TAIWAN ENABLING ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000100050011-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 46
• Document Creation Date: December 21, 2016
• Document Release Date: October 27, 2008
• Sequence Number: 11
• Publication Date: March 7, 1979
• Content Type: OPEN SOURCE

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March 7, 1979 CONGRESSIONAL RECORD -SENATE
We might go through a long hassle.
But the fact has been accomplished. The
lawsuit has not been filed for the pur-
pose of destroying that accomplishment.
Even though I object to it very strongly,
I think we would approve it when it came
here, and that is the whole purpose.
Mr. GLENN. That is my understanding
of the r,:-ocedure that would have to be
employed. I misinterpreted what was
said earlier.
Mr. GOLDWATER. I thank my friend
for calling my attention to it.
ORDER FOR RECESS UNTIL 10 A.M.
TOMORROW
Mr. ROBERT C. BYRD. Mr. President,
I ask unanimous consent that when the
Senate completes its business today, it
stand in recess until 10 o'clock tomorrow
morning.
The PRESIDING OFFICER. Without
objection, it is so ordered.
ROUTINE MORNING BUSINESS
The PRESIDING OFFICER. Under the
previous order, there will now be a period
for the transaction of routine morning
business, for not to exceed 10 minutes,
with statements therein limited to 2
minutes each.
APPOINTMENT BY THE PRESIDENT
PRO TEMPORE
The PRESIDING OFFICER. The
Chair, on behalf of the President pro
tempore, pursuant to Public Law 93-568,
appoints Ms. Marian G. Gallagher, of
Seattle, Wash., to the Advisory Commit-
tee to the White House Conference on
Library and Information Services, in lieu
of Mr. J. C. Redd, of Jackson, Miss.
MR. SCHLESINGER AS SECRETARY
OF ENERGY
Mr. METZENBAUM. Mr. President, on
February 5, 1978, I publicly called for
the resignation of James Schlesinger as
Secretary of Energy. A few days later,
in a meeting at the White House, I re-
peated the request personally to the
President. At the time, I said that Dr.
Schlesinger had lost his credibility with
the American people and was a distinct
handicap to the President.
In nearly 13 months since then, much
has happened on the energy scene, but
nothing has happened to change my orig-
inal opinion. In fact, virtually every
action taken by the Secretary of Energy
has only reinforced my feeling that
nothing major will be accomplished in
our energy situation until we have new
leadership at DOE.
Dr. Schlesinger's latest effort to secure
higher gasoline prices for the oil industry
is just one more example of how the
American consumer is being held hostage
by the Department of Energy.
Nearly 3 months ago, Dr. Schlesinger
began his campaign to effect decontrol
of gasoline prices. At a hearing of the
Senate Energy and Natural Resources
Committee, the Department of Energy
was given a clear message that the Con-
gress would not give its approval to such
a request. With our soaring rate of in-
flation, it is patently obvious that it is
the duty of every branch of the Govern-
ment to do its utmost to lessen the bur-
den on the consumer.
Somehow, however, that message has
not gotten through to the Secretary of
Energy. Or, possibly, the Secretary feels
that his Department has a special im-
munity or dispensation that allows him
to exercise his own prerogatives, even
though they are in direct contradiction
to the will of the Congress.
Knowing that there is no way that
Congress will approve the decontrol of
gasoline prices. The Secretary of Energy
is now using the Iranian situation as a
rationale to give administrative approvals
to higher gasoline prices by changing
some of its regulations. By invoking a
"tilt pricing concept," the Department of
Energy expects to be able to allow the oil
companies to get what they wanted any-
way-higher prices. '
In a March 5, 1979, article in the New
York Times by Steven Rattner, the latest
Schlesinger move is correctly labeled
"surreptitious decontrol." in part, the
article reads:
Although the Iranian crisis has at least
temporarily ended plans to seek gasoline and
crude oil decontrol, the energy officials are
engaged in what one called surreptitious de-
control. That means arcane changes in reg-
ulations on gasoline to increase incentives for
refiners and higher prices for various types
of crude oil that' will bring the price of a
quickly increasing percentage of oil to world
levels.
How the Secretary of Energy can jus-
tify increased incentives for an industry
that keeps reporting astronomical record
profits is beyond me.
Almost daily we can read in a maga-
zine or newspaper a new criticism of Dr.
Schlesinger. Last week, in a syndicated
column appearing in the Washington
Post, Marquis Childs had this to say
about the Secretary:
In Congress he is considered arrogant, over-
bearing, bent on setting his own course re-
gardless of what anyone else may think. The
latest irritant is an interview in which he did
a gloom-and-doom act predicting higher gas-
oline and fuel oil prices and long lines at the
gas pumps as a result of the loss of Iranian
oil. He failed, however, to come down hard
for any course that might conserve gasoline
and reduce the flow of imports.
His recent actions in our negotiations
with our neighbors in Mexico have
brought us embarrassing problems and
could cause irreparable harm to our fu-
ture plans for decreasing our dependency
on Mideast oil.
Mr. President, the American people are
well aware that we have serious energy
problems and I believe they 'are willing
to make the necessary sacrifices to help
solve them. But they are confused and
frustrated because of the constantly
changing signals they are receiving from
their Department of Energy. Until they
are convinced they can rely on what they
are hearing from Washington, it is going
to be extremely difficult to motivate them
to act.
I do not believe that motivation is
going to come until there is new leader-
ship at the Department of Energy. Once
S 2121
more, for the good of the Nation, I urge
Secretary Schlesinger to perform the
highest in public service and submit his
resignation to the President.
CONCLUSION OF MORNING
BUSINESS
The PRESIDING OFFICER. Is there
morning business? If not, morning busi-
ness is closed.
TAIWAN ENABLING ACT
The PRESIDING OFFICER. Under the
previous order, the Senate will now re-
sume consideration of the pending busi-
ness, S. 245, which will be stated by
title.
The assistant legislative clerk read as
follows:
A bill (S. 245) to promote the foreign
policy of the United States through the
maintenance of commercial, cultural, and
other relations with the people of Taiwan on
an unofficial basis, and for other purposes.
Mr. GLENN. Mr. President, I suggest
the absence of a quorum.
The PRESIDING OFFICER. The clerk
will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. ROBERT C. BYRD. Mr. President,
I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr.
PRYOR). Without objection, it is so
ordered.
Mr. ROBERT C. BYRD. Mr. President,
I hope that Senators will come to the
Chamber with their amendments.
We started on the legislation on Mon-
day. There was little time taken on Mon-
day. I believe only Senator GLENN and
Senator JAVITS made speeches that day,
and those statements were not lengthy.
There may have been other statements
that I am not aware of. We certainly did
not stay in long Monday. Senators had
an opportunity to make statements on
the measure. Those Senators who have
amendments I hope will get to the Cham-
ber and call them up so we can begin to
move on this legislation. I hope we will
complete action on the bill by tomorrow
evening.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk
will call the roll.
The second assistant legislative clerk
proceeded to call- the roll.
Mr. GLENN. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. GLENN. Mr. President, the bill we
take up today, S. 245, the Taiwan en-
abling legislation, has been significantly
modified by the Foreign Relations Com-
mittee to correct deficiencies in the orig-
inal administration proposal. The revised
bill clarifies many ambiguities regarding
trade, legal, and economic issues, in addi-
tion to inserting a specific security clause
designed to reassure the people on
Taiwan and alert the PRC to our ex-
pectations concerning the future.
Many Members share my dissatisfac-
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S 2122 CONGRESSIONAIL RECORD -SENATE March 7, 1979
tion with the President's presentation of have frequently exaggerated or under- wan would risk rupturing its relations
a fait accompli to Congress, and of the estimated China's strength. No sound with the United States and Japan-thus
failure to better provide for the security policy can be based upon such distorted destroying its "four modernizations" and
of Taiwan despite an April 1977 Presi- perspectives.
dential review memorandum (No. 24) Although this legislation deals only
which reportedly set a goal of obtaining with Taiwan, it cannot be viewed in iso-
a specific commitment from the PRC that lation. American policy toward Taiwan
there would be no use of force against must be considered in the context of
Taiwan. U.S. policy toward East Asia as a whole.
I want to emphasize that this is a com- This involves our relations with the Peo-
mittee-drafted measure, not the admin- ple's Republic of China, the Soviet Un-
istration bill. Taiwan's future is not some ion, Japan, the Republic of Korea, Aus-
vague abstraction; rather, it is the reality tralia and New Zealand, and members
of 17 million people with the second of the Association of Southeast Asian
highest standard of living in Asia. The Nations (ASEAN) -Indonesia, Malay-
committee, while agreeing upon impor- sia, the Philippines, Singapore, and
tance of normalization with the PRC, Thailand.. Their judgment of our politi-
nevertheless felt these legislative changes cal will and our wisdom will be signifi-
were necessary to chart a safer course for cantly influenced by our ability to forge
Taiwan. a new relationship with the PRC while
The immediate issue before the com- continuing to conduct mutually bene-
mittee and the Senate is how to main- ficial relations with Taiwan. Indeed, the
taro an informal relationship with Tai- final judgment by Asian leaders on
wan in the absence of formal diplomatic whether we are disengaging from Asia
ties. I believe that S. 245 will allow us to will be directly tied to how we deal with
retain close and cordial ties with Tai- China and Taiwan in the next few years.
wan, to continue mutually beneficial The importance of East Asia can
trade and investment, and to insure the hardly be. exaggerated. The United
freedom of the people of Taiwan to States has fought three wars in the past
choose their own destiny. four decades in the Western Pacific re-
The instability and violence of Asia gion. Even today military conflicts con-
during our lifetime has been intertwined tinue to rage in Vietnam and Cambodia.
with China's inability to rule itself. Since Since 1972, American trade with East
World War II, the festering Chinese civil Asia surpasses our trade with Western
war and the "one China" claims of both Europe. The natural resources, a third
Taiwan and Peking has bedeviled Ameri- of the world's population, and the future
can foreign policy. With the President's evolution of international trade suggest
announcement of December 15, 1978, the that a part of our destiny is in East
United States opted out of supporting the Asia.
continuation of that civil war and recog- The key to a stable East lies in the
nized the People's Republic of China, the search for a less hostile relationship be-
Government ruling the mainland of tween China and the United States. This
China. quest began in the late 1960's, when
The United States has struggled for China's growing fear of the Soviet Un-
four decades to develop and implement ion led it to fear the USSR more than
an East Asian policy that would protect the United States. America's bitter ex-
people interests and contribute to the perience in the Vietnam war, under-
Pacific. and This effort stability has in been the carried western taken in large part to contain China, led
P out the United States to conclude that it was
at great cost in-blood and treasure and overextended in Asia. A reappraisal of
with traumatic divisions among our
thus hus essential.
people as to whether the right course was our China policy.
RAL was RELATIONS
being followed.
its hope to become strong enough to face
its major adversary, the Soviet Union.
Hence, the PRC began to demonstrate
greater flexibility on Taiwan.
The PRC began to speak of "reunifi-
cation," rather than "liberation" regard-
ing-Taiwan. Vice Premier Teng Hsiao-
ping and other Chinese leaders said that
after reunification Taiwan would be al-
lowed to retain its higher living stand-
ards, its economic and social system, and
even its armed forces. Declatory policies
can change, of course, but nonetheless,-
these are encouraging signs.
Events moved rapidly late in 1978, and
on December 15, President Carter an-
nounced that the United States would
recognize the PRC and withdraw recog-
nition from the Republic of China on
January 1, 1979. Unfortunately, during
the negotiations the administration, from
my perspective, and I believe that of
many other Members, made no effort to
obtain a PRC pledge not to use force
against Taiwan. It apparently believed
that no Chinese Government could
pledge itself not to use force against what
it claimed was one of its own provinces.
Yet, the administration states that it has
made clear to the PRC that U.S. recog-
nition was based upon the expectation
that the issue would be resolved peace-
fully. The United States also insisted
that the Mutual Security Treaty not be
abruptly abrogated, as the PRC had pre-
viously demanded, but ? by being ter-
minated after 1 year's notice as fully
provided for in the treaty itself.
Finally, the United States insisted
that it would continue to sell selected
defensive arms to Taiwan after normal-
ization of relations with the PRC, al-
though it would agree not to make any
new sales during 1979. The PRC ob-
jected to such arms sales, but agreed to
normalization despite the U.S. position.
On the basis of these understandings,
the United States agreed to the PRC's
original three conditions.
The task will not be simple, it will As a result of that reappraisal, the CONGRESSIONAL CONSULTATION
not be easy, but the United States must Shanghai Communique, signed during Unfortunately, the administration
develop a sound and mutually beneficial President Nixon's visit to China in 1972, acted with such speed and secrecy that
relationship with China. Its central geo- pledged both nations to normalize their the Congress was not consulted. Let
graphic. position, 1 billion people, un- relationships. Progress during most of there be no doubt: informing some of
tapped resources, and cultural heritage the past 7 years was slow and uneven, us 2 hours before the public announce='
make China the key nation in East Asia. despite the commitment of the Nixon, ment cannot be considered consulta-
Hostility between China and the United Ford, and Carter administrations to this tion. This failure was particularly ser-
States has led, in part, to two wars. goal. ious since the Congress had specifically
Cooperation between our two nations, The PRC continued to insist that dip- directed the President in the Interns-:'
even if limited, could benefit us all. lomatic relations could only be estab- tional Security Act of 1978 to consult
Yet such cooperation can only begin lished after the United States withdrew with Congress before making any move
if each nation understands and respects recognition from the Republic of China, which could affect the Mutual Security
the interests and views of the other. withdrew all U.S. troops from the island, Treaty.
American and Chinese interests and pol- and ended the Mutual Security Treaty. Regrettably, - the administration's
icies coincide in some respects and differ Indeed, in 1977 the PRC added a fourth failure to consult Congress on impor-
in others, and it is crucial that we can demand-that no arms sales be made to tant issues has become, I am afraid, too
differentiate one from the other. For Taiwan after normalization. much of a pattern, one which harms
example, the Sino-Vietnamese border In mid-1978, however, the prospects both the administration and the coun-
conflict illustrates differing policies. We began to improve. The PRC had begun try. Judging from the bill submitted by
must remember that those in power to- to place top priority on economic devel- the administration regarding our new
day in Peking are essentially the same opment and its four modernizations- relationship with Taiwan, Congress
group that "punished" India in 1962, industry, agriculture, science and de- could well have provided useful advice
and may have a greater inclination to- fense. This forced it to look to the West to the President on how to normalize
ward the use of coercion in foreign pol- and Japan for capital goods, technology relations with the PRC while providing
icy. Americans have tended either to and financial support. In these circum- for Taiwan's security and economic
idolize or to disdain the Chinese, and we stances, any military move against Tai- progress.
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March 7, 1979 CONGRESSIONAL RECORD -SENATE
TAIWAN-UNITED STATES RELATIONS much trade with the U.S. as does the
The Sino-American rapprochement PRC. For the immediate future at least,
in the early 1970's was a bitter disap- Taiwan will remain a far more important
pointment for the Republic of China, economic partner.
which feared that it was being aban- Finally, there is substantial public sup-
doned. Its fears increased when Japan port for the maintenance of close rela-
shifted its diplomatic recognition from tions with Taiwan. Public opinion polls,
the Republic of China to the PRC in both before and after President Carter's
1972. Nonetheless, Taiwan reacted with announcement confirm this fact. Thus,
imagination and fortitude. It found S. 245 provides a legal mechanism to in-
ways to maintain the de facto status sure the continuity of ties between the
quo on an unofficial basis with Japan, people of Taiwan and the people of the
and with other nations which had rec- United States.
ognized the PRC. Taiwan's economy COMMITTEE ACTION
and foreign trade continued to expand
rapidly-tripling, as a matter of fact.
More native Taiwanese were brought
into important government positions by
the mainlanders who control the island,
-and the two groups have drawn closer
together in the face of a common dan-
ger. The United States continued to pro-
vide arms to Taiwan, and its military
capabilities remain sufficient to defend
itself against any foreseen PRC threat.
Yet the December 1978 decision of the
United States to shift diplomatic rec-
ognition from the Republic of China to
the People's Republic of China created
anger and anxiety on Taiwan. Taiwan
had long feared and expected such
moves, but their impact was made more
severe by the failure of the Administra-
tion to consult a long-time ally-or even
to inform it of the impending change
until the last moment. Nonetheless, Tai-
wan has once again demonstrated its
fortitude and its resilience. Economic
activity continues at a fast pace, and
despite their worries the people on Tai-
wan are adapting to their new situation.
American interests and our moral ob-
ligation demand that we assist Taiwan
in adapting to these changed conditions.
Our trade with Taiwan was $7.2 billion
in 1978, and is expected to reach $9-10
billion in 1979. We should make sure
that trade can continue to grow. We
have more than $500 million in direct
private investments in Taiwan, $3 bil-
lion in loans from U.S. private institu-
tions, and almost $2 billion from the
Export-Import Bank. The island's con-
tinued access to both public and private
American capital should therefore be
assured. Taiwan is one of the few places
in the world which has undergone rapid
.economic growth while reducing income
disparities. Such a rare achievement
should be encouraged by our policies.
Mr. JAVITS. Mr. President, will the
Senator yield at that point?
Mr. GLENN. Yes.
In considering this legislation, the
committee heard a balanced and large
number of witnesses. These included
administration witnesses, such as the
Secretary of Defense and the Deputy
Secretary of State, a number of Mem-
bers of the Senate, and public witnesses
representing a wide variety of views. We
also heard testimony in executive ses-
sion dealing with Taiwan's security from
the Chairman of the Joint Chiefs of
Staff and other senior Defense Depart-
ment officials. We also consulted many
specialists in the fields of trade, banking
and law. Their assistance was invaluable
to us in dealing with the unique situa-
tion we faced.
When the administration recognized
the People's Republic of China as the
sole legal government of China, it also
acknowledged the Chinese position that
Taiwan is a part of China. However, the
United States has not itself agreed to
the PRC position, nor has the United
States contested it. Neither the bill sub-
mitted by the administration nor the
amended bill as approved by the com-
mittee takes a position on the extremely
complex issue of Taiwan's status under
international law. No such determina-
tion is necessary. For the bill treats
Taiwan as a country for purposes of
U.S. domestic law. It is based on the view
that any benefits the United States de-
cides to confer on Taiwan by statute can
be conferred without regard to Taiwan's
international legal identity. The com-
mittee consulted several eminent legal
scholars, and they supported this view.
Thus the bill sets forth the specific man-
ner in which relations between the
United States and Taiwan will be main-
tained.
The bill submitted by the administra-
tion provides for U.S. relations with the
people on Taiwan to be conducted
through the American Institute in
Taiwan, a private organization which is
funded by the U.S. Government and
has said about trade is so important that retary of State. This is a unique ap- Finally, the bill as submitted by the
it ought to be highlighted and juxta- proach for the United States, but one administration contained no reference to
posed with the expected trade with the that has worked successfully for Japan Taiwan security or to the need to pro-
People's Republic of China, since it normalized relations with the vide defensive arms to the people on
Let us remember that the much- PRC. Taiwan. The committee was determined
applauded Japanese trade deal with the The administration's bill, while sound to correct this weakness, and Members
People's Republic is $2 billion a year for in its basic structure and approach, was carried out extensive discussions on this
10 years. That is approximately two and deficient in several important respects, matter. Some form of a tangible secu-
a half times that which we do with Tai- The committee added a substantial rity clause of an indefinite future was
wan right now. number of amendments- to remedy these deemed mandatory. I would like to read
Mr. GLENN. I thank the Senator for shortcomings. I do not intend to de- you the section in the bill that the com-
his remarks, scribe in detail all the changes we made, mittee adopted:
With less than one-fiftieth the PRC for these are spelled out in the commit- friendly to maintain extensive, close,' and relations with the people an Tat-
population, Taiwan does seven times as tee report, which I commend to all Sell- wan;
52123
ators and their staff. However, I do want
to point out those changes that involve
major policy issues.
One central difference between the bill
submitted by the administration and the
bill approved by the copnmlttee concerns
the matter of specificity. Many matters
in the administration's bill were dealt
with implicity or in very general terms-
if they were dealt with at all. The ad-
ministration apparently believed that
the intent of the various sections of the
bill was clear enough so that a combina-
tion of administrative regulations and
court decisions would provide an ade-
quate framework for continued relations
with Taiwan. The committee regarded
such an approach as risky at best. Trade
and investment do not flourish in an
unknown and unpredictable environ-
ment. Billions of dollars in trade and
financial assets are involved, and the
laws that govern commercial activity
between the United States and Taiwan
must be clear.
Likewise, legal issues must be recog-
nized and dealt with to insure minimal
disruption. The committee was con-
vinced that a definition of the phrase
"the people on Taiwan" which appears
throughout the bill was required. One was
added, and the meaning of the phrase as
defined includes the governing authority
as well as the people governed by it. The
continued validity of treaties and other
international agreements made while
the United States still had diplomatic
relations with the Republic of China
was thus affirmed. Matters involving the
legal standing of the people on Taiwan
to sue and be sued in U.S. courts, and
the protection of the property rights of
organizations and persons in both coun-
tries were dealt with through other
amendments.
The bill as amended authorizes the
President, on a reciprocal basis, to ex-
tend extensive privileges and immunities
to the appropriate members of the orga-
nization established by the people on
Taiwan to conduct their relations with
the United States. The premises and
organization itself will be accorded the
same-privileges and immunities as are
accorded to foreign missions, and the
privileges and immunities accorded the
employers will be complete for all actions
taken in the performance of their duties,
but will not be as absolute as those
granted diplomats. Anything less would
seriously limit the effectiveness of the
instrumentality. Anything more would
have involved treating it as if it were
an official government organization.
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52124
(2) to make clear that the United States'
decision to establish diplomatic relations
with the People's Republic of China rests on
the expectation that any resolution of the
Taiwan issue will be by peaceful means;
(3) to consider any effort to resolve the
Taiwan issue by other than peaceful means
a threat to the peace and security of the
Western Pacific area and of grave concern
to the United States; and
(4) to provide the people on Taiwan with
arms of a defensive character.
(b) In order to achieve the objectives of
this section-
(1) the United States will maintain its
capacity to resist any resort to force or other
forms of coercion that would jeopardize the
security, or the social or economic system,
of the people on Taiwan;
(2) the United States will assist the peo-
ple on Taiwan to maintain a sufficient self-
defense capability through the provison of
arms of a defensive character;
(3) the President is directed to inform the
Congress promptly of any threat to the se-
curity of Taiwan and any danger to the in-
terests of the United States arising there-
from; and
(4) the United States will act to meet any
danger described in paragraph (3) of this
subsection in accordance with constitutional
processes and procedures established by law.
I want to make several point about
this section of the bill, and the problem
it is designed to deal with. First, the pro-
visions should be read as a unit in order
to be aware of their full force. Second,
there were members of the committee
who would have liked somewhat different
language, on one point or another, but
the committee believed it was important
to have as broad a consensus as possible
on this central issue. The same is true
regarding the Senate as a whole. I believe
that both China and Taiwan will be more
impressed with a statement that has ex-
tensive support, rather than one that is
approved by a small majority.
Finally, we must keep in mind the ac-
tual military balance in the area today,
which is likely to prevail some years
hence. The military forces on Taiwan are
well-equipped, well-trained, and strongly
motivated. U.S. sales of defensive
arms can assure that these capabilities
remain intact. The PRC has no amphibi-
ous capacity, nor is it moving to develop
one, and such developments would be de-
tectable well before any invasion could
be mounted. It has a major adversary on
its northern frontier, and it has recently
acquired a small but powerful enemy on
its southern border. In these circum-
stances its ability and inclination to move
militarily against Taiwan will be quite
limited.
But in this section of the bill, we have
also addressed external coercion directed
against the island's economic or social
system. Thus' the United States will
maintain its capacity to resist any boy-
cotts or blockades directed? against Tai-
wan.
In conclusion, the committee has ex-
pr,essed in strong terms the U.S. interest
in the peaceful resolution of the Taiwan
issue.
The committee believes that the pro-
visions we have added to the bill will
reassure Taiwan without undermining
the new relationship between the United
States and the People's Republic of
China. Based upon this conviction, we
CONGRESSIONAL RECORD-SENATE . March 7, 1979
urge the Senate to approve this bill.
