BACKGROUND OF PROBLEM OF TAIWAN'S STATUS

Now this is not a question of Chinese expansionism. This is a question of understanding the background of this problem.

Last year, I had an opportunity to debate a representative of the Department of State at the University of Pittsburgh. The topic was 20 years of United States-China relations, and after I finished my talk about the critical years 1949-51, the State Department friend of mine said, "Gee, you are very polemical. You are raking up the past." I think we have to understand that the past is present, if not future, on this problem, and what we have to understand particularly, as my statement lays out in more detail, is that from 1945 to 1950 the position of the U.S. Government was that Taiwan was part of China. We even announced that position formally January 5, 1950, after the People's Republic seized control of the mainland of China, after our allies were beginning to recognize Peking, and when we fully expected that the People's Republic would attempt to "liberate" the island of Taiwan. Mr. Acheson, President Truman, and the Department of State in reports to this Congress made it absolutely clear that Taiwan was Chinese territory. They said: We had committed ourselves to that fact and the U.S. Government was not going to take action that would attempt to sever Taiwan from China. We had stood for the "open door" policy for 50 years in China. We had behaved unlike the Japanese, the British, the Germans, and the others who had sought to carve up China for a century. The United States had committed itself to China's territorial integrity. It was a question of the credibility of our commitment; it was a question, as President Truman said, of our good faith in Asia. We conceded that we can't have a plebiscite in Taiwan, wholly apart from the practical question of how are we going to force a plebiscite on a government that is unwilling. We said an attempt to bring about a non-Chinese regime on Taiwan would be a violation of faith that every State in Asia, and especially the Chinese people, could see. This would create an irredentist problem that would lead to instability in Asia for the foreseeable future.

That was our position until the Korean war. We said we couldn't intervene in January 1950 to protect Chiang Kai-shek because that would be intervening in a domestic civil war; Taiwan was Chinese territory.

The Korean war started. North Korea invaded South Korea, and overnight we reversed that position. What had been Chinese territory became territory whose status was undetermined. What had been a domestic civil war became an international war. And what Mr. Acheson had characterized a few months earlier as firm commitments became statements of intention, vague promises that were not commitments. Where was the concern then for the credibility of U.S. commitments? Not a word was said then, although we have heard so much in recent years about not letting people down on the credibility of our commitments. We changed our tune then, apparently for very expediential reasons. We probably anticipated that Peking would soon be recognized by the United States-we could not anticipate the Korean war. We knew that if we continued to say that Taiwan is Chinese territory,

when we recognized Peking as the government of China, Taiwan would, of course, be part of the jurisdiction of the People's Republic of China. So we used lawyer's legerdemain and began in mid-1950 to take the position-recently reiterated to the infuration of both Chinese regimes that the status of Taiwan is undetermined.

We have not kidded the Chinese. They are fine lawyers. They have mastered the principles of international law and know how to use them. They know when they have been had and know how these principles have been manipulated in the past. We cannot sweep these under the rug because these are unpleasant facts of life.

CHINESE VIEW OF TAIWAN'S STATUS

The other day Chou En-lai tried to look at the problem flexibly. In effect, he said:

We don't insist that the United States declare Taiwan to be Chinese territory. We just want you to act in a way that recognizes that Taiwan is Chinese territory. We want you to recognize you have no business having troops on Taiwan, you have no business having a defense commitment to intervene in our civil war, as you previously called it. We don't say you have to spell it out. Just withdraw your troops and act accordingly.

That to Chou was a flexible attitude, not on the question of principle but on the question of tactics, and unless we face up to these facts that confront recognition, these facts that confront diplomatic relations, we are just kidding ourselves.

We live in a self-created dream world in this country. We are largely the victims of the press. I don't blame the Congress for everything, Mr. Chairman.

The CHAIRMAN. I thank you for that.

Mr. COHEN. I hope you don't think that is blatantly currying favor. When one goes to Canada, England, and other places, where one talks to Chinese, as it is possible to talk to Chinese diplomats in Ottawa and elsewhere, one sees they have a point of view and that point of view has a basis of legitimacy.

Some international lawyers state that technically Taiwan has never become Chinese territory, because the Japanese peace treaty which we drafted following the flip-flop of our position after the Korean war began, didn't have Japan renounce sovereignty to China Japan simply renounced sovereignty without specifying to whom. Other international lawyers maintain that Taiwan was obviously Chinese territory prior to the peace treaty. The peace treaty was merely to confirm it and it did so implicitly, because to whom does one renounce sovereignty except to the de facto occupant of the island, the Republic of China, at that time and still today?

