Enhancing U.S.-Taiwan Relations Part 2: Enforcement of the Taiwan Relations Act of 1979

     In Part 1 of the series, China's questionable approaches towards a peaceful resolution of the Taiwan was highlighted, and recommendations were made regarding a United States "reaffirmation" towards the Taiwan Relations Act.  While both the United States and Taiwan need to reaffirm their commitment to the 1979 law, this portion of the series will highlight inconsistencies in the United States approach towards the TRA, outdated terminology that is applied by Washington regarding it, and recommendations towards the improvement of adherence.

     In regards to American military weaponry sales to Taiwan, the basis and legality of such sales can be found in Article 3.4 of the Taiwan Relations Act.

3.4: 
(A)  "In Furtherance of the policy set forth in section 2 of this Act, the United States will make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capability."

(B) "The President and the Congress shall determine the nature and quantity of such defense articles and services based solely upon their judgement of the needs of Taiwan, in accordance with procedures established by law.  Such determination of Taiwan's defense needs shall include review by United States military authorities in connection with recommendations to the President and Congress."

     In addition to the TRA, the United States government position on arms sales to Taiwan has traditionally followed the 1982 "six assurances" made by President Reagan to Taiwan.  It is a little known fact that it was the Taiwanese government that proposed the concept of the six assurances to the United States (initially to Former Ambassador John Holdridge); and were accepted with the notification of Congress in 1982.  Although the six assurances to do not bind the American executive and legislative branches in a legal sense that the TRA does, they have nevertheless been adhered to in varying degrees by the Presidential administrations and Congressional bodies that have followed since 1982.  They are as follows:

--The United States would not set a date for termination of arms sales to Taiwan

--The United States would not alter the terms of the Taiwan Relations Act

--The United States would not consult with China in advance before making decisions about U.S. arms sales to Taiwan

--The United States would not mediate between Taiwan and China

--The United States would not alter its position about the sovereignty of Taiwan-which was, that the question was one to be decided peacefully by the Chinese themselves; and not pressure Taiwan to enter into negotiations with China.

--The United States would not formally recognize Chinese sovereignty over Taiwan

As with the TRA, the six assurances also stated that there was a "full expectation that the PRC approach to the resolution of the Taiwan issue will continue to be peaceful" and a reduction in U.S. arms sales were to be premised on the PRC policies towards Taiwan. (President Reagan's Secret Memorandum on the 1982 Comminique)

If the TRA and six assurances were to be followed as intended, the issue of arms sales between the United States and Taiwan would be relatively clear cut and void of confusion and ambiguity for not only the US and Taiwan, but China would understand the relationship as well, and be given the opportunity to alter the quantity and types of weapons to be sold based on its actions towards Taiwan.  Yet as the evidence will show, the growing economic and military clout of the PRC has allowed it to directly effect the U.S.-Taiwan relationship in a way that would not be possible if the TRA were to be adhered to by the U.S. government as intended.

  The Intended Procedures of U.S.-Taiwan Arms Sales 

In it's 2012 report on "Chinese Reactions to Taiwan Arms Sales" , The Project 2049 Institute highlighted the current procedures in which the arms sales between the two countries is to proceed:


"Upon the U.S. receiving an LOR for P&A data from Taiwan, the service responsible for the requested system – Army, Air Force, or Navy – prepares the LOA response. Before a draft LOA can be forwarded to Taiwan for countersignature, however, the Executive Branch must formally notify Congress of its intent to sell these specific arms to Taiwan. In accordance with Section 36(b) of the Arms Export Control Act (AECA)7, such a Congressional notification must take place 30 calendar days prior to any sale of major defense equipment valued at US$14 million or more, of defense articles or services valued at US$50 million or more, or of design and construction services valued at US$200 million or more.

