Author: Chairman rabbit source: tuzhuxi (ID: Chairman rabbit)
1? The three communiqu é s and other historical acts and documents
1. The first joint communique: Shanghai Communique on February 28, 1972
2. The second joint communique: the communique on the establishment of diplomatic relations between China and the United States on December 16, 1978
See above: the Taiwan issue and Sino US Relations (2) the text differences and political differences of the Sino US communique on the establishment of diplomatic relations
3. The White House of the United States suspended the mutual defense treaty between the Republic of China and the United States of America (samdt)
On December 16, 1978, the United States and the people’s Republic of China issued the communique on the establishment of diplomatic relations between China and the United States, announcing that the two countries would formally establish diplomatic relations on January 1, 1979. In the United States, the entire negotiation process of normalization of Sino US diplomatic relations was led by the White House, and the US Congress was “kept in the dark”. Jiang Jingguo was awakened by US officials in the middle of the night before the publication of the “Communique” and told this sad news. On December 23, deputy secretary of State Warren Christopher announced that samdt was also abolished. To the Kuomintang officials in Taiwan and the anti Communist and pro Taiwan forces in the United States, the whole process not only angered them, but also was extremely insulting. Therefore, from the very beginning, they aimed to counterattack and shift the focus of American politics and policy toward China back to Taiwan.
A core issue that has not been resolved in the “communique on the establishment of diplomatic relations between China and the United States” and the negotiations on the normalization of Sino US relations is the military relationship between the United States and Taiwan. At the beginning, the two sides signed a formal mutual defense treaty. After the establishment of diplomatic relations between the people’s Republic of China and the United States, the policy of the United States was transformed into arms sales to Taiwan. Although it is said that China and the United States have reached an agreement on the direction of normalization of diplomatic relations, the issue of US arms sales to Taiwan has never been resolved.
The Carter Administration (including President Carter, diplomat and security adviser Brzezinski) knew that they could not solve this problem in the United States: whether it was against the US Congress or the public. They want to leave the problem to time. As a politician, Carter’s domestic support rate is at stake. Promoting the establishment of diplomatic relations between China and the United States and promoting the economic, trade and scientific and technological cooperation between the two sides is a huge political bonus, and the benefits have been considerable. His motivation lies in convincing Chinese leaders to accept the “back door” of arms sales to Taiwan.
For Chinese leaders (Deng Xiaoping), to solve China’s economic transformation and development problems and to deal with the Soviet Union’s hegemonism, it is necessary to establish formal relations with the United States, even a certain degree of alliance. Although Taiwan’s great cause of reunification is not a factor that can be put on the negotiating table for negotiations, the leaders still hope that the issue can be resolved through time. At the same time, the Carter Administration / team did show great sincerity. In the communique on the establishment of diplomatic relations between China and the United States, they told the Chinese leaders about the “back door” of arms sales to Taiwan, managed the expectations of the Chinese side, and did not give any “accidents” to the Chinese side. In addition, it should be noted that at the time of 1979 and the early 1980s, the Chinese leaders were very optimistic about Taiwan’s reunification, believing that it could be accomplished within 10 years.
Driven by the overall situation and optimism, the two sides have pushed history forward by a big step. However, it should be noted that China’s leaders still have a preliminary understanding of the US decentralization system and the US domestic political power. The evolution and development of many things are also known to us later.
If the first two Sino US “communiques” belong to breaking the ice and normalizing relations, then the controversial point of Sino US relations in the next few years will be the Taiwan issue – both between China and the United States and within the United States. Here, we should mention the Sino US Mutual Defense Treaty (samdt) signed by the United States and the Kuomintang / Republic of China on Taiwan.
After the establishment of diplomatic relations between China and the United States, Carter announced the invalidation of samdt. According to Article 10 of the samdt, “any contracting party may terminate the treaty one year after the notification of denunciation is sent to the other Contracting Party”. Therefore, the samdt was officially terminated on January 1, 1980. However, four months after the establishment of diplomatic relations between China and the United States, the US military began to withdraw substantially from the Taiwan region.
