CHINESE PATIENCE

Mr. WHITING. There were many other issues talked about, but the reference that Vice Premier Teng was alleged to have made to the effect that Chinese patience is not inexhaustible is an explicit point that was featured in an American-Chinese newspaper which is very favorable to the Peking line. It was the main headline covering the story, "Chinese Patience Is Not Inexhaustible." If you look at the Chinese press, the attention in Taiwan in the domestic media, not for foreign consumption, has been much more sharply featured than in previous years. I do not think that the Chinese see this as hurrying, the issue has been on the agenda since the Nixon visit, for 6 years. It is not as though we are suddenly popping the question.

Mr. BARNETT. I would like to read one short quote, to counter the idea that you can rank the Chinese concerns, that the Soviet threat is overriding and that the Taiwan problem is way down on their agenda. They are both there, and both important. This quote is from the Ta Kung Pao, which is the leading Communist paper in Hong Kong, and it states what I think the Chinese probably feel, and hint at in statements like that of Teng Hsiao-p'ing:

U.S. officials still say there is no time limit on the establishment of diplomatic relations with China, in other words, there is still no definite time limit on the U.S. withdrawal. However, China holds that there must be a definite time limit, and it will not permit the situation to continue indefinitely.

Now, one can dig up many, many statements, on the public record, some of which state that they are patient, in a certain sense. I think the Chinese are patient in regard to actual reunification of Taiwan, because they know the objective conditions make this impossible in the short run. I do not believe they are patient about what we have been talking about today. This does not provide a simple answer, however, to the question about how they are going to balance this problem, which is a real one from their point of view, against the problem of dealing with the Soviets.

But I would reject the assumption that the Chinese are, and will remain, patient about our transferring formal relations from Taiwan to Peking.

Mr. BEILENSON. Thank you all very much. We are adjourned until 1:00 o'clock tomorrow afternoon.

[Whereupon, at 4:15 p.m., the subcommittee was adjourned, to reconvene on Wednesday, September 21, 1977, at 1:00 p.m.]

NORMALIZATION OF RELATIONS WITH THE PEOPLE'S REPUBLIC OF CHINA: PRACTICAL IMPLICATIONS

Legislative and Legal Problems

WEDNESDAY, SEPTEMBER 21, 1977

HOUSE OF REPRESENTATIVES,

COMMITTEE ON INTERNATIONAL RELATIONS,

SUBCOMMITTEE ON ASIAN AND PACIFIC AFFAIRS,

Washington, D.C.

The subcommittee met at 1:15 p.m. in room 2200, Rayburn House Office Building, Hon. Helen S. Meyner presiding.

Mrs. MEYNER. The subcommittee will come to order.

Perhaps I should explain that the chairman of the Subcommittee on Asian and Pacific Affairs, Congressman Wolff from New York, has asked me to take over in his absence. He has been appointed to the United Nations as the representative from Congress for this session of the General Assembly.

Mr. Wolff has prepared some remarks to open this hearing which I will now read:

OPENING STATEMENT OF SUBCOMMITTEE CHAIRMAN, HON. LESTER L. WOLFF AS READ BY MRS. MEYNER

I would like to welcome everyone to the second in the seven-hearing series on the practical implications of normalization with the People's Republic of China being held by the Subcommittee on Asian and Pacific Affairs.

Yesterday afternoon we began the first hearing, entitled "Global Implications of Normalization," and while we intended to spend time discussing the broad questions that title implies, a significant portion of the hearing revolved around the question of Taiwan.

I mention this because I suspect that much as we might wish to dwell upon more esoteric aspects of the normalization question, the Taiwan issue will refuse to go away-that is, until all parties to the question work out some modus vivendi.

Our Government is committed to a policy of normalization, but we as yet have developed no publicly articulated policy of how or when to do so.

Today's hearing, on the legislative and legal aspects of normalization, will, perhaps more than any other hearing in the series, probe new ground. Certainly insofar as the House is concerned, no indepth examination of the possible effects on our laws and agreements has been undertaken from the standpoint of the working premise that normalization is the intended policy of the U.S. Government.