Prompt passage will provide the con-
tinuity crucial in existing laws, treaties,
and agreements.
Indeed, rapid passage is crucial for an
additional reason-by passing a congres-
sionally refined bill, we can symbolically
manifest the American commitment to
old friends and reassure our allies in
East Asia.
Mr. JAVITS. Mr. President, on Mon-
? day, I laid out what I consider to be
the background against which we legis-
late in terms of the security of the area
and the relationship of that security to
the security of the United States. Sen-
ator GLENN has, in my judgment, very
accurately developed exactly what the'
committee did and why it did it. I shall
not endeavor to retrace that ground, ex-
cept to say that I have sought personally,
based upon my own professional abilities,
to examine with care all elements of this
particular bill in order to see that it
would do what we wish it to do; to wit,
within the limitations allowed to us by
diplomatic practice, to continue the same
relations in every respect with Taiwan
and the people of Taiwan as we had be-
fore, save only formal diplomatic recog-
nition of Taiwan that we had up until
the time that we terminated this recog-
nition and terminated the mutual secu-
rity agreement. This mutual security
agreement, by the way, will run through-
out this year, which none of us should
forget.
I was especially concerned with the
legal questions which related to the lat-
ter-that is, the termination of the mu-
tual security agreement which we had
with Taiwan. I know that that subject
is being litigated. It is my professional
judgment that this is a proper course
and that, in the absence of any con-
trary action by the Congress, the Presi-
dent is the only authority which can ac-
tually terminate that agreement. How-
ever, it is far from an open and shut
proposition.
In subsequent colloquy which I shall
have with Senator GOLDWATER, I expect
to make clear that there is absolutely
nothing in this legislation which, in any
way, prejudices, one way or another, the
claim which is being made in our courts
that the President does not have this
authority. My opinion was solely direct-
ed to the fact that, in my judgment, the
committee could and should proceed to
report out favorably this piece of legis-
lation-which is, of course, based upon
the theory that the mutual security
agreement will be terminated according
to its terms as of the end of this year.
That concept does not, in any way,
change, affect, or invalidate any chal-
lenge to the President's authority.
Second, I have spent a good deal of
time, as is pretty well known, trying to
deal with the security situation on Tai-
wan. Whatever may be the great politi-
cal and historic consequences of our ac-
tions in respect of the recognition of the
People's Republic of China, like, I think,
practically every other Member of this
body, I have the deep conviction that we
ought to do nothing in this matter which
would expose the economic and social
system new existing on Taiwan to .being
eliminated by force, directly or indirect-
ly, or otherwise suppressed or suffocated
by the action of the People's Republic of
China. I believe in the essentiality of this
protection to the people on Taiwan-and
now I use that term not only as it is
used in the statute but in its literal
sense-who have established the second
highest standard of living on the conti-
nent of Asia. They are a shining exam-
ple of what can be done economically in
the Asian complex, notwithstanding the
traditional poverty which has surround-
ed hundreds of millions of people in
Asia, including the hundreds of millions
in the People's Republic of China.
I believe that the provision which we
have now agreed upon-and I emphasize
that phrase, "agreed upon," because I.
intend to stand by it, notwithstanding
that it may use in some respects some
other words than those I originally
drafted-must have enough balance to
have a broad consensus and willing par-
ticipants, including those who will carry
this out among the executive branch of
the United States. I do not believe that
any change whatever has been made in
the substance of this security provision
by what has been changed between the
amendment's original submission and
the amendment as finally agreed upon.
The only real change, Mr. President,
occurs at page 14, lines 7 to 10, in section
114(a) (3). The words in question are as
follows :
consider any effort to resolve the Taiwan is-
sue by other than peaceful means a threat
to the peace and security of the Western
Pacific area and of grave concern to the
United States.
When I wrote my amendment, I had
in mind the security interest of the
United States as to that particular
phrase. Mr. President, it was felt that
that may be committing the United
States in advance to a far broader reac-
tive position than it should have in a
very long-term commitment of this kind,
considering my own War Powers Resolu-
tion and the normal stance we take re-
specting our "constitutional processes"
provision -in every U.S. mutual defense
treaty, including the NATO treaty. We
couple that with the fact that we state
very clearly that we would consider such
a breach of the condition on which we
established diplomatic relations with the
People's Republic. That is contained in
this same section, paragraph 2 of section
114(a). We expected that any resolution
will be only by peaceful means. We
couple that with the commitment to
supply arms to the people on Taiwan,
and we couple it with the finding that a
threat to the peace and security of the
Western Pacific area will be involved.
I do not think there is any question
about the fact that that actually repre-
sents a very serious threat to the secu-
rity of the United States. We couple it
with our commitment to maintain our
capacity to resist any resort to force, et
cetera, should it be tried against the peo-
ple on Taiwan-not only force but coer-
cion that would jeopardize the security
or the social or economic system of the
people on Taiwan; and that we will
assist them to maintain a sufficient self-
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March 7, 1979 CONGRESSIONAL RECO
defense capability through the provi-
sion of arms.
It seems to me, Mr. President, that we
have really locked this in as well as any
nation ,can lock it in without assuming
postures which would truly sound bellig-
erent. Therefore, I concurred in what I
really consider to be very modest
changes. I hope that the Senate will sus-
tain us in this effort to attain a broad
consensus. At the same time, we say
everything that we ought to on our
determination to protect the security
and the integrity of Taiwan from the use
of force, direct or indirect, or the use of
coercion, or what, in any other way, will
suppress its economic and social system.
Finally, Mr. President, I believe this
bill serves the high objectives which we
have set for ourselves in respect of Tai-
wan, as well as the high objectives which
we have set for ourselves in respect of the
People's Republic of China.
It is a fact that the People's Republic
Invaded Vietnam, which we thoroughly
disapprove of, notwithstanding the fact
that only a brief time before, we had
agreed to recognition.
So it is very important to restate what
is recognition; recognition is to take a
nation with all its warts as well as with
all its virtue and to regularize and nor-
malize our contacts.
Just think, Mr. President, if we with-
drew our ambassadors from Moscow
every time the Soviet Union did some-
thing we really did not like, or something
which was inimical or harmful to the
United States, those ambassadors would
be yo-yos. They would be coming back
and forth about every Wednesday.
So that cannot be our criteria. We can
disapprove thoroughly of what the Peo-
ple's Republic of China may do. There
may be a day when we will prefer to
withdraw our ambassador and protest.
That is our privilege, just as it is theirs.
But that does not, in my opinion, change
the necessity for a decision which regu-
larizes our contacts and gives us the best
means-I emphasize that, the best
means-for maintaining a peaceful rela-
tion with the most populous nation on.
Earth and one which we all know is des-
tined to be the third of the superpowers
on this Earth.
So I believe that while it is an act
which we protest and regret and could
tgce whatever posture we wanted, we are
not in any way inhibited from recogni-
tion. It should not be considered some
argument why we should not have rec-
ognized the People's Republic.
On the contrary, the fact that the
People's Republic felt free to take this
overt and hostile action in that area of
the world is exactly the reason why we
should try to have as much opening into
that society as we can, considering its
secrecy, in order to know in advance
what are the movements, governmental
or social or political, which are going on
in that country, which is one of the pur-
poses of having an ambassador and an
embassy there.
So, Mr. President, I believe that this
is the right way to do what is right for
our country. I hope the Senate will ap-
prove this bill as we have submitted it.
Mr. GOLDWATER. Will the Senator
yield for a question?
Mr. JAVITS. Of course.
Mr. GOLDWATER. Mr. President, if
the senior Senator from New York (Mr.
JAVITS) would give me his attention, I
would like to raise with him a mattter
that he and I have discussed previously.
As the Senator, who is the ranking mi-
nority member of the committee, knows,
I have filed a lawsuit, with 25 other
Members of Congress, seeking to obtain
a court determination of the legality of
President Carter's attempted unilateral
termination by notice of the Mutual De-
fense Treaty with the Republic of China.
It was, my understanding that the com-
mittee did not address the merits of he
legal question in the bill, which is now
pending before us, but was willing to see
what happened to the lawsuit before de-
ciding whether or not to resolve it by
legislation.
If that is what the committee in-
tended, then that is fine with me. But I
am disturbed at certain statements made
in the committee report at pages 18 and
19, as they may relate to section 104 of
the bill. The report seems to be of/two
minds on the issue.
First, at the top 'of page 18, it states
that the answer "is unclear." This seems
to support the willingness of the com-
mittee to allow the question of law to be
answered in the courts.'
But, then the report goes on to discuss
the legal issue and states at page 19 that
it appears the constitutional prerogatives
of the Congress and the Senate have not
been invaded.
Now, this second statement contra-
dicts the first one, and may have a bear-
ing on what interpretation is given to
section 104 of the bill. -
Section 104 provides that all treaties
entered into between the United States
and the government we formerly recog-
nized officially as the Republic of China
shall continue in force, "unless and until
terminated in accordance with law."
On its face, the provision does not take
any position as to whether President
Carter's unilateral action in giving notice
to the Republic'of China is, or is not, in
accordance with law. The section appears
completely neutral on this issue.
But in view of the statement gratui-
tously inserted in the committee report
at page 19, it is conceivable a wrong in-
terpretation may be given to section 104
that does not appear in the text of the
provision itself. Therefore, I seek to have
some assurance from members of the
committee that the provision does not
mean something it does not say.
All I ask for is fairness: An opportu-
nity to ask the court to say what the law
is-under the Constitution and under the
defense treaty. So long as the committee
can assure me that nothing in the pend-
ing bill is to be construed as either ap-
proving or disapproving of the legality of
President Carter's action regarding the
defense treaty, I believe that will pro-
tect my right, and the rights of the many
other Members of Congress who have
joined me, to pursue this matter in the
courts.
As the Senator from New York knows,
he very graciously agreed to discuss this
with me and make any clarifications he
might be able to.
52125
Mr. JAVITS. Mr. President, it is my
judgment, and I sat through all the ses-
sions of the committee, that the com-
mittee did not intend to approve or dis-
approve of the legality of President Car-
ter's action.
The reason for the statements in the
report which the Senator considers "in-
consistent" is the fact that the committee
had to consider not just whether this
statute would affect the President's pow-
er; we could have passed on the Presi-
dent's power in it; we could have said
that we confirm the President's power to
terminate the agreement with the Re-
public of China on Taiwan.
We said no such thing. That was be-
cause, as I just answered, we did not
intend to affect that. Therefore, we said
at page 18:
Although the Committee thus recognizes
that any firm conclusion is impossible, it
inclines to the belief that the President has
not, in giving notice of termination pursuant
to the Treaty itself, exceeded his constitu-
tional authority.
We had to say that for the second rea-
son, which was our question, should we
pass this at all; are we engaging in a
vain act? If we believed that the Presi-
-dent had no authority and could not give
notice of termination of the treaty, then
what are we doing confirming Woodcock
as ambassador? What are we doing mao-
iiig Taiwan a new and unique entity in-
stead of the. government it was that we
dealt with for 30 years?
We had no business doing anything.
So what we said in effect is, we do not
want to effect any challenge to his power
in the courts. That goes on.
The answer is unclear as to that. We
will hear from the courts. They may take
jurisdiction, they may not. They may
pass on the question, they may not.
But we consider there is enough to
the President's authority in this regard,
so we ought to go ahead and confirm
Woodcock and pass this law.
The courts have overridden us many
times before and the court may say, "We
are sorry, Mr. Congress, you thought you
were doing something for which a condi-
tion precedent had been fulfilled; we are
sorry to tell you it has not, and we will
have to worry about that and do some-
thing about it."
So we were not in any way trying to
foreclose the Senator's challenge, nor do
the words of the statute foreclose him by
changing in any way the constitutional
authority of the President, whatever it
may be.
But we give enough credence to the
fact that we think what he is doing is
probably OK, so that we should go ahead
and pass this law and confirm Woodcock,
and we are not going through some sham
or charade.
That is the whole story.
Mr. GOLDWATER. I thank the Sena-
tor from New York very much for that
clarification.
I now intend to vote for this, because
I think it is a vast improvement.
As I mentioned to the Senator from
Ohio this morning, if the court happens
to take this under consideration and de-
cides in my favor, I do not think it will
have any bearing on the recognition of
the People's Republic of China. We will
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S 2126 CONGRESSIONAL RIEC?
then be asked to do what I think we will
do anyway.
0 Mr. BAKER. Mr. President, I agree
with the distinguished Senator from
Arizona in his belief that we should clear
up any ambiguity that may result from
either the committee report on S. 245 or
section 104 of the act with regard to the
President's unilateral termination of the
Mutual Defense Treaty with Taiwan.
It is important, Mr. President, because
the Senator has a lawsuit pending in
Federal court which challenges the au-
thority to terminate treaties without the
consent of the Senate or the approval
of the Congress. .
It is the view of this Senator, as a
member of the committee, that it was
not the intent of the committee to pre-
judge or prejudice the outcome of a law-
suit pending in Federal court.
More to the point, ' the question of
whether the President was acting within
his authority in the termination of the
treaty was not before the committee,
was not considered by the committee,
and neither the report nor the act should
be construed as a committee position on
the question.o
O Mr. HAYAKAWA. Mr. President, as a
member of the Foreign Relations Com
mittee who attended most of the markup
sessions, I wish to clarify that in acting
on the bill, the committee did not take
any position on the legal question of
whether the President may, without the
advice and consent of the Senate or the
approval pf the Congress, terminate the
Mutual Defense Treaty with the Re-
public of China.
- It is my view that the committee did
not take up that issue. Nothing in the
committee report or the bill itself may
be construed as approving or disapprov-
ing of President Carter's action.
Mr. President, I know the Senator
from Arizona has filed a lawsuit in Fed-
eral court seeking to obtain a judicial
decision on the legal question involving
termination of the defense treaty. In
fairness to my colleague, I believe his
right to pursue the case should be pro-
tected.
Accordingly I will repeat that nothing
in the report or the bill shall be con-
strued as either ratifying or disapprov-
ing of President Carter's action in giv-
ing notice to the Republic of China that
the treaty will expire, without joint ac-
tion by the Senate or Congress.O
(The following colloquy occurred later
in the proceedings and is printed at this
point by unanimous consent.)
Mr. HELMS. Mr. President, I would
like to go back to a colloquy earlier to-
day between the distinguished senior
Senator from New York (Mr. JAVITS)
and the distinguished senior Senator
from Arizona (Mr. GOLDWATER) with
reference to the intent of the Commit-
tee on Foreign Relations with respect to
the suit brought by Senator GOLDWATER
and the Senator from North Carolina
and others on the question, on the con-
stitutional question, of the President's
abrogation of treaties.
I confess that prior to this colloquy I
was most surprised and concerned to
read in the committee report on page 19
D - SENATE
that the committee had concluded that
the constitutional prerogatives of the
Congress and the Senate had not been
invaded by the unilateral action of Presi-
dent Carter in giving notice of the abro-
gation of the Mutual Defense Treaty with
the Republic of China.
Now, I realize that this is an issue on
which reasonable men can differ. As I
said earlier, I am a coplaintiff with the
distinguished Senator from Arizona in a
lawsuit to establish-this precise point of
law.
I recall further that this issue was
raised in committee. But to the recollec-
tion of this Senator, I want the record to
show that no conclusion was reached by
the committee, no resolution was offered
on the subject, and no vote was taken
and, therefore, I was concerned to read
on page 19, and I quote:
It appears to the Committee, therefore, that
the constitutional prerogatives of the Con-
gress and the Senate have not been invaded
in that neither the Congress nor the Senate
has elected to exercise the powers granted it
by the Constitution to participate, in the
process of treaty termination. Had either
done so, a different conclusion would likely
obtain.
Mr. President, I note further that this
statement, indeed, the whole committee
report, was not circulated among com-
mittee members before printing. At least
it was not circulated to this Senator.
In my opinion, the observations I have
just quoted have no status as a report
or a conclusion of the committee but con-
stitute only staff observations. Other
members of the committee have the right
to endorse them if they choose to do so.
But it appears to this Senator that it is
inappropriate for the committee to in-
vade with premature conclusions a field
that is the subject of controversy before
the courts by a substantial number of
our colleagues.
As I understand the comments of the
distinguished Senator from New York,
this was the position he took in his state-
ment to Senator GOLDWATER, and I ask
him now if that is not essentially correct.
Mr. JAVITS. Mr. President, will the
Senator repeat the position that he feels
I took? I was listening to my assistant.
Mr. HELMS. Yes. As I understood the
Senator's comment to Senator GOLD-
WATER, nothing done or said by the com-
mittee had any intent to affect one way
or another the suit brought by Senator
GOLDWATER and others.
Mr. JAVITS. That is what I said, and
that is what I mean.
I also said the committee had another
question, to which the Senator has also
addressed himself, and that is, would it
legislate in this field at all, and obviously
if the committee challenged the right of
the President to abrogate, then it would
not have dealt with this legislation, and
that was discussed, Senator. The tran-
script of the committee will show that
because I remember speaking to it my-
self. I said, and I think I will refresh the
Senator, it does not affect the suit, and
it does not in any way modify what I
said before. That stands.
But the other question is I, as a Sen-
ator and a lawyer, had to decide if I
March 7, 1979
wanted to legislate at all, because, if the
President has no right to terminate this
agreement, then why do we need this
section that I had so much anguish over
in writing to protect the people on
Taiwan?
For myself, I concluded that I believed
that under the circumstances he did have
the right to terminate, and therefore
that I was willing, to legislate. That was
discussed openly. I said that myself, as a
matter of fact. I said I had trouble over
the question of taking jurisdiction, be-
cause the courts have so often said they
would not decide such matters. I am sure
I said that.
I did not read the draft, but I am sure
the minority staff director did, and knew
my views, so I make no complaint about
it. But I felt that adequate discussion
within the committee, by me and others,
confirmed that they were willing to act
on the legislation because they did not
feel that there was a bar to terminating.
But in no way do I change or dilute my
fundamental statement, to wit, that there
is no effect on the Senator's litigation by
what the committee did.
Mr. HELMS. Well, . Mr. President, of
course the Taiwan Enabling Act has
nothing whatsoever to do with the
mutual defense treaty and its abrogation
by the President. And even if the Presi-
dent is right, the treaty continues in
force for a year, as the 'distinguished
Senator knows, whether or not this bill
becomes law. The bill turns upon the
rupture in diplomatic relations. The In-
stitute is to take the place of the U.S.
Embassy. So whether or not the Senate
acts on this bill is irrelevant to the treaty
issue.
I am sure my friend from New York
is aware that other Senators have the
same concern that I have just expressed.
I have here a letter written to the dis-
tinguished chairman of the Foreign
Relations Committee by the junior Sena-
tor from Florida. (Mr. STONE). It is an
eloquent and very interesting letter, ex-
pressing very clearly his concerns, which
are identical to my own. The distinguish-
ed Senator has kindly consented to have
me put his letter in the RECORD, which I
will do at. this time.
Mr. President, I ask unaniimous
consent that Senator STONE's letter be
printed in the RECORD at this point.
There being no objection,' the letter
was ordered to be printed in the RECORD,
as follows:
WASHINGTON, D.C.
March 6, 1979_
Hon. FRANK CHURCH,
Chairman, Senate Foreign Relations Commit-
tee, Dirksen Senate Office Building.
DEAR MR. CHAIRMAN: I am writing to ex-
press my deep concern and strong objections
to certain language in the Foreign Rela-
tions Committee Report on S. 245. Beginning
on page 17 and continuing for several pages
thereafter, there is a discussion of "legal
issues" relating to the termination of the
Mutual Defense Treaty with the Republic
of China and other legal issues regarding
the Republic of China. On page 19, in con-
nection with a discussion of the termina-
tion of the Mutual Defense Treaty, a Para
graph is included which reads,
"It appears to the Committee, therefore,
that the Constitutional prerogatives of the
Congress and the Senate have not been in-
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CONGRESSIONAL RECORD -SENATE S 2127
vaded in that neither the Congress nor the
Senate has elected to exercise the powers
granted it by the Constitution to partici-
pate in the process of treaty termination. Had
either done so, a different conclusion would
likely obtain."
I do not believe it was the intention of the
Committee and certainly it was not author-
ized by the Committee, to take a position
as to whether the President's manner of
terminating the Mutual Defense Treaty in-
vaded the prerogatives of the Congress or
not. While there was discussion during the
course of the Committee's hearings, I am
not aware of an attempt 'by any member of
the Committee urging the Committee to take
a position such as described by this para-
graph.
I am particularly concerned about the im-
plications which this paragraph may have for
future decisions in the foreign policy area by
the Executive Branch. It expresses the no-
tion that when Congress, for whatever rea-
son, chooses not to exercise certain Consti-
tutional powers, that Congress has endorsed
a particular Constitutional theory. I strongly
disagree with any such theory of Consti-
tutional interpretation. Finally, I am con-
cerned about the inclusion of this paragraph
inasmuch as Committee members were not
given any opportunity to review the report
before it was filed. Where it is necessay for
the Committee and Senate to move as quick-
ly as possible on important legislation such
as this, I believe it is particularly important
that the Committee report language be as
carefully developed as possible and limited
as much as possible to an explanation of the
bill which the Committee has agreed to
report.
I would appreciate your consideration of
appropriate stelis to eliminate the para-
graph to which I have referred, from the
Committee report, or to have a statement by
the managers of the bill which would cor-
rect the gross misimpression. which I believe
will result if this language is incorporated
in the Committee Report.
Warm personal regards.
Most cordially,
RICHARD "DICK" STONE.
Mr. HELMS. Mr. President, on Decem-
ber 22, 1978, our distinguished colleague
from Arizona, Senator GOLDWATER, filed
a lawsuit in the U.S. District Court for
the District of Columbia challenging the
constitutional authority of President
Carter to terminate this country's Mutual
Defense Treaty with the Government of
Taiwan. The suit asks the court to
declare the President's unilateral action
"unconstitutional and illegal," and "to
set aside his purported notice to cancel
the treaty as having no effect."
,in an article published in the Febru-
ary 1979 issue of the American Bar As-
sociation Journal, Senator GOLDWATER
perceptively defines the court role of the
Senate in foreign policy. He outlines the
arguments for his position that the
power to terminate a,treaty-such as the
Mutual Defense Treaty with Taiwan-
does not rest with the President alone,
but rather is a power to be exercised
jointly by the executive and legislative
branches of Government. The article
strongly supports the contention that the
President's unprecedented claim of un-
checked power ought not be upheld in
light of historical and legal precedent.
Mr. President, allow me to quote two
ey paragraphs from the distinguished
In 1858 the Senate Foreign Relations Com-
ittee had unequivocally found that lan-
will of the treaty-making power," which it
defined as "the President and Senate" The
Senate, together with the President and often
with the House of Representatives, had par-
ticipated in the termination of nearly 40
treaties by 1955, virtually all of which con-
tained duration provisions similar to Article
X of the R. O. C. defense treaty. From this,
if any understanding could be attributed to
the Senate when the treaty, was ratified, it
was that the term "party" meant the Presi-
dent and Senate jointly
But the State Department would not only
attribute a meaning to the R. O. C. defense
treaty of which it never informed the Sen-
ate. It would put the same meaning on dozens
of other major treaties that contain similar
provisions. For example, the North Atlantic
Treaty Alliance and our security pacts with
South Korea, Japan, and the Philippines in-
clude articles allowing either "party" to with-
draw after one year's notice. The Nuclear
Test Ban Treaty, the Statute of the Inter-
national Atomic Energy Agency, the Nuclear
Nonproliferation Treaty, the Biological Weap-
ons Convention, the Universal Copyright
Convention, and the Outer Space Treaty,
among others, each provide by their own
terms for termination after one year's or less
notice to the other parties. The consequences
of accepting the State Department's inter=
pretation of these provisions is far reaching
indeed.
I wish to commend the senior Senator
from Arizona for his leadership in chal-
lenging the attempted usurpation of con-
gressional power by the President. His
article should be read by everyone who
believes in the integrity of the constitu-
tional doctrine of separation of powers.
Mr. President, I ask unanimous con-
sent that the text of Senator GOLD'
WATER'S article be printed in the RECORD
at this point.
