---

For forty-five years, the Taiwan Relations Act has been the lodestar guiding U.S. relations with Taiwan. Congress passed the legislation in April 1979, four months after President Jimmy Carter switched U.S. diplomatic recognition to the People’s Republic of China from the Republic of China, commonly called Taiwan. The law has been a touchpoint for every president since. With fears now mounting that China could soon seek to take Taiwan by force, we talked with Shirley Kan, an independent analyst and former Asia specialist at the nonpartisan Congressional Research Service, about what the Taiwan Relations Act actually requires of the United States, and if it is still sufficient to maintain peace in East Asia. Below is a condensed and edited transcript of our conversation.

Q: The U.S.-China relationship today looks very different now from when Congress enacted the TRA in 1979. Is it still up to the task of setting the parameters for U.S. policy on an issue that some observers say could define the next decade?

A: Yes, that’s the brilliance of the Taiwan Relations Act, that it has enjoyed bipartisan support and implementation by every single president since 1979. And it has enjoyed this success and support on a bipartisan basis for 45 years precisely because of its intended creative ambiguity to enable the U.S.-Taiwan non-diplomatic relationship, in spite of our “One China” policy.

So what does the TRA legally compel the United States to do?

Generally, the TRA is a legal and political obligation of the United States to sustain our relationship with the people of Taiwan. At the same time, however, it does not legally require the United States to do everything [in the act]. One of the requirements where there is a legal obligation is to treat Taiwan as if it is still a country.¹This is Kan’s interpretation of the TRA clause: “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.” However, the TRA does not include the word “country,” and executive branch lawyers do not view it as such.

But a lot of people tend to distort this requirement. It does not mean the United States recognizes Taiwan for diplomatic reasons, or that Taiwan has any kind of status under international law. This was a requirement only under U.S. domestic laws.

What does it mean to treat Taiwan as a country but not to recognize it diplomatically or under international law? 

It means that for the purposes of our domestic laws, whether it’s on trade agreements or how you handle nuclear waste, everything that you would have to do with a country, we still have to sustain all the different elements of our engagement. 

The TRA also requires the president and Congress to determine arms sales to Taiwan based solely upon their judgment of Taiwan’s requirements. That means that the president may not propose to Congress, or fail to propose to Congress, arms sales to Taiwan because of some consideration of our relationship with the PRC, or the calendar of meetings that we might have with PRC officials, including summits.

Is the United States obligated to sell Taiwan weapons? 

There’s not a legal requirement that we have to make arms sales to Taiwan. At the same time, the policy is that we will provide Taiwan with the means to enable it to maintain a self-defense capability.

What trajectory have these arm sales been on?

It’s been up and down. I said earlier that the TRA requires that the president and Congress determine arms sales to Taiwan based solely upon the judgment of Taiwan’s needs. In other words, we cannot talk to China about what Taiwan’s needs are. 

But there have been ups and downs, even though there’s that legal stipulation. Under Presidents George W. Bush and Barack Obama, we had presidential freezes of congressional notifications on arms sales to Taiwan. Under the Trump administration, that broken arm sales process was repaired, and we went back to routine notifications to Congress of arms sales. The Biden administration came in and also continued routine, regular notifications to Congress.

So is the implementation of that TRA requirement up to the executive branch?

Yes. However, Congress has a very important role to play as well. For example, Congress also determines arms sales to Taiwan by virtue of congressional review. When the President wants to make an arms sale to Taiwan based on Taiwan’s own request, it is only a proposal. So the President would make a proposal and notify Congress, and then Congress would have a period of review. 

Congress also has an important role to play in setting policy, because it can pass legislation to set what our policy would be in terms of implementation under the TRA.

And thirdly, Congress has a role to play in terms of oversight, if the President is somehow violating the spirit or the letter of the TRA.

The last time there was a major crisis in this area was the 1995-96 Taiwan Strait crisis, when Bill Clinton was president. Do any lessons from then remain relevant today?