As an example, at last count, we had some 59 treaties and agree

ments with Taiwan. I should add that when this point was raised with a visiting delegation from the PRC last summer, the leader of the delegation said, and I quote, that he really didn't care whether we had 50, 500, or 5,000 treaties with Taiwan, the problem was ours and ours alone-Peking's position was clear on that.

Well, I suspect that the question is not so simple as that, as today's distinguished panel of witnesses will no doubt demonstrate for us.

Let me caution at the outset that no one on this subcommittee is an expert on the topics of today's hearing but it has become clear more than once in our history that the details of the law, of business practice, and indeed a knowledge of the Constitution itself, triumph over political intention.

So following those remarks let me formally welcome Jerome Cohen, director of East Asian Legal Studies, Harvard Law School; Victor Li, Stanford Law School; Eugene Theroux with Baker & McKenzie; and Francis Valeo, former Secretary of the Senate.

Let me ask you, gentlemen, to feel free to guide us and to bear with us as we attempt to educate ourselves this afternoon.

If the China normalization question is itself frequently incomprehensible, indeed, Byzantine, the legal and legislative aspects of normalization are no doubt doubly so, and with that let us begin to unravel the knot.

Let us just go straight down the table. Mr. Cohen, would you start, please.

STATEMENT OF JEROME A. COHEN, DIRECTOR, EAST ASIAN LEGAL STUDIES, HARVARD LAW SCHOOL

BIOGRAPHY

Jerome A. Cohen, who specializes in Chinese law and government, in 1965 became Professor of Law at Harvard Law School. Professor Cohen is the author of several books: "The Criminal Process in the People's Republic of China 1949-1963: An Introduction" (1968); "People's China and International Law" (with Hungdah Chiu, 1974); "China Today and Her Ancient Treasures" (with three others, 1971). He is the editor of "Contemporary Chinese Law: Research Problems and Perspectives" (1970), "The Dynamics of China's Foreign Relations" (1970), "China's Practice of International Law: Some Case Studies" (1972), and co-editor of "China's Legal Tradition" (1977). He has also contributed over 35 articles and book reviews in professional journals.

Born in Elizabeth, New Jersey, in 1930, he received the A.B. degree in 1951 from Yale University. After a year's study at the University of Lyons, France, he attended the Yale Law School and received the LL.B. degree in 1955. He served as a law secretary for the U.S. Supreme Court, under Mr. Chief Justice Warren from 1955 to 1956 and under Mr. Justice Frankfurther from 1956 to 1957. During 1957-58 he was an associate in the Washington, D.C. law firm of Covington and Burling, was Assistant U.S. Attorney for the District of Columbia in 1958-59 and served as a consultant to the U.S. Senate Committee on Foreign Relations. He taught law at the University of California at Berkeley before coming to Harvard in 1964.

Professor Cohen is a member of Phi Beta Kappa, Order of the Coif, and the Board of Editors of the American Journal of International Law. He is also Chairman of the China Council of the Asia Society.

Professor Cohen is married, has three teen-age children and lives in Cambridge, Massachusetts.

Mr. COHEN. Thank you very much, Mrs. Meyner.

This opening statement will emphasize a few basic points concerning the legal problems of normalizing relations with the People's

Republic of China. There are three categories of legal problems to be considered. These relate to international law, domestic legislation and executive branch regulations. Here I will focus on international law, with only brief reference to legislative and administrative problems. Our principal task with respect to international law is to forecast the implications of normalization with the PRC for the U.S. treaties with the Republic of China on Taiwan. Because the United States cannot recognize both of two contending governments as the legitimate government of the state of China, normalization with Peking-that is, the establishment of diplomatic relations at the ambassadorial level—will require Washington to withdraw recognition from Taipei, thereby severing diplomatic relations with Taipei.

What impact will this have on our mutual defense treaty, our friendship, commerce and navigation treaty, and other important bilateral agreements with the ROČ? Can they continue in effect? If not, can some substitute arrangements be made in order to avoid unsettling either our contacts with Taiwan or the stability of the island?