There being no objection, the article
was ordered to be printed in the REc-
ORD, as follows:
TREATY TERMINATION IS A SHARED POWER
(By BARRY M. GOLDWATER)
On December 15, 1978, while the Congress
was out of session, President Carter an-
nounced that the United States would rec-
ognize the People's Republic of China as the
sole legal government of China as of Janu-
ary 1, 1979. At the same time the president
also made known, through informal briefings
for the media his unilateral decision to ter-
minate the defense treaty with the Republic
of China, claiming authority to act udder
Article X of that treaty, which states "either
party," not "either president," may cancel
it after giving one year's notice. Without
public announcement, the actual notice of
termination of the defense treaty was sent
by diplomatic note to the Republic of China
on December 23, 1978, to be effective on and
as of January 1, 1979.
The president's decisions were shrouded in
secrecy and contrary to the purpose of Sec-
tion 26 of the International Security As-
sistance Act of 1978, a law enacted by Con-
gress just three months preceeding his an-
nouncement, which specifically called for
prior consultation with the legislative
branch.
On December 22 I filed suit in the United
States District Court for the District of Co-
lumbia, with 15 of my colleagues from both
houses of Congress, challenging the validity
of the president's attempted termination of
the treaty without any supporting legisla-
tive authority. We asked the court to declare
the president's action unconstitutional and
illegal and to set aside his purported notice
to cancel the treaty as having no effect.
It is the premise of our case that in act-
to make a self-serving interpretation of the
constitutional allotment of powers among
the executive and legislative departments,
President Carter has not only usurped pow-
ers conferred on the Congress, but has at-
tempted to exercise a function the Supreme
Court has said is clearly reserved to the ju-
dicial branch, the power "to say what the
law is." United States v. Nixon, 418 U.S. 683
(1974).
The question is not whether any past
precedents justify the president's 'assertion
of independent power, although I believe the
weight of historical evidence proves that
treaties are normally terminated only with
legislative approval. The true question is
whether his action represents the original
intent of the people who drafted the Con-
stitution.
This is a legal and historical question,
and the hard fact is that nothing in the
records of the federal convention or in the
explanations at the state conventions on
ratifying the Constitution confirm in any
way the president's sweeping claim of un-
checked power. To the contrary, contem-
porary materials and the text of the Con-
stitution show that the termination of a
treaty, involving as it does the sacred honor
of the country and serious policy interests,
is a decision of such major importance that
the framers required the joint participation
of both political departments, the executive
and legislative, in making that decision.
if left unchallenged, the president's uni-
lateral action will set a dangerous precedent
that would enable him or a future president
to terminate any defense treaty at will. In
fact, the precedent could be used for the
presidential termination of any treaty to
which the United States may now be a party
or become a party in the future-for in-
stance, with Israel. This unchecked concen-
tration of power is totally inimical to our
democratic, representative form of govern-
ment.
However one may feel about the wisdom
of independent presidential termination of
the defense treaty as a step required to com-
plete full normalization of relations with
Peking, we each should remember the ad-
monition of Chief Justice John Marshall:
"The peculiar circumstances of the moment
may render a measure more or less wise,
but cannot render it more or less consti-
tutional." In filing suit, it was my purpose
to defend the legislative function conferred
by the Constitution, not to contest the
rightness or wrongness of his policies, which
can be debated in other forums.
The Constitution is silent as to how a
treaty shall be terminated. It is also silent
on how a statute or any other law shall be
cancelled. Yet no one makes the argument
that the president alone can repeal a statute.
In fact, in The Confiscation Cases, 20 Wal. 92
(1874), the Supreme Court expressly said that
"no power was ever vested in the president to
repeal an act of Congress."
It is my belief that by placing treaties
among "the supreme Law, of the Land" in
Article VI, clause 2, and by requiring an Ar-
ticle II, Section 3, that the president "shall
take care that the Laws be faithfully exe-
cuted," the framers meant, and expected
without saying more, that the president
would carry out a treaty in good faith. This
is exactly the opposite of giving him an im-
plied authority to cancel any treaty at will.
It is also well known that the framers were
concerned with restoring dependability to
treaties made by the United States. They
were anxious to gain the respect and confi-
dence of foreign nations by keeping our
treaty commitments.
For example, in the preface to his notes
on debates in the Constitutional Convention,
James Madison singles out the lack of obedi-
ence to treaties as one of the conditions the
federal Constitution was intended to correct.
Our unfaithfulness to treaties, Madison-
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S 2128 CONGRESSIONAL RECORD -SENATE
wrote, is among "the defects, the, deformities,
the diseases and the. ominous prospects for
which the' Convention were to provide a
remedy, and which ought never to be over-
looked in expounding and appreciating, the
Constitutional Charter. the remedy that was
provided."
In a similar vein, James Wilson, who signed
the Constitution and sat on the first Supreme
Court, lectured his law students that a coun-
try "which violates. the. sacred faith of trea-
ties, violates not only the voluntary, but also
the natural and necessary law of na-
tions... l' He added: "As the United States
have surpassed others, even other common-
wealths, in the excellence of their constitu-
tion and government; it is reasonably to be
hoped, that they will surpass them, like-
wise in the stability of their laws, and in
their fidelity to their engagements."
Would the framers who regarded violation
of "the sacred faith of treaties" as "wicked,"
"dishonorable," and contrary to the best in-
terests of the country in acquiring respect in
the community of nations, have contradicted
these purposes, by making it as easy under
the new Constitution for a single officer
of the government to repeal a treaty as it
had been for individual states to nullify a
treaty under the Articles. of Confederation?
We should also remember the concern of
the framers with sectional economic inter-
ests. Many of them hoped for advantageous
commercial treaties that would open up trade
for their sections with other nations: The
framers also had extensive discussions about
treaties of peace as being included within
the treaty clause, in recognition of the fact
that those treaties would be the normal
method of terminating a war. Without any
supporting textual evidence to show it, it
is inconceivable that the framers, assigned to
one person power to denounce a commercial
treaty that would be highly beneficial to the
interests of a particular geographic region or
a peace treaty that had formally concluded
ca. war and whose faithful adherence would
presumably advert the chance of resumption
of hostilities, however slight that chance may
be.. As. the language of the Constitution does
not distinguish commercial and peace
treaties from other treaties, such as a secu-
rity pact, it is obvious that all treaties share
the same protectvie ramor.
JOINT PARTICIPATION NEEDED FOR ANY
"GENUINELY CRITICAL DECISION"
In his landmark work on the subject in
5 Seton Hall Law Review 527' (1974):, Prof.
Arthur Bestor persuasively, shows that the
doctrine of separation of powers is "pre-
scribed as explicitly for the conduct of for-
eign relations as for the handling of domes-
tic matters" and explains: "The purpose and
effect of any such arrangement is to require
the joint participation-the co-operation and
concurrence-of the several branches in the
making and carrying' out of any genuinely
critical decision."
Justice Joseph Story, one of the foremost
scholars to sit on the Supreme Court, con-
firms this statement. In his Commentaries on
the Constitution, Story writes, in connection
with the decision of the framers to allot the
treaty authority jointly in the president and
the. Senate, "his joint possession of the power
affords a greater security for its just exercise,
than the separate possession of it by either"
and that it "is too much to expect, that a
free people would confide to a single magis-
trate, however respectable, the sole authority
to act conclusively, as well as exclusively
upon treaties."
Story adds, in words having equal relevance
to making or unmaking a treaty: "The check,
which acts upon the mind from the consid-
eration, that, what is done is but preliminary,
and requires the assent of other independent
minds to give it a legal conclusiveness, is a
restraint which awakens caution, and com-
pels to deliberation."
This is what the, framers had in mind in
establishing a system of checks and balances.
They sought to protect' the security of the
people by making the president and the Sen-
ate, checks on each other in the exercise of
the full treaty power. By providing for the
added deliberation and attention to the sub-
ject that would be required by vesting the
full treaty power jointly with the president
and at least one branch of the legislature, the
security of the people would be far better
protected than it, would be if the power were
conferred on a single officer. The security that
follows caution and - added deliberation
would be lost if no check had been put on
the unmaking, of a treaty-
Why the framers would want to offer the
people security in the making of treaties, but
not in their termination, is unexplained by
those who argue this difference exists. I be-
lieve there is. no difference and that the
checks and balances called for in the separa-
tion of powers is equally as applicable to the
critical decision of casting aside our formal
treaties with. other nations as it is in mak-
ing those treaties originally.
The. early, authorities, including some
among the Founding Fathers, saw the repeal
of a treaty in. the same light as they saw
the repeal. of a. statute. It would have been
strange to hear anyone. argue that the presi-
dent, by his sole authority, could terminate
whatever treaty he wished, whenever he
wished. James: Madison for one, believed
that "the same authority, precisely," would
be "exercised, in annulling as in making a
treaty." Thomas Jefferson, when he was
Washington's first secretary of state, wrote a
report in which he reasoned that the same
authority who possessed the power of making
treaties consequently had the power of de-
claring them dissolved. And, when he was
vice president, Jefferson. compiled the first
manual of rules of the Senate, in. which he
wrote: "Treaties being declared equally with
the laws of the United States; to be the su-
preme law of the land', it is understood that
an act of the legislature alone can declare
them infringed and rescinded."
Further evidence. that the framers linked
the repeal of treaties to the repeal of statutes
appears in. John Jay's brief analogy in
The Federalist, Number 64: "They who make
laws, may, without doubt, amend or repeal
them, and. It will not be disputed that they
who. make treaties, may alter or cancel
.them..... .
Justice Iredell,, who, served on the first
Supreme Court;, shared the views of Madi-
son and Jefferson as, to the legislative role
in terminating treaties. In an opinion ac-
companying: Ware, v.. Hylton, 3 Dall. 199
(1796), he twice stated his belief that Con-
gress alone has "authority under our govern-
ment" of declaring a treaty terminated, even
In. circumstances, where the other country
has first violated it.
Another authority who believed the leg-
islature must act before a treaty is termi-
nated Is James' Buchanan. In writing
about the anicipated cancellation of a com-
mercial treaty' with Denmark considered
damaging to our exports, then Secretary of
State Buchanan wrote that "an act must
first pass Congress' to enable the president
to give the required notice...." His official
concession of the joint possession of power is
especially noteworthy' since that treaty con-
tained a provision similar to the one in the
R.O.C. defense treaty so heavily relied on by
President Carter.
Each treaty authorizes termination after
notice being given to the other party. How-
ever, Secretary Buchanan obviously be-
lieved the. sovereign authority who could
make the decision to give notice was not the
president alone, but the president together
with the authority of a law enacted by
Congress.
When the United States finally cancelled
the treaty with Denmark? it. was' accomplished
by a Senate resolution of March. 3, 1855, pas-
sed unanimously; which advised. and con-
sented. to authorizing President. Pierce to give
notice of its termination.-The president had
requested. the' authority, thereby giving some
indication. Of. his, belief that. the decision-
making authority was' jointly possessed by
him and the legislature;, or at least one
branch of it,, and was not. vested in him alone.
The incident led to an authoritative re-
port by the Senate Foreign Relations Com-
mittee in 1856. In response to public discus-
sion over whether' the. Senate had acted prop-
erly in authorizing, presidential action with-
out the concurrence of the House of Repre-
sentatives, the committee concluded that the
Senate and president. jointly possessed col,-
petence to) terminate a treaty "without the
aid or intervention of. legislation" by the
other house:. Speaking. precisely to the same
issue presented by Article: X of the R.O.C.
defense treaty, the, committee decided that
"where, the, right to terminate a treaty at
discretion. is. reserved in the: treaty itself, such
discretion resides in President and Senate."
The, committee explained:. "The whole
power to bind the government by treaty is
vested in the president. and Senate, two thirds
of the senators present concurring. The treaty
in question was' created by, the will of the
treaty making, power; and, it contained a res-
ervation. by which that, will should be revoked
or its, exercise cease on a'. stipulated notice.
It is thus the will, of the. treaty-making power
which is; the subject, of revocation, and it fol-
lows that the revocation is. incident to the
will." Thus,, the, committee. clearly took a
position at odds with the novel theory as-
serted by President. Carter today.
LODGE TFIOUGFIT' CONGRESS' COULD DISAPPROVE
TAFT'S NOTICE:
Henry Cabot Lodge, when he was chair-
man of the Senate Foreign Relations Com-
mittee in 19T'1',, also believed' the power of
treaty termination was j'ofntiy possessed by
the president and' legislature: In response to
a question in the Senate whether notice,
given Russia by, President Taft to terminate a
commercial treaty because of Soviet viola-
tions;, would be: l'egal' in the absence of con-
gressional ratification, he replied, "Of course,
Congress. can disapprove his action and then
I take it, the notice fails...." Senator Lodge
added' his opinion that the power to termi-
nate that treaty by' notice; as' authorized in
such a treaty the., Senate and the presiden
represent the high contracting party."
Lodge was. then acting as, floor manager
of legislation. that did. ratify, the president's
action, said his statements clearly express his
interpretation of Lire term "contracting
party," used in a treaty' provision, as meaning
the Senate and president jointly.
In. 1917(Prof.. Edward Corwin,, recognized as
one of the leading authorities- on the Consti-
tution in this, or any other century and gen-
which the United States is party belongs, a
a prerogative of sovereignty, to Congres
alone."
Another official, admission of the necessity
for legislative concurrence in the decision
to provide notice in. circumstances in which
a treaty itself authorizes' the giving of notice
comes from an attorney general's opinion.
In 1941 Francis Biddle, then acting attorney
velt whether, in view of the dislocation
oceanborne commerce because of war, t
governed ocean tanker tonnage loads, h
ceased to be binding. Biddle concluded t
convention was inoperative because of
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March 7, 1979 CONGRESSIONAL RECORD -SENATE - S 2129
"well-established principle of international sistent with the-purposes of the treaty con- all can be explained by invoking the princi-
law, rebus sic stantibus, that a treaty ceases cerned. ples of contract law discussed above. None
to be binding when the basic conditions upon In these circumstances, the incidents fall of these exceptions has any application to
which it was founded have essentially within
Even R.O.C. Os to i defense handful of precedents, treaty.
a party is released from an agreement. the
changed."
But he sharply qualified his opinion. While All the first writers on the law of nations, there is no ground for asserting independent
the president could decide whether the treaty such as Grotius and Vattel, whose works presidential power. There is no court decision
was Inoperative or suspended under this were consulted by the Founding Fathers, upholding their legality, and the last prece-
principle of international law, the president agreed that there is no difference in the rules dent is no better than the first. As the
alone could not terminate the treaty If he of law applied ,to public treaties or private Supreme Court said in Powell v. McCormack,
acted under a treaty provision allowing with- contracts. 395 'U.S. 486 (1969) : "That an unconstitu-
drawal by giving due notice. Biddle wrote: The framers may well have silently as- tional action has been taken before surely
"It is not proposed that the United States sumed the president could determine a treaty does not render that same action any less
denounce the convention under Article 25 ended if it Should be violated by the other unconstitutional at a later date."
(47 Stat. 2256), nor that it be otherwise ab- country, if performance became impossible, It has been suggested that since the presi-
rogated. Consequently, action by the Senate or if there was a fundamental change of dent alone has the power to remove execu-
or by the Congress is not required." conditions not of our own making. In their tive officers appointed by and with the ad-
Article 25 of that convention provided own experience, it was an implied condition vice and consent of the Senate, he also has
that it may be denounced by any "contract- of a contract or treaty that the obligations power to remove treaties. The two cases are
ing government" by notification to the other of the parties ended or were suspended on completely dissimilar. The ability to remove
parties and that the withdrawal should take the happening of one of these events. With- officers clearly under his direction aids in
out conceding the legality of occasions when the efficient performance of the president's
effect 12 months after the date of notiflca-
.tion is received. The article is similar to the president has acted unilaterally, these duties. The removal of treaties violates the
Article X of the R.O.C. defense treaty, which principles of contract law may explain in- president's constitutional duty to see "that
likewise allows denunciation by the United dependent presidential action in exceptional the laws be faithfully executed." It is obvious
States after one year's notice. Thus, it is circumstances, none of which apply to the that the president's relation with subordi-
clear that Biddle believed legislative con- president's action regarding the R.O.C. de- nate officers cannot be equated to his rela-
currence was needed in order to authorize fense treaty. tion with sovereign authorities of other na-
presidential action pursuant to the terms STATE DEPARTMENT'S MEMORANDUM BACKS tions. The courts also have sharply restricted
of a treaty in circumstances identical to CARTER'S ACTION the removal power to purely executive offi-
those asserted by President Carter as grounds The State Department has released a cers, holding the president cannot remove of-
for unilateral action. President Carter's deci- memorandum by Herbert Mansell, its legal flers who exercise quasi-legislative or judi-
?sion to notify the Republic of China on his adviser, dated December lb, the same day cial functions in Humphrey's Executor, 295
As the treaty power has long
602 (1936)
U
S
.
.
.
sole authority is directly In conflict with a as President Carter's public announcement,
20th century opinion of the country's highest claiming the president could do what he did. been found to partake more of the legisla-
law enforcement officer. tive than executive character, the analogy
History confirms the denial of an inde- That paper, actually a legal argument, con- with the removal power does not hold up.
pendent treaty termination tains highly selective quotations from au- By admitting that the defense treaty "is
y power of the thoritfes (none cited in this article appears
president, although there are minor excep- in the memo) and sets forth a dubious list technically still effect" in 1979, until the
tions explainable under principles of ordinary of alleged precedents for unilateral presi- notice 'period expires, the administration re-
contract law. In fact, the first treaty termi- jests any notion that the treaty lapsed upon
nations were done by act of Congress in 1798. lists 12 action. Although the legal adviser ninon of the R.O.C. By this and by
These were the three treaties of alliance with lists 12 precedents for independent treaty asking asking Congress for legislation to permit the
France, which were cancelled by Congress termination, he admits on the face of the other "current agreements and treaties
e-
after repeated French attacks on American brief that two were never terminated (notice effect with the government on Taiwan to re-
shipping. was withdrawn) and two more were Instances main in force," the administration admits
The second instance of termination by the in which the other nations first denounced that the authorities on Taiwan are a de facto
Tai-
United States was In 1846, 57 years after the the treaties, which seriously weakens the government in control of the territory of Tai-
Constitution was approved. President Polk relevance of the precedents. wan and that we can have dealings with
asked Congress for authority to pull out of The State Department reaches so far to them,
.a treaty with Britain yielding joint rights find an early precedent that it wrongly at- The only remaining question is whether,
to the Oregon Territory. A joint resolution tributes the first example of presidential although the president normally cannot ter-
was enacted giving him authority to provide treaty termination to President Madison. minate a treaty without further legislative
notice of withdrawal, as was authorized in This seeming rock of the State Department action, the Senate has consented to his
the treaty. This is the first known instance list is created from a passage in a letter action in the case of this treaty by having
of termination by notice and is impressive from Secretary of State Monroe in response approved language in it that allows termina-
historical evidence of what procedure is re- to the claim by the Netherlands in 1815 that tion by notice. The answer is clear that no
an earlier commercial treaty had expired. authority of this type can be inferred from
quired to carry out a treaty provision similar
to Article X of the R.O.C. defense treaty. State claims Monroe's answer appears to the treaty or legislative history.
In all, I have identified 48 instances in accept the interpretation given the treaty First, it should be noted that the pro-
which treaties have been terminated or sus- by the Netherlands. Once Monroe was presi- vision does not authorize termination after
pended by the United States .40 with the dent, however, he repudiated that meaning notice by "the president" or "executive" of
clear authorization or ratification of an act of his letter. Monroe's secretary of state, either country. The treaty uses the term
John Quincy Adams, insisted that the early- "party." This obviously means the sovereign
of Congress, joint resolution, or Senate reso-- ' er treaty had not been annulled. In Univer- authority of the state giving notice. In de-
ltion. Four others were superseded by a terminin who represents the sovereign au-
later statute or treaty in conflict with the Court t Miller, 14 N.C. 188 (1831) , the Supreme g
of North Carolina accepted President thority, it is necessary to consult the con-
'earlier treaty. The normal practice of treaty y Monroe's position and enforced the treaty stitutional processes of the state in order to
termination in the United States has been find what power makes the decision to give
t
joint action by the president and Senate or as law.
Congress. The State Department also omits men- notice and, after that decision has been
made, what power Shall actually ually transmit
Only four treaties have been cancelled by tioning in its memo that the early com- the notice. Under our Constitution, it is clear
the president entirely independent of any merial treaty had been concluded with a that whoever communicates notice, the
supporting legislative authority. The presi- different state. During the Napoleonic wars power of making the initial decision belongs
dent may - not have acted constitutionally the United Netherlands, with whom we had jointly to the president and Senate or Con-
even in these isolated cases, which are ab- signed the treaty in 1782, was absorbed into normal. In fact, Congress may not have been the French empire, entirely. disappearing as gress.
Although it is generally accepted that the
informed, and thus no.challenge was made at a separate nation. After the war it was re- president is "the sole organ of the nation
the time. But if there is any difference in formed and joined with other areas. Samuel in its external relations, and its sole repre-
the two groups of cancelled treaties, a logical B. Crandall writes the state thus erected sentative with foreign nations" (229 U.S.
explanation may be found in contract law. from the ashes of war "differed in name, ter- 304, 319-20), this proves no more than that
For in each of the situations of independ- ritory, and form of government from the it is the president who shall act as the official
ent presidential action, the other party had state which had entered into the treaty... ?" representative of the nation in communica-
first violated the treaty, it was impossible to In other words, if the treaty was annulled, ting with the foreign government. His capac-
perform the treaty, or there was a funda- it was because of the disappearance of one ity as a diplomatic organ in no way need
mental change of conditions essential to the of the parties and not because of any broad imply a power of making the critical policy
operation of the treaty and originally as- power held by the president; This is the decision required before delivery of the no-
sumed as the basis for it. In none of these stuff of which the State Department memo tice.
incidents was the reason for terminating or - is made. There is absolutely nothing in the legis-
withdrawing from a treaty the result of a Of the few alleged precedents that have tive reports and proceedings concerning the
breach or other action on our part incon- any plausible basis (three or four at most), 1954 treaty that indicates the president can
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S2130 CONGR]ESSIIONAL RIECORD - SENATE March 7, 1979
not alone in giving notice. In fact, the lan-
guage of the defense treaty differs in a sig-
nificant way from the text of the related
Formosa Resolution, which did specifically.
authorize the president to cancel it. Thus,
similar language was not used in the treaty.
The Formosa Resolution and the defense
treaty both came before the Senate at the
same time. The treaty was first considered
in committee concurrently with the resolu-
tion in January, 1955.. The resolution was
reported to the. Senate on January 28 and
signed into law on. January 29. The treaty
was reported. on February 8 and approved
by the Senates an February 8.
IF THE TREATY MEANT "PRESIDENT," WHY DID
rr SAY "PARTY"?
The Senate had each measure before it for
immediate comparison. In this setting, it is
striking that the Formosa Resolution, by its
own language, expires "when the president
shall determine that the peace and security
of the area. is reasonably assured by interna-
tional conditions created by action of the
United Nations or otherwise, and shall so
report to the Congress." The treaty, on the
other hand, provides for termination on one
year's notice by "either party."
Why, if the treaty meant to authorize "the
president" of either party to terminate it by
giving notice, did it not say so? The Senate
had before it language of the specific kind
in the Formosa Resolution, which it could
have substituted for Article X, if it meant to
.approve independent presidential action.
When it advised and consented to a treaty
containing an entirely different term, with-
out any explanation in the papers sent to it
by the executive branch or in its own hear-
ings, report, or floor debate, indicating that
the term meant something other than what
it said ("party"), this is surely conclusive
that it did not understand "party" to mean
"president."
In 1856 the Senate Foreign Relations Com-
mittee had unequivocally found that lan-
guage similar to Article X referred to "the
will of the treaty-making power," which it
defined as "the president and Senate." The
Senate, together with the president and often
with the House of Representatives, had par-
ticipated in the termination of nearly 40
treaties by 1955, virtually all of which con-
tained duration provisions similar to Article
X of the R.O.C. defense treaty. From this, if
any understanding could be attributed to the
Senate when the treaty was ratified, it was
that the term "party" meant the president
and Senate jointly.