Items that Taiwan is considered eligible to procure in a given year are included in the annual Javits Report, submitted to Congress by the U.S. Department of State. Nevertheless, Congressional notification under AECA36(b), necessary before signing the government-to-government Foreign Military Sales (FMS) agreement, is the only point in the arms sales process mandating a public acknowledgement of a pending transfer to Taiwan.9Upon Taiwan’s countersigning of the LOA, and upon initial transfer of the funding for the procurement program, the acquisition lead from the appropriate U.S. service determines which U.S. industrial supplier will actually participate in the program and concludes a contract with that supplier – a contract that may or may not be explicitly announced to the public."

     In 2001, President Bush altered the method in which arms sales between the two states was conducted. What was previously an annual arms meeting with Taiwanese government and military officials was changed in favor of routine and normal considerations on an "as-needed" basis.  While the intention of the Bush Administration was to "de-politicize" the arms sale process between the two nations, the result has been the opposite: with increased pressure from China appearing to have a direct impact on Presidential decision making regarding approval of Taiwanese requests, as well as a diminished role for Congressional oversight.

     As the case of Taiwan's request to purchase F-16 C/D fighter jets from the United States shows, the current model for Taiwan's weapon purchase requests has become highly politicized without a proper Congressional role as intended by the TRA; as well as Beijing having an illegal influence in the process.

Taiwan's air force is due to undergo a major facelift due to a sizable portion of its aircraft fleet reaching the end of its lifespan.  In the three years, the ROCAF is expected to retire 60 F-5 E/F fighters that were acquired from the United States during the Reagan Administration, as well as taking a portion of its F-CK-1 A/B Indigenous Fighters (IDF) offline for midlife upgrades.  Although the U.S. has approved midlife upgrades for Taiwan's current fleet of F-16's, which currently number 145, the U.S.-Taiwan Business Council  showed in a report last year why the "A/B" upgrade was insufficient for Taiwan's current defense needs.

Taiwan has repeatedly requested a purchase from the United States of new F-16 "C/D" fighters, which have superior capabilities over the A/B upgrades including a longer range, improved radar systems, and a longer range.  The Business Council also showed a number of additional reasons that gave evidence of the superiority of the C/D acquisition in lieu of the A/B package for reasons of performance, as well as cost-benefit to Taiwan:

*An improved F-16 C/D fleet would move Taiwan's ROCAF into the 2030s
*Planned A/B upgrades will add 600lbs to the A/B empty weight of the aircraft, leading to a 10% performance degradation
*Only 24 F-16s per year can be upgraded
*non-recurring engineering costs will raise the cost of the A/B upgrade package to $3.8 billion vs. $4.0 billion for 66 new F-16 C/D jets

With the F-16's being taken offline for upgrades over the next decade; the estimate for operational airframes available for the ROCAF in the coming years is as follows:

2012: 200
2015: 200 (Consisting of F-16, IDF, and Mirage jets)
2025: 80

When examining these numbers, as well as the overall long term cost-benefit of the ROCAF acquiring a superior product in the F-16 C/D (as well as receiving the new jets an estimated 2 years earlier than the final completion of the A/B upgrades), the question becomes: Why wasn't Taiwan allowed to purchase the F-16 C/D package?

Judging by the warnings that Beijing has issued over a potential F-16 C/D sale to Taiwan, the refusal of the sale appears to be an appeasement towards Chinese reaction over such a sale, which runs counter to the TRA law, as well as the six assurances.  In order for a Presidential administration to refuse a sale of military hardware to Taiwan without Congressional oversight, it must find a method in which it can claim that no request was received from Taipei.

In 2011, the Asia Times ran an article explaining in great detail about the request process that is in place between the United States and Taiwan regarding arms sales, showing that the current method is filled with loopholes that allow for both the United States and Taiwan to deny both asking for and granting weapon platforms (the former will be covered in part 4 of the series).