Review samdt. Samdt was signed on December 2, 1954. After the signing of samdt, the United States established the Formosa liaison center on April 26, 1955; The US military’s officers and men stationed in Taiwan are composed of the US Army, the US Navy and the US Air Force (the air force has the largest number). Lieutenant general Alfred pride, then commander in chief of the seventh fleet of the United States Navy, served as the commander of the center; Since November 1, 1955, pride announced that the center was renamed the United States Taiwan Defense Command (ustdc), with the following insignia, directly under the Pacific Command of the United States. After that, ustdc became one of the military forces to defend Taiwan and the Penghu Islands.
Samdt lasted about a quarter of a century. At that time, it was the cold war period, and the United States sought to establish alliances with various countries in East Asia / Southeast Asia to contain and contain the development of communism. However, due to the complicated history and latitude of East / Southeast Asian countries, their demands are not single, and it is not easy to establish a multilateral alliance relationship. Therefore, the United States and various countries / regimes have established bilateral relations with one country and one policy. Samdt was signed in such a historical context. Through this treaty, the United States essentially recognized that the Republic of China was the only legitimate government representing “China”. In combination with the bilateral relations between the United States and Japan, the Republic of Korea, the Philippines and other countries, the United States helped curb the further development of communism in the region.
However, at that time, the United States had a different attitude towards KMT Taiwan / the Republic of China.
First, the United States defined the scope of the United States side as the “Western Pacific” territory of the United States (such as Guam). In the event of a war, the Kuomintang Taiwan / Republic of China has the obligation to defend — although this has nothing to do with the Chiang Kai Shek government’s appeal to counter attack the mainland at that time. This agreement is also different from the scope of the US Japan Security Treaty and the US Philippines mutual defense treaty.
Second, the United States defines the scope of the Kuomintang Taiwan / Republic of China as Taiwan and Pescadores, which is different from the demands of the Chiang Kai Shek Government: the Chiang Kai Shek government certainly hopes that the United States can expand its coverage and include the entire Chinese Mainland into the scope of defense, but how can the United States intervene in the Chinese civil war again? They just hope to maintain the status quo in the Taiwan Strait. Based on this, the United States did not even include Kinmen, Matsu and other mainland coastal islands still under the control of the National Army:
——In order to test the US Defense bottom line, in January 1955, the people’s liberation army bombed Yijiangshan, Dachen island and other islands along the coast of Zhejiang, which were still garrisoned by the Chinese army, and captured Yijiangshan on January 18. Subsequently, the US side assisted the Kuomintang troops to withdraw the garrison and residents of Dachen island in February. Later, the people’s Liberation Army entered and liberated Dachen island;
——The people’s Liberation Army also carried out continuous shelling on Kinmen, which was outside the defense scope defined by samdt (the most intense fighting was the historically called Kinmen shelling and the second Taiwan Strait crisis between August 23 and October 5, 1958). The US side showed restraint and did not directly participate in the war except for providing some weapons and assisting in logistics transportation, thus defining the boundary of samdt. Since then, the people’s Liberation Army has shelled Kinmen from time to time. It was not until January 1, 1979, the day the people’s Republic of China and the United States established diplomatic relations, that our side announced that the shelling would stop. The United States’ unwillingness to intervene in the conflicts between Kinmen and Matsu shows that the United States wanted to maintain the status quo in the Taiwan Strait at that time. In fact, the United States does not care about Kinmen, and even does not suggest that KMT Taiwan deploy too many armed forces in Kinmen.
Third, in addition to defending the people’s Liberation Army against attacking Taiwan, according to the provisions of Article 7 of the samdt, “the government of the Republic of China shall grant, and the government of the United States of America shall accept, the right to deploy the United States land, sea and air force in Penghu and its vicinity in accordance with the decision of the joint agreement for its defense needs.” Stressing that the United States and the United States should reach a “common” agreement, and that the scope of US defense will only include Taiwan and Penghu, in fact, it is impossible for the Kuomintang Taiwan to seek a unilateral attack on the mainland.
In the early days of the founding of the people’s Republic of China, the political power on the mainland was still relatively weak. Which side the United States took would indeed have a great impact on the situation. By the end of the 1970s, the presence of US military forces had prevented China from ending its civil war and achieving reunification. However, on the other hand, it was ruled across the sea at that time, and the situation could not be completely determined. On the one hand, the United States interfered in cross-strait relations, and on the other hand, it did not have the opportunity to support the Kuomintang’s Taiwan counterattack against the mainland, which objectively played a role in maintaining the status quo.