One is that we need to be a lot more proactive. We cannot continue to just be in a passive, reactive mode of doing something only when there’s a crisis, just like in ‘95-‘96 and also when Speaker Nancy Pelosi visited Taiwan in 2022. China merely used that as a pretext to provoke a crisis. This was not a problem with Speaker Pelosi’s visit. It was China using that visit as a pretext to do what it wanted to do anyway, which is to increase tensions in the Taiwan Strait and provoke a military exercise. 

And you think that the 1995-96 crisis and the 2022 Pelosi visit are manufactured crises?

Yes. They didn’t just happen. In 1995-96, [Taiwan’s then] President Lee Teng-hui visited his alma mater, Cornell, in New York. And all of a sudden, China has ballistic missiles that it can fire? No. China had been increasing its threat and directing its military modernization towards the eastern side, under new guidelines and a strategic focus on Taiwan since the early 1990s, to prepare for the potential use of force in order to achieve its objective, which is to attack and annex the Republic of China [Taiwan].

President-elect Trump has cast doubt on the U.S.-Taiwan relationship. How do you assess his likely approach toward Taiwan? 

Well, actually, Trump has not cast doubt so much on the U.S.-Taiwan partnership. His previous administration repaired the broken arms sales process and strengthened our partnership with Taiwan.

Now there were other aspects that did not necessarily happen. For example, there was no free trade agreement under Trump. 

But in other aspects, Trump strengthened the relationship. He increased arms sales to Taiwan, and also under Secretary of State Mike Pompeo, he rescinded and completely removed self-imposed restrictions that we had on the State Department’s contacts with Taiwan, and its ability to restrict the rest of the whole executive branch from contacts with Taiwan. But that was done towards the end of the Trump administration. When the Biden administration came in, it reimposed those restrictions again. 

AIM-120 medium-range air-to-air missiles are loaded onto an F-16V fighter jet by the 5th tactical mixed wing of the Taiwanese Air Force in Hualien, Taiwan, August 7, 2022. AIM-120 munitions as well as F-16 jets have been sold to Taiwan by the United States. Credit: Taiwan’s Military News Agency via X

In the run up to the election, Trump said Taiwan should pay more to the United States for its defense, and said Taiwan had stolen the U.S. semiconductor industry. Not exactly statements of solidarity. 

There are important questions. One, the lack of depth of understanding. He’s not someone who knows a lot of details and history. Secondly, the unpredictability of his personality. And thirdly, he is known to be transactional.

…the TRA also does not require that the United States shall help to defend Taiwan. But Biden’s statements are not a contradiction, because he knows the congressional intent, and because the TRA does not rule that out.

It did raise concerns when he said that Taiwan should pay the U.S. for defense, because that is not how the world works. That is not how U.S. policy works. 

One important aspect of what has happened over the past four years is, of course, President Joe Biden’s administration. Biden has unique authority, not only as the president of the United States, but also as a senator at the time of the TRA’s passage by Congress. He voted for the TRA. Biden has that unique authority, and it should not be undermined. That is a fault of his administration, that they’ve tried to undermine his statements when he has the authority as the commander in chief and the president of the United States, to say repeatedly that the United States does have the commitment to help Taiwan in defense.²During his presidency, Biden publicly said on four occasions that the United States would come to Taiwan’s defense if China attacked. Each time, senior officials clarified that the statements did not constitute a change to U.S. policy. Given that President Biden has made his statements with authority as the United States’ president, that needs to be continued into the next term of Trump.

Do those statements not seem to you like a contradiction of the TRA?

They are not a contradiction, because the TRA did not say that the United States would not go to help defend Taiwan. Now the TRA also does not require that the United States shall help to defend Taiwan. But Biden’s statements are not a contradiction, because he knows the congressional intent, and because the TRA does not rule that out. 

