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 ROC? 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 makeclear 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 tion, the PRC has tolerated the conclusion of many unofficial agreements between countries that now recognize it and entities representing Taiwan, as the Japanese case demonstrates. I regret that this brief opening statement does not allow time to consider other international law questions and related problems of legislative and executive promulgations, but I think it important to concentrate here on clarifying the question of normalization's impact on our bilateral treaties with the ROC. LEGISLATION URGED Before concluding, however, I want to urge the Congress to facilitate normalization to the extent that is politically possible by preparing now to enact the legislation that will be necessary immediately after normalization to avoid damage to our many contacts with Taiwan. I believe that appropriate bills should be introduced and that the usual congressional processes should be pursued short of the final step of passage of the proposed legislation. Hearings, deliberations and reports by the relevant committees and even floor debates may be desirable so that, once normalization occurs, legislation can be expeditiously enacted in order to prevent an elapse of time that might shake confidence on Taiwan and allow obstacles to impede our contacts with the island. This is why I especially welcome the concern shown by this subcommittee today, and the detailed study by Professor Li that fosters the subcommittee's efforts. Mrs. MEYNER. Thank you, Mr. Cohen. I believe that our procedure today will be that instead of having one speaker and then questions, we will hear the testimony of all four gentlemen. Then after that, Mr. Bielenson and I will have questions. Mr. Li, Mr. Cohen has referred to your testimony in his statement, we will ask you to proceed at this time. STATEMENT OF VICTOR H. LI, SHELTON PROFESSOR OF BIOGRAPHY Born September 17, 1941; came to the United States from China January 1947. Since 1974, Professor Li has been Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies at Stanford University. From 1974-76 he was Director of the Center for East Asian Studies at Stanford. He received a B.A. from Columbia College in 1961; J.D., Columbia Law School; LL.M., Harvard Law School, 1965 and S.J.D., Harvard Law School, 1971. He is a member of the New York Bar. He is the author of several books including "Derecognizing Taiwan: The Legal Problems" and the forthcoming "Law and Politics in Chinese Foreign Trade". Among his recent articles are: "China and the World Economy: An Introduction" 10 Stan. J. International Studies XII-XVII (1975); "China and Offshore Oil: The Tiao-yu Tai Dispute," 10 Stan. J. International Studies (1975); "Resolving the China Dilemma: Advancing Normalization/Preserving Security," International Security (June 1977). Mr. LI. Thank you, Mrs. Meyner. It is an honor and privilege to appear before this committee. The issue for the United States is no longer whether we should normalize relations with the People's Republic of China. We have passed that point. The issue is how. A major obstacle in this effort has been a fear that normalization would severely disrupt our relations with Taiwan and endanger our security interests. This concern may be mistaken, but it nevertheless has been repeatedly expressed by American political leaders and in public opinion polls. I believe that the following legal analysis suggests a policy option which has not yet been considered: The United States can recognize the People's Republic of China, and thereby take a major step forward toward normalization, while at the same time maintain existing economic and security ties with Taiwan. I stress at the outset that normalization-in the broader sense of establishing effective and cooperative relations-is a process requiring much time, rather than a single act of creation. Situations like Taiwan, formed over half a century, cannot and should not be resolved in a single stroke. I believe the PRC agrees with this position. It would be wonderful at this time to find a complete solution to the entire China problem. Short of that, we should take steps that confirm points of agreement and reduce areas of disagreement. This is not moving by half-measures. This is the way to advance the normalization process. I have submitted a prepared statement to the committee, and would like now to summarize the principal points. Let me begin with a practical issue. What are the legal consequences for economic and other relations between the United States and Taiwan if the United States withdraws de jure recognition, although the Taiwan authorities continue to maintain de factor control? There are very few provisions in American legislation which specify that de jure governments and de facto authorities should be treated differently. In general, the legislative approach has been to treat these two kinds of entities similarly, unless there is a specific provision to the contrary. However, several problems will arise upon withdrawal of recognition. First, a number of statutes apply only to "friendly countries"; these affect military sales and assistance and the Overseas Private Investment Corporation, among others. Interestingly, nowhere in these statutes is the term "friendly" defined, but withdrawal of recognition might be interpreted as a loss of friendliness. Second, several statutes-for example, the Foreign Assistance Act and the Agricultural Trade Development and Assistance Act—prohibit dealings with countries with whom the United States has "severed diplomatic relations." Third, other statutes place various restrictions on dealings with "Communist countries." If Taiwan is considered part of a “Communist country" after withdrawal of recognition, then the ExportImport Bank, the generalized system of preferences, tariff rates, and other matters, may be affected. These three problems are not difficult to resolve. That is, after withdrawal of recognition all domestic legal obstacles to maintaining existing economic, cultural, and other ties with Taiwan can be removed by legislation. Language for this legislation, which is fairly simple, is |