The Taiwan Relations Act of 1979 Is Not a Treaty, So What Does It Promise

Ask ten Americans whether the United States is bound to defend Taiwan and you will get ten answers, most delivered with great confidence and none with a citation. Cable news has made a whole genre of that. The shortest accurate reply is a legal one: not by treaty, and not by nothing. The thing that governs is a statute, Public Law 96-8, signed on April 10, 1979, and it was written by a Congress that was in no mood to let a president abandon an ally by memo.

Let me explain what that law says, what it leaves out and why the distinction is not a lawyer's quibble. It is the reason that a single sentence in an act of Congress has shaped American policy in the Western Pacific for more than forty years.

The setting: recognition and a broken treaty

For the first three decades after 1949, the United States recognized the Republic of China government on Taiwan as the government of China, and it was bound to that government by a Mutual Defense Treaty signed on December 2, 1954, and in force from 1955. Under it, each party recognized that an armed attack on the other's territory would be dangerous to its own peace and safety and agreed to act to meet the common danger according to its constitutional processes.

Then policy turned. President Nixon went to China in February 1972, and the Shanghai Communiqué of that year acknowledged that all Chinese on either side of the strait maintain there is but one China and that Taiwan is part of China, while the United States said it did not challenge that position. On December 15, 1978, President Carter announced that the United States would establish diplomatic relations with the People's Republic of China on January 1, 1979, would end official relations with Taiwan and would terminate the defense treaty, giving the one year's notice that the treaty required.

Congress was stunned, and not only by the policy. The president had announced the end of a treaty and the end of recognition of a government without a vote of the Senate, which had given its advice and consent to the treaty in the first place. The announcement came with no serious consultation and very little warning. The legislators, Republicans and many Democrats, believed the nation was walking away from a friend, and they were determined that the friend would not be left with nothing.

Goldwater v. Carter: can a president end a treaty alone?

A group of senators and representatives, led by Senator Barry Goldwater, sued, arguing that the president could not terminate a treaty without the consent of the Senate or Congress. The district court agreed with them. The court of appeals reversed. The case went to the Supreme Court as Goldwater v. Carter, 444 U.S. 996, and on December 13, 1979, the Court ordered the case dismissed without hearing argument.

The Court did not produce a majority opinion. Justice Rehnquist, joined by three others, said the question was political and not for the courts, because the Constitution says nothing about who may end a treaty and because the matter was a dispute between the executive and legislative branches. Justice Powell concurred in the result on the narrower ground that the case was not ripe, since Congress as a body had not confronted the president. Justice Brennan dissented, saying the question was not political and was one the courts must decide. Justice Blackmun, with Justice White, objected to disposing of the case without argument.

The upshot is that the Court did not decide the constitutional question. Presidents have terminated treaties since, with the debate unresolved. The text of the Constitution says how a treaty is made, with the advice and consent of two-thirds of the Senate, and says nothing about how it is unmade. Conservatives who believe in the plain meaning of the text should note the gap, and also note what Justice Powell's reasoning implied: Congress had the means to assert itself, if it chose.

It chose. The way it did so was not through a lawsuit but through legislation.

The Taiwan Relations Act

Congress took the president's proposal for a bill to govern unofficial relations with Taiwan and rewrote it. The administration's draft was thin, roughly the legislative equivalent of a handshake and a hope. The Act that came out of the House and the Senate, passed by large bipartisan margins, was far stronger, and President Carter signed it on April 10, 1979. Its operative provisions are worth reading in their own words, and I would encourage you to find the text on Congress.gov and read it yourself. It is short.

The policy statements, Section 2(b). The Act declares that it is the policy of the United States, among other things, to make clear that the American decision to establish diplomatic relations with the People's Republic of China "rests upon the expectation that the future of Taiwan will be determined by peaceful means." It declares that the United States "will consider any effort to determine the future of Taiwan by other than peaceful means, including by boycotts or embargoes, a threat to the peace and security of the Western Pacific area and of grave concern to the United States." And it says the United States will "maintain the capacity of the United States to resist any resort to force or other forms of coercion that would jeopardize the security, or the social or economic system, of the people on Taiwan."

Arms sales, Section 3(a). The Act provides that the United States "will make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capability."

The decision process, Section 3(c). If Taiwan faces a threat to its security or social or economic system, the president must inform Congress promptly, and "the President and the Congress shall determine, in accordance with constitutional processes, appropriate action by the United States in response to any such danger."