But the State Department would not only
attribute a meaning to the R.O.C. defense
treaty of which it never informed the Sen-
ate. It would put the same meaning on dozens
of other major treaties that contain similar
provisions. For example, the North Atlantic
Treaty Alliance and our security pacts with
South Korea, Japan, and the Philippines in-
clude articles allowing either "party" to
withdraw after one year's. notice. The Nu-
clear Test Ban Treaty, the Statute of the In-
ternational Atomic Energy Agency, the Nu-
clear Nonproliferation Treaty, the Biological
Weapons Convention, the Universal Copy-
right Convention, and the Outer Space
Treaty, among others, each provide by their
own terms for termination after one year's
or less notice to the other parties. The con-
sequences of accepting the State Depart-
ment's interpretation of these provisions is
far-reaching indeed.
No matter that the Senate was not clearly
informed of what the language meant when
hidden from public discussion. After having
exploited the use of executive agreements to
the point where the president can make vir-
tually any treaty he wants by calling it a
mere executive agreement, now the State
Department is ready to usurp the power of
unmaking treaties as well.
Events in the year ahead may well deter-
mine whether the executive succeeds or fails
in this historic power-grab.
Mr. HELMS. I ask unanimous consent
also that this colloquy between the Sena-
tor from North Carolina and the Sena-
tor from New York appear in the RECORD
immediately following the colloquy be-
tween the Senator from New York and
the Senator from Arizona (Mr. GOLD-
WATER).
The PRESIDING OFFICER. Is there
objection? Without objection, it is so
ordered.
(Conclusion of later proceedings.)
Mr. GLENN. Mr. President, will the
,Senator yield?
Mr. JAVITS. I yield.
Mr. GLENN. I concur completely with
the recollection of Senator JAVITS as to
the action taken by our committee, in
this regard; because when this came up,
we deliberately did not, try to deal with
the constitutionality of the President's
authority to deal with treaty situations
or whether the. Senate should or should
not have become involved in that issue.
We separated that question from his
specifically mandated authority on how
to go about negating this relationship
with Taiwan-so far as the old treaty
was concerned.. He did adhere to the
letter of how to, do that. He did not
abrogate the treaty;. he went by the
treaty provisions. We separated that is-
sue from the constitutionality question
that the distinguished Senator from Ari-
zona has raised.
So my recollection coincides with that
of the Senator from New York. We did
not attempt to deal with the court suit
at all.
Mr. GOLDWATER. I thank both Sen- '
ators.
Mr. JAVITS. I yield the floor.
(Mr. BOREN assumed the chair.)
Mr. HARRY F. BYRD, JR., addressed
the Chair.
The PRESIDING OFFICER. The Sen-
ator from Virginia is recognized.
Mr. HARRY F. BYRD, JR. Mr. Presi-
dent, I commend the Foreign Relations
Committee for the measure it has
brought before the Senate.
In my judgment, this measure will go
a long way toward reducing the clear
threat to the security of Taiwan caused
by the precipitate action of the President
in announcing his intention to break
our defense treaty with the Republic of
China.
On balance; the pending legislation
mitigates many of the major problems
created by the President's action in
breaking the Mutual Defense Treaty be-
tween the United States and the Repub-
li f
e o Chi
na.
it gave its advice and consent to ratifying
these arguments. No matter that the execu- I listened very carefully to the open-
tive may have had a different understanding ing statement by the distinguished Sena-
than the Senate and kept silent about. it. tor from Ohio (Mr. GLENN). It impressed
When it suddenly suits the needs of ex- me as being an objective appraisal of
pediency for its policy of the moment, the the President's action. I listened care-
State Department unveils a doctrine it has fully to the presentation and comments
of' the able seni'or' Senator from New
York. (Mr: JAVrrs)' in discussing the
pending l'egislation.. I- commend both of
them and the committee for what they
have brought before the Senate.
It is a much better proposal than I
had anticipated would be brought to the
Senate: It mitigates some. of the con-
cerns that the Senator from Virginia
had on the opening day of Congress,
dealing with' the issue of Taiwan and
mainland China.
Frankly, I favor establishing full dip-
lomatic relations with. the People's Re-
public of China. It is one of the great
nations of the world; it has a population,...
larger than that of any other country.
It is important that our country and
the People's Republic have contact, that
there be a dialog between our countries.,
So I look with favor upon the establish-
ment of diplomatic relations..
What I do not favor, however; is that
-in bringing this about, the President of
the United States threw overboard a
longtime friend and ally. The Senator
from Ohio (Mr.. GLENN), in his presen-
_ tation, pointed out that the treaty of
friendship between, the. United States and
Taiwan was abrogated by the President
without consultation with the other
partner to that treaty, the Republic of
China; that, in fact, the first the Re-
public of China knew about the proposal
to terminate the treaty was when it
learned such fact, on television or over
the radio. So, that aspect of it has con-
cerned me a great. deal.
The second aspect of'this action taken
by the President late last year is much
broader than the question of Taiwan.
It seems to me that it. is important. to
establish for the future whether a Presi-
dent may unilaterally terminate a Mu-
tual Defense Treaty with other nations.
Our country has many such treaties.
Some of them are extremely important,
in the. view of the Senator from. Virginia,
to the welfare. of the United States.
I believe that a President alone does
not have the authority to terminate such
treaties. In the research that my staff
has been able to do, no case has been
found in which a major treaty with
another nation, of a. defense nature,
ever has, been. abrogated unilaterally by
a President of the United States. There
have been cases, of course, in which
minor treaties have. been set aside ; there
have been cases in which, with the out-
break of war, the treaty became, ipso
facto, nonexistent. However, so far as
I can determine, this, is the first time
that a treaty of this' consequence has
been. set. aside by unilateral action of
the executive, branch of Government.
It occurs to, me,. Mr.. President, that
before the debate on the pending legis-
lation. concludes;, the, Senate should ex-
press itself as, to what, the situation
should. be in the. future in regard to other
mutual defense treaties which our Na-
tion has throughout: the world.
I ran. across an. interesting and sig-
nificant statement. by the, then Secretary'
of State in, 1954. In 1954, Secretary of i
State John,. Foster Dulles' responded as
follows: to, an inquiiy by Senator Jenner
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CONGRESSIONAL RECORD -SENATE S 2131
of Indiana. This was the statement of To "abrogate" would mean we walked
the Secretary of State: off from the treaty completely-just
In light of the fact that your letter spe- walked off and left it, period. That was
cifically raised the question whether the De- the way we used the word "abrogate."
partment of State, under the present admin- The treaty was terminated by the Presi-
istration, claims authority to modify treat- dent in accordance with the provisions
lee, I am glad to assure you that it is my of the treaty itself. In other words, he
at
dif
t
re
y
y a
view that the Executive may mo
or a provision thereof only by the conclu-
sion of another treaty entered into by and
with the advice and consent of the Senate.
This is also the view of my advisors who
are fully aware of my position and fully
share my views.
That is the end of the quotation from
the statement of then Secretary of State
John Foster Dulles, in 1954.
I am aware, of course, that there are
many able and outstanding lawyers who
take a different view from that expressed
by the Secretary of State in 1954. I am
aware that this is a gray area, so to
speak, and that nothing really conclu-
sive is set forth in the Constitution, that
I can find, specifically denying.to the
President such a right.
On the other hand, it does seem rea-
sonable to me that when the Senate of
the United States must advise and con-
sent in the approval of a treaty, the
Senate should have some participation
in the termination of such a treaty.
I have presented a Senate resolution,
which is on the calendar, and inciden-
tally this resolution was presented by
me for myself and for Mr. THURMOND,
Mr. WARNER, Mr. HELMS, Mr. HAYAKAWA,
and Mr. GARN. That Senate resolution
states this:
It is the sense of the Senate that approval
by the Senate of the United States is re-
quired to terminate any mutual defense
treaty between the United States and an-
other nation.
Before the debate on the pending legis-
lation concludes, I likely will present this
as a proposed amendment to the legisla-
tion reported to the Senate by the For-
eign Relations Committee.
As I indicated earlier, the question is
much broader, as I see it, than just the
question of Taiwan. The question is,
What is going to happen in the future
to the many other mutual defense agree-
ments and treaties which we have with
other nations?
In summary and in ending, Mr. Presi-
dent, I again commend the Foreign
Relations Committee for the legislation
it has brought before the Senate. I think
this legislation will go a long way toward
correcting and improving some of the
problems created by the President's
action.
I commend the committee and I com-
mend the manager of the bill Senator
followed the arrangements that had been
devised within the treaty for termina-
tion of the treaty.
We used that as a difference to set it
apart from the use of the word
"abrogate."
I just wanted to spell out that clarifi-
cation because I think the way the dis-
tinguished Senator used the word "abro-
gate" was not in the same sense in which
we used it in the committee.
Mr. HARRY F. BYRD, JR. May I say
to the Senator from Ohio that I in-
tended to use it, or intended it to be
construed, in the same sense that the
Senator from Ohio construes that term.
Mr. GLENN. All right.
Mr. HARRY F. BYRD, JR. Under the
treaty either country, or the way it is
expressed, either party, either party to
the treaty has the right to terminate the
treaty by giving a 1-year's notice.
Mr. GLENN. That is correct.
Mr. HARRY F. BYRD, JR. The way
I construe the word "party," I construe
that to mean either Government.
Mr. GLENN. That is right.
Mr. HARRY F. BYRD, JR. When we
speak of the U.S. Government, I con-
strue that to mean the executive branch
and the legislative branch acting to-
gether.
Mr. GLENN. We did not address that
question of constitutionality. I think
the courts are going to be called upon to
decide that issue as has been indicated
to Senator GOLDWATER a short time ago
here in the Chamber.
I thank the distinguished Senator.
The PRESIDING OFFICER. The Sen-
ator from Mississippi.
Mr. STENNIS. Mr. President, I cer-
tainly thank the Senators who are floor
managers of the bill, and also the Sena-
tor from Kansas (Mr. DOLE).
Mr. President, the purpose of my brief
remarks, and I shall not detain the Sen-
ate over 4 minutes, is to endorse section
114 of S. 245 that affirms a continuing
interest of the United States in the
future security and well-being of Tai-
wan.
I was a cosponsor of a resolution on
this matter. The compromise language
before us today was approved by a unani-
mous vote of the Foreign Relations Com-
mittee. I hope the Senate will give its
approval to this provision by a solid vote.
GLENN, for his excellent presentation. NORMALIZATION OF RELATIONS WITH CHINA
I seek to consult with him as to . At the outset, I would like to state
whether he might consider favorably a that I favor what is called normalization
little later the Senate resolution which of relations with China, a country that
I mentioned. possesses over one-fourth of the world
Mr. GLENN. Mr. President, will the population. Our diplomatic recognition
Senator yield for a comment? ' is just that-we are officially recogniz-
Mr. HARRY F. BYRD, JR. I yield. ing them as a nation and are not forming
Mr. GLENN. I just wish to clarify the any alliance with them. We are by no
way the committee used the word "abro- means approving any form of commu-
gate" in the treaty, because I am not nism on their part, or any part of their
sure it was in the same sense as was system.
irginia. need to establish some form of diplomat-
ic relations with them so that we could
at least have ongoing communitions be-
tween our two nations. This is extremely
important since China has nuclear
weapons and the capacity to deliver
them on target.
Mr. President, I notice that emphasis
is not given to that point as much as I
think it should.
They also appear to be intent on mod-
ernizing their country, and that means
expanded trade opportunities in future
years where they will doubtless be pur-
chasers of grain, soybeans, cotton, and
other agricultural products and techno-
logical products from us.
Mr. President, this Taiwan provision
pledges that any nonpeaceful efforts to
reunite Taiwan with China would be
viewed as a matter of grave concern to
the United States. There is also a com-
mitment to provide Taiwan with defen-
sive weapons.
The United States has a moral obliga-
tion to the people of Taiwan and we
must maintain our commercial, cultural,
and other relations. Since the early
1950's, the United States has provided
$5.5 billion in military and economic aid
for Taiwan. I think that this was money
wisely spent. With our assistance, Tai-
wan used its industriousness and creativ-
ity to transform their country into a
modern and flourishing economy. I think
it is important that we continue military
and economic aid, as we.have done for
the past several years, on a credit basis.
This provision maintains that right.
I gave my fum support to the Mutual
Defense, Treaty with Taiwan 24 years
ago:. That treaty served a useful purpose
then, but. the time ' has come for the
United States to review its overall policy
in the Pacific. And I have thought this,
since we got into the war in Vietnam.
Under the terms of the treaty the United
States has notified Taiwan of its inten-
tion to terminate that treaty, but we are
certainly by no means breaking off re-
lations or turning our backs on Taiwan.
This bill is not part of a weak or mod-
erate policy in the Pacific area. To the
contrary, it states a positive policy to the
effect that we shall maintain a capacity
to resist and resort to force, if neces-
sary, in the area of Taiwan. I favor an
extension of the scope of this policy in
the Pacific area and seek allies for this
purpose.
Today we are debating important leg-
islation that reaffirms our commitment
and friendship with Taiwan while allow-
ing us to undertake a new relationship
with China. While this is an important
first step in formulating a post-Vietnam
Pacific policy, the time has come for the
United States to go forward with a new
Pacific policy which I think should in-
clude an expanded role for Japan.
For the past 14 months, several mem-
bers of the Armed Services Committee,
at my suggestion, have been reviewing
the future military policy of the Pacific
region. The Pacific study group, consist-
ing of Senators NUNN, HARRY BYRD, HART,
and TOWER are still gathering facts from
government and foreign leaders here
and abroad. The late Senator Bartlett of
Oklahoma was an active and valuable
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 S 2132
member of this group. They have so far
reached the following conclusions:
After their review of the Korean sit-
uation, they recommended that U.S.
troop withdrawals from Korea be
suspended.
Japan, an economic giant, now stands
on the verge of making a willing con-
tribution to East Asian security more
commensurate with its economic stat-
ure. There are major real increases-
recent and planned-in Japan's defense
spending. Thee is a growing Japanese
willingness to assume a larger share of
the costs of stationing U.S. forces in
Japan. I recommend that my colleagues
in the Senate review the reports sub-
mitted to the Armed Services Committee
by the Pacific study group.
There will be other reports that, I
think, will also be important, to be filed
soon.
So, Mr. President, I support this bill as
a new start, in a way, of a new policy in
the Pacific, and as a renewal of certain
protection and aid to Taiwan.
Again I thank the leaders.
Mr. JAVITS. Mr. President, will the
Senator yield?
Mr. STENNIS. If I have time.
Mr. JAVITS. I just want to say to the
Senator that I think this statesmanlike
attitude toward this matter is so much a
part of his support for the war powers
resolution which made it possible. I wish
to say that, again for history, I am deeply
grateful to him and it shows the fact that
Senator STENNIS understands the rela-
tionship between military power and
diplomatic effort.
Mr. STENNIS. Well, I appreciate the
Senator's remarks very much, and I
commend him again for his valuable,
highly valuable, contribution in the pas-
sage of that so-called War Powers Act.
Mr. JAVITS. I thank the Senator.
Mr. STENNIS. He was the kingpin.
The PRESIDING OFFICER. The Sen-
ator from Kansas.
TAIWAN ENABLING ACT
Mr. DOLE. Mr. President, I would like
to compliment the members of the Com-
mittee on Foreign Relations on the fine
product of their labor in considering the
Taiwan Enabling Act, S. 245. This was a
bill whose inauspicious conception fol-
lowed the administration's untimely an-
nouncement of the normalization of
relations with the People's Republic of
China on December 15, 1978.
SENATE NOT CONSULTED
The legislation proposed by the Presi-
dent in the wake of that announcement
was woefully inadequate in addressing
the needs of the people of the Republic
of China and the important strategic
and economic requirements of the people
of the United States. If the administra-
tion had consulted with Congress, as it
was bound to do byrthe terms of the leg-
islation cosponsored by' Senator STONE
and myself last summer and signed by
President Carter on September 26. 1978,
the period of uncertainty and tension we
and the people on Taiwan have passed
through over the last 3 months would
never have occurred. Many Senators. in-
including myself, felt constrained to
challenge the administration's bill and
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CONGRESSIONAL RECORD -SENATE March 7, 1979
its apparent intent to obliterate any ves-
tige of the valuable and trustworthy alli-
ance the United States maintained with
the Republic of China.
S. 245, WORTHY OED CONSIDERATION
The changes and modifications which
we advocated for the Taiwan Enabling
Act, after many hours of, hearings and
much labor by the members of the Com-
mittee on Foreign Relations, resulted in
a complete rewrite of the bill, including
the title, which immeasurably enhances
the safeguards for security and con-
tinued excellent relations between Amer-
ica and Taiwan. My own particular con-
cern was for the safety of Taiwan from
attack or any aggressive reprisal from
the People's Republic of China, and for
the danger this would. cause to U.S.
affairs and strategic interests.
SENATE RESOLUTION 13
For that reason, I introduced Senate
Resolution 13 to assure the Republic of
China that the United States would not
turn its back on a longtime ally. It was
vital, I felt, to convey that assurance in a
measure that specifically spelled out our
Nation's commitment to aid the Repub-
lic of China in resisting aggression.
Vaguely worded statements about gen-
eral interests of the people concerned
were not sufficient. We cannot rely on
a leadership in mainland China that
may prove to be unstable and transitory,
nor on unofficial declarations about in-
tentions that come only at politically
opportune times. That is why the much
more specific language of the Senate's
version of S. 245 is so gratifying and
necessary.
I especially would like to mention the
effort of the distinguished Senator from
Florida (Mr. STONE) to make certain
that America's strategic needs and
Taiwan's defense requirements were
spelled out in this bill.
A NORMALIZATION THAT PROVIDES PEACE
None of the changes in this bill were
made with an untoward motive of
hindering the.normalization process with
the People's Republic of China. They
were meant only to recognize the simple
reality of U.S. concerns in the Asian-
Pacific region and our desire for peace
for an old and faithful ally. If the
-Taiwanese- question is not resolved in
favor of freedom and independence, then
none of our allies, none of the people
facing oppression in the world today,
none of the nations who rely on the
strength of America and the good faith
of our commitments to dissuade stronger
and more aggressive alliances-none of
these can hope for freedom of choice
in a secure and stable future.
Mr. President, I believe, as I have in-
dicated, as ,the Senator from Kansas has
indicated, at the outset that S. 245 rep-
resents an excellent attempt to come to
grips with the concerns I have just men-
tioned.
I do have a series of eight amendments
which, I hope, can either be accepted or
adopted on rollcall votes which, I believe,
will further clarify and specify our good
intentions on the issues of security and
justice for the people of Taiwan and for
congressional oversight.
If these changes are adopted-and I
am not suggesting that everyone must
be adopted or that they cannot be fur-
ther modified-it would seem to me that
we should then go ahead and approve
the legislation.
I think, just to summarize the amend-
ment so that there might be some dis-
cussion, that I will offer one of the
amendments before I yield the floor, that
the first two amendments would remove
the more obvious and unnecessary word-
ing about the unofficiality of the rela-
tionship of Taiwan. They also follow the i
more direct language of the House ver-
sion.
The third amendment would clarify-
the. meaning of "threat" What is "a
grave concern" used in the legislation?
What is grave concern to the United
States? It would include various eco-
nomic and trade practices along the lines
of the original resolution on security,
which the Senator from Kansas intro-
duced.
The fourth amendment would prevent
Taiwan from being expelled from inter-
national organizations. If the United
States can do anything about it. That
was also a provision in one of the orig-
inal resolutions. .
The fifth amendment would make
specific that in accordance with the
Security and Assistance Act arms re-
quests from Taiwan must be reported to
the Committee on Foreign Relations,
and the status of those sales must be
reported to the Committee on' Foreign
Relations and also to the Speaker of the
House.
The sixth amendment is one that I
understand I may be cosponsoring with
other Senators, the Senator from South
Carolina (Mr. HOLLINGS), the Senator
from North Carolina (Mr. HELMS), and
the , Senator from Oklahoma (Mr.
BOREN), ' and it strikes a section that
specifically encourages the People's Re-
public of China to take Twin Oaks and
the embassy property away from Taiwan.
So the Senator from Kansas would be
joining in efforts on that amendment.
The seventh amendment would follow
the same reasoning of the first two
amendments in changing the title.
Finally an amendment to provide Sen-
ate oversight on' the selection of the
American Institute's Director who is now
chosen by the Secretary of State.
Mr. President, with reference to the
reporting amendment, many of us in the
Senate are concerned about continuing
the sale of arms to Taiwan. We are cop-
vinced that without such sales it would
be impossible for Taiwan to survive.
The President's action in putting a
moratorium on arms sales this year, per-
haps the most critical in our new.rela-
tionship with Taiwan, requires a great
deal of clarification.
The amendment that I plan to offer
initially would clarify the intent of the
International Security Assistance Act of
1978 with respect to Taiwan. It specifies
that the President will not only report to
the Committee on Foreign Relations all
proposed arms sales to the Government
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CONGRESSIONAL RECORD -SENATE S 2133
Taipei authorities. So we will know to-
tally in the Senate and in the House just
what the status is and not just the sale
itself. In this way it will be clear to the
Senate and to the American people just
what the United States is prepared to do
to help insure the security of Taiwan.
It seems to me this is an amendment
that I think would have the approval of
the administration as well as the man-
agers of the bill, and I am prepared to
offer that amendment at this time.
TIP AMENDMENT NO. 26
(Purpose: To require the President to trans-
mit to the Congress a report on certain
arms sales proposed for or requested by the
people on Taiwan)
Mr. President, I send an unprinted
amendment to the desk and ask for its
immediate consideration.
The PRESIDING OFFICER. The clerk
will report.
The assistant legislative clerk read as
follows:
The Senator from Kansas (Mr. DOLE) pro-
poses an unprinted amendment numbered 26.
Mr. DOLE. Mr. President, I ask unani-
mous consent that further reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without
objection, it is so ordered.
The amendment is as follows:
On page 14, line 24; strike out "and". '
At the bottom of page 14 insert the fol-
lowing:
"(4) the President shall transmit to the
Speaker of the House of Representatives and
the chairman of the Committee on Foreign
Relations of the Senate on or before Novem-
ber 15 of each year a report on the status of
arms sales of major defense equipment of
$7,000,000 or more or of any other defense
articles or defense services for $25,000,000 or
more, which are considered eligible for ap-
proval during the fiscal year beginning on
October 1 of such year and which are pro-
posed for or requested by the people on
Taiwan; and
On page 15, line 1, strike out "(4)" and in-
sert in lieu thereof "(5) ".
Mr. DOLE. Mr. President, I do not see
the-inanager of the bill on the floor, but
it is my understanding that this amend-
ment has been agreed upon. I also un-
derstand that there is no objection from
the State Department, and it is my hope
that the amendment might be accepted.
If the Senator from California would
prefer to wait-
Mr. CRANSTON. Mr. President, If the
Senator will yield, I think we would be
prepared to accept this amendment, pro-
vided we renumber it to go into a differ-
eht part of the bill. The language where
the Senator seeks to place it has been
very laboriously worked over. The pro-
posed language is perfectly acceptable,
but we would just like it placed in a
different place. If you will let the clerk
renumber it in the bill, it will be accept-
able.
Mr. DOLE. The Senator from Kansas
has no objection to that. We could make
it a new section.
Mr. CRANSTON. Yes.
Mr. DOLE. Mr. President, I would so
amend the amendment.
The PRESIDING OFFICER. To place
it at. the end of the bill?
Mr. DOLE. Yes, as section 115.
Mr. CRANSTON. With that under-
standing, we are now prepared to accept
it.
The PRESIDING OFFICER. This
would be section 115?
Mr. DOLE. Yes.
The PRESIDING OFFICER. Is there
objection? Without objection, it is so
ordered.
The amendment, as modified, was
agreed to as follows:
On page 15, after line 4 insert a new sec-
tion 115, as follows:
' "The President shall transmit to the
Speaker of the House of Representatives and
the chairman of the Committee on Foreign
Relations of the Senate on or before Novem-
ber 15 of each year a report on the status
of arms sales of major defense equipment
of $7,000,000 or more or of any other defense
articles or defense services for $25,000,000
or more, which are considered eligible for
approval during the fiscal year beginning
on October 1 of such year and which are
proposed for or requested by the people on
Taiwan."
UP AMENDMENT NO. 27
(Purpose: To substitute "Taiwan" for "the
people on Taiwan")
Mr. DOLE. I send another amend-
ment to the desk and ask for its imme-
diate.consideration.