The article states the following:

  "(President) Ma has, by his calculation, called for the US to approve the sale of the F-16s "19 times".  No formal Letter of Request (LoR) has been received by the United States from the ROC government...because the US steadfastly refuses to accept the letter"

"On June 27, Wendell Minick reported in Gannett's Defense News that "Taiwan's June 24 petition to submit a letter of request (LoR) for new F-16 fighter jets was blocked by the U.S. State Department under orders from the U.S. National Security Council, sources in Taipei and Washington said." (emp. added)

"A U.S. defense undustry source said that Taiwan's de facto embassy in Washinton, the Taipei Economic and Cultural Representative Office (TECRO), was preparing to submit its fourth LoR for price-and-availability data for 66 F-16 C/D Block 50/52 fighters to the American Institute in Taiwan (AIT).  But it was told by AIT that the LoR would not be accepted.  AIT declined to comment."

"The issue has become a Catch-22 for Taiwan, in which TECRO cannot submit an LoR to AIT because it is under State Department orders to deny it, and then TECRO is told by the State Department that the LoR cannot be processed because it was not received."

Additionally, other weapon platforms, such as the AEGIS weapons system, high-speed anti-radiation missiles (HARM), joint direct attack munitions (jdam), and diesel submarine designs, have been either refused to be sold by Presidential Administrations, or simply not given a response.

Solutions

The primary concern among the current arms request-sales process between the United States and Taiwan is the process itself.  While the current process allows Taiwan to request weapon platforms on an as-needed basis, it does not hold any one branch of the United States government  responsible  for an explanation of why requests from Taiwan are refused.  Additionally, the government in Taiwan is not held responsible as to why specific platforms are not requested.  It would the suggestion of this author that a new process for arms sale requests was implemented.  Such a process would include:

*An annual conference in which Taiwan would formally request its weapon platform purchases; with officials in Washington initially accepting the request in its entirety.  Prior to the annual summit, Taiwan's Legislative Yuan would have access to the requests, and "pre-approve" the funds to be available for the requested purchases through means of its annual defense budget, and/or additional funds approved for more expensive platform purchases.  This would eliminate previous cases where Washington has approved Taiwanese requests for certain arms purchases, only to have the LY refuse funding of the project.  LY legislators would then have accountability to the voters of Taiwan for either approval or denial of funding of national security acquisitions.

Likewise, officials in the State Department, as well as Department of Defense officials would have to officially go on record stating approval or denial recommendations regarding requests from Taiwan, and the reasoning behind their decision making.  A Presidential administration would also have to account for refusal or acceptance of sending such requests to Congress for final approval.

*House Resolution 419 (H.R. 419) , also includes legislation that would call for a revised method in which the US government processes arms sales requests from Taiwan, as well as raising the issue of Taiwan's diminishing air power capabilities,  stating:

SEC. 202. ADVANCED COMBAT AIRCRAFT FOR TAIWAN.

(a) Statement of Policy- Notwithstanding the upgrade of Taiwan’s F-16 A/B aircraft, Taiwan will experience a growing shortfall in fighter aircraft, particularly as its F-5 aircraft are retired from service.
(b) Authority To Accept Letter of Request- Pursuant to the foreign military sales program authorized by the Arms Export Control Act, the President is authorized to accept a letter of request from Taiwan for price and availability data or for a formal sales offer with respect to the F-16C/D Fighting Falcon multirole fighter aircraft or other aircraft of similar capability, as may be necessary to enable Taiwan to maintain a sufficient self-defense capability.

SEC. 203. CONSULTATIONS ON TAIWAN ARMS SALES.

(a) Briefings- Not later than 90 days after the date of the enactment of this Act and at least annually thereafter, the Secretary of State, in consultation with the Secretary of Defense, shall provide detailed briefings to Congress on--

(1) any discussions conducted between any executive branch agency and the Government of Taiwan during a covered period; and
(2) any potential transfer to the Government of Taiwan of defense articles or defense services.
(b) Definitions- In this section and section 201:

