only touch upon some of those relating to international agreements, especially the Shanghai Communique of 1972 and the 1954 Mutual Defense Treaty between the United States and the Republic of China (ROC).

The defense treaty plainly obligates the parties. A question has been raised, however, about the nature of the Shanghai Communique. Is it an international agreement or, as one observer has claimed, is it merely "a joint statement of view" that "has no more binding legal character than any press release issued by the Nixon party during that 1972 visit"? On April 11, 1978, during a question and answer session before the American Society of Newspaper Editors, the President stated that the Shanghai Communique bound both China and the United States. But was this a considered statement of policy or an off-the-cuff remark?

This is not the first time that such a question has plagued SinoAmerican relations. The 1943 Cairo Declaration, signed by the United States, the United Kingdom and China, stated that "it is their purpose... that all territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China." After long treating that Declaration as a commitment that justified the ROC's official incorporation of those territories in 1945, following the outbreak of the Korean war the United States and the United Kingdom began to refer to it as "merely a statement of common purpose" or "merely a declaration of intention." However, the PRC, like the ROC, continued to regard it as a "solemn international commitment."

The United States reversed itself in the opposite direction when in 1955 it concluded a bilateral "agreed announcement" with Peking concerning the return of civilians. At first the Department of State claimed that "the agreement was not an agreement... but was in the form of 'agreed parallel unilateral statements."" It soon dropped this characterization, however, because it wanted the PRC to fulfill the obligations expressed in the document. Thus the Department began to refer to the announcement as containing "identical pledges" and "an unequivocal promise" constituting the only "parallel commitment" made together by both governments. Peking, which reciprocated Washington's charges of welshing on the "agreed announcement," concluded that "this form does not have enough binding force on the U.S. side" and maintained that henceforth "all agreements between the two sides must take the form of joint announcements of both sides. and no longer take that of statements issued by the two sides separately."

In these circumstances we can appreciate why the agreement recorded at Shanghai between President Nixon and the late Premier Chou En-lai took the form of a "joint communique." Yet until the President's recent statement-over six years after the communique was announced neither party had explicity confronted the question whether it is legally binding. The United States did not seem to regard it as an international agreement, having neither registered it in the United Nations Treaty Series nor included it in Treaties in Force. By contrast, PRC's recently published compilation of the international agreements that it concluded in 1972 does include the Shanghai Communique, just as the 1955 volume listed the "agreed announcement"

and as the series has included other joint communiques regarded as binding. Presumably this is not only because of the great political importance assumed by the document, which Peking's leaders have tirelessly reiterated to be the foundation of Sino-American relations. It is also because the document conforms in substance as well as form to what appears to be Peking's definition of a binding agreement-a statement in writing endorsed by two or more governments that records not merely general principles but agreements on specific questions that incorporate definite rules of conduct.

My own view is that the Shanghai Communique should be regarded as a binding international agreement. The PRC's definition is similar to that generally adopted in the world community, whether by the Convention on the Law of Treaties or the standard text writers, such as Lauterpacht's Oppenheim, which PRC publicists frequently cite. Although the document alternated between joint language and sections in which each side stated its position on issues on which there was no accord, it does record a number of specific understandings on conduct as well as principles. Not only was there agreement that neither should seek hegemony in the Asia-Pacific region and both should oppose efforts of others to establish it and that neither will negotiate on behalf of third parties or make agreements with the other directed at them, but there were also undertakings to facilitate bilateral trade, cultural and scientific exchanges and sports and journalistic contacts. In addition, the parties agreed to maintain political contact "through various channels, including the sending of a Senior U.S. representative to Peking from time to time for concrete consultations to further the normalization of relations. . . ." As we shall see, certain unilateral commitments were also made.

One may well ask whether anything turns on the binding nature of the Communique. Despite the above-quoted commitment to continue concrete consultations and the agreement that progress toward normalization "is in the interests of all countries," at no point in the document did the United States explicitly commit itself to complete the normalization process. In this respect the communique might be deemed to be "instinct with an obligation," to use the phrase made famous by Justice Cardozo. Yet there is no basis for implying any commitment to achieve normalization on any particular set of terms or at any given time.