The PRESIDING OFFICER. The
amendment will be stated.
The assistant legislative clerk read as
follows:
The Senator from Kansas (Mr. DOLE) offers
an unprinted amendment numbered 27:
On page 8, line 18, strike out "the people
on".
On page 8, line 20, strike out "people on".
Mr. DOLE. Mr. President, I ask unani-
mous consent that further reading of
the amendment be dispensed with.
The PRESIDING 'OFFICER. Without
objection, it is so ordered.
The amendment is as follows:
On page 8, line 18, strike out "the people
on".
On page 8, line 20, strike out "people on".
On page 9, line 6, strike out "the people
on":
On page 9, line 11, strike out "the people
on".
On page 9, line 20, strike out "the people
on". -
On page 9,, line 22, strike out "the people
on,,.
On page 10, line 12, strike out "the people
on"
On page 10, line 17, strike out "the people
on".
On page 11, line 13, strike out "the people
on".
On page ll, line 20, strike out "the people
on".
On page 11, line 25, strike out "the people
on".
On page 12, line 10, strike out "the people
on".
On page 12, line 14, strike out "the people
on".
On page 12, line 16, strike out "the people
on".
On page 12, line 19, strike out "the people
on".
On page 13, line 17, strike out "the people
on
On page 14, line 2, strike out "the people
on".
?n page 14, line 11, strike out "the people
on".
On page. 14, line 17, strike out "the people
on!%
On page 14, line 18, strike out "the people
on".
On page 19, line 6, strike out "people on".
On page 20, line 17, strike out "the people
on".
On page 22, line 22, strike out "the people
on".
Mr. DOLE. Mr. President, I would
point out that all through S. 245, the lan-
guage "the people on Taiwan" is used re-
peatedly. It seems to me that we could
simplify that language by striking those
words wherever they appear and have it
read simply "Taiwan."
This would not affect the meaning or
intent of the legislation in the sense that
our relations with Taiwan would not, in
practice, be any more or less official than
they are proposed to be. It would bring
the language in S. 245 into line with the
terminology used in the house version
of this legislation. This language has
been accepted by the Department of
State.
Mr. 'CRANSTON. Mr. President, will
the Senator yield?
Mr. DOLE. Yes.
Mr. CRANSTON. What is the basis of
the Senator's statement that the lan-
guage has been accepted by the Depart-
ment of State? It is not my understand-
ing that that is the case.
Mr. DOLE. I am-not suggesting that
this amendment has been accepted, but
I think the language in the House bill
has been accepted.
Mr. CRANSTON. I see. I thank the
Senator.
Mr. DOLE. I cannot give the Senator
assurance that that will be forthcom-
ing, although I think that is the case.
The present language presents the
prtense that we are not dealing with a
legal entity or government on Taiwan,
and is an unnecessary slight toward the
authorities with whom we must work on
Taiwan. Taipei has insisted that its re-
lations with the United States have the'
qualities of officiality and are controlled
by the Government of the Republic of
China. Any other language is both
clumsy and uncalled for.
It seems to me that this is an amend-
ment that does not require a great deal
of debate. Since I know other Senators
are wanting to speak-both the Senator
from North Carolina (Mr. MORGAN) and
the Senator from Florida (Mr. STONE)
have indicated a desire to speak-I am
prepared to vote now, or to set the
amendment aside temporarily and have
the vote follow their remarks.
Mr. President, I suggest the absence
of a quorum.
The PRESIDING OFFICER. The clerk
will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. STONE. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. STONE. Mr. President, I under-
stand that the Senator from Kansas,
who has an amendment pending, does
not object if I make a few remarks at
this point.
Mr. DOLE: Mr.. President, I ask unani-
mous consent that the amendment be
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temporarily laid aside so that the dis-
tinguished Senator from Florida may
proceed.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. STONE. I thank the distinguished
Senator.
SENATE JOINT RESOLUTION 44
Mr. President, the Orient has never
been something well-understood by Oc-
cidential man, from the time Columbus
stepped out of his ship and thought he
was in the East. In evolving American
foreign policy over the past 200 years,
our country's leaders have been only
slightly more certain of their steps.
When the bill now before us first
reached the Senate, it went only halfway
along the path that the overwhelming
majority of the American people think
we should follow. It effectively formalized
relations with Peking and shifted the
dealings of our country with the govern-
ment in Taipei to an unofficial, nongov-
ernmental relationship, but it left un-
clear exactly what that unofficial, non-
governmental relationship is and how it
will work.
After the Republic of China on Taiwan
has stood by the United States for 30
years, following our lead and supporting
our foreign policy even when others
claiming to be our friends did.not, it was
wrong for the United States, in a pell
mell rush to offset the Soviet Union in
Asia, to leave the Government and peo-
ple of the Republic of China on Taiwan
hanging onto their relationship with the
United States by only a thin, vague
thread of off-the-record assurances that
no matter what the Department of State
said in public, things would stay as they
had always been.
We have seen in the last month or so
that is not the case. Representatives of
the Republic of China on Taiwan have
been heavily pressured into agreeing
with the Department of State's demands.
They have been pushed into giving up
some of their offices in this country
through which they do business with us
in excess of $7 billion a year. They have
found themselves this week unable to
get even a piece of paper signed and
notarized. No visas are being issued in
Taiwan because the Department of State
does not want to send an official U.S.
Government check through' the banks on
Taiwan.
Mr. President. I ask unanimous con-
sent to submit a joint resolution at this
point.
The PRESIDING OFFICER. Without
objection, it is so ordered.
The resolution will be received and
appropriately referred.
Mr.. STONE. Mr. President, I ask
unanimous consent that the joint reso-
lution be printed in the RECORD.
There being no objection, the joint
resolution was ordered to be printed in
the RECORD, as follows:
S.J. RES. 44
Resolved by the Senate and House of Rep-
resentatives of the United States of America
in Congress assembled, That, notwithstand-
ing the exchange of ambassadors or the
establishment of embassies by the govern-
ments of the United States and the People's
Republic of China, the President shall con-
tinue to carry out programs, transactions,
and other activities with respect to the
people on Taiwan to the same extent and in
the same manner as provided in the memo-
randum of the President, dated December
30, 1978, relating to relations with the people
on Taiwan, except that no program, trans-
action, or other activity with respect to the
people on Taiwan may be carried out through
the American Institute in Taiwan or any
other instrumentality designated by the
President, until the Congress enacts legisla-
tion specifically providing for such program,
transaction, or activity to be carried out
through such Institute or other instru-
mentality.
SEC. 2. For purposes of the resolution, the
term "people on Taiwan" shall mean and
include the governing authority on Taiwan,
recognized by the United States prior to
January 1, 1979 as the Republic of China, its
agencies, instrumentalities, and political
subdivisions, and the people governed by it
in the islands of Taiwan and the Pescadores
on December 31, 1978.
SEC. 3. This joint resolution takes effect
on January 1, 1979.
Mr. STONE. Mr. President, I also ask
unanimous consent to have printed in
the RECORD a letter dated March 6, 1979,
which I addressed to Senator FRANK
CHURCH, chairman of the Foreign Rela-
tions Committee, and a telgram which
I received from Frank P. Parker, presi-
dent, American Chamber of Commerce
in the Republic of China.
There being no objection, the material
was ordered to be printed in the RECORD,
as follows:
U.S. SENATE,
Washington, D.C., March 6, 1979.
Hon. FRANK CHURCH,
Chairman, Senate Foreign Relations Com-
mittee, Dirksen Senate Office Building
DEAR MR.-CHAIRMAN: I agiwriting to ex-
press my deep concern and strong objections
to certain langauge in the Foreign Relations
Committee Report on S. 245. Beginning on
page 17 and continuing for several pages
thereafter, there-is a discussion-of "legal is-
sues" relating to the termination of the Mu-
tual Defense Treaty with the Republic of
China and other legal issues regarding the
Republic of China. On page 19, in connection
with a discussion of the termination of the
Mutual Defense Treaty, a. paragraph is in-
cluded which reads, '
"It appears to the Committee, therefore,
that the Constitutional prerogatives of the
Congress and the Senate have not been in-
vaded in that neither the Congress nor the
Senate has elected to exercise the powers
granted it by the Constitution to participate
in the process of treaty termination. Had
'ther done so, a different conclusion would
.:kely obtain."
I do not believe it was the intention of
.the Committee and certainly it was pot au-
thorized by the Committee, to take-.'s :posi-
tion as to whether the President's manner of
terminating the Mutual Defense Treaty in-
vaded the prerogatives of the Congress or
not. While there was discussion during the
course of the Committee's hearings, I am not
aware of an attempt by any member of the
Committee urging the Committee to take a
position such as described by this paragraph.
I am particularly concerned about the
implications which this paragraph may have
for future decisions in the foreign policy
area by the Executive Branch. It expresses
the notion that when Congress, for whatever
reason, chooses not to exercise certain Con-
stitutional powers, that Congress has en-
dorsed a particular Constitutional theory. I
strongly disagree with any such theory of
Constitutional interpretation. Finally, 'I am
concerned about the inclusion of this para-
graph inasmuch as Committee members were
not given any opportunity to review the
report before it was filed. Where it is neces-
sary for the Committee and Senate to move
as quickly as possible on important legis-
lation such as this, I believe it is particularly
important that the Committee report lan-
guage be as carefully developed, as possible
and limited as much as possible to an ex-
planation of the bill which the Committee
has agreed to report.
I would appreciate your consideration of
appropriate steps to eliminate the paragraph
to which I have referred, from the Com-
mittee report, or to have a statement by the
managers of the bill which would correct
the gross misimpression which I believe
will result if this language is incorporated
in the Committee Report. --
Warm personal regards.
Most cordially,
RICHARD (DICK) STONE.
WASHINGTON, D.C.
Hon. RICHARD STONE,
Dirksen Senate Office Building,
Washington, D.C.
Have just learned State Department
doubts consular section of American Insti-
tute in Taiwan will have power to notarize
documents after Taipei consulate ceases op-
eration February 28, clearly certain U.S.-
Taiwan commercial relationships will be
adversely affected because Taiwan notaries
customarily refuse to notarize documents in
languages other than Chinese. Although this
is relatively small item, it illustrates again
inadequacy State Department provisions for
maintaining business relations on as usual
basis.
Your continuing efforts tremendously ap-
preciated by American businessmen in
Taiwan.
ROBERT P. PARKER,
President.
Mr. STONE. When I first saw this bill
and objected to the vagueness of its origi-
nal language, I was told the vagueness
was necessary, that I should not worry
about it, that things would continue as
they always had. I did not think that
would be the case, and that suspicion
has been proved correct. The bill as
originally written would have left the
Government of the Republic of China in
some dim nether world, neither country
nor ally. '
Throughout the committee hearings
and the markup sessions, I worked with
others on the committee-the chairman
and the ranking minority member in
particular-to remove the vagueness, to
make sure it was clear exactly how the
relationship between the United States
and the Republic of China on Taiwan
would continue. Our committee rewrote
this bill, providing numerous guarantees
which were not in the original version.
In some areas, particularly the area of
military security for the Republic of
China, I feel our language falls short,
and, when offered, I intend to support
amendments strengthening our commit-
ment to the future security of the Repub-
lic of China on Taiwan.
In the area of our economic commit-
ment to Taiwan, I think this bill, now
that the committee has worked on it long
and hard, effectively assures that the
commercial ties between the Republic of
China and the United States can remain
strong.
The first thing that had to be done to
guarantee that was to define exactly who
it is we are dealing with. Under Japanese
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law, it was possible for the derecognition
of the Republic of China, the recognition
of the People's Republic of China, and
the establishment of an unofficial rela-
tionship between Japan and the Repub-
lic of China to be done by executive flat.
That cannot work in this country. It
may be all well and good to want an un-
official relationship with something
called the people on Taiwan, but some-
where along the line American law must
spell out exactly who are the people on
Taiwan.
This bill now does that by defining the
people on Taiwan as the governing au-
thority on Taiwan, recognized by the
United States prior to January 1, 1979,
as the Republic of China. That tells
Members of the Senate, the business peo-
ple and the U.S. courts exactly who it is
we have this unofficial relationship with,
and it does not breech the agreement
reached with the People's Republic of
China that the United States and the Re-
public of China would not officially have
direct government-to-government status
in their future dealings with each other.
While I still think it is not the business
of the United States to tell any country
what to call itself and we should call the
Republic of China by the name it has
chosen for itself, the language of this sec-
tion of the bill is a good compromise. The
Department of State says it can live with
it. The Republic of China can live with
it. The People's Republic of China can
live with it, and, even though it is not
what I would most like to see the United
States do, I can live with it.
Another key part of the bill comes in
sections, 102, 103, and 104. There the
committee spells out in clear, legal terms,
the intention of the United States to con-
tinue unchanged the economic relation-
ship and treaties we had with the Re-
public of China before the first of this
year. The new committee language spe-
cifically continues, in the absence of for-
mal diplomatic ties, the standing of the
Republic of China, its agencies, its corpo-
rations, and its citizens to sue and be sued
in U.S. courts. Without that guarantee,
there would be real questions as to the
validity of contracts, and the continua-
tion of American investment and trade in
the Republic of China would be imperiled.
I would also call attention to section
111 of the committee bill. The two sub-
pections there make it clear that the
property and assets of the Republic. of
China in the United States remain under
the control and ownership of the Repub-
lic of China and would not be open to
attachments or claims by or against the
government on the mainland. A major
aim of this provision is to protect bank
deposits of the Republic of China in U.S.
commercial banks-some $4 billion in
New York City banks alone.
Without this protection, the economies
of both countries would be threatened.
When Fidel Castro came to power in
Cuba, I recall all sorts of claims against
the Cuban Government established by
Castro and the assets of others from
Cuba were attached in attempts to gain
compensation for losses incurred by .
Americans in Castro's takeover. The
same thing happened earlier in U.S.
courts when the People's Republic of
China sought to gain control of assets
held in the name of the Republic of
China by the Wells Fargo Bank.
For the same kind of legal battles to
take place now over the cash reserves of
the Republic of China held in the United
States could mean an economic disaster
for the United States. The stock market
would fall, and interest rates would soar.
The language adopted in committee
avoids all that.
There is one other section I would like
to comment on. That is section 113 deal-
ing with privileges and immunities for
the representatives of the Republic of
China who are assigned to the offices of
that country's institute in the United
States. The bill simply says those repre-
sentatives shall enjoy the privileges and
immunities comparable to those provided
to missions of foreign countries while
carrying out their official duties. I sug-
gested this language to the committee,
and the members adopted the language,
following the lead of many Senators who
cosponsored my bill on privileges and
immunities.
The extension of these standard diplo-
matic privileges and immunities means
the representatives of the Republic of
China will be able to do their jobs in this
country, and it also manifests our inten-
tion to be as fair as possible to the Re-
public of China in this whole difficult
situation. When we granted the People's
Republic of China a liaison office in this
country prior to the extension of diplo-
matic recognition, its representatives re-
ceived these privileges and immunities
on a diplomatic basis. Since it was agreed
by the Department of State that there
would be no formal diplomatic recogni-
tion of the Republic of China, the privi-
leges and. immunities extended to the
members of Republic of China offices in
this country are not fully diplomatic.
They do parallel the diplomatic privi-
leges and immunities granted other for-
eign missions, however, and they do show
clearly the United States does recognize
the Republic of China is to be repre-
sented as if it were a foreign country.
There are other important parts of this
bill-not the least of which are the sec-
tions relating to security-but the sec-
tions I have outlined are those on which
I worked during the committee hearings
and which I think are absolutely neces-
sary if this new arrangement is to work.
As I said, I would like to see stronger
language on the security question-as-
serting, perhaps, that an attack on the
Republic of China would be considered a
threat to the national security of the
United States rather than simply a mat-
ter of grave concern-but on the whole,
this bill is much better than it was origi-
nally. It is not perfect, but it will work.
And under 'its provisions I am sure the
United States and the Republic of China
can continue to be close friends and will
remain profitable trading partners for a
long time.
Mr. JAVITS. Will the Senator yield?
Mr. STONE. I yield.
Mr. JAVITS. I thank the Senator very
much for his fine statement and also for
the very fine work which he did on this
52135
bill, particularly in respect of insuring
the assets of the people of Taiwan here
in this country. The Senator mentioned
New York City where the banks are very
heavily involved. He joined very effec-
tively in fashioning what was needed to
deal with that situation.
I might say, too, that my agreement
between the Senator and myself, I will
propose an amendment to section 111
which will make it clear that organiza-
tions and other entities formed under
the laws of Taiwan will also be included
within the purview of the rights which
are preserved.
That is necessary, as the Senator and
I understand, because section 101(b) de-
fining people on Taiwan speaks of the
governing authority on Taiwan, its agen-
cies, instrumentalities, and political sub-
divisions.
That may or may not include corporate
entities or comparable entities organized
under the laws on?Taiwan.
To make that certain, with the Sena-
tor from Florida I will propose an
amendment which will make that sure
in section 111.
The reason I am not doing it this
minute I would like to explain to the
Senate. It is because Senator DOLE is
raising the whole issue as to whether
we should call it the people on Taiwan or
Taiwan. So in order to have our amend-
ment technically correct we have to wait
until that is decided.
Mr. STONE. I think that is quite valid.
I thank the distinguished Senator from
New York, the ranking member of our
committee, not only for his very kind
words about my efforts at the commit-
tee level, but I want to thank him for
his terrific leadership on this issue. From
the very first day the committee started
to consider this bill, it was wonderful.
When I offered one of the clarifying
amendments to the effect that the Re-
public of China ought to be preserved in
its ownership of its assets, it was the
Senator from New York who correctly
pointed out that we needed additional
provisions, taking care not only of the
Government and its agencies but the
individuals, the corporations, the trusts,
all of which the Senator's and my
amendment, which he will offer, would
address.
Mr. JAVITS. Right.
Mr. STONE. Mr. President, the pur-
pose of the proposed amendment of sec-
tion 111 is to insure that the objectives
of the Congress, as set forth in Senate
Report 96-7, are fulfilled and to avoid
any ambiguity or potential litigation.
Senate Report 96-7 makes clear the Sen-
ate's intent that the rights and obliga-
tions of natural persons, juridical en-
tities and the authorities on Taiwan are
not affected by the normalization of
relations with the People's Republic of
China. Section 111,. as reported by the
Senate Foreign Relations Committee,
already deals with the rights and obli-
gations of natural persons and the au-
thorities on Taiwan. Section 111, as
amended, would make clear that the
term "people on Taiwan" as used in sec-
tion 111 would also include organiza-
tions and other entities formed under
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the law applied on Taiwan as well as
natural persons and the authorities on
Taiwan covered by the definition in sec-
tion 101(b). The result of the proposed
amendment is thus to avoid any impli-
cation of a diminution of the rights and
obligations of juridical entities on
Taiwan, including corporations and all
other nongovernmental organizations
and entities.
Let me close by saying that if the
Congress does not rapidly complete
action on this bill before us, we are,. at
this moment and for the days to come,
in a very difficult and dangerous situa-
tion in terms of the commerce and trade
between the Republic of China on
Taiwan and the United States. We are
in a hiatus, we are in a gap, which has
been brought about ' by the normaliza-
tion of relations and official recognition
of Peking without the establishment of
the institutions to carry on our commer-
cial relationship with Taiwan.
This is not the purpose of the Gov-
ernment or the people of the United
States. Therefore, earlier in my remarks,
I had unanimous consent to introduce a
joint resolution and a statement clarify-
ing the purpose of that resolution which
would authorize and direct the President
of the United States to continue in effect
the temporary actions justified and au-
thorized by his Presidential memoran-
dum in effect, temporarily continuing the
relationships in order to keep validating
papers and visas and the consular and
other efforts that have to be made if
trade and commerce are to continue. I
hope this bill can be enacted swiftly
enough so that we do not get into a
commercial crunch. If this does not
happen, then, week after week, the more
than $7 billion worth of trade between
the Rdpublic of China on Taiwan and
its citizens and firms and our own.U.S.
Government and our citizens and firms
get to be a little bit shaky. That is a
situation which we cannot tolerate for
too much longer.
Mr. GLENN. Will the Senator yield?
Mr. STONE. I yield.
Mr. GLENN. We are already in a
crunch. We do not have an American
Institute on Taiwan and we do not have
any money appropriated for such. an
entity. We have no authority to transfer
the embassy funds over for that purpose.
As of this moment, the things we speak
of in the U.S. Senate are in limbo in Tai-
wan until this bill is passed and until we
get the authorization and appropriation
transfererd over from the embassy to the
new American Institute on Taiwan. .
' Mr. STONE. The Senator from Ohio,
the distinguished floor manager of the
bill, is correct. If that happens rapidly,
that is fine. The resolution, though, that
I have introduced would, if passed, allow
and direct the administration to con-
tinue, on an informal, unofficial, and
temporary basis, the actions of our rep-
resentatives who are still in Taiwan and
the representatives of the Republic of
China who are still in Washington and in
this country so that we do not get into a
commercial crunch.
After all, if you lose 1 month out of a
year and the year's trade is $7 billion,
query: How much of that can we afford
and can Taiwan afford to lose? Up to this
point, it has not manifested itself too
severely, although I have received a wire,
a cable, from the American Chamber of
Commerce on Taiwan complaining and
expressing concern about this situation.
If, in the next few days, we do not get
a move on, I am afraid that we are
going to have to consider some kind of
temporary relief of the sort that I have
introduced because it is of vital economic
interest to both countries that we con-
tinue this trade.
Mr. SARBANES. Will the Senator
yield on that point?
Mr. STONE. I yield.
Mr. SARBANES. I think the point the
Senator is making is a good one. I think
it is one of the strongest arguments for
expeditious action on the legislation now
pending before the Senate.
Mr. STONE. Quite right.
Mr. SARBANES. It would, of course,
meet in every respect that at least the
committee has been- able to shape the
legislation, all of the various problems
to which the Senator has addressed him-
self. This legislation is very important in
order to enable the long-standing eco-
nomic and cultural relationships which
have existed to continue to exist. I
think the committee has acted with ex-
pedition and we are hopeful now that
we shall be able to move here, in the
Senate, on this matter in the next day
or two and complete this legislation, re-
concile our position with the House, and
place it into law. That, of course, would
then meet, in ' the most fully developed
sense possible, all of these problems.
Mr. STONE. The distinguished Sena-
tor from Maryland is correct. I just want
to say, in conclusion, that I think that
my colleagues on the Committee on For-
eign Relations were careful, were con-
structive, and were very responsive to
the business community of the United
States as well as the people and the busi-
ness community and the Government of
the people on Taiwan, the Republic of
China. We made good strides in this bill.
I am sure there will be some strength-
ening amendments offered on the floor
and that we will rapidly enact this leg-
islation so that our friendship and trade
with the Republic of, China on Taiwan
and the people of Taiwan can continue
and even increase.
The PRESIDING OFFICER. The ques-
tion occurs on the amendment of the
Senator from Kansas.
Mr. JAVITS. Mr. President, I yield
to the Senator from Ohio.
Mr. GLENN. Mr. President, the
'amendment suggested by the Senator
from Kansas goes right to the very heart
of what we have attempted to do in the
Senate Foreign Relations Committee. We
have endeavored to make the American
Institute on Taiwan an acceptable entity
that could exist with the normalization
of relations with the People's Republic
of China. We have tried to make sure
that the American Institute on Taiwan
is acceptable to both parties-acceptable
to the people on Taiwan and acceptable
to the People's Republic of China. I think
we have reached that balance. There
have been those, of course, who have
suggested that the people on Taiwan
could declare their immediate independ-
ance, a move to be a separate entity en-
tirely. I do not think that would be pos-
sible now. Some years ago, that might
have been one of the options that the
Republic of China might have wished to
consider. But I think the situation now
would be very muddled if that were the
direction in which they were to go.
As I see it, the amendment by the dis-
tinguished Senator from Kansas would
try to push a little bit in that direction.
It tries to establish a separate entity by
changing the language only this slight
amount. Both sides of the street on Tai=-
wan-the People's Republic of China
and the Republic of China representa-
tives-have said throughout the many
years past that they are all part of one.
China.
One of the few things they have agreed
upon has been that it is truly all one
China. I think it would be a drastic mis-
take if we went ahead and indicated it
was other than the one China that both
sides have said all along is the case.