Those three provisions are the substance. The words are carefully chosen, and the choices explain the whole debate that followed.

What the Act does oblige

Let me be exact, by listing what the text commits the United States to do.

1. To sell Taiwan defensive arms in the quantity needed for sufficient self-defense. This is mandatory language: the United States "will make available." The Act makes that a continuing policy, and Congress has repeatedly used its oversight to press the executive on it.
2. To maintain the capacity to resist force or coercion against Taiwan. That is a commitment about American capability, a duty not to let the means of resistance lapse.
3. To treat non-peaceful efforts to settle Taiwan's future as a matter of grave concern. That is a statement of American interest.
4. To bring any threat to Taiwan before the president and Congress, who shall determine the appropriate response under constitutional processes. That is a commitment about procedure.
5. To continue commercial, cultural and other relations by unofficial means, through a nonprofit corporation, the American Institute in Taiwan, in place of an embassy.

What the Act does not oblige

This is the part people skip.

1. It does not promise to defend Taiwan with American forces. Nowhere does the text say the United States will go to war, and the phrase "grave concern" is not a military guarantee. The Act deliberately leaves the response to be decided by the president and Congress "in accordance with constitutional processes."
2. It is not a treaty. It did not go through the Senate's two-thirds vote, and it can be amended or repealed by an ordinary statute. It binds the executive as a law of the United States, and it does not create an obligation under international law toward Taiwan in the way a treaty does.
3. It does not recognize Taiwan as an independent state, and it does not say that Taiwan is part of China. It is written around the question and avoids answering it.
4. It does not declare what America would do in every contingency. It leaves that open on purpose.

The result is what scholars call strategic ambiguity: the United States does not say whether it would intervene, and so neither Beijing nor Taipei can be certain. The ambiguity is not an accident. It is the design. Beijing is deterred from using force by uncertainty about the American response, and Taipei is deterred from declaring independence by the uncertainty about whether America would back it.

The Constitution's role: why a statute and not a treaty

There is a constitutional point here that rewards attention. A treaty requires two-thirds of the Senate and binds the nation as supreme law. By ending the treaty, the president took a commitment out of that category. Congress could not force him to keep it, and the Court declined to say whether it could. So Congress did the next best thing: it used its ordinary legislative powers, including the powers over appropriations, arms transfers and the regulation of foreign commerce, to create a framework the president must follow.

That is a good illustration of Congress's tools in foreign affairs, which are larger than they are sometimes thought. The Constitution gives Congress the power to regulate commerce with foreign nations, to raise and support armies, to provide and maintain a navy, and to make all laws necessary and proper for carrying into execution the powers vested in the government. A statute that requires arms sales, that requires the executive to report threats and that requires a joint decision on a response is a legitimate use of those powers. The Act shows that the legislature, in the face of an executive decision it disliked, did not have to resort to lawsuits or protest. It could legislate.

The subtlety is that the Act also respects the war power. By leaving the response to "constitutional processes," it preserves Congress's authority under Article I, Section 8 to declare war and the president's authority to repel sudden attacks, as explored in Commander in Chief Means Less Than Presidents Claim and More Than Critics Say. A statute that automatically committed the country to war would arguably have given away a power the Constitution gives to Congress to use in the circumstances of the day. The Act's drafters were careful, and it is a mark of good drafting, a rare thing in a city that routinely passes bills nobody has read.

The Three Communiqués

The Act is only one piece of a framework, and the other pieces are the diplomatic documents known as the Three Communiqués, issued with the People's Republic of China.

1. The Shanghai Communiqué of February 1972. The two sides stated their differing positions. The United States acknowledged the Chinese position that Taiwan is part of China and did not challenge it, and it affirmed its interest in a peaceful settlement by the Chinese themselves.
2. The Joint Communiqué on the establishment of diplomatic relations, issued in December 1978 and effective January 1, 1979. The United States recognized the Government of the People's Republic of China as the sole legal government of China, and acknowledged the Chinese position on Taiwan, while stating that the American people would maintain cultural, commercial and other unofficial relations with the people of Taiwan.
3. The Communiqué of August 17, 1982. The United States stated that it did not seek to carry out a long-term policy of arms sales to Taiwan, that its arms sales would not exceed, in qualitative or quantitative terms, the level of those supplied in recent years, and that it intended to reduce gradually its sales of arms to Taiwan. China, for its part, stated a fundamental policy of striving for a peaceful resolution.