To be sure, after Peking's unilateral reaffirmation of its long-standing position concerning Taiwan's relation to normalization, the United States did not remain wholly unresponsive, but followed with some unilateral commitments. With the prospect in mind of "peaceful settlement of the Taiwan question by the Chinese themselves," Washington affirmed "the ultimate objective of the withdrawal of all U.S. forces and military installations from Taiwan." Moreover, it pledged that "[i]n the meantime it will progressively reduce its forces and military installations on Taiwan as the tension in the area diminishes," a promise that is like the specific commitments mentioned above, it has kept.

The withdrawal of United States forces from Taiwan is the only one of Peking's three present conditions for normalization to which Washington addressed itself in the communique. The United States stated nothing with respect to the claim that the PRC is the sole legal

government of China, compliance with which would require withdrawal of United States recognition from the ROC. Nor was any mention made by either side of Peking's other condition-termination of the 1954 United States-ROC mutual defense treaty.

Yet Washington did face up to the most difficult aspect of the Taiwan problem. Peking's unilateral paragraph on the topic had labelled it "the crucial question" obstructing normalization. The paragraph went on to declare, among other things, that "Taiwan is a province of China which has long been returned to the motherland" and that the PRC opposed all activities seeking to separate Taiwan from China, including advocacy of the view that "the status of Taiwan remains to be determined"-the official United States position since the outbreak of the Korean war in mid-1950. In the face of this, and immediately after Peking's rejection of the long-standing United States position, Washington unilaterally stated the most significant words of the entire communique: "The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position." If there is any point to debating whether the Shanghai Communique is binding, it is because of this statement. The difficulty, of course, is to ascertain its meaning. Despite Washington's resort to this new formulation and its blatant failure to renew its post-Korean war position in the face of Peking's explicit rejection of it. American officials were quick to deny that the Communique made any change in the American position concerning the status of Taiwan. Informally they said that, in stating that it "does not challenge" the claim of all Chinese to Taiwan, the United States had merely announced that it was not addressing the issue. But some observers argued that this was tantamount to United States agreement that Taiwan is Chinese territory and that recognition of the PRC as the legitimate government of China would constitute recognition of Peking's sovereignty over Taiwan. If the latter view is correct, after normalization the United States would have no legal basis for continuing its concern for the defense of the island.

Interestingly, the PRC has never officially announced its view of the significance of this United States statement. For one vear Peking was wholly silent on the matter. Then, on February 28, 1973, the anniversary of the 1947 Taiwanese uprising against Chiang Kai-shek's rule, former Nationalist General Fu Tso-yi, Vice Chairman of the Chinese People's Political Consultative Conference-an ostensibly unofficial body, claimed that: "In the Shanghai Communique, the United States recognizes Taiwan as part of China's territory." The only other known. PRC reference of this kind has been found in a collection of secret military documents issued at the regional level in the spring of 1973. The previous June, when I had an opportunity to interview the then Vice Foreign Minister Ch'iao Kuan-hua, who had been Henry Kissinger's counterpart in negotiating the Communique, I had asked why, if in the PRC's view the United States had indeed recognized Taiwan as China's territory, the PRC had not publicly indicated this. Ch'iao, who was subsequently removed from the Foreign Minister's post because of affiliation with the "gang of four," seemed somewhat startled by the question, but then smiled and said: "We are showing restraint."

In recent months, however, some Chinese leaders have told visitors that the United States has recognized that Taiwan is Chinese territory.

My own view is that, given the circumstances in which the United States statement about Taiwan was uttered, it should not be maintained that no change was made in the position that the status of Taiwan undetermined. That argument could be sustained if the United States had repeated this position or kept silent or contented itself with acknowledging the existence of the Chinese claim. But it went on to state explicitly that it does not challenge that claim. And it followed this with both a reaffirmation that the Taiwan question is one eventually to be settled by the Chinese themselves and a commitment that United States forces will ultimately be withdrawn from the island, thereby further implying that Taiwan at some point in the future will formally be recognized to be Chinese territory.