So I hope, Mr. President, that my
colleagues in the Senate will sle fit to
vote against this amendment.
The committee, on page 8, already de-
fines the inclusion of the governing au-
thorities on Taiwan.
I read that section which starts on
line 19 of page 8 of the bill, as follows:
(b) Except as provided in section 205(d)
of this Act, the term "people on Taiwan",
as used in this Act, shall mean and include
the governing authority on Taiwan, recog-
nized by the United States prior to January
1, 1979 as the Republic of China; its agen-
cies, instrumentalities, and political sub-
divisions; and the people governed by it in
the islands of Taiwan and the Pescadores.
I think that is as clear a definition of
the people on Taiwan and as meaningful
a definition as anyone could come up
with.
To try to alter that to some piece
of geography, to try to redefine it at
this point, would really do gross violence '
Co the bill-the normalization process
we have brought forward.
Mr. STONE. Will the Senator yield?
Mr. GLENN. Certainly.
Mr. STONE. Was it not the intention
of our committee in this definition not
to exclude the islands of Quemoy and
Matsu for commercial purposes, but to
exclude 'them for purposes of security,
supporting assistance and security ques-
tions?
Mr. GLENN. It is my recollection that
that type of situation which did not
wish to give any military security guar-
antees to Quemoy and Matsu, from which
there have been artillery fire exchanged
for many years with the mainland. We
did not intend to inject ourselves into
that type of situation which did not
seem to be called for.
But we did not preclude there being
commercial arrangements with those
islands as part of Taiwan's operation, if
that was what they wanted.
Mr. STONE. As the Senator from Ohio
might recall, it was at that point in
our discussion when I referred to the
excellent pottery that is done on thel
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March 7, 1979 CONGRESSIONAL RECORD -SENATE
island of Quemoy and the great covered
teapot with the handle I brought back
from that island.
Mr. GLENN. I recall the conversation.
I would not vouch for the quality of the
Senator's teapot.
Mr. STONE. Not only that, but the tea
it produces is excellent.
I thank the Senator.
Mr. JAVITS addressed the Chair.
The PRESIDING. OFFICER (Mr.
ExoN). The Senator from New York.
Mr. JAVITS. Mr. President, first let
it be noted, in respect to the previous
colloquy, that the Mutual Defense Treaty
'between the United States and the Re-
public of China on Taiwan did not in-
clude Quemoy and Matsu. So even if we
sought to recreate it, we would leave
'them out.
The important point here is, question:
It avails us nothing, why should we pro-
voke the People's Republic of China
when we are just trying to get started
on some kind of better, more normal
relationship?
Yet that is exactly what this amend-
ment, unfortunately, would do.
I know my friend from Kansas and he
will tell us that all he is doing is calling
a spade a spade. But sometimes it is
unnecessary to call a spade a spade,
everybody knows it is a spade, everybody
understands and sees it, why rub it in?
That is all this is about.
Our definition includes every human
being, every corporation, every trust,
everything that will be included if the
amendment is approved, except that it
does not irritate the People's Republic
of China.
Now, I would protest, I' would irritate
them until the cows came home, if it
meant anything. But it does not, so why
do it?
Second, if there is such a thing as
propaganda in respect of these interna-
tional affairs, and I believe there is a
great deal of that, I think we are much
better off dealing with the people on
Taiwan than we are with Taiwan per se,
for this reason: If Taiwan were governed
by the people on Taiwan, then I would
say, "Well, there's a lot to that case, but
it is not." There are a good many Tai-
wanese in that government now, but it is
still governed essentially by the appara-
tus that came over from the mainland
in 1949.
Therefore, when the issue is dealing
with substantive questions and piercing
the artificialities of legal concepts, and
so forth, we really are dealing with the
people on Taiwan. Therefore, that is, in
my judgment, a far more accurate pic-
turization of the intention and design of
the issue than if we said Taiwan alone.
So, in addition to the other arguments
which have been made about the Shang-
hai communique, which of course is a
fact, the fact is that both Chiang Kai-
shek and Mao Tse-tung agreed on one
thing, that there is one China.
The important point here is that we do
not do anything for ourselves, and we
unnecessarily irritate the other side.
Last, and perhaps more decisive than
anything else, this really is a more ac-
curate description of what we are doing
in this bill.
Mr. STONE. Will the Senator yield?
Mr. JAVITS. Yes.
Mr. STONE. The Senator will recall
that the Senator from New York and I
made quite a fight in the committee early
on to get a definition into this bill which
said the Republic of China, because the
bill that we were considering when.it
came to us never said it. The most that
was offered was some explanatory notes
down in the committee report some-
where, which would not have done it,
which would not have carried it, and
would have caused our friends on Taiwan
unnecessarily to lose face for no purpose.
So the Senator from New York, the
leadership of our committee, and I
worked very hard to get a definition that
would do the job, and we have done that.
Therefore, to alter it at this point might
well just push the situation over the edge
to the point where the .purpose to be
served by friends of Taiwan might not
practically be served.
Now, I intended to support some of
the strengthening amendments to our
bill, such as I did when Senator PERCY
offered his security amendment to the
security issue at the committee level. But
to tamper with this carefully drafted and
redrafted and re-redrafted definition is
at the root of this bill, I think, and I think
the Senator from New York probably
agrees with this, it would be a bad
mistake for the friends and supporters
of Taiwan.
Mr. JAVITS. I agree.
For the reasons which I have stated
and which have been stated, Mr. Presi-
dent, I hope the Senate will reject the
amendment.
The PRESIDING OFFICER. The Sen-
ator from Kansas.
Mr. DOLE. Mr. President, I will just
take a minute.
As I have said earlier, in compliment-
ing the committee, I appreciate the ef-
forts by all three Senators who have
spoken.
Certainly I would not want to provoke
anyone or anything, but it seems to me
it is just a matter of judgment.
Their judgment has been quite good
in some areas and perhaps it could be
perfected by those of us who are not
privileged to sit on the Committee on
Foreign Relations.
I noticed that the House version treats
it differently. I do not know that any-
body has been provoked by the action on
the House side.
It seems to me that we could adopt
this amendment without doing violence
to either our friends on Taiwan or the
People's Republic of China. It does bring
the language into -somewhat more line
with the terminology used in the House
version. It seems to me that it is sort of
a clever way to pretend that we are not
really dealing with a legal. entity or Gov-
ernment on Taiwan.
I have no further points ti make. It
might be a good first vote, to see what
the temperature is in the Senate with
S 2137
reference to any amendments, and
therefore I ask for the yeas and nays.
The PRESIDING OFFICER. Is there
a sufficient second? There is a sufficient
second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment of the Senator from Kansas. On
this question the yeas and nays have been
ordered, and the clerk will call the roll.
The legislative clerk called the roll.
Mr. CRANSTON. I announce that the
Senator from Idaho (Mr. CHURCH), the
Senator from Kentucky (Mr. FORD), the
Senator from Hawaii (Mr. INOUYE), and
the Senator from Mississippi , (Mr.
STENNIS) are necessarily absent.
Mr. STEVENS. I announce that the
Senator from Oregon (Mr. HATFIELD) is
necessarily absent.
I further announce that, if present
and voting, the Senator from Oregon
(Mr. HATFIELD) would vote "yea."
The PRESIDING OFFICER. Have all
Senators present voted?
The result was announced-yeas 33,
nays 62, as follows:
[Rollcall Vote No. 10 Leg.]
YEAS-33
Armstrong
Heinz
Proxmire
Bellmon
Helms
Roth
Cohen
Hollings
Schmitt
DeConcini
Humphrey
Schweiker
Dole
Jepsen
Simpson
Domenici
Kassebaum
Stevens
Exon
Laxalt
Thurmond
Garn
McClure
Tower
Goldwater
Nelson
Wallop
Hatch
Packwood
Warner
Hayakawa
Pressler
Young
NAYS-62
Baker
Durkin
Morgan
Baucus
Eagleton
Moynihan
Bayh
Glenn
M.uskie
Bentsen
Gravel
Nunn
Biden
Hart
Pell
Boren
Heflin
Percy
Boschwitz
Huddleston
Pryor
Bradley
Jackson
Randolph
Bumpers
Javits
Ribicoff
Burdick
Johnston
Riegle
Byrd,
Kennedy
Sarbanes
Harry F., Jr.
Leahy
Sasser
Byrd, Robert C. Levin
Stafford
Cannon
Long
'Stevenson
Chafes
Lugar
Stewart
Chiles
Magnuson
Stone
Cochran
Mathias
Talmadge
Cranston
Matsunaga
Tsongas
Culver
McGovern
Weicker
Danforth
Melcher
Williams
Durenberger
Metzenbaum
Zorinsky
NOT VOTING-5
Church
Hatfield
Stennis
Ford
Inouye
So Mr. DOLE's amendment (UP No. 27)
was rejected.
Mr. GLENN. Mr. President, I move to
reconsider the vote by which the amend-
ment was rejected.
Mr. JAVITS. I move to lay that motion
on the table.
The motion to lay on the table was
agreed to.
UP AMENDMENT NO. 28
(Purpose: To clarify the definition of "People
on Taiwan")
The PRESIDING OFFICER. The
Chair recognizes the Senator from New
York. -
Mr. JAVITS. Mr. President, I send an
amendment to the desk and ask that it
be reported.
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S 2138
CONGRESSIONAL RIECORD- S7ENAT]E Alarch. 7, 1979
The PRESIDING OFFICER. The clerk
will report.
The second assistant legislative clerk
read as follows:
The Senator from New York (Mr. JAVrrs)
for himself and Mr. STONE proposes an un-
printed amendment numbered 28:
On page 12, at the end of line 12. insert
the following:
For the purposes of this section 111, the
term "people on Taiwan" includes organiza-
tions and other entities formed under the
law applied on Taiwan.
Mr. JAVITS. Mr. President, I believe
this amendment will be acceptable, and
I would like to explain it to the Senate.
The purpose of the amendment is to
make clear that the term "people on
Tah7an" as used in section 111 includes
organizations and other entities formed
under the law applied on Taiwan, as well
as natural persons and the authorities on
Taiwan. The result of the proposed
amendment is thus to avoid any implica-
tion of a diminution of the rights and
obligations of corporations and other
nongovernmental entities on Taiwan.
Section 101(a) was adopted in order
to make it clear that the power of suing
and being sued in the courts of the
United States-
Mr. GLENN. Mr. President, may we
have order?
The PRESIDING OFFICER. The Sen-
ate will be in order. We will have order
in the Senate.
The Chair recognizes once again the
Senator from New York.
Mr. JAVITS. Shall not be affected by
the fact that the United States has recog-
nized the People's Republic of China, and
the right of action in all of these cases
is already preserved both by the defini-
tion of what we mean by "the people on
Taiwan" contained in section 101(b) , and
also by other provisions of this act which
relate to the preservation of all rights in
both people on Taiwan as defined to
mean the "governing authority on Tai-
wan recognized by the United States prior
to January 1, 1979 as the Republic of
China; its agencies, instrumentalities,
and political subdivisions; and the people
governed by it in the islands of Taiwan
and the Pescadores."
This amendment is intended to make
it clear that, in section 111 when we
speak of agencies, instrumentalities, and
political subdivisions, we not only refer
to the governing authority on Taiwan,
heretofore known as the Republic of
China, as well as the people governed
by it but we refer also to all forms of
nonofficial, nongovernmental artificial
persons, legal entities, corporations,
trusts, and other entities organized
under the law applicable on Taiwan.
In order to make that crystal clear, the
banks and other enterprises which hold
important assets of those entities believe
that this particular provision should be
included, to remove any possibility of
wrong inferences being drawn in respect
of any potential actions at law.
I think the amendment only buttresses
what we have already said, and I hope
it may prove acceptable to the other
manager of the bill.
The PRESIDING OFFICER. The Sen-
ate will please be in order. The Chair
recognizes the Senator from Ohio.
Mr. GLENN. Mr. President, the Sena-
tor from New York and the Senator from
Florida, in proposing this amendment, I
think, have done an excellent job in
bringing to our attention a fact on
which the committee probably did not
put sufficient stress, American interests
in Taiwan. Our trade with Taiwan was
$7.2 billion-last year, and it is expected
to reach $9 billion to $10 billion in 1979,
$500 million in private investment in
Taiwan.
So I think, in advancing this in the
interests of financial stability and in the
interests of the banking community that
deals back and forth on a daily basis in
these huge numbers in Taiwan, I am
quite willing to accept this, and I think
it is a good addition to our legislation.
Mr. JAVITS. Mr. President, may I
say that Senator STONE made his argu-
ment for this amendment when he made
his speech a little while ago, which im-
mediately preceded action on the preced-
ing amendment.
We are ready to vote.
The PRESIDING OFFICER. The ques-
tion is on agreeing to the amendment
of the Senator from New York.
The amendment was agreed to.
Mr. JAVITS. Mr. President, I move
to reconsider the vote by which the
amendment was agreed to.
Mr. HELMS. I move to lay that motion
on the table.
The motion to lay on the table was
agreed to.
Mr. JAVITS. I thank the Chair.
Mr. HELMS. Mr. President, I believe
the distinguished Senator from New
Hampshire (Mr. HUMPHREY) has an
amendment, and I will yield to him.
The PRESIDING OFFICER. The Chair
recognizes the Senator from New
Hampshire.
UP AMENDMENT NO. 29
Mr. HUMPHREY. I thank the Senator
from North' Carolina.
Mr. President, I send an amendment
to the desk and ask that it be stated.
The PRESIDING OFFICER. The clerk
will report.
The legislative clerk read as follows:
The Senator from New Hampshire (Mr.
HUMPHREY) proposes an unprinted amend-
ment numbered 29.
Mr. HUMPHREY. Mr. President, I ask
unanimous consent that further reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without
objection, it is so ordered.
'The amendment is as follows:
On page 8, line 19, strike out "section 205
(d)" and insert "subsection (c) :
"For the purpose of applying section 102
of this Act to the Internal Revenue Code of
1954, and to any regulation, ruling, decision.
or other determination under such Code,
the term "people on Taiwan" shall mean the
governing authority on Taiwan recognized
by the United States prior to January 1,
1979, as the Republic of China and its agen-
cies, instrumentalities, the political subdivi-
sions; except that when such term is used
in a geographical sense it shall mean the is-
lands of Taiwan and the Pescadores."
On page 10, strike section 106(a) and in-
sert the following new subsection (a) :
"Programs, transactions, and other rela-
tions conducted or carried out by the Presi-
dent or any department or agency of the
United States Government with repsect to
the people on Taiwan shall, in the manner
and to the extent directed by the President,
be conducted and ,carried out by or through
the Liaison Office to the Republic of China
(hereinafter 'the Liaison Office'). Under such
terms and conditions as are consonant with
the purposes of this Act, the President shall
extend, or enter into an agreement extend-
ing, to the Liaison Office to be established in
the United States of America by the Republic
of China, and to-the members thereof, the
same privileges and immunities subject to
the corresponding conditions and obligations
as are enjoyed by diplomatic missions ac-
credited to the United States and members
thereof, upon the condit'lon that privileges
and immunities are extended on a reciprocal
basis to the United States, Liaison Office on
Taiwan at no less than the level etablished
herein.'.'
Strike "Institute" wherever it shall appear
and insert in lieu thereof "Liaison Office".
On page 10, strike out section 106(b).
Beginning on page 16, line 1, strike all
through page 20, line 6.
On page 20, line 17, after the word "Tai-
wan", strike out "on an unofficial basis".
Beginning on line 18, strike all through page
21, line 4.
On page 22, strike out subsection (b) and
insert in lieu thereof:
"(b) For purposes of subsection (a), the
term 'agreement' includes any agreement
entered into between the Liason Office and
the Taiwan authorities or the instrumen-
tality established by the Taiwanese author-
ities."
Mr. JAVITS. Mr. President, may we
ask the Senator a question in connection
with this amendment? I note the Sena-
tor's amendment affects different parts
of the bill. Is it all one idea or are they
different.
Mr. HUMPHREY. It is one idea, one
field.
Mt. JAVITS. I thank the Senator.
The PRESIDING OFFICER. The Chair
recognizes the Senator from New
Hampshire.
Mr. HUMPHREY. Mr. President, over
the years, many polls have been taken
on the attitude of the American people
toward the China issue. One consistent
result has been opposition by a majority
of Americans toward the recognition of
mainland China at the expense of the
Republic of China. Flying in the face of
the will of the people, the administra-
tion has taken just this action, and we
have been brought here now, not to put
the finishing touches on the policy that
will best protect the security of the west-
ern Pacific area, but to salvage what-
ever is possible to insure the survival of
the Republic of China as a free nation.
Next to the question of recognition
itself, the most important matter to be
determined is the legal nature of our new
relations, given the absence of recogni-
tion. Thus, today I am introducing an
amendment which would eliminate the
While House's planned American In-
stitute on Taiwan and establish in-
stead government-to-government rela-
tions through an official U.S. Liaison
Office in Taiwan.
Mr. President, there are a -number Of
reasons which can be given in favor o$
this change, and which I will describe
during the course of my remarks. But
the first and most powerful argument
is that of simple fairness.
From 1973 through the end of 1978 our
relations with the People's Republic of
China were conducted through a liaison
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March 7, 1979 CONGRESSIONAL RECORD- SENATE' 82139
office. Yet the creation, and later the his back on two others. On the one hand, by or through the department or agency
continued existence, of this liaison office he is attempting to ignore the undis- of the United States on behalf which the
in Peking was strongly supported in a. putable geographical fact that Taiwan Institute is acting."
bipartisan manner by three administra- exists, and that 17 million people live on So it will be a Government agency in
tions. Moreover, when the concept was it. Let us put this in context. There are everything but name. It will function
first broached, a flurry of legislation oc- countries with less than one-tenth of like one, it will be monitored and funded
curred in Congress in its support. It was Taiwan's population, with less than one- by Congress as though it were one, and
argued that the importance of our rela- tenth of its GNP; there are tiny countries its employees will receive Government-
tions with the People's Republic of China most Americans never even heard of-all level salaries and benefits out of the U.S.
and the level of contact merited no less of which the United States sees some Treasury. But we are nevertheless asked
than a liaison office. Given the scope of value in having relations with. Bearing to pretend it is not one, because to do
our relations with Taiwan, the argument this in mind, what kind of sense does it so would irritate our Communist adver-
applies equally to this situation. make to turn our backs on Taiwan? saries. It is difficult to accept this non-
I find it astounding that an argument The other reality he is ignoring is sense.,
which on its face speaks for itself should that, as Dr. Cline explains, there are two Another point can be cited which un-
be so easily cast aside by the adminis- Chinese states and two Chinese Govern- derscores still further the absurdity of
"tration. ments, and this has been the situation the situation. We. still have, and will con-
Many reasons are given, but the funda- for exactly 30 years. President Carter tinue to have for the remainder of the
mental one is fear that government-to- said we should recognize reality. Reality year, a Mutual Defense: treaty with Tai-
government relations with Taiwan will is duality. The United States needs dual wan. How on Earth can a country recog-
anger Teng Hsiao-ping. relations, noerelationship with Peking, nize another for purposes of its defense
This is a symptom of the malaise af- one with Taipei. There is no reason in the case of a threat, yet refuse to es-
fecting our overall foreign policy. In- under normal standards of international tablish a liaison office within its terri-
creasingly, we are permitting our for- laws and custom why these relationships tory? This contradictory logic will have
eign policy to be dictated, not by our na- should not be equal. Thus, recognizing practical implications as well. The sec-
tional interests or by the factors which the existence of the People's Republic of essary military contact, growing out of
will best protect regional security. but China. a.c a. separate a
f;'a
d
___ . _ __
-
_ nee
have
of o
e na
o
af
our adversaries.s
-h
ti
,
wy
Prof. Ray Cline of the Georgetown In-
stitute on Strategic and International
Studies, in his testimony before the Sen-
ate Foreign Relations Committee, de-
scribed the President's proposal as "a
Chinese fortune cookie baked by Com-
munist Vice Premier Teng Hsiao-ping.
It is being handed to you by the White
House and the State Department, but
the message inside was written by
Peking." it is preposterous that we would
be allowing the People's Republic. of
China to dictate our policy toward Tai-
wan; to say that we have no recourse as
the President seems to imply, is a sad
statement on our national decline from.
power.
In many ways it is particularly unfor-
tunate to make Taiwan the victim of our
deteriorating foreign policy. The Repub-
lic of China has been an unswervingly
loyal ally of the United States, dismissing,
the benefits which might have accrued
to, it from an informal alliance with the
Soviet Union against the Chinese main-
land.
I might add, Mr.. President, that while
I was in Taiwan some weeks ago, some
of us asked a. high official of the Republic
of China why they had not played their
"Russian card."
Their answer was, "You may have
given up your principles, but we have
Moreover, in only 30 years' time. its
people have turned a backward island
with a rural economy into an Asian
showcase of prosperity. All of us who
have visited Taiwan have been deeply
impressed by the commitment of the
Taiwanese to increased economic pros-
perity and the retention of the freedom
they now enjoy.. It would be reprehen-
sible for the United States to take any
actions that endanger. the benefits they
have worked so long to reach.
It is. Ironic that President Carter's
change in the U.S. Policy is partially
based on the premise, of recognizing real-
ity. But in practice;, in recognizing one
reality, that of the PRC, he is turning
ence of the Republic of China -..-T "" N-uv,ue aiwan witn
In his excellent minority views on more sdiflicultmby the nature of rendered
the ties
S. 245, the distinguished Senator from foreseen by the administration.
North Carolina. (Mr. HELMS) argues that Mr. President, the bill which Congress
there is a "calculated ambivalence" in ultimately approves will not settle all
our new policy "which can be explained questions on the: China, issue. The need
only by fundamental intellectual dis- for decisions;, many of them crucial, will
honesty." He describes his logic arise with time and be left to the discre-
eloquently: tion of the administration. The source
The Institute is an attempt to yoke to- of many of these questions will be the
gether two logically contradictory proposi- administration's, ambivalent position on
tions under a semantic. gloss in order to
avoid the inherent consequences of our ac- sovereignty over Taiwan. In the Shang-
tions. The New, China policy seeks to deny hai Communique and President Carter's
the jurisdical' existence of the sovereignty December 15,. 1978, statement, the official
exercised' by the government, of the Republic U.S. position is respectively that of "ac-
of China, while, at the same time reaping know.ledging?" and "recognizing" that
benefits which can be conferred only by both Chinas feel there is but one China,
recognizing that sovereignty. of which Taiwan is a. part. Ostensibly,
Put in other words, the United States the use of, these terms rather- than "ac-
wishes to retain such ties as will allow it ceptance" of this premise: on the part of
to pursue its interests, and in connection the People's Republic of China puts us in
with. these, dear with the elected author a neutral position.. Against, this, however,
ities of the Republic of China, thus must be weighed. our current diplomatic
tacitly admitting their legitimacy. All recognition of the, People's Republic of
the. while, however, we will be busy pro- China and our rejection of the legitimacy
claiming that they lack such legality. In of the Republic of China Government.
summary, we will treat the Republic of When this: is taken into, account, our os-
China Government as a government, but tensibly neutral position changes to one
deny that it. is one. Such a policy, as close to recognition of the People's Re-
Senator HELMS observes, "can be ex- public of China sovereignty over Taiwan.
plained only by fundamental intellectual Mr: HELMS. Mr. President,, will the
dishonesty."' Senator yield for one moment at that
The. charade we are asked to under- point?
take is a particularly flimsy one con- Mr. HUMPHREY. I yield.
sid'ering, the strong quasi-governmental Mr. HELMS.. I concur with the Sen-
underpinnings of the proposed Institute. ator's amendment. I think it is an im-
In virtually every respect it will function porta.nt, one and would like to have a
as, though it, were a U.S. agency. Em- rollcall vote. I note that there are enough
ployees will be paid at the same rate as Senators: present for a. second. Perhaps
though they were in Government serv- we. could get, the yeas and nays on the
ice,: and their service will count toward Senator's amendment, if he wishes.