DEFENSE TREATY

My own view has long been that we cannot expect the defense treaty to survive a change in our recognition policy. That treaty was concluded with the state of China. Once we formally acknowledge the PRC to be the government of that state, it will be for Peking, as well as Washington, to determine whether the treaty should be maintained.

The PRC has followed a policy of choosing which of the treaties that it has inherited from the ROC it wishes to continue. There is no likelihood, however, that the PRC will allow the defense treaty to survive because Peking has denounced it as void ever since it was negotiated.

Therefore, although I share many of the views that my friend, Prof. Victor Li, has adopted in the valuable statement that he has submitted for the record of this hearing, I do not agree that the defense treaty can survive withdrawal of recognition from Taipei and conferral of recognition upon Peking.

It is the latter aspect-the recognition of Peking-that is crucial. Whatever the consequence might be if the United States were simply withdrawing recognition from Taipei and not conferring it upon Peking, that is not the situation we are contemplating. By conferring recognition on Peking, we will confer upon it the mantle of China for legal purposes, thereby enabling it to decide not to continue the treaty. I do not know of any case in which a country that has transferred recognition from Taipei to Peking has been able to maintain its treaties with Taipei. For example, the 1952 Japan-ROC peace treaty lapsed when Japan recognized the PRC, and Tokyo has had to construct an elaborate web of unofficial agreements to replace the other important treaties that it had previously maintained with the ROC. If international law and practice permitted a country to maintain its treaties with the ROC after recognizing the PRC, surely many countries would have done so.

Let me stress, however, that this does not mean that normalization will deprive the United States of the legal ability to renew its pledge

to defend Taiwan by some means other than a formal treaty. In other words, the United States is free to make a unilateral defense commitment through a Presidential statement, for example.

Many variations of such a functional substitute for the existing defense treaty are possible, and my article in the October 1976 issue of Foreign Affairs reflects my own preferences.

It would also be legally possible, despite a change in recognition for the United States to announce that, pending subsequent negotiations with what will thereafter be known as "the authorities on Taiwan," rather than the Republic of China, the United States will continue to observe its former obligations under the defense treaty, even though the treaty is no longer in existence.

Indeed, withdrawal of recognition would not preclude Washington and Taipei from making a new agreement so long as the parties make clear that it in no way constitutes diplomatic recognition. Or each side could agree to maintain the substance of the defense treaty through unilateral statements.

The political feasibility of such moves, as with other formulas relating to normalization, would, of course, have to be determined in negotiations with Peking. My point here is to note that there should be no international law obstacles to whatever Washington and Peking agree is politically desirable-and without depriving Taiwan of the substance of our security commitment.

Thus, I see no need to resort to Professor Li's proposal, which seems more complicated and uncertain in its implications than the situation requires. This is fortunate, since my own view, unlike his, would permit normalization now-rather than mere recognition of Peking without establishment of diplomatic relations.

My views with respect to the other principal bilateral treaties between the United States and the Republic of China are similar. I do not expect Peking to continue any that were concluded since October 1, 1949, the date of the People's Republic of China's founding, and probably not any concluded after January 10, 1946.

Certainly, I do not expect the PRC to maintain the Friendship, Commerce and Navigation Treaty concluded in November 1946, since the Central Committee of the Chinese Communist Party announced on February 1, 1947, that it would not recognize that treaty as well as a number of others.

Again, I want to emphasize that the lapse of these agreements with the ROC does not mean that their substance cannot be observed, even after recognition is withdrawn from the ROC. The United States can announce that it will continue to act as though its former treaty obligations still persist and that it expects the authorities on Taiwan to do the same until new arrangements are made.

Furthermore, new arrangements can be negotiated with Taiwan even after recognition has been withdrawn. The PRC will surely appreciate the legal possibilities of concluding agreements in the absence of recognition. It has done so in many cases, even with the United States.

In 1955, the PRC and the United States concluded an agreement on the repatriation of nationals, without recognizing each other, and the Shanghai Communique of 1972 is an even clearer illustration. In addi