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Whatever the outcome of this legal situation, which involves serious constitutional and parliamentary issues, in February, a compromise was worked out by the House and Senate with the administration, along the lines of the legislation introduced by Senators Kennedy and Cranston, and in the House by myself, as chairman of the Asian and Pacific Affairs Subcommittee. The details of this legislation are fully covered in the first of the following hearings, with statements from Senators Cranston and Kennedy, and in dialog between subcommittee members and administration witnesses.
BACKGROUND TO COMPROMISE.
As a result of the normalization agreement between the United States and China, the United States met Peking's longstanding “three conditions," the "derecognition” of Taipei, the termination of the Mutual Defense Treaty, and the withdrawal of U.S. forces from Taiwan. In return, the United States retained the right to continue to sell Taiwan defensive arms and to carry out the full range of nonofficial relations. In particular, the United States was assured by Chinese officials including Deng Xiaoping that it could follow the so-called Japanese Formula for continued economic and social relations with Taiwan.
These public assurances dovetailed with those enunciated privately when the subcommittee visited Peking in July 1978. At that time, Vice Premier Deng indicated that China was prepared to do what it could to foster peaceful conditions of settlement between Peking and Taipei. However, the Vice Premier then, and in his subsequent journey to Washington this January, repeatedly refused to rule out the use of force, if ultimately necessary, to reunite Taiwan and the mainland.
While there was thus some give and take between Washington and Peking, in which the subcommittee played some part, problems immediately arose following the President's announcement due to China's refusal to rule out the use of force against Taiwan. This, coupled with the agreement by the administration to terminate the Mutual Defense Treaty, made Congress aware of the need to reassure the private and business communities—in addition to the people on Taiwan—that the Taiwan legislation would help safeguard the island's security without the "umbrella" of security implied by the defense treaty.
An additional problem-one wholly unnecessary, in my view-was the issue of prior consultation, during the final stages of the negotiations. This issue has been fully aired, and there is no need to repeat the many points raised during the debate, and in the following hearings. For the future, however, the concern remains that Presidents will continue to present the Congress with foreign policy “faits accompli,” in which we have a choice of either appearing to obstruct or serving as a rubber stamp.
3 See paper by Jonathan B. Eddison, Georgetown University Law Center, "The Separation of Powers and the Termination of Treaties" (p. 35 of the hearings), statement by Hon. Barry M. Goldwater, U.S. Senator from Arizona "Analysis of Presidential Treaty "Terminations' Argued in State Department Memorandum”(p. 122).
4"A New Realism : Factfinding Mission to the People's Republic of China, Aug. 3-13, 1978", by the Subcommittee on Asian and Pacific Affairs, U.S. Government Printing Office, 1978.
5 See app. 2, letter to President Carter from Chairman Clement J. Zablocki and Hon. Lester L. Wolff, dated Dec. 19, 1978.
In any event, after several weeks of debate, during which both the House and Senate in effect ratified normalization by voting to reject amendments which would have contradicted the normalization agreement between Washington and Peking, a compromise version of the Taiwan implementing legislation was achieved.
Key to the compromise was the Kennedy-Wolff legislation, which took the form of an additional section to help insure the maintenance of peace in the area, as well as Taiwan's security. The House version, with more than 100 cosponsors, was incorporated into the Foreign Affairs Committee redraft of the administration bill. Likewise, the Senate incorporated the Kennedy-Cranston resolution into its legislation, and the conference committee endorsed the agreement.
As the law now stands, while Taiwan will no longer be protected by a formal treaty (assuming termination as scheduled on January 1, 1980) the President retains the power under the War Powers Resolution to take steps, with the consent of Congress, deemed necessary to protect U.S. interests on Taiwan.
These interests are defined to include the continued peace and wellbeing of the people on Taiwan, and the President is directed to report to the Congress any threat to these interests.
The legislation specifically covers the threat of boycott or blockade, in addition to then-existing legislation governing our international relations. Finally, the Kennedy-Wolff and committee amendments noted that a threat to Taiwan's security would constitute a threat to the peace and security of the region.
While the administration repeatedly refused to endorse KennedyWolff, maintaining that such guarantees were not needed, its witnesses agreed to work with us in achieving the compromise which was finally accepted by all parties.