Government pensions. The funding for Mr. HUMPHREY. Very, well. I am al-
the Institute will come from the U.S. most finished, and will be glad to yield
taxpayers, and audits of its books are to then.
be performed, by the Comptroller Gen- Mr. HELMS. All right.
eral of the United States. Finally, the Mr. HUMPHREY. I thank the Senator.
bill?.provides that,"agreements and trans- Administrations statements have done
actions made: or to, be made by or little to reassure this; concern. Prof., Ray
through the Institute shall be subject. to Cline has colorfully described the spokes-
the same congressional notification, re- men for the new China. policy, in 'their
view and approval requirements and pro- appearances before the, Foreign Rela-
cedures as if such agreements were made tions Committee, as-
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S 2140 CONGRESSIONAL RECORD -SENATE March 7, 1979
bobbing and weaving in the face of . Members of this body are not fooled by
questions to avoid making any legal binding it. '
governmental commitment to Taiwan's se- I repeat, the essence of S. 245 is the
curity or permanent ties with the United acceptance by the U.S. Senate of Peking's
states. contention that Taiwan is merely a re-
This situation raises important ques- bellious province of the People's Republic
tions about our reaction to an economic of China.
boycott or actual military aggression by I reject it absolutely, and invite my
mainland China against the Republic of colleagues to join with me in rejecting
China. Will the United States in fact the contention by voting for my amend-
respond? Or will a determination that ment to S. 245, which amendment would
the problem is a strictly internal one require the liaison office in Taiwan.
prevent us, the language in S. 245 not- The PRESIDING OFFICER. The Chair
withstanding, from helping Taiwan? recognizes the Senator from North Caro-
Having government-to-government lina.
relations will not solve this problem by Mr. HELMS. I do not want to preempt
itself, but it will be of significant assist- the distinguished sponsor of this amend-
ance. It will be acknowledgment of the ment. Does he desire the yeas and nays
sovereignty of the Republic of China and on this amendment?
the legality of its government. Mr. HUMPHREY. I do, yes.
It can be argued that the Republic of Mr. President, I ask for the yeas and
China's recent acceptance of the Ameri-
can Institute on Taiwan obviates any
need for further discussion of govern-
ment-to-government relations. Such a
position, however, ignores many of the
facts. From the time of the President's
announcement on December 15, the Re-
public of China Government took the
firm position that nothing less than rela-
tions at an official level would be ade-
quate. It continued to hold staunchly to
this position for 2 months. When it
finally softened its stand, it was only
days away from the March 1 deadline
for the old relations to lapse. With so
much at stake, including the possibility
that the old ties would be replaced by an
absolute vacuum, it is safe to presume
that the Republic of China was in no
position to bargain. Even now, however,
its official position remains that govern-
ment-to-government relations would be
preferable.
Mr. President, all this amendment
seeks to do is insert some degree of fair-
ness in our future relations with Taiwan.
If it was proper to have government-to-
government relations' with the People's
Republic of China at a time when we did
not recognize its government, it can be
no less proper to have such ties with the
Republic of China now that we have
withdrawn recognition from it. To have
an agency that in every way acts like a
government agency but which we are
supposed to pretend is a private entity is
a sham, and a slap in the face at a loyal
ally. We should not let the concerns of
mainland China establish the priorities
for American foreign policy.
Mr. President, the essence of S. 245 is
the acknowledgment by this body of
Peking's claim to Taiwan. Those who
vote for the American Institute idea and
the Taiwan counterpart in this country
nays.
The PRESIDING OFFICER. Is there a
sufficient second? There is a sufficient
second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The Chair
recognizes the Senator from North Caro-
lina.
Mr. HELMS. What the Senator is say-
ing, in effect, is that we had a liaison of-
flee previously in Red, China, and that
was at the time we were recognizing Tai-
wan. Now it is -just why not the reverse?
Mr. HUMPHREY. That is correct. We
had a liaison office in Peking. Now the
question is why should we do less for our
friends than we did for our Communist
adversaries.
Mr. HELMS. I will say to the distin-
guished Senator that a great many
Americans are asking that question today
in connection with the legislation pend-
ing before the Senate. Again, I commend
the Senator from New Hampshire for
his amendment.
The PRESIDING OFFICER. The
Chair recognizes the Senator from Ohio.
Mr. GLENN. Mr. President, I believe
the first thing to be said about the
amendment is that we cannot force the
Taiwanese to say that there are two
Chinas. They have consistently held to
their view that it has been only one
China, although they were on the island
and there were some nearly 1 billion
other people of Chinese heritage on the
mainland. They have consistently agreed
that there were not two Chinas.
The difference between the situation
with the liaison office in Peking and the
liaison office on Taiwan is very simply
one of acceptance by boah parties. In
the previous situation, when we have
maintained an Embassy on Taiwan and
a liaison office in Peking.
linating Council on North American Af-
fairs, and which will also serve as coun-
terpart of our American Institute on
Taiwan.
I think that the bill we have here, Mr.
President, has achieved everything short
of the official ? relations that the distin-
guished Senator might wish to provide.
We are providing immunities and arms
sales. At this point, it seems to me that
to upset it by mandating a liaison office
on Taiwan would only rupture the entire
agreement and, in fact, work to the detri-
ment of the people on Taiwan.
We had a discussion earlier this after-
noon of the current status of the people
on Taiwan. They are in limbo of sorts be-
cause we do not have a replacement for
the embassy, we do not have the Ameri-
can Institute, and we do not have the ap-
propriations or authorization to trans-
fer the formal embassy funds over to op-
erating that institute. In fact, our trade
and commerce that we have right now is
in fact in limbo and operating on a day-
to-day basis until we get this new in-
stitute established. -
I would hope that we would not see fit
to take a chance of rupturing this entire
agreement. I think it would stand an ex-
cellent chance of not only being vetoe&
once we finish our work on it, but I think
it would stand an excellent chance of
being turned down by the People's Re-
public of China-even perhaps the peo-
ple on Taiwan.
I have had two groups visit me in the
last few weeks from Taiwan and they are,
very much concerned that we begin to
make this new relationship work, and
that our trade patterns not be unduly in-
terrupted with Taiwan.
I am sure that the people of Taiwan
would not agree with upsetting things
any further than they have already been
upset.
Furthermore, one last argument I
think is key. U.S. interests have to come
to the fore today. Our best interests in
this country are certainly not served by
twisting the tail of the PRC or furthering
any disagreement with them., Since the
people on Taiwan have accepted this new
relationship and are trying to make it
work, I think we would be well advised to
go along with. what has been provided in
this bill and not upset it by trying to re-
establish an official diplomatic relation-
ship, even. at the low level of a liaison of-
fice, which this amendment would do.,,
The PRESIDING OFFICER. The Chair
recognizes the Senator from New York.
Mr. JAVITS. Mr. President, naturally,
this amendment could be divided. It is
perhaps improper to apply it to the whole
act.
For example, it has within it the state-
ment, "strike 'institute' wherever it shall
appear and insert in lieu -thereof 'liaison
office.' " I assume that means through-
out the bill. It could be objected to as to
form and so forth, but I have no desire to
do that, and I will not. That is why I ask
the Senator if it is one idea. If it is, we
will vote on it as one concept and there
is no point in fractionating it.
I am opposed to the concept because,
Mr. President, this is really a case of the
tail wagging the dog. We have an historic
problem. Here are 800 million to 1 bil-
are saying to the world, "Yes, Taiwan is The Government on Taiwan did not
simply a rebellious province of the Peo- object to that as far as I know. They
ple's Republic of China." I reject that, may have made some comments but
Mr. President. The People's Republic of there were no serious objections to it.
China has never ruled Taiwan. The free That is not the case now.
people of Taiwan have no wish to be The new relationship has been estab-
ruled by the Communists on the main- lished and predicated on the fact that
land. there would not be that dual recognition
Mr. President, this American Institute of two Chinas by the United States
proposal is a sham. The People's Repub- which neither side of the strait agrees
lic of China is not fooled by it; the Re- with. In fact, the authorities on Taiwan
public of China is not fooled by it; the have already accepted the unoffi-
world is not fooled by it; the American cial offices which will be created by the
people are not fooled by it; and many establishment here of a Taiwan Coor-
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March 7, 1979 CONGRESSIONAL RECORD - SENATE
lion people in the world with whom we
enjoy no effective relationship except by
sufferance of a liaison office, which was
understood to be a threshold proposition
leading toward a normalization of rela-
tions which was so established. Indeed, I
wish to refresh the Senate on a little bit
of that history.
The fact is that this subject of a re-
view of our policy with the People's Re-
public of China was first broached in
1970. I had the honor in that year to
be the delegate from the Senate to the
United Nations General Assembly. The
speech which I wrote on that occasion
called for review of our China policy.
President Nixon endorsed that speech.
He then went further in 1971 by seeking
normalization with the People's Repub-
li0 of China, and then making his fa-
mous trip to Peking preceded by that of
Dr. Kissinger, which first opened the
door to the possibility of normalization.
The liaison office was a step in that
process. It was not an isolated thing, nor
was it a post script to another relation-
ship, like what it would be with Taiwan.
(Mr. TSONGAS assumed the chair.)
Mr. JAVITS. It was an original action
leading up to another state of relation-
ships between us and. the People's Re-
public of China, which has now been
consummated. So let us not live in a
dream world. We have decided not to
butter up the People's Republic. They
could not care less whether we-butter
them up or not. I think we will be treat-
ing them rather roughly in days ahead,
just as they will be treating us. I assure
you, you will not see the end of acerbic.
criticism in the United Nations or else-
where by the People's Republic of us, nor
by us of them, any more than you see it
with the Soviet Union.
But any illusion that we are in some
alliance with the People's Republic of
China is, in my judgment, out of the
question.. I would not be for it if that
were the case. I do not want an alliance
with the People's Republic of China, but
I want access to them and I want an op-
portunity to deal with them as I would
deal with any other country. And I want
a representative in Peking with as much
standing and authority as the Russian
ambassador has.
I should like to open up China to jour-
nalists, travelers, trade and cultural in-
terchange in a way that is only halting
and inadequate when it is left. to the liai-
son office concept. That is why we are
doing this. We are not doing this to suit
them, we are doing it to suit us.
It was clearly written into the contract
which we are now making in terms of
recognition that we would accept the
special status of Taiwan as they would.
This is not a one-way street. There is
nothing that would prevent the People's
Republic of China from trying to suffo-
cate Taiwan tomorrow, causing us to in-
voke the mutual defense treaty, I think
every Senator who wants to vote for this
had better understand that this calls off
the deal. That it is not the deal we made.
It could be right, it could be wrong. It
could only be semantics or it might be
rear. But that is the deal we made. So
if you want to normalize relations with
the People's Republic of China, you can-
not vote for this amendment. If you do
not, vote for it, by all means.
I think it is very unwise. I think we
should normalize. I think that is essen-
tial to our own future. in the world. But
if you do not want to do it, this is an
ideal opportunity to dump it. That is the
realistic part of this equation.
As to the mechanics of the liaison
office, I think it is very clear that we have
had a liaison office with the People's Re-
public by arrangement. That arrange-
ment was a step in the direction of nor-
malization. That does not equate with a
liaison office with Taiwan, because as
far as Taiwan is concerned, that would
be substituted for an embassy, which is
what we had before. That would really be
an artificial smokescreen. It would have
the same rights, the same privileges, the
same duties, except we call it a liaison
office. So it defies the whole objective,
which is to recognize what both Chiang
Kai-shek and Mao Tse-tung always con-
tended-that is, that there is one China,
and Taiwan is a province of China-
but, at the same time, to protect the eco-
nomic and social and, indeed, political
system. on Taiwan.
I think it is. a fair settlement and a
settlement highly in the interests of the
United States. We feel just as strongly,
and we made it clear to the People's Re-
public when we did the deal, that we are
going to supply them with arms, but we
are not going to let them be subdued by
force, direct or indirect. We told the
People's Republic, "If you try it, you take
us on." Would they not have the right to
say the same thing to us? It is not up to
us to say that they are arbitrary in not
tolerating this as an amendment to the
deal, which they will not.
So, in my judgment, we have to make
the fundamental decision. That is the
fundamental decision. That is their part
of the bargain. We are getting our part
of the bargain. We are getting in there
on a. reconized and established basis.
Their part of the barain is that we
should not have an official relationship
of an embassy or what is tantamount to
an embassy with the people on Taiwan.
In my judgment, we have very carefully
architected a bill which does everything
in substance that we need to do without
invalidating the deal. I think the deal is
so desirable in the national interests of
United States that I do not want to see
it invalidated.
Therefore, Mr. President, I am against
this amendment and I hope very much
that it will be rejected.
Mr. HATCH and Mr. GLENN ad-
dressed the Chair.
The PRESIDING OFFICER. The Sen-
ator from Ohio is recognized. .
Mr. GLENN. Mr. President, at the ap-
propriate time, I shall move to table the
amendment. I do not want to shut off
debate now. I just want to notify my col-
leagues that I shall move to table it.
Mr. HATCH. Mr. President, I want to
compliment the distinguished Senator
from New Hampshire for. his approach
here. Frankly, one of the arguments
which has been used by proponents of
normalization-and I should set the rec-
ord straight; I am for normalization of
relations with mainland China, but not
S 2141
at the cost of abdicating our responsibili-
ties to the people of Taiwan. I think it
is a failure on our part- not to recognize
900 million people in this World. But I
think there is a way of doing that with-
out necessarily kicking our friends in the
teeth or acting in ways which some peo-
ple in our society, and throughout the
world have considered to be dishonorable.
As I understand it, all the distin-
guished Senator from New Hampshire is
asking is that we have a very simple
process of a liaison office in Taiwan to
show that we have not totally rejected
these people;, that we have not, in our
abrogation of the treaty with them, for-
gotten that. they exist;, that we do have
respect for them and that we should, at
least, give them some benefit when you
consider that we have done the same for
the mainland Chinese for some years
since President Nixon allowed it to occur.
I do not think establishing a liaison
office necessarily, has, to destroy the rela-
tionship with mainland China. I am not
sure that that argument, really should be
offered.. But if that is: the way it is, then,
as far as I am concerned,, sa be it, because
that is not too much to ask of this great
Nation, to recognize that we do have a
moral commitment, to the people on Tai-
wan and that a. liaison office may help us
to keep, those moral commitments alive
and the trade relationship which has ex-
isted in response to those moral commit-
ments and many promises through the
years in a good legal status.
I should like to join as. a. cosponsor in
this amendment. It is not with a desire to
scuttle any reasonable recognition of the
mainland Chinese; it. is with a, desire not
to scuttle the moral commitment that we
have to the people on Taiwan, and our
desire to recognize that we have entered
into some 59. trade agreements with them
in response to., many moral commitments
by many Presidents of this country who
have indicated that we will not let them
down, that they will always be our
friends, and that we will always be com-
mitted to them.
In my humble opinion, we have let
them down, and to not even have a liai-
son office,. it seems to me;. in our fear that
we might not be able to sell Coca-Cola or
have business, or even have a political
relationship, which would be higher than
the prior two categories with the people
of mainland China would be, I think, is
pretty shortsighted. on our part.
Ihave also been interested in the argu-
ment which has always been made by
those who are proponents of recognition
of mainland China that both Taiwan
and mainland China want a one-China
policy. Well, that is hardly the way to
put it. I think that that is. an overglossing
of what both of them want. Taiwan
wants a one.-China policy as long as Tai-
wan controls that. one. China. Mainland
China wants a. ones-Chin& policy so long
as mainland China controls that one
China. As I view it ethically, philosophi-
cally, and mathematically, that means a
two-China policy, because there are two
different entities: here who. want to be
dominant and who- want. to control that
one China.
I do, not: believe;, from having chatted
with a great number- of Taiwan people,
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CONGRESSIONAL RECORD -SENATE March 7, 1979
that they would be dissatisfied with this
amendment. As.a matter of fact, I had
great reason to believe that they would
be very pleased, under present circum-
stances, that we would favor them to this
limited extent, especially since we have
disfavored them to such a great degree.
I do not care what anybody says about
this issue; we all have to look at it with,
at least a certain degree of shame-the
way it occurred, the timing in which it
occurred, the process in which it oc-
curred, the zealous approach to achiev-
ing economic advantage, and the loss of
prestige which has inevitably resulted.
I would like to see this simple amend-
ment passed. I do not think it would de-
stroy our relationship with Teng Hsiao-
ping. If it does, then it seems to me that
relationship is too tenuous to begin with.
I do not think the U.S. Senate needs to
clamor after it, the satisfactions desired
so much-by Teng Hsiao-ping and other
leaders on mainland China. Nor should
we ignore the responsibilities we have,
perhaps, to recognize mainland China
just because some people on Taiwan feel
that that should never have occurred.
I think there has to be balance in this
matter and the problem, as I see it, is
that we do not have a balance. We have
a one-sided view, a one-sided philosophy,
controlled by those who are, it seems to
me, desirous of establishing this relation-
ship at ? all costs under the present
circumstances.
Who am I to criticize that viewpoint
because my fellow Senators did not
create these circumstances?
We now have to resolve what has been
a fait accompli by an administration
which disregarded the prestigious Sen-
ators on the Hill and the prestigious
Members of Congress who had made a
very important request prior to our ad-
journment of the 95th Congress, and that
request was simply to be consulted before
the President normalized relationships
with mainland China.
What bothers me is that not only were
we not consulted, but it was so flagrant
in the way we lacked consultation, and,*
in process, we have fallen all over our-
selves to support this one-sided approach,
to the detriment of our long-term
friends, and I think to the greater detri-
ment of ourselves, in the spirit of world
peace.
I really believe the Senator from New
Hampshire, for his first amendment on
the floor of the Senate, can be very proud
as he stood up for principle, albeit a very
reasonable, modest request, after the fait
accompli has occurred.
I think he deserves praise for that and
he deserves, I think, support for that.
As a freshman Senator, I know, how
difficult it is to stand up and bring forth
a first amendment.
This is no earth-shaking amendment.
All it is, is a simple recognition that we
have to continue business, we have to
continue a modest relationship, we have
to continue to try to be moral with regard
to the people on Taiwan. Perhaps the
best legal way to do it without totally
slapping mainland China in the face, be-
cause nobody wants to do that, is to have
a liaison office, a simple liaison office
which we have already established a
precedent for in mainland China.
I commend the Senator from New
Hampshire. I hope this will be the first in
a great number of well thought-out
amendments which may very well do a
great deal to help our country to be
morally secure and more acceptable in
the world of nations and among our fel-
lowmen, especially in this country, send-
ing a message to both Taiwan and Main-
land China, which I consider to be not
only a reasonable message, but an es-
sential message.
I ask unanimous consent that I be
added as a cosponsor on this amendment.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. HATCH. I thank the Chair.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Sen-
ator from New York.
Mr. JAVITS. I will wait for the Sena-
tor from North Carolina, Mr. President.
The PRESIDING OFFICER. The Sen-
ator from North Carolina.
Mr. HELMS. Mr. President, what we
are doing in this Senate is this: we are
playing a game with Taiwan. It is called,
"Heads Peking wins, tails Taiwan loses."
No other face can be put on it.
I say that with all due respect to my
friends who differ on this issue, but I
think there are several things that need
to be clarified. There has even been an
attempt to blame Taiwan for the intem-
perate actions of U.S. policy.
For example, some administration
apologists have glossed over history with
respect to the diplomatic history of Tai-
wan and asserting that Taiwan has been
"adamant" with respect to the one-China
concept.
Now, historically, the position that
Taiwan has been taking is that there is
one China with two governments claim-
ing to be sovereign. But from a practi-
cal standpoint Taiwan has tacitly ad-
mitted that the Government of the Re-
public of China does not control the
mainland. If we forget that, then we
are implicitly saying, "Well, there is
nothing to this business of East Ger-
many and West Germany, there is noth-
ing to this business of North Korea and
South Korea," and so forth. The impli-
cation of that is very clear, I think, to
millions of Americans who are already
concerned about the sell-out of Taiwan
and the failure by the President of the
United States or his advisers-and I hope
it was the latter-even to have the cour-
age to negotiate on the question of our
relationship with both Chinese Govern-
ments.
Mr. President, I had the unpleasant
duty of voting against Mr. Woodcock as
first Ambassador to Peking. I did that
out of no personal aversion to Mr. Wood-
cock. He is a very pleasant gentleman,
very intelligent. But he sat in my office
and he made clear that the judgment
had been made not even to raise the
question of the use of force against Tai-
wan, let alone the continued recognition
of Taiwan.
But does any Senator on this floor
know how such a negotiation would have
come out? Just suppose we had main-
tained the integrity of our commitment
to our friend and ally, Taiwan? I am con-
cerned that there was no need, let alone
any moral excuse, for selling out our
friend and ally. Moreover, nothing could
be clearer than the fact that China-Red
China-needed us-not the other way
around.
But a more important question is, how
timid are we going to be as a Nation?
Have we reached the point that we are
trembling and fearful in a diplomatic
confrontation with a Communist country
that we do not even bring up the issues
we consider important, no matter how
much morality is involved in it, no mat-
ter how much obligation we have to a
loyal friend and ally?
My own gut instinct about it, Mr.
President, is that America has shamed-.
itself before the world, and I do not blame
the few remaining friends that we have
for wondering what will happen to
them-and I include Israel and Lebanon,
South Africa, Japan, and even Europe7
in that.
But this glossing over of Taiwan's
position with respect to "one China"
needs to be examined a little bit more
closely than it has been on this floor.
I have at hand the November-Decem-
ber issue of a publication known as
"Asian Affairs and American Review."
The edition is dated November-December
1977, a year before the ill-considered de-
cision by President Carter to break rela-
tions with Taiwan.
Like the Senator from Utah, I have
no objection to recognizing the reality of
Red China. I do not know of any Senator
who does. My problem is what the Presi-
dent has done to Taiwan.
In this issue of "Asian Affairs and
American Review," is an article entitled
"Normalizing Relations with China:
Some Practical and Legal Problems,"
by Hungdah Chiu, who is a professor of
law at the University of Maryland School
of Law. On page 72, Professor Chiu has
this to say, with respect to the position
that Taiwan has taken concerning one
China :
Now let us turn to the PRC's claim to
Taiwan. While the legal arguments sum-
marized above would support the ROC's
claim to Taiwan, the same arguments would
not support the PRC's claim to Taiwan, for
several reasons. In the first place, the PRC
has denied the validity of both Japanese
peace treaties mentioned above. On August
15, 1951, before the San Francisco treaty was
signed, Premier Chou En-lai denounced the
proposed treaty as "illegal, and therefore null
and void." On May 5, 1952, after the treaty
entered into force, Chou again repudiated
it as "completely illegal." Peking can hardly
claim any benefit from a document which
it considers to be "illegal and void." More-
over, after Japan's renunciation of its claim,
to Taiwan, the PRC could not acquire title
over the island through the international
law principle of occupation, because it had
no. physical control over the island. Nor
could the PRC act through the ROC occupa-
tion to claim title over Taiwan because it
considers the ROC government to be an "il-
legal group" or even "bandits." Clearly, a
government can no more claim benefits
through a regime which it does not recog-
nize as legal than it can through a docu-
ment which it has declared illegal and void.
Some PRC writers have argued that be-
cause Taiwan was originally Chinese terri-
tory, a peace treaty is not necessary to trans-
fer title back to China, especially since the
Treaty of Shimonoseki ceding Taiwan to
Japan was abrogated as a result of the out-
break of the Second Sino-Japanese War in
1937. International practice, however, does
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March 7, 1979
not support the Chinese position. The pro-
vinces of Alsace and Lorraine, for example,
were originally French territory, but were
ceded to Germany in 1871. Subsequently,
they were returned to France through the
Treaty of Versailles signed between the Allied
and Associated Powers (including France)
and Germany on June 28, 1919. In other
words, French sovereignty over its former
territory did not automatically revert after
World War I, but required the formal treaty
mechanism. There does not appear to be any
precedent or principle of international law
supporting the PRC position that on Octo-
be 25, 1945, Taiwan was restored to China
de jure and de facto.
If this is correct, then the PRO's claim
is primarily based on the theory of historical
irredentism. PRC writers and officials have
frequently argued that Taiwan is historically
Chinese; and that during the Japanese oc-
cupation (1895-1945), the people of Taiwan
longedo for reunification with China. But
while this is an undoubted historical fact, it
can hardly support the PRC's claim to Tai-
wan today. In the first place, during the
period of Japanese occupation, China was
run by a government which permitted a free
enterprise economy, and society was rela-
tively free. If the people of Taiwan had
known at the time that mainland China
would become the totalitarian, highly regi-
mented society it is today, it is unlikely that
they would have longed so fervently for re-
unification. The fact that very few people
from Taiwan participated in the Communist
movement in China during the Japanese oc-
cupation period seems to support this point.
