated with caution.
To begin with, all the foregoing congressional statutes are more symbolic than transformative. In terms of style, they consist of two main parts: The first sets out the factual findings by Congress; the second and main part provides for policy direction.
It is the second part that merits attention. Apart from the legislation on Taiwan’s participation in Interpol, the other two legal instruments imply no legal obligation whatsoever in their main section. Instead, Congress deliberately chose the word “should” instead of “shall” when it comes to visits between US and Taiwanese officials.
As any law student can instantly tell, “should” simply expresses the subjective expectation of Congress. It only imposes moral obligations on the US administration at best, lacking any enforceability or justiciability.
It is true that the legislation on Taiwan’s participation in Interpol adopts the wording “shall,” which denotes a congressional directive to the government, but the legal obligations imposed by Congress are flimsy.
The US government’s main duty is to report back to Congress what strategy it develops and adopts with respect to Taiwan’s participation in Interpol as an observer, as well as “instruct[ing]” Washington’s Metropolitan Police Department to “officially request” that Interpol consider the matter.
It is not hard to see why Congress has legislated in support of Taiwan in this thinned form. The US adheres to the principle of separation of powers, not the doctrine of legislative sovereignty. It is the executive branch that takes the helm in steering foreign affairs.
The US Constitution prohibits Congress from micromanaging military administration and diplomatic relations, not to mention sending military delegations overseas or receiving foreign government visitors. This explains why “should” is chosen over “shall” in the National Defense Authorization Act for Fiscal Year 2017 and the Taiwan Travel Act bill.
Taiwanese officials and the public had better exercise caution when they welcome the recent US Congress-driven Taiwan-friendly movement. Friends of Taiwan also need to think about how to better spend their capital in the advocacy for Taiwan. Preoccupation with legislative symbolism will only deepen the false sense of security pervading Taiwanese society.
Kuo Ming-Sung is an associate professor at the University of Warwick’s School of Law.