At that time, the United States was concerned about curbing the further expansion of communism, and did not care about the territory of little military strategic significance such as Kinmen and Matsu; It also does not want a real military conflict between the two sides of the Strait, much less is it willing to consume us military resources and strength. In particular, it certainly does not care about the cause of China’s reunification that the two sides of the Strait / the two parties are concerned about (whether it is the Communist Party or the Kuomintang). Instead, it sees some interests from the separation of the two sides of the Strait:
——Besides providing the United States with geopolitical flexibility;
——Take the issue of the Taiwan Strait as a political bargaining chip for negotiations with the regimes on both sides of the Strait;
——Turning the cross-strait issue into a topic and driving force of US domestic politics: for example, criticizing the other party’s China policy for being too biased toward the mainland or too biased toward Taiwan, and so on.
However, after the abolition of samdt, the US regular army withdrew from Taiwan. On April 26, 1979, ustdc held the last flag lowering ceremony; On April 28, rear admiral James Linder, the last commander of ustdc, left Taiwan and became the last American officer to leave Taiwan.
The following figure shows the situation of US troops stationed in Taiwan after the 1950s. In 1958, when the Kinmen artillery battle / the second Taiwan Strait crisis, the United States stationed nearly 20000 troops. After the establishment of diplomatic relations between the people’s Republic of China and the United States in 1979, the United States withdrew all its regular troops within a few months, and the number of troops stationed in Taiwan fell to zero.
The abolition of samdt was an extremely heavy blow to the Kuomintang in Taiwan. However, at the same time, the Republican / anti communist / pro Taiwan forces also began to mobilize in an all-round way, challenging the Carter administration and implementing the Taiwan Relations Act.
4. Goldwater vs. Carter case
President Carter’s “unilateral” repeal of the Sino US Mutual Defense Treaty (samdt) triggered a backlash from domestic opponents. Politicians first tried the legal path.
At the end of 1978, fifteen congressmen including Republican Senator Barry Goldwater (including seven Republican senators and eight House representatives, all anti communist / conservative politicians) sued President Carter and Secretary of state Cyrus Vance to the Federal Court (Columbia special district division of the United States District Court), saying that samdt was a treaty passed by the United States Senate in 1954. As an administrative organ, Unilaterally abrogating a treaty without congressional authorization (passed by two-thirds of the Senate) is beyond the constitutional power. At first, the court did not accept the case because the plaintiff lacked the right of prosecution / standing. However, in October 1979 (at this time, the political environment had changed and the Taiwan Relations Act had been passed), the Court confirmed the plaintiff’s standing of prosecution and decided that the White House could not abolish the 1954 samdt without the consent of the Senate or the approval of the two houses of Congress from the constitutional perspective.
The matter went to the court of appeal. The court of appeal overturned the decision of the district court, holding that the president had the right to suspend the treaty. The appeals court agrees with the local court that there are various precedents in history that cannot provide a conclusive answer to whether the president has the right to suspend the treaty alone. However, the appeals court does not think that in this case, the president needs the consent of two thirds of the senators or the majority of the two parties to suspend the treaty. The appeals court held that President Carter did not exceed his authority without the prior consent of the Senate (or both houses) when abolishing samdt.