I make this point because of the importance we attached at that time to testimony by administration witnesses on the nature of the various guarantees—both implicit and explicit—which they maintained would still operate for Taiwan in the wake of normalization with the People's Republic of China.
Of particular interest was testimony to the subcommittee by Assistant Secretary of State for East Asia Richard Holbrooke, Deputy Secretary of Defense Michael Armacost, and their staffs, on the nature and capacities of the U.S. defense commitment to Taiwan without the Mutual Defense Treaty. Key sections of this testimony appear on pages 19-21, and 49-51, and should be noted by those concerned with how the administration proposed to deal with questions of Taiwan's continued peace and prosperity in the event of future tensions.
The security questions tended to dominate both press and legislative concern during the debates of January and February. However, also of major interest to the Congress, and particularly to the business community, was the lack in the proposed administration bill of specific safeguards for continued economic and social relations between the Taiwanese people and the American people.
CONTINUATION OF TREATIES AND AGREEMENTS
As testimony in the following hearings demonstrates, the business community particularly wanted the United States to maintain the 55 or so treaties and agreements between Washington and Taipei which would not immediately be affected by the normalization agreement. Many in the Congress and elsewhere shared this concern on the grounds that terminating or abrogating treaties and agreements beyond the defense pact could undermine the legal stability of continued commercial intercourse between the United States and the people on Taiwan.
While this would be a major concern of the Congress under normal circumstances, the fact that the new United States-Taiwanese relationship was to be entirely unofficial made the question of the business and commercial continuity of paramount importance.
In response to this concern, administration witnesses testified to the subcommittee that with the exception of the Mutual Defense Treaty, the President intended to keep in force the approximately 55 other treaties and agreements in question.
Specifically, Secretary Holbrooke, on page 12, assured the subcommittee of the following:
We also could not agree to declaring our treaties and agreements with Taiwan null and void. The President had determined that except for the ending of formal diplomatic relations and the Defense Treaty relationship, we would maintain the broad range of substantive ties with Taiwan in commerce and investment, in travel and tourism, and in cultural interchange. These treaties and agreements were exceedingly important to that goal, because without them we could not continue, for example, cooperation in the peaceful uses of atomic energy; and the ending of the Treaty of Friendship, Commerce and Navigation and the orderly marketing agreement would have a deleterious effect on our and Taiwan's essential business interests.
In short, the subcommittee, and the Congress as a whole, felt it was being assured that in return for accepting the President's normalization agreement with Peking, as amended to meet security and economic considerations, we could count on maintenance of the great majority of the treaties and agreements precisely because they were needed to safeguard the interests of the American people and the people on Taiwan.
At this writing, and in the wake of Vice President Mondale's announcement, while visiting China, that an aviation agreement between Washington and Taipei will be abrogated, concern on many sides has arisen over Secretary Holbrooke's testimony before the subcommittee, and similar testimony by the administration in other forums. Since the Vice President's announcement, the administration has notified the Congress that as the renewal dates become due on agreements and treaties, new, private arrangements will have to be substituted-an apparent reversal of the promises made during the testimony in February.
Thus, quite apart from the legal ramifications of the court decision on the Mutual Defense Treaty, serious questions may arise as to the basic agreement in principle between the Congress and the administration on the Taiwan implementing legislation.
The subcommittee did not in February and does not now oppose creation of the American Institute on Taiwan, the private corporation set up to facilitate continuation of the nongovernmental, unofficial relations between the United States and the people on Taiwan. However, in light of the Vice President's announcement and the subsequent administration notification regarding the new arrangements needed, the subcommittee is concerned that previous assurances by the administration to the Congress may be subject to revision.
Obviously, the many issues of the triangular relationship between China, the United States, and the Soviet Union, such issues as SALT and MFN, and concerns such as human rights, and the tensions between Vietnam, China, and the Soviet Union, all form part of the larger picture which must be monitored by the subcommittee and the Congress.
The appendixes to the present hearings include items designed to supplement the specific issues involved in the days between December 15, 1978, and April 10, 1979, as they regard the legislative concerns of the Congress.
The views expressed in this preface are those of myself as chairman of the Subcommittee on Asian and Pacific Affairs, and do not necessarily reflect the views of any other member of the subcommittee or of the Committee on Foreign Affairs.
LESTER L. WOLFF,
and Pacific Affairs. Washington, D.C., NOVEMBER 1979.