Asia Pacific

Congress Leads on Taiwan Again by Opening the Door to High-Level US Government Contacts

By Julian Ku
Friday, March 2, 2018, 8:00 AM

The Taiwan Travel Act, which passed the Senate on Feb. 28 and is heading to the president for his signature, will have limited legal force since it does not require the president to do anything he cannot already do under the U.S. Constitution. But that does not mean the law is purely symbolic. It is likely to have a significant impact on U.S.-Taiwan policy, and consequently, on the increasingly fragile U.S.-China relationship.

The operative language in the law declares that “[i]t should be the policy of the United States … to allow officials at all levels of the United States Government, including cabinet-level national security officials, general officers, and other executive branch officials, to travel to Taiwan to meet their Taiwanese counterparts.”

Nothing in U.S. or international law currently prevents U.S. officials from meeting with Taiwanese government officials. But the U.S. government avoids such meetings out of deference to China—considering the Chinese perspective that such meetings would contradict U.S. recognition of the People’s Republic of China as the sole legitimate government of China. For this reason, administrations from Reagan to Obama have adopted a policy that sharply limits U.S. government official contacts with Taiwan government officials. High-level U.S. government officials, such as the assistant defense secretary for Asia security, generally do not visit Taiwan or meet (at least publicly) with their Taiwanese counterparts. This isolates Taiwan and makes it more difficult for the U.S. and Taiwan to work closely on defense matters (such as ensuring Taiwan can defend itself).

Unlike last year’s non-binding Taiwan “port calls” provision that merely encouraged certain actions, this new law has legally operative language purporting to declare a “policy of the United States … to allow” high-level official contacts that are not currently taking place. To be sure, one might argue Congress does not have the constitutional power to determine policy governing whether executive branch officials meet with foreign government officials--the constitutional line here is hardly clear. While legally binding, there is no obvious enforcement mechanism if the president defies this congressionally-declared policy.

Nonetheless, the act will matter because it gives the administration diplomatic and political cover for shifting its policy to allow high-level government contacts. It may also help overcome a U.S. government bureaucracy that would probably resist shaking up the status quo. Thus, as it does with the similarly vague Taiwan Relations Act, U.S. administrations will cite this law as the reason they must do something that China does not like. They will also use the act as legal imperative for pushing the bureaucracy in the direction of building better and deeper ties with Taiwan. Politically, the administration can also truthfully tell the Chinese that the law passed both the House and the Senate without a single vote in opposition, and thus reflects significant popular support for such contacts.

But putting politics aside for a moment, is it really a good idea to upgrade official ties with Taiwan given that China will certainly see this as a gratuitous provocation? I think the law can be justified on at least three policy grounds.

First, dropping formalistic obstacles to high-level official conduct will improve the ability of the U.S. and Taiwan governments to cooperate on important joint interests such as protecting Taiwan’s security. Allowing U.S. policymakers on defense strategy to meet with actual Taiwanese policymakers on defense strategy can only help bolster Taiwan’s defenses. Since helping Taiwan defend itself is an uncontroversial policy goal of the United States, this law will only support the implementation of that policy.

Second, implementation of the law will put China on the defensive. China has been able to take the initiative in recent years by doing things like building out its islands in the South China Sea and launching an ambitious Belt and Road Initiative. The U.S. has been reacting to Chinese actions rather than forcing China to react to U.S. initiatives. Changing this dynamic could only benefit U.S. strategy by reminding China that the U.S. can impose costs on China if it chooses.

Finally, the law will help counter China’s slow by certain strategy to isolate Taiwan from the international community. It has continued to block Taiwan’s participation, even as observers, in international bodies like the World Health Assembly and the International Civil Aviation Organization. China has also flipped over previously staunch Taiwan allies like Panama with promises of financial aid and trade. Opening the door to more official travel to Taiwan won’t solve these problems, but it would carve out a little more international breathing space for an increasingly isolated nation. High-level U.S. contacts should open the door to higher-level contacts with other key Taiwan allies such as Japan.

As I noted last year during a similar period of turmoil in the White House, Congress may need to take the lead on Taiwan policy. Between the nonbinding port calls bill and this much more legally significant TTA, Congress is doing just that.