The reason why Congress did not have a stipulation to require the U.S. military to defend Taiwan in the TRA is because at the time we were coming out of the Vietnam War, and Congress wanted to preserve its prerogative on decision making for policy related to war and peace. Congress wanted to ensure that any future decision regarding Taiwan, regarding helping Taiwan, regarding any act of war, would be subject to action by Congress, and not only by the President.

Do you not worry, though, that Biden is not necessarily thinking about the congressional intent of legislation that passed 45 years ago, as he makes those comments? 

It’s really impossible for me or anyone else to get into his head. But I would say that he made clear statements. And he made them in 2021 and 2022 and they were not just one off, one time statements. He’s made statements that explain there is a U.S. commitment to help defend Taiwan at least four times. Still, he needs to explain to the American people and to U.S. allies why this is in the U.S. and allied countries’ interests, and why it is based on the TRA.

The “One China” policy is separate from the TRA, but would this not mark a significant departure from longstanding U.S. policy toward Taiwan?

I can see how some people argue that it is. However, that’s not necessarily true, because back in 2001 President Bush, at the time, also stated that the United States would do whatever it took to help defend Taiwan. So Biden’s not the first president to make statements like this. 

In fact, the TRA specifically has language to say that it is U.S. policy to maintain the capacity to resist any resort to force or other forms of coercion that would jeopardize the security, or the social or economic system, of Taiwan. 

The TRA also gives the U.S. leeway to alter its commitments as circumstances change. Should Congress seek to codify policy toward Taiwan so it’s less dependent on the executive branch, or is it beneficial to have this wiggle room?

The TRA should remain as it is. It has served U.S. interests well for 45 years. It has enjoyed bipartisan support, and it has the intended creative ambiguity to enable a strong U.S.-Taiwan partnership, and gives us flexibility to do what it takes to sustain or safeguard U.S. and allied interests.

If we were to revise the TRA, it would actually violate one of the six assurances that President Reagan gave to Taiwan in 1982, when the United States was engaged in secret negotiations with the PRC over what would then become the third U.S.-PRC communiqué. 

Those six assurances are:

First, that the United States has not agreed to set a date for ending arms sales to Taiwan. In other words, if we had agreed in the third communiqué to end arms sales to Taiwan, that would have violated the TRA. 

Secondly, the United States has not agreed to consult with the PRC on arms sales to Taiwan. If we did, that also would have violated TRA, because earlier I mentioned the TRA required that the President and Congress make a determination on arms sales to Taiwan based solely on our judgment of Taiwan’s needs.

The third assurance is that the United States will not play any mediation role between Taipei and Beijing. However, I would note that besides mediation, there are potentially other roles for the United States to take, if we deem it to be wise. 

Fourth, the United States has not agreed to revise the TRA. If the Congress wants to revise the TRA, it would open up a whole Pandora’s box. And secondly, it would change something that has worked very well for 45 years. So if it ain’t broken, don’t fix it. 

Fifth assurance, it has not altered its position regarding sovereignty over Taiwan, and sixth assurance, the United States will not pressure Taiwan to negotiate with the PRC. 

The United States and Taiwan don’t have a diplomatic relationship, as you pointed out, but the two governments are still in contact on an unofficial basis. What consequences does this have for their relationship? 

I want to correct the record. It is not true that we have an unofficial relationship.³The U.S. State Department says the United States and Taiwan “have a robust unofficial relationship.”

In reality, the United States and Taiwan actually have lots of official and government-to-government contacts and agreements. Indeed, a lot of the arms sales have been Foreign Military Sales, which by definition are government to government sales. 

Congress intended for there to be a relationship between the people of Taiwan and people of the United States, and purposely left out the word “unofficial,” so the TRA does not stipulate that we have an unofficial relationship. So when the State Department says that we have an unofficial relationship based on the TRA, that is wrong.

At the same time, the United States doesn’t have an embassy in Taiwan. It doesn’t have an ambassador, or at least someone who it calls an ambassador, in Taiwan. And overall, it treats the island differently than it treats many countries that are formally recognized by international law or the United Nations.

