VI. CONCLUSION

Although the Executive, Congress, and the courts all use the concept of de facto recognition, nowhere are the applicable legal rules clearly or consistently defined. Nevertheless, it is possible to construct a legal framework for dealing with Taiwan as the "de facto government of an entity having international personality" which would permit continued economic and other dealings after the withdrawal of de jure recognition.

Problems of interpreting ambiguous existing legislation (with the possible exception of some immigration laws) could be handled fairly simply and without causing unnecessary annoyance to the PRC. Congress (perhaps together with the Executive) could state: "The authorities on Taiwan have effective control of the territory and population of Taiwan. It is the policy of the United States to continue friendly ties with Taiwan." The first sentence declares the basis for some kind of international existence for Taiwan; the second sentence deals with the "friendly country" situation. More detailed problems could be handled by developing proper legislative history. If there were particular relations (for example, military assistance) that Congress wished to curtail, another clause might be added: "except for (the designated relations)." In addition, the Executive would have to state which treaties would continue in effect, possibly adding "at least until the problems in the Taiwan Strait area are resolved by the parties concerned." Finally, the term "severance of diplomatic relations” should be avoided in characterizing any changes in the level or form of intergovernmental representation. If this were not possible, additional congressional action would be needed.

[From Critical Issues, The Heritage Foundation, 1978] CHINA AND THE ABROGATION OF TREATIES

(By Barry M. Goldwater*)

Before Secretary of State Cyrus Vance visited mainland China in August of 1977, he was urged to simultaneously recognize the People's Republic of China and consider our defense treaty with the Republic of China on Taiwan as having lapsed. Peking has always steadfastly required the abrogation of the U.S.-Republic of China Mutual Defense Treaty before significant new moves towards the so-called normalization of relations could continue to progress. In view of this unyielding position of the PRC leaders and the apparent unwillingness of some American officials to accede to their demand, the vital question of unilaterally abrogating treaties with a friendly nation must be addressed. It is urgent that a public debate be initiated on this question of whether or not the President has the constitutional authority to do, on his own, what the PRC is demanding.

There are virtually no court cases and very few academic papers on the subject. What we do have to rely upon is our history as a Republic, several statements by the Founding Fathers, and common sense. From these, notes Senator Goldwater, it appears clear that the Constitution demands a role for the Congress in the abrogation of treaties, either in the form of joint action by the President and the Senate, or by the President acting together with both Houses of Congress.

Senator Goldwater examines the history of our treaty relations and concludes that if the President decides to abrogate our treaty with the Republic of China, a staunch ally and firm friend for many years, it would precipitate a constitutional crisis unprecedented in our history and would severely damage the credibility of the United States throughout the world.

*Barry M. Goldwater began his political career in 1949 when he was elected to the City Council of Phoenix on the reform ticket. In 1952, he was elected to his first term in the U.S. Senate, defeating the then Democrat Majority Leader of the Senate. In 1974, Senator Goldwater was reelected to a fourth term and received the additional assignment to the Select Committee on Intelligence, where he is now the ranking Republican member. Senator Goldwater is the author of numerous books; his most recent is entitled, The Coming Breakpoint.

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ABOUT THE AUTHOR

Barry M. Goldwater was born in Phoenix, Arizona Territory, on January 1, 1909. He was educated in the public schools of Phoenix and Staunton Military Academy in Virginia. He attended the University of Arizona for one year.

Senator Goldwater is a World War II veteran, who flew with ATC to India and China, and is a retired Major General in the U.S. Air Force Reserve.

He began his political career in 1949 when he was elected to the City Council of Phoenix on the reform ticket. In 1952, he was elected to his first term in the U.S. Senate, defeating the then Democrat Majority Leader of the Senate. He was reelected in 1958, and did not seek reelection to the Senate in 1964, as he was chosen as the Republican Presidential nominee. He was again elected to the U.S. Senate in 1968, and was assigned to the Senate Armed Services Committee and the Senate Aeronautical and Space Sciences Committee. In 1974, Senator Goldwater was reelected to a fourth term and received the additional assignment to the Select Committee on Intelligence, where he is now the ranking Republican member. Under the Senate reorganization in 1977, the Aeronautical and Space Sciences Committee was abolished and the Senator became a member of the Commerce, Science and Transportation Committee. In January 1977, he was appointed to the Board of Regents of the Smithsonian Institution.

Senator Goldwater is the author of numerous books, including: The Conscience of a Conservative, Why Not Victory? Where I Stand, The Face of Arizona, People and Places, Down the Green and Colorado Rivers, and The Conscience of a Majority, Delightful Journey, Arizona Portraits, and Speeches of Henry Fountain Ashurst. His most recent book is entitled, The Coming Breakpoint.