In 1945, the Republic of China told the world that Taiwan is Chinese territory and that the people of Taiwan are Chinese citizens. There wasn't any protest. Mr. Acheson pointed that out in January 1950, and he said that is the situation. We are not going to quibble on any lawyers' doubts. He said, whatever the technical situation, it is the good faith of the United States that is at stake.

PROSPECTS FOR ESTABLISHING DIPLOMATIC RELATIONS

Now in view of this background, I am sorry to have gone on at so much length, but in view of this background I think we have to ask ourselves realistically what are the prospects for establishing diplomatic relations? It seems to me we have to begin now a long arduous series of talks with the People's Republic, hopefully at the U.N., because that will be the first time we can talk to them in meaningful exchanges in a sequential, confidential fashion without the spotlight of publicity. We also will have an opportunity to talk with them at Ottawa, especially when Ambassador Huang Hua, one of their most impressive men, comes on the scene.

We have to recognize it may take 2 years, it may take 5, it may take 20 years before we work these problems out. We cannot anticipate the extent to which the People's Republic might be willing to postpone the question of Taiwan.

We might begin exploring these things and I think it is a mutual educational process that has to get under way. We cannot expect the People's Republic formally to renounce the use of force against Taiwan. Mr. Dulles used to debate Chou En-lai on that. Chou En-lai would say, "I am perfectly willing to renounce the use of force on international matters," and then Dulles would say, "Renounce the use of force in the Taiwan Straits against Taiwan," and Chou En-lai would say, "One does not renounce the use of force in a domestic, civil war.” We recall from American history that the North didn't renounce the use of force against the South. That is the name of the game in civil war. If you call it an international matter, however, it is another story.

Peking will not formally renounce the use of force. We should not infer from that, however, that Peking intends to use force in the current situation. There is no evidence that Peking intends to use force. I was impressed when one of the CIA's principal China watchers told us last fall in a speech he gave up at Harvard that for 22 years the PRC has not developed either the amphibious or aerial capability to take Taiwan by force, which is a very curious thing.

We also know the forces on Taiwan are very strong; so I think we have to take that into account.

Also the People's Republic realizes it will create tremendous problems for itself by violence against Taiwan. It will create if it does not already exist, a sense of Taiwanese nationalism and hostility. It will certainly arouse Japan and speed up its nuclear thoughts, perhaps.

For a variety of reasons I don't think it intends to use other than political means over the relataively long run, and why should it? Peking's feeling is that inevitably, once the Chiang Kai-shek regime is no longer recognized, once there are political and economic contacts between Taiwan and the mainland, this problem might well be worked

out.

Well, I think we might envisage a joint communique that establishes relations between the United States and China that simply says there is no need to use force but doesn't say there is no right to use force. We

might work out merely a tacit understanding. We might find perhaps that even a secret understanding would be possible. We cannot expect the Chinese, with their enormous sensitivity to other people carving up their territory or curbing their jurisdiction (as in the past with extraterritoriality imposed by the Western Powers) formally to accept any limitation on their jurisdiction.

It does not mean that they are going to be wholly inflexible. Every day's newspaper now shows that at least for tactical reasons they are being flexible on tactics, not on goals. I don't think we can expect any flexibility at the U.N. I don't think we can expect any flexibility on withdrawal of relations from the Kuomintang regime. We may get some flexibility on the status of Taiwan.

That essentially is my oral presentation of the problems, Mr. Chairman, and I am at your disposition.

(Professor Cohen's prepared statement follows:)

STATEMENT BY JEROME ALAN COHEN, PROFESSOR OF LAW AND DIRECTOR OF EAST ASIAN LEGAL STUDIES, HARVARD UNIVERSITY, TO BE PRESENTED TO THE COMMITTEE ON FOREIGN RELATIONS OF THE UNITED STATES SENATE, JUNE 25, 1971 Mr. Chairman and members of the Committee, I appreciate the opportunity to appear before you to comment on the resolutions concerning China that are now before the Senate.

The advent of "people to people" diplomacy this spring has enabled a small number of American athletes, reporters and scientists to visit the People's Republic of China. Senators, scholars, and sightseers may soon follow, and it is anticipated that citizens of the People's Republic will pay return visits to this country. These are encouraging, if modest, tokens of a serious mutual effort by Washington and Peking to moderate the hostility that has prevailed between them since the Communist regime came to power in China in 1949.

The modesty of the thaw to date can be seen from the fact that Peking has not defined "people to people" diplomacy to include direct trade with the United States. Despite ping pong and the gradual abandonment of the American embargo, Chinese diplomats maintain, as they have since 1960, that no direct trade can take place until there is "a fundamental change" in United States policy— one that brings about the normalization of relations between the United States and the People's Republic. Most importantly, Peking's urgently required cooperation with the world community on problems ranging from arms control to preservation of the environment appears to depend in large part on the normalization of Sino-American relations.