The third communiqué caused immediate alarm in Congress and in Taipei, because it appeared to put a ceiling on arms sales and to hint at an end date. That alarm led directly to the Six Assurances.

The Six Assurances of 1982

In July 1982, before the third communiqué was issued, the Reagan administration conveyed to Taiwan a set of six assurances, and the assurances have been cited ever since. In summary, the United States told Taiwan that it had not agreed to set a date for ending arms sales, had not agreed to hold prior consultations with Beijing on arms sales, would not play a mediating role between Taipei and Beijing, would not agree to revise the Taiwan Relations Act, had not altered its position about sovereignty over Taiwan, and would not exert pressure on Taiwan to negotiate with Beijing.

The Assurances were not a treaty and were not a statute. They were an executive statement of policy, delivered orally to Taipei in July 1982. Their importance is that they read the 1982 communiqué in a way that favored Taiwan: the arms sales were tied to the threat, and were not to be cut by a timetable. A president who wished to abandon them would have to do so openly.

The best case against the Act

Let me state the criticism fairly, because it comes from two directions.

From the realist side: the Act's ambiguity is dangerous. It leaves open the possibility of a clash that neither side wants, because each side may misjudge the other's red lines. A clear commitment, one way or the other, would be safer than a deliberate fog. And arms sales provoke Beijing, which makes the situation more tense, not less.

From the pro-Taiwan side: the Act is too weak. It does not guarantee defense, and the communiqués and the executive's habits have, on occasion, treated it as a limit on what America may do for Taiwan. A statement of grave concern is not a deterrent, and the island deserves a clear pledge.

I would answer both in turn.

1. On ambiguity: it is not an absence of policy. The Act combines a hard commitment, arms sales and the capacity to resist, with a soft one, the response. That combination keeps Taiwan from being defenseless and keeps Washington from being locked into a war it has not chosen. The danger of fog is real, but the danger of a rigid pledge is that it either deters, which is good, or it is called, which is a catastrophe. The Act's drafters chose to put the hard commitment where it could be kept, in arms and capability.
2. On provocation: Beijing objected to arms sales in 1979 and has objected ever since. A policy that stops whenever Beijing objects is a policy that Beijing controls. And as I argued in Deterrence Fails When an Enemy Thinks You Will Not Pay the Price, doubt about a commitment is what invites a challenge.
3. On weakness: a pledge written into a statute can be repealed, but it is also a political fact that is hard for any president to ignore, with a constituency in Congress that has held for more than four decades.
4. On clarity versus ambiguity: the right answer may change with the military balance. That is a judgment for the president and Congress, and the Act leaves them the room to make it.

What the Act teaches a citizen

• Congress can act when the president will not. The Act is the best example in modern times of the legislature rewriting a president's proposal to match the national interest.
• A statute is not a treaty, and the difference matters. If you want to know how binding a commitment is, ask how it was made, by whom and with what vote.
• Words are chosen to be read. "Will make available" and "grave concern" and "constitutional processes" each do different work, and a citizen who reads the text will understand more than a pundit who has not.
• The history of the Strait shows the Act in operation. The 1996 crisis, described in When Clinton Sent Two Carrier Groups to the Taiwan Strait in 1996, tested it in practice. For the base that makes any commitment credible, see The Shipbuilding Gap with China Is an Industrial Story Before a Navy Story.
• An alliance can be kept by statute. For the contrast with a treaty that was ratified by the Senate, see Read the North Atlantic Treaty, All Fourteen Articles Take Ten Minutes.

The case in brief

1. The Taiwan Relations Act, Public Law 96-8 of April 10, 1979, is a statute, not a treaty, and Congress wrote it after President Carter ended the 1954 Mutual Defense Treaty by notice.
2. In Goldwater v. Carter (1979) the Supreme Court dismissed the senators' challenge without deciding whether a president may end a treaty alone, which left Congress to act by legislation.
3. The Act obliges the United States to make available defensive arms for Taiwan's self-defense and to maintain its own capacity to resist coercion, and it leaves any military response to the president and Congress under constitutional processes.
4. The Act does not promise to defend Taiwan, does not settle sovereignty and does not bind the nation the way a two-thirds Senate treaty does; the Three Communiqués and the Six Assurances of 1982 complete the framework.
5. The ambiguity is the design: a hard commitment to arms and capability, a flexible commitment on force, and a decision that Congress shares.

What you can do: read the Act on Congress.gov, which takes a few minutes, and then ask your senators, through the my-representatives page, how they would use the shared decision Section 3(c) gives them.