That’s why I said that we have a non-diplomatic relationship. And it is important to note that’s not the same as having an unofficial relationship. We have lots of official contacts all the time. Taiwan’s officials go to the State Department. They go to other parts of the executive branch. They go into Congress, our military bases, the Indo-Pacific Command, and the Pentagon all the time. 

We do treat Taiwan as a unique situation, because we don’t have a diplomatic relationship. Instead of an embassy, the embassy is called the American Institute in Taiwan. But, I’ve been in that building, the new one as well as the old one, and it looks, smells and talks like an embassy. We have someone representing the United States government in Taipei who’s called the U.S. representative. He or she is the director of the American Institute in Taiwan. But inside the State Department internally, that person is still considered chief of mission.

A lot of things are actually very similar. We sell F-16 fighters to Taiwan. We have presidential drawdown authority to send weapons to Taiwan. We have trade agreements. We have other agreements. We have all kinds of discussions that are very similar to the way we treat other countries, but no, we do not have diplomatic recognition. 

Congress was able to enact a law with that creative ambiguity to serve U.S. interests in changing conditions, no matter what, for the past 45 years. So in that spirit of creative ambiguity, we can do better.

We recognized the Republic of China [Taiwan] from 1913 until the end of 1978. And that’s why the TRA is so important and so unique. The Taiwan Relations Act has worked to enable this relationship with Taiwan in this unique situation, precisely because of the creative ambiguity of the TRA.

But we still have this very important, very critical challenge to deter China from provoking conflict, to forcibly annex Taiwan, and we also need to be a lot more proactive in thinking about how to prevent this from happening. We don’t have an objective for our strategy.

What do you mean by that? 

There are gaps in U.S. policy. We talk a lot about interest. You’ll hear U.S. officials, especially from the State Department, talk about how we have an interest in peace and stability in the Taiwan Strait. You’ll notice that we talk a lot about the process of peaceful resolution. But we really do not talk about any kind of objective, and I think that’s one area where President Biden has left a gap. 

We need to have a whole of government approach. What is the Defense Department’s role? What is the Treasury Department’s role? What is the Commerce Department’s role? What is the State Department’s role? And on and on, as well as Congress, as well as our allies. 

That will strengthen deterrence to have a clear plan, a clear objective. The strategic objective should be to sustain a strong and democratic Taiwan that would be able to deter the PLA and would remain a force for freedom in this global balance of power between the democratic allies for freedom versus autocratic regimes, and that the strong and democratic Taiwan will survive as a legitimate member in the international community.

I can understand selling more weapons. But beyond that, it feels like the maneuverability is somewhat constrained given U.S. policy. 

Certainly we have constraints for U.S. policy, but you have to ask, how many of those are actually self-imposed? We have limited personnel, with limited power. We have lots and lots of interests. We have global interests. We are a global superpower. But there are also constraints that are simply self-imposed, and those are the questions that need to be asked. 

Secondly, are we being proactive enough? We can’t say that this is a really critical challenge where we are fearful of having to get into a conflict that would be catastrophic with a major economic and military power in the world, and yet continue business as usual. We can’t have it both ways. 

I am not calling for ditching strategic ambiguity and jumping into strategic clarity. That is not what I’m talking about. I think the issue over whether or not to review strategic ambiguity is not about ambiguity, it’s about strategy. 

And this, again, gets back to our subject, which is the TRA. Congress was able to enact a law with that creative ambiguity to serve U.S. interests in changing conditions, no matter what, for the past 45 years. So in that spirit of creative ambiguity, we can do better. We can still be creative.

It may be in the U.S. interest for the status quo to hold. But is China likely, in your view, to let this last forever?

No, and that’s the problem. China is trying to change the status quo. China is being provocative. China is threatening to attack and annex Taiwan. China is not satisfied with the status quo of peace and stability. 

In facing this threat, it is important to clarify that the TRA entails mutual obligations in security. The TRA does not mean a U.S.-only obligation, but holds the expectation for Taiwan to maintain its self-defense.

---