Yet the new American formulation falls short of such a formal recognition. Again, the circumstances of the case are determinative. It is not solely that the words "does not challenge" are not ideally explicit, to say the least, or that information has been leaked that Secretary of State Henry Kissinger had unsuccessfully urged the President to substitute the word "accepts" in lieu of "does not challenge." The fact that Peking has not officially asserted that the United States recognized the Chinese claim is not irrelevant. Moreover, Washington's failure to record the communique as binding-a failure unprotested by Pekingis even more significant, especially in light of the American position between the end of World War II and the outbreak of the Korean conflict.

During that period, following the ROC's occupation and official incorporation of Taiwan on October 25, 1945, the United States, as President Truman stated on January 5, 1950, "accepted the exercise of Chinese authority over the island." As Secretary of State Acheson put it on the same day: "When Formosa was made a province of China nobody raised any lawyer's doubts about it. It was regarded as being in accordance with the commitments," referring to the Cairo Declaration and its wartime sequel, the Potsdam Proclamation. Although the United States thus treated Taiwan as a part of China, it anticipated that the island's unquestioned de facto status would be confirmed de jure by the peace treaty that would formally conclude the war. The advent of the Korean conflict caused the United States to reconsider, however. President Truman then stated that: "The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations."

And the 1951 San Francisco Peace Treaty and the 1952 ROC-Japan Peace Treaty were artfully constructed by the United States to confirm Japan's renunciation of Taiwan without confirming China's title to the island. Thus the United States maintained the position that the legal status of Taiwan remained undetermined, thereby raising the possibility that the island might never be reintegrated with the mainland. Against this background one can see how improbable it would be to conclude that at Shanghai the United States, as the leader of the victorious powers in World War II, had, by means of vague wording

in a document of uncertain legal character, finally and formally confirmed the de jure status of Taiwan.

How then should we characterize the significance of the Shanghai Communique on this point? The most sensible interpretation, it seems to me, is to conclude that a change was made in the United States position, but only to the extent that it eliminated the specter, introduced upon the outbreak of the Korean conflict, that Washington might seek permanently to separate Taiwan from China by failing to fulfill the Cairo Declaration's pledge. To be sure, at Shanghai the United States did not fulfill that pledge by formally confirming Taiwan's reincorporation into China, nor did it return all the way to its pre-Korean position, but it did renew the hope that the pledge would be fulfilled at some future date. It implicitly swept away the possibility raised by President Truman that the U.N. or outside powers might legitimately prevent Taiwan's de jure return to China.

This interpretation accords with the political strategy apparently adopted by President Nixon in drafting what Deputy Secretary of State Warren Christopher has termed the "carefully crafted framework of the Shanghai Communique." That strategy was articulated in a 1971 book by Richard Moorsteen and Morton Abramowitz, "One China, But Not Now." It sought to initiate movement toward normalization not by withdrawing United States recognition from the ROC and terminating the defense treaty, which would have added to the communique's domestic and international reverberations, but by offering Peking the prospect of renewed American respect for China's territorial integrity as time ripened friendship between Washington and Peking.

What is the upshot of this effort to interpret the inscrutable? It is that nothing in the Shanghai Communique means that normalization will automatically constitute United States recognition that Taiwan is PRC territory. Moreover, there is no requirement that a recognizing state confirm the territorial claims of the government that it recognizes, and the PRC has established diplomatic relations with many states that have failed to acknowledge its sovereignty over Taiwan. Thus, if in the process of achieving normalization Washington does nothing further to clarify the status of Taiwan, it will not have undermined the legal basis for maintaining "its interest in a peaceful settlement of the Taiwan question by the Chinese themselves," for in its eyes Taiwan has not yet reverted to China even though Washington does not challenge the claim that some day the island should.

There is an important difference between stating, as the President did in response to a question before the American Society of Newspaper Editors, that "we recognize the concept that is shared in Taiwan and on the mainland that there is only one China" and formally confirming China's title to the island. Because China's title will not yet have been perfected, continuing United States defense of the island, arms sales to what will henceforth be known as "the authorities on Taiwan" rather than the Government of the Republic of China and even defense cooperation with those authorities will not legally be ruled out as options, whatever the political acceptability of such

measures.

It will, however, be necessary at the time of normalization for the United States to make special provision for its continuing protection