Each of the resolutions before the Senate recognizes the importance of this goal. Each also acknowledges the difficulties of attaining it. Yet in diplomacy, as in law, general principles do not decide concrete cases. Questions of cost and timing dominate decision-making on specific issues. And it is here on the price that we are willing to pay for improvements in our China policy, and the timing of the payments-that the various resolutions differ significantly.

From Peking's point of view, there can be no normalization of Sino-American relations until the People's Republic replaces the government of Nationalist China, now on Taiwan, in all UN bodies and until Washington and Peking establish diplomatic relations. The principal obstacle to the occurrence of these events is the disputed status of Taiwan.

Thus three interrelated problems must be met if we are to deal with China "on the basis of equality, mutual benefit and mutual respect for territory and sovereignty" upon which it has insisted since 1949: UN representation, diplomatic relations, and the status of Taiwan. The UN problem has become urgent. Negotiations over diplomatic relations are less so; but they will have to open within a few years, because within that period China will begin to deploy ICBM's capable of devastating our population centers, making it imperative for us to have a resident mission in Peking that can immediately communicate with China's leaders in any crisis. The third problem, the status of Taiwan, can perhaps best be left to the indefinite future, but Peking is not likely to find it as expedient as Washington to do so, and the third stage of normalization of relations will probably merge with the second.

I. REPRESENTATION AT THE UN

A. THE GENERAL ASSEMBLY

Last November, for the first time, a majority of the General Assembly voted in favor of the so-called Albanian resolution to replace the Nationalist representatives of China with Communist representatives. No change was then made because, as in the past, a majority also voted in favor of an American-sponsored resolution declaring Chinese representation an "important question" requiring a two-thirds vote for passage. Yet there is now an increasing expectation that this autumn the "important question" resolution will fail. Such stalwart American allies as Britain and Canada have already hinted that they may no longer go along with this tactic, and Peking's recent return to a policy of moderation is further eroding American support. A simple majority may therefore be able to decide the Chinese representation issue.

There are several points that I would like to emphasize about this situation. The first is that ever since 1950 there has been widespread agreement that the General Assembly, the only UN organ in which all members of the organization have a vote, should assume initial and primary responsibility for dealing with the Chinese representation question. This was most recently demonstrated last February when, despite the fact that many Security Council members expressed "strong reservations" about the Nationalist government's right to represent China, no action was attempted in the Council.

Second, the China problem is a question of "representation," not a question of "membership." The state of China has been a member of the UN since its founding. The problem, according to the unbroken practice of the UN, is to determine which of two competing governments should be regarded as the proper representative of China. The Albanian resolution calls upon the Assembly to expel the representatives of Chiang Kai-shek and to seat the representatives of Mao Tse-tung. It does not purport to expel the member state of China and to admit a new state, the People's Republic of China.

Thus, the language of the resolution introduced by Senator Javits, which refers to the admission of the People's Republic of China to membership and the expulsion of the Republic of China from membership, appears to be inconsistent with UN practice. Both the Nationalist government and the Communist government have always agreed that they are struggling to represent the same state of China in the UN rather than two separate states. If the world community believed that the People's Republic, which controls all of mainland China, had changed that territory so drastically as to transform itself into a "new" entity incapable of representing the member state of China, the General Assembly would surely not be on the verge of replacing Taipei with Peking. Instead, efforts to bring the People's Republic into the UN would have to be approved by the Security Council prior to Assembly action, as in the case of ordinary applications for admission to membership. Indeed, for years the United States argued that Peking's entry would be tantamount to admission of a new member, but it finally had to acknowledge the prevailing view that this is a matter of representation of an existing member.

Third, because this is a question of representation rather than one of admission to or expulsion from membership, it would be perfectly legitimate for the Assembly to decide that this is not an "important question" and need not be decided by a two-thirds vote. Article 18 of the Charter states that certain questions, including admission and expulsion of members, are "important." But it is silent about representation and instead authorizes the Assembly, by majority vote, to determine whether other matters shall be deemed "important" in the special sense in which the Charter employs the term. Although a decision on "representation" bears certain similarities to some of the decisions for which the Charter requires a two-thirds vote, it is nevertheless quite distinct, and the Assembly is free to determine, in light of contemporary political conditions and the major purposes of the organization, whether it is wise to frustrate the will of the majority by imposing a special voting barrier in this case.

If the "important question" resolution can no longer succeed, Peking's delegates are very likely to replace Taipei's-unless the United States comes up with a new stratagem to bar Peking's entry. What should the U.S. do? Taipei is strongly urging us to stick to our guns and continue to oppose the Albanian resolution. It still believes that all-out American arm-twisting can carry the day. This alternative is attractive to those in our government whose overriding concern is to

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