In 1934, Mr. Goldwater married Margaret Johnson of Muncie, Indiana. They have four children: Joanne, Margaret, Barry, Jr., Michael, and ten grandchildren.

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INTRODUCTION

Little or no public debate has occurred on the role of Congress in the abrogation of treaties. Yet, this subject is at the forefront of one of the critical foreign policy issues of the 1970's, our government's China policy.

Before Secretary of State Cyrus Vance went to mainland China last August for talks with the new triumvirate ruling that territory, he was urged by Senator Edward M. Kennedy to simultaneously recognize the People's Republic of China (PRC) and consider our defense treaty with the Republic of China on Taiwan (ROC) as having lapsed. That President Carter could so terminate the treaty at his own discretion was assumed, the theory being that after the United States cuts diplomatic relations with Taiwan, we can consider the defense treaty at an end because there is no government to deal with.

This was not the first time I had heard of the concept under which the defense treaty would be considered as having died a quiet death upon diplomatic recognition of the Communist regime. A high official has informed me that the Legal Adviser's Office in the Department of State was studying this contingency even before Senator Kennedy's trial balloon, and it is apparently a view held by several subordinate officers at the Department.1

Whether Secretary Vance or any of the officials accompanying him to Peking actually broached this contingency in talks with the Communist Chinese is unknown, but the subject requires careful scrutiny because it represents the latest turn in thinking of those persons who are bent upon granting recognition to the PRC on its own terms.

It is known for certain that one of the announced indispensible requirements for a so-called normalization of relations between the PRC and the United States is abrogation of the Mutual Defense Treaty with Taiwan. PRC Vice Foreign Minister Yu Chan and Vice Premier Li Hsien-nien each made it clear to visting editors of the Wall Street Journal in October 1977 that the Communist government is "absolutely inflexible" on this principle. In view of the unyielding position among PRC leaders and the seeming willingness of some American officials to accept the demand, it is urgent that a public debate be initiated on the threshold question of whether or not the President has constitutional authority to do, on his own, what the PRC is demanding.

And, although the immediate question arises in connection with the defense treaty between the Republic of China and the United States, it is also important to explore the principle involved because it touches every one of our nation's treaty commitments. If the President can break the treaty with Taiwan on his own authority, then he can withdraw from NATO or pull out of any other treaty without consulting Congress or getting its consent.

1 The Washington Post of August 17, 1977 reported that officials of the State Department had assisted in the preparation of Senator Kennedy's speech.

At the outset, it should be clarified that my argument is not intended to cover executive agreements or international agreements other than formal treaties. My concern at this time is only with treaties in the constitutional sense of compacts between nations or other international entities which have been formally signed, submitted for advice and consent to the Senate and ratified after having received the necessary two-thirds approval by the Senate. Since the defense treaty with the ROC is exactly such a constitutional treaty my discussion of the treaty termination power will address only that species of international instrument.

Nor shall I make any brief for the Senate or Congress as possessing the power to compel the President to denounce or abrogate a treaty, although there is strong evidence that such a legislative power exists. Again, that proposition is extraneous to the matter at hand, which is not an effort by Congress to break the treaty with Taiwan, but a proposed assertion of power for the President to arbitrarily force a decision upon the Congress as a fait accompli about which it can do nothing.

Also, let me record my strong opposition to any policy of normalization with Communist China that calls for a break in our relations with the free Chinese on Taiwan and the repudiation of our defense treaty with them. I am convinced such a policy of kowtowing to the PRC would dishonor the United States, increase the risks of a world conflict and run counter to constitutional provisions demanding a role for Congress in the treaty process.

Today, Taiwan has almost 17 million people, more than Ireland, Norway, and 120 other countries of the world. Its economy ranks second only to that of Japan in the Pacific. The ROC is currently America's 13th largest trading partner. Two-way trade between the United States and Taiwan totaled $5.5 billion in 1977, compared with $374 million between the United States and the PRC.2

Acceptance of the Communist Chinese demands would be unprecedented in American history. No President of the United States has ever unilaterally abrogated a treaty with any foreign government in violation of the provisions of that treaty. Actually, we have a remarkable record of morality in keeping our treaty promises. The motto that "our word is our bond" has been a matter of faith for the American people and for foreign nations with whom we have dealt. If President Carter were now to accept the proposal of advisors who recommend that we recognize the PRC and abrogate our defense treaty with Taiwan, it would leave a permanent stain on our history.3

2U.S. Bureau of the Census, Highlights of U.S. Export and Import Trade (December 1977). Imports based on FAS value.

3 For a broader analysis of the significance of relations between the U.S. and the Republic of China see Edwin J. Feulner, Jr., ed., China-The Turning Point (Washington, D.C. Council on American Affairs, 1976).