(1) COVERED PERIOD- The term ‘covered period’ means, with respect to--

(A) the initial briefing required under subsection (a), the period beginning on the date of the enactment of this Act and ending on the date of such initial briefing; and
(B) subsequent briefings required under such subsection, the period beginning on the day after the date of the most recent briefing and ending on the date of any such subsequent briefing.
(2) EXECUTIVE BRANCH AGENCY- The term ‘executive branch agency’ has the meaning given the term ‘agency’ in section 551(1) of title 5, United States Code.
(3) DEFENSE ARTICLE- The term ‘defense article’ has the meaning given such term in section 47 of the Arms Export Control Act (22 U.S.C. 2794).
(4) DEFENSE SERVICE- The term ‘defense service’ has the meaning given such term in section 47 of the Arms Export Control Act (22 U.S.C. 2794).

SEC. 204. ANNUAL REPORT ON DEFENSE TRANSFERS TO TAIWAN.

(a) In General- Not later than 180 days after the date of the enactment of this Act and annually thereafter, the President shall transmit to Congress a report--

(1) detailing each of Taiwan’s requests for purchase of defense articles and defense services during the immediately preceding one-year period, whether submitted through a letter of request (LOR) or conveyed by other authoritative means, except that the first report under this section shall cover the period 2006 through 2011;
(2) describing the defense needs asserted by Taiwan as justification for such requests;
(3) describing the decisionmaking process used to reject, postpone, or modify any such request, including--

(A) with respect to significant military equipment, the country team assessment and recommendation as to whether the United States should sell such equipment; and
(B) for each request, the elapse of time between the submission of such request and the completion of the interagency review process by the United States; and
(4) detailing those defense articles and defense services listed in the Arms Sale Proposal described in section 25 of the Arms Export Control Act (22 U.S.C. 2765), including a description of the rationale for including or not including in such Proposal, as the case may be, all sales and licensed exports to Taiwan under such Act of major weapons or weapons-related defense equipment for $7,000,000 or more, and the extent to which a decision to not include in such Proposal such sales to Taiwan is consistent with such section.
(b) Form- The report required under subsection (a) shall be submitted in unclassified form, but may contain a classified annex if necessary.


*Finally, there must be a stated commitment from the United States government that neither prior consultation with China, nor its opinions in the matter of arms sales to Taiwan will be considered in the decision making process.  The PRC has often stated the sale of specific hardware to Taiwan would be "Crossing a Red Line", and diplomatic steps would be taken towards the United States if such sales occurred.  It remains in the interest that a viable defensive deterrent remain in Taiwan towards any potential Chinese aggression.  Additionally, the PRC does not use a similar mindset when it processes arms sales of its own that run counter to American interests.

*Assistance to Iran's NBC weapon programs

*Transfer of nuclear technology to Iran

* Playing a major role in Pakistan's nuclear program.  During the 1980s, China reportedly provided Pakistan with a proven nuclear weapon design and enough highly enriched uranium for two weapons.

*North Korea has been one of China's most consistent clients in the arms trade. Transfers since 1980 have included Romeo-class submarines, F-6 fighters, HY-2 "Silkworm" antishipping missiles, HN-5A man-portable surface-to-air-missiles, and multiple launch rocket systems.

A report also states that "China has blocked the release of embarrassing U.N. revelations of illicit arms transfers, stopped the reappointment of an arms expert who uncovered Chinese weapons and sought to restrict the budget to fund investigations. It has also consistently refused to allow U.N. investigators to trace the origin of Chinese weapons discovered in war zones."

A clear method in which U.S.-Taiwan arms sales can proceed will undoubtedly rile Beijing, and likely even bring about a number of concrete responses from Beijing.  Yet in the long term, China will realize that a capable military deterrent posed by Taiwan is of deep interest to the United States, and will force Beijing to realize the circumstances.

(Part three will consist of the final observation for the US analysis, Additionally, this author will question  weather or not the TRA-stated "weapons of a defensive nature" definition should be redefined in this era of the PLA's capability to use its ever growing arsenal  of ballistic weaponry in a Taiwan scenario, as well as suggestions regarding high level cabinet-military personnel visits between the two countries)