Goldwater and others further pushed the case to the Supreme Court. The Supreme Court accepted the application for judicial review and resumed it on 13 December 1979. The Supreme Court quashed the judgment of the appeal court and sent the case back to the local court, suggesting that Goldwater’s complaint should not be accepted. Six of the nine justices thought that the case should be dismissed and no oral arguments were needed. Justices Lewis Powell and William Rehnquist independently issued concurring opinions; Brennan raised objections:
——Judge Rehnquist believes that this case is related to how the Congress and the president solve the diplomatic issue, and belongs to a “political issue” rather than a judicial issue. Therefore, the court should not accept and adjudicate it; Justice burger, Stewart and Stevens also agreed with this view. The so-called “political question”, that is, the essence of the problem is related to politics and should be resolved by the political field. The court should not participate in it and should not include it in the scope of judicial review;
——Judge Powell also believes that the case should not be subject to judicial review, but he believes that the case itself does touch on a real constitutional issue, that is, can the president break the formal treaty without congressional approval? He believes that if Congress takes action to formally oppose the president’s repeal of the treaty, and the legislature and law enforcement agencies are really in a constitutional stalemate, the Supreme Court will be appropriate to intervene. At present, the time is not “ripe” and it has not reached that stage – at that time, some senators did draft an opposition resolution, However, the Senate did not vote on it (because the issue has been resolved by the Taiwan Relations Act);
——Judge Brennan raised an objection. He believes that as long as the president has the right to recognize the government of another country, he has the right to abolish the treaty.
Although the majority of judges believe that the Supreme Court should not consider the case, they also give different reasons. People cannot think that the Supreme Court supports President Carter’s actions just because the Supreme Court has not given a final opinion and judgment. On the contrary, whether the president can abrogate the treaty has become a serious constitutional issue. So far, this problem has not been solved. Goldwater vs Carter has become a textbook case of American constitutional law focusing on “principles of political issues”.
The Goldwater vs Carter case has not had any substantive impact on Sino US relations and cross-strait relations. When the district court, the appeals court and the Supreme Court of the federal court issued their opinions, it was also after the enactment of the Taiwan Relations Act. However, we should pay attention to:
First, at the time of October December 1979, people in the judicial system probably believed that since the Taiwan Relations Act had been formally passed by the two houses of Parliament and signed by the president, and formally entered into force as a law, it had substantially subverted the two Sino US joint communiques and the abolition of samdt by President Carter, and this subversion was supported by domestic politics. Therefore, the issue of Goldwater vs Carter could be discussed and no longer became a taboo. This shows that even in the late 1970s and early 1980s, the judicial system of the United States was influenced by the domestic political atmosphere and public opinion, and was not truly independent;
Second, in foreign affairs such as the abrogation of the treaty, the White House, as an executive body, faces constraints, restrictions, challenges and constraints from the legislature (both houses of Congress) and the judiciary. In foreign affairs negotiations, once certain “conventional” standards and boundaries are broken, they may be challenged or even punished. Carter’s insistence on promoting the establishment of diplomatic relations with the people’s Republic of China has limited medium – and long-term interests for the United States, but it has violated the values and interests of anti Communist and pro Taiwan politicians and interest groups, and was eventually questioned and challenged, and even paid a political price (from the interests of Carter’s Democratic Party to Sino US Relations). Finally, the issue was not resolved through Goldwater V Carter, but was resolved through the Taiwan Relations Act;
Third, the separation of power in the United States is real and substantial. The Chinese government will only hold talks with its “counterpart” the White House, but the White House cannot represent all of American politics and authority: behind it are the two houses of Congress (driven by two opposing political parties), public opinion, and the Supreme Court. In this case, the historical treaties we have negotiated with the executive authorities (the White House / State Department) may be “untenable” and may be challenged and overturned by the executive, legislative and judicial systems of the United States. Everything is not solid. In addition, it must be noted that from the very beginning, the United States has always had local law over international law / diplomatic treaties. China places foreign treaties at the highest level, while the United States places diplomatic treaties at a lower level. There is no so-called commitment, which can be overturned by domestic laws and politics.
To sum up, the foreign affairs of the United States are very complex. No institution can represent all the United States, and no institution can represent the medium – and long-term interests of the United States. China is also gradually recognizing and understanding the diversity, complexity and “unreliability” of the United States, and has to pay a lot of historical fees. However, such an event will naturally overdraw China’s trust in the United States.
The reason why the Goldwater vs Carter case was written was, in the final analysis, to explain the “unreliability” of the United States in international treaties. Everything can be challenged and abolished. After repeated attempts and tests, China has increasingly realized that no one can represent the United States. No one can make the final decision for the United States, nor does China know which institution to negotiate with and ensure that the United States is responsible for the outcome of the negotiations for a long time.
(to be continued. Follow up: Taiwan Relations Law, August 17 Communique, six guarantees, etc.)