And today, it seems abundantly clear that
the vast majority of the people on Taiwan
do not want to be united with the PRC.
Second, according to Edgar Snow, who was
a close friend, Mao Tse-tung himself did not
include Taiwan among China's "lost terri-
tories" to be regained from Japan. In an
interview at Yenan on July 16, 1936, Mao
said: "If the Koreans wish to break away
from the chains of Japanese imperialism,
we will extend them our enthusiastic help
in their struggle for independence. The
same thing applies for Formosa." Third, the
doctrine of self-determination is now an
accepted principle of international law, and
one that has not been opposed by the PRC.
This principle would certainly overrule any
historical claim of the PRC toward Taiwan,
since the great majority of. the people of
Taiwan now clearly oppose unification with
the PRO.
In the 1972 Shanghai Communique, the
United States declared: The United States
acknowledges that all Chinese on either side
of Taiwan Strait maintain there is but one
China and Taiwan is a part of China. The
United States government does not
chal- lenge that position.
Some people have argued that the United
States has thereby accepted the PRO's claim
to Taiwan in the Shanghai Communique.
But this is certainly not true. The phrase
"does not challenge" is not equivalent to a
recognition of the PRC claim. This interpre-
tation was also confirmed by a high official
of the US government. Soon after the issu-
ance of the Shanghai Communique, Assist-
ant Secretary of State for East Asian and
Pacific Affairs Marshall Green denied that it
represented any change in the position held
by the United States since 1950, namely, that
the status of Taiwan was as yet undeter-
mined. Moreover, it was disclosed recently
that at the time of negotiating the Shanghai
Communique, then Secretary of State Kissin-
ger wanted to accept the PRC's position on
Taiwan by stating in the Communique that
the United States "accepts" rather than
"does not challenge" the belief of "all
Chinese" in one China. But he was rebuffed
in that attempt, possibly by President Nixon.
A question closely related to the legal
CONGRESSIONAL RIECOR
- SENATE
status of Taiwan is the ROC's claim to the
mainland of China. If the ROC continued
to make an unconditional claim to sov-
ereignty over the mainland now controlled
by the PRC, then, despite the special legal
status of Taiwan, there would be no reason
to question the PRC for making a similarly
unconditional claim to sovereignty over
Taiwan.
I interject to say that that is merely
plain commonsense. Professor Chiu
continues :
Since its removal to Taiwan, however, the
ROC has gradually imposed important limi-
tations on its claim to the mainland. In the
first place, treaties which were formerly ap-
plicable to all of China were tacitly revised
to limit their application to Taiwan. For in-
stance, the 1946 treaty of friendship, com-
merce, and navigation between the United
States and the Republic of China has not
been applicable to mainland China since the
early 1950s.11 Similarly, new treaties or agree-
ments concluded since 1950 have all been
limited in their application to the Taiwan
52143
history proves what Taiwan's position
has been.
No matter what we do about the Tai-
wan issue, let us at least be fair to Tai-
wan. Let us be historically accurate as
to Taiwan's position. We have done
enough to a great ally by the abrogation
of the mutual defense treaty. We have
done enough to the people on Taiwan by
turning our backs on them. Let us not
compound the problem by misrepresent-
ing the history of Taiwan's position.
So again I compliment my friend from
New Hampshire for submitting this
amendment, his first amendment in his
career as a U.S. Senator and his en-
lightening elucidation of it. It is a good
amendment; it is a simple amendment.
The amendment simply says, "Let us
treat one government as we have treated
the other. We had a liaison office in
Peking when we did not recognize
Peking. So now that the President, in
area. For example, the 1954 mutual defense . his wisdom-or lack of it-has broken
treaty with the United States provides in - relations with Taiwan, let us at least be
Article VI: "For the purposes of Articles II
and V, the terms 'territorial' and 'territories'
shall mean in respect of the Republic of
China, Taiwan and the Pescadores."
Second, the ROC has pledged, in an ex-
change of notes accompanying the 1954 mu-
tual defense treaty, not to use force against
the mainland without the consent of the
United States. Third, in a joint communique
issued by President Chiang Kai-shek and
US Secretary of State John Foster Dulles
on October .23, 1958, the ROC publicly made
a more general pledge not to use force
against the mainland. It states:
The government of the Republic of China
considers that the restoration of freedom to
its people on the mainland is its sacred mis-
sion. It believes that the foundation of this
mission resides in the minds and the hearts
of the Chinese people, and that the principal
means of successfully achieving its mission
is the implementation of Dr. Sun Yat-sen's
three people's principles (nationalism,
democracy, and social well-being), and not
the use of force.
This pledge of the nonuse of force to
achieve national unification was confirmed.
recently by a statement of the ROC Foreign
Minister, Shen Chang-huan, on July 1, 1977,
in which be said:
It has been the consistent position of the
government of the Republic of China to carry
out its responsibility of delivering our 800
million compatriots from Communist
tyranny by political means, while the Chin-
ese Communists have never given up their
design to "liberate" Taiwan by force. The
"peace settlement" theme being harped on
on by the Chinese Communists is but an at-
tempt on their part to forcibly impose their
tyrannical rule on the 16 million Chinese
on Taiwan.
In view of the above analysis, it seems
clear that the ROC has, in fact, suspended its
claim to the Chinese mainland by renounc-
ing the use of force to achieve unification.
The PRC, however, still insists on the use of
force to "liberate" Taiwan-a territory to
which it does not have a clear legal title.
Such "liberation" by force is prohibited by
international law, and by the Charter of the
United Nations, as an attempt to vindicate a
claim to territory by the use of force.
So I say to the Senator from New
Hampshire: How does any Senator in
this body get away with saying, "Oh,
well, Taiwan was adamant that there
would be one China and so there had to
be one China or nothing"? The trouble
with that is that it simply is not so, and
as fair to our friends on Taiwan, and
have a liaison office there."
What is wrong with that? Who really
can argue with that-unless we want to
continue this posture of timidity, this
business of trembling so fearfully in con-
frontation with a Communist country?
Do we really want to stop being Amer-
icans?
I do not know about other Senators,
but this Senator thinks it is time for the
Senate to demonstrate a willingness and
the backbone to stand with our friends.
At a very minimum, surely we must re-
fuse to participate in selling our allies
and friends down the river.
I compliment the Senator from New
Hampshire. I hope that the distinguished
managers of this bill will change their'
minds about a tabling motion and let
there be an up and down vote. But in the
event there is a motion to table, I hope
Senators will reject the motion.
Mr. MORGAN. Mr. President, it is with
considerable reluctance that I am par-
ticipating in the discussion of S. 245, the
Taiwan Enabling Act. My reluctance is
predicated on two reasons: First, our act
postpones but nevertheless formalizes the
demise of Taiwan as a free and dem-
ocratic nation, and second, we are
forced to react to a situation that could
have been avoided.
We should be under no illusion that,
however well-intentioned our bill is, it
acknowledges the fact that Taiwan is an
integral part of Communist China, and
that Taiwan's own communication is
only a question of time. There is no his-
torical evidence to indicate that a Com-
munist and a democratic-capitalist re-
gime can coexist within one state. The
history of the Soviet Union and of Viet-
nam points to absorption; the continued
separation of the two Germanies, the
two Koreas and the two Yemens points
to the unbridgeable gap between the two
systems. Consequently, when S. 245 seeks
to insure a continuity in the relations
between two democratic nations, it is
merely attempting to achieve the desira-
ble goal of postponing the inevitable: the
eventuality of a Communist Taiwan. Let
us not be deluded but that we are only
gaining a temporary respite with this bill
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S 2144 CONGRESSI
NAIL RECORD - SENA E March 7, 1979
and not a permanent solution. In Vice- foreign investment on equitable. terms.
Premier Deng Xiaoping's words, "The Somehow, this ought to be expressed as
liberation of 'Taiwan is but a matter of a precondition for our assistance and, to
time." the extent that the benefits of free en-
What concerns me, Mr. President, is terprise are advantageous to Peking, will
that we maneuvered ourselves into this also be respected by the PRC. The transi-
situation which by no means was un- tion of Taiwan's economy toward a
avoidable. In our haste to recognize the State-directed and managed economic
People's Republic of China, we are will- system will be gradual as its trade with
ing to accept Peking's so-called com-
promise of letting us live in a make-be-
lieve world for a little while longer while
they are reaping the benefits of recogni-
tion far in excess of their own gesture.
The PRC's four modernization goals
need American investment, trade, and
technical know-how. Their present hos-
tility toward the Soviets demanded a
closer association with the United States,
easier access to military equipment and
the neutralization of our 7th Fleet in the
Taiwan Straits. The antihegemonial
clause served the same purpose, as did
the premature visit of the Vice Premier
to Washington and American forbear-
ance of the Chinese invasion of Vietnam.
In all honesty, Mr. President, what we
have gained with our recognition of the
PRC at this time aside from some mone-
tary rewards and the potential of future
trade is nil. We did not bargain for Tai-
wan's independence or at least auton-
omy, we lost a friend, we lost credibility,
and we lost a useful ally and an island
of strategic importance. The entire evo-
lution of this matter must be character-
ized with what Evans and Novak de-
scribed as "diplomatic masochism."'
These are the reasons, Mr. President,
why I am reluctant to engage in this de-
bate. We seem to have no choice if we
value our friends in Taiwan but to agree
to the Enabling Act which, let me em-
phasize again, can create only a rather
transient facade of normalcy. Our recog-
nition of the PRC acknowledges that
Taiwan is a mere province of China, and
its ultimate fate is inextricably linked to
that of Peking. Under these circum-
stances, it appears to me that we must
seek to accomplish three objectives: se-
curity for Taiwan, protection of Ameri-
can economic interests, and mainte-
nance of Asian-Pacific stability. Are the
provisions of S. 245 the best contribution
toward these goals?
In section 101 of the bill, we are in
effect saying that we will accord to
Taiwan all the sovereign privileges, short
of- diplomatic recognition, as if it were a
state. Since our administration acknowl-
edges Taiwan to be a province of China,
we are placing ourselves in a rather un-
tenable position that can easily be chal-
lenged by .Peking and the international
community. It also creates a questionable
precedent. Given the facts as they are,
however, I cannot see a viable alterna-
tive. But let us not deceive ourselves, we
are establishing a legal anomaly that
can only be sustained as long as we are
prepared to back it up.
Section 112 of the Enabling Act seeks
to secure continuity in our economic re-
lations with Taiwan by maintaining the
services of. the Overseas Private Invest-
ment Corporation. This is a laudable
objective as long as Taiwan can maintain
its free market society and can protect
the mainland expands and Pekmg de-
mands ideological concessions in return.
For this reason, Congress and the Ameri-
can business community may require
more frequent analytic reports from the
President than the 5 years stipulated in
section 112(c).
Can Taiwan's security be assured with
the delivery of some defensive weapons?
Again, Mr. President, we are conjuring
an illusion of security that cannot really
be taken seriously. Shipment of arms to
enhance a self-defense capability, as re-
quested in section 114(b) (2), may raise
the cost of invasion but cannot prevent
it. Punitive actions, as we have recently
seen in Vietnam, may be contemplated at
a prohibitive price of lives and material.
In addition to the transfer of weapons
systems, we should endeavor to increase
Taiwan's productive capacity in the arms
field. Although the PRC can be expected
to expand its military potential at a
greater pace, we can at least insure for
Taiwan a measure of independence in
armament production.
Still, Taiwan's ultimate security will
depend upon the United States and our
willingness to become directly involved
in any future conflict. Are we prepared
to do that, Mr. President? The Enabling
Act, in section 114, views force and any
other form of coercion with "grave con-
cern" and directs the President to in-
form Congress, and to meet dangers "in
accordance with constitutional proc-
esses. Can such language act as a suffi-
cient deterrent to armed aggression?
Can we prevent an all out subversion of
Taiwan's political system and its people?
To my mind, Mr. President, only an
unequivocal statement that any change
in the status quo of Taiwan would be
detrimental to our own security inter-
ests, could possibly serve this purpose.
Such an assertion would be in line with
the posture statement for fiscal year
1979, by Gen. George S. Brown, Chair-
man of the Joint Chiefs of Staff, that
."the Location of the ' ? = Republic of
.China (makes it) important to the
United States in peacetime and militarily
significant in wartime." Taiwan has been
an essential element of our vital military
presence in the Western Pacific, both in
terms of its direct military value to us
and in its linkage to our security com-
mitments to our friends and allies in
that region.
In the end, however, our most effective
deterrent may not be of a military na-
ture but simply economic leverage.
Peking should be placed on notice that
commerce, trade, credit, and overseas
training opportunities will be termi-
nated in the event of hostile actions
against Taiwan. If China treasures its
modernization program as much as it
professes to, Taiwan will be relegated to
be of mere symbolic significance. Thus
the question arises as to how long the
PRC will prefer our credits and tech-
nology to a military incorporation of
Taiwan. The initial approach to an an-
swer must be to establish a clear linkage
between the well-being of the PRC and
the security of Taiwan.
Mr. President, completely absent from
the Enabling Act, for obvious reasons, is
reference to the termination of the Mu-
tual Defense Pact with Taiwan. Al-
though it may not be germane within the
context of our debate today, the rather
abrupt ending of a security treaty, and
the consequences for our own interests,
do deserve further consideration. While
the President should have sufficient flex-
ibility for conducting our foreign policy,
I am favorably inclined to the view that
Congress is entitled to be given reason-
able notice when a treaty termination is
contemplated. No one likes unpleasant
surprises whether it is Taiwan or the
U.S. Congress.
Finally, Mr. President, this leaves the
question of whether our new arrange-
ment with Taiwan adds to the stability
of the West Pacific region. I cannot help
but be rather pessimistic about the an-
swer. The future of Taiwan cannot, and
should not be viewed in isolation. By
voting for the Enabling Act, we must in-
evitably consider the consequences it can
have for the area between Vladivostok
and Jakarta. Our policy has been char-
acterized by successive ad hoc moves
which are difficult to fit into a cohesive
pattern. Our Philippine base negotiations
were apparently successfully concluded
despite our disenchantment with martial
law rule. Our troop withdrawal from Ko-
rea appears to be an on-again, off-again
proposition. We declare our half-hearted
support for the Association of Southeast
Asian Nations, ASEAN, although it is the
best thing we have going for us in that
part of the world. Thailand is reassured
of our adherence to the 1954 Manila Pact
despite the fact that we are reducing our
presence in the area. Japan's defense is
guaranteed and yet we are dismantling
the security sphere mentioned in article
VI of our Mutual Defense Treaty. And
I could go on pointing to apparent incon-
sistencies. Perhaps our situation can best
be described by what Harvard Prof. Stan-
ley Hoffman called "The Perils of Inco-
herence." And there definitely are perils,
Mr. President.
As for ourselves, the unavailability df
Taiwan -will greatly complicate and po-
tentially weaken our defense posture in
the Pacific. We must reassess the bases,
control points, intelligence assets, and lot
gistics lines still at our disposal. We must
make adjustments to our remaining ca-
pabilities so that we can still present
credible defense assistance to our allies
in the Pacific.
The Chinese tonne. Lion will remain
rather tenuous. In the case of Vietnam,
the Peking leaders have demonstrated
an absence of foreign policy predictabil-
ity which will not be conducive to sound
future relations. As a matter of fact, it is
not difficult to anticipate a more per-
manent Soviet presence in Vietnam to
counteract more rapidly any future
Chinese incursions.
The Sino-American rapprochement
has no doubt increased Soviet insecurity
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March 7, 1979. CONGRESSIONAL RECORD - SIENAT E S 2145
in East Asia. It has already led to a with the purposes of this Act, the President Mr. DOLE. Just let me say very quickly,
strengthening of its Pacific Fleet and to shall extend, or enter into an agreement ex- I know we have other amendments and
a more active base development in the tending, to the Liaison office to be estab-
Kurile Islands. Our carefully balanced lished in the United States of America by the there are other matters pending, but I
app: oath to the Soviet Union appears to Republic of China, and to the members support the efforts of the distinguished
a -- danger, and note Union pears to thereof, the same privileges and immunities Senator from New Hampshire.
be in Y uninten- subject to the corresponding conditions and The Senator from Kansas, on the
tionally. Vice-Premier Deng Xiaoping, obligations as are enjoyed by diplomatic mis- opening day of this Congress, introduced
when addressing the 3d Plenary Session sions accredited to the United States and two amendments to clarify our relations
of the Chinese Communist Party Central members thereof, upon the condition that with the Republic of China. It seems to
Committee on July 20, 1977, said, "we be- privileges and immunities are extended on a me that it is a legal fiction that we are
long to the Marxist Camp. They want to reciprocal basis to the United States Liaison talking about, that everyone suggests
Office the split between us-and the U.S.S.R. established ffice on Taiwan at no less than the level they want normalization to proceed, and
to destroy the world socialist system . Strike Ins itute
Why can't we take advantage of the con- andinert "Institute"
thereof "Liaison l oappear we are also concerned that ffice". might revoke or upset hatsdelicate. e-
tradiction between them (the United On Page 10, strike out section 106(b). lationship we have with the People's Re-
States and the Soviet Union) and initiate Beginning on page 16, line 1, strike all public of China, that we have had a long
actions that would be favorable to our through page 20, line 6. relationship of friendship and alliance
policy?" To my mind, Mr. President, On page 20, line, 17, after the word "Tai- with the Republic of China which has
they are beginning to succeed. wan", strike out "on an unofficial basis". served well our strategic interests in
I have little doubt that our treatment Beginning on line 18, strike all through page
21, line 4. Asia and the Pacific, and that certainly
of Taiwan has aggravated our security On Page 22, strike out subsection (b) and under such conditions the statements
posture in East Asia. Our friends in the insert in lieu thereof: suggested by the distinguished Senator
region will need more than verbal reas- "(b) For purposes of subsection (a), the from New Hampshire for clarification
surance: They need evidence of our re- term "agreement" includes any agreement would be appropriate. So I commend the
solve to remain a Pacific power. There entered into between the Liaison Office and distinguished Senator for his efforts, and
should be no recognition of North Korea the Taiwan authorities or the instrumental- support them.
until China is willing to do likewise in ity established by the Taiwanese authorities." Mr. JAVITS. Will the Senator from
South Korea. Japan needs encourage- Mr. HUMPHREY. Mr. President, I Ohio seek recognition, and yield to me?
ment to channel more of its resources thank the senior Senator from North The PRESIDING OFFICER. The Sen-
Into self-defense and to take a greater Carolina and the Senator from Utah for ator from Ohio is recognized.
interest in the economic development of their remarks supporting my amend- Mr. GLENN. I yield to the Senator
Southeast Asia. ASEAN requires more ment, and I would like to address myself from New York.
than our paternal benevolence to prosper very briefly to the remarks of the dis- Mr. JAVITS. Mr. President, I know we
as a viable regional organization. And tinguished Senator from New York. are ready to vote, and I do not want to
ultimately, we must make a construc- The distinguished Senators from New stand in the way of a vote, but I think
tive effort to bring all nations of the York and Ohio are men against whom I we ought to have all the facts before us
area into a mutually beneficial relation- do not stand up here to do verbal battle, as one thing is being overlooked.
ship. men who are more skilled at this point The argument has been made that we
In conclusion, Mr. President, I support than I am in that field. After all, I am will irritate them a little more. My argu-
S. 245, the Taiwan Enabling Act, not No. 100 in this body. ment is that we will have vitiated the
because it is the best that we can do But I do want to say yes, there is a agreement with them, of which this is an
for a friend and trusted ally, but because fundamental question here-in fact, aspect.
I see no realistic alternative. there are very fundamental questions Why do I say that? Because the joint
UP AMENDMENT NO. 29 (AS MODIFIED) involved in this amendment, the most communique issued on December 15,
Mr. HUMPHREY. Mr. President, I fundamental of which is, "Shall the 1978, which is the deal, says so. Let me
send to the desk a technical correction United States sell out on the installment read it. The President announced it, and
to my amendment and I a$k unanimous plan its ally in Taiwan, the Republic of it reads as follows:
consent that it be -so modified. China?" And I say, "No," and I say fur- The United States of America and the Peo-
The PRESIDING OFFICER. Is there ther, without my amendment to S. 245, ple's Republic of China have agreed to rec-
objection to the modification? If not, it that is exactly what this body will do if ognize each other and to establish diplo-
1s so ordered. it chooses to pass that bill. matic relations as of January 1, 1979.
The ned The amendment, as modified, is as I thank the Chair. the Governmentt off the of America People's Republic of
follows: The PRESIDING OFFICER. The Sena- China as the sole legal Government of China.
On page 8, line 19, strike out "Section 205 tor from Ohio is recognized. Within this context, the people of the United
(d) and insert in lieu thereof "section 101 Mr. GLENN. I was just going to move States will maintain cultural, commercial
(c) to table. and other unofficial relations with the people
On page 8, following line 25, add a new Mr. HUMPHREY. Mr. President, I of Taiwan.
subsection (c). suggest the absence of a quorum. The United States of America and the Peo-
"FOr the purpose of applying section 102 of Mr. HELMS. Mr. President, if the ple's Republic of China reaffirm the princi-
this Act to the internal Revenue Code of Senator will withhold that- pies agreed on by the two sides in the Shang-
1954, and to any regulation, ruling, decision, hai Communique and emphasize once again
or other determination under such Code, the' HUMPHREY. I will withhold it. that:
term "people on Taiwan" shall mean the (Mr. HELMS and Mr. JAVITS had a Both wish to reduce the danger of interna-
governing authority on Taiwan recognized colloquy, which is printed earlier in to- tional military conflict
by the United States prior to January 1, 1979, day's RECORD, by unanimous consent.) Neither should seek hegemony in the Asia-
as the Republic of China and its agencies, Mr. HELMS. Mr. President, I yield Pacific region.or in any other region of the
instrumentalities, the political subdivisions; the floor. world and each is opposed to efforts by any
except that when such term is used in a The PRESIDING OFFICER. Does the other country or group of countries to estab-
geographical sense it shall mean the islands Senator from New Hampshire insist lish such hegemony.
of Taiwan and the Pescadores." upon his point of order? Neither is prepared to negotiate on behalf
On page 10, strike section 106(a)" and of any third party or to enter into agree-
Insert the following new subsection a : Mr. HUMPHREY. No.
( ) Mr. DOLE. Mr. President, a meets or understandings with the other di-
"Programs, transactions, and other rela- parlia- rested at other states.
tions conducted or carried out by the Pres- mentary inquiry. The Government of the United States of
ident or any department or agency of the The PRESIDING OFFICER. The Sen- America acknowledges the Chinese position
United States Government with respect to ator will state it. that there is but one China and Taiwan is
the people on Taiwan shall, in the manner Mr. DOLE. Is -there a point of order part of China.
and to the extent directed by the President, -
be conducted and carried out by it through pending. Both believe that normalization of Sino
the Liaison Office to the Republic of China The PRESIDING OFFICER. It has American relations is not only in the inter
(herein after 'the Liaison Office'). Under been withdrawn. The Senator is recog- est of the Chinese and American peoples but
such terms and conditions as are consonant nized. Asia sosia and to the cause of peace in
And the world.
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S 2146 CONGRESSIONAL RECORD -SENATE .;1'_ -c?t 7','1979
The United States of America and the Peo- it ' would be a good idea to make the The United States will maintain its close
ple's Republic of China will exchange Am- Shanghai communique a part of the ties with and support for the Republic of
bassadors and establish Embassies on March Korea; the United States will support efforts
record. of the Republic of Korea to seek a relaxation
1, 1979. Mr. GLENN. I ask unanimous consent of tension and increased communication in
That is why I say what I do. The argu- that it be printed in the RECORD. the Korean peninsula. The United States
ment is very clear. Senator HATCH says, There being no objection, the Com- places the highest value on its friendly rela-
"If that is the way it is, then, as far as munique was ordered to be printed in the tions with Japan; it will continue to develop
I am concerned, so be it." To wit, that is RECORD, as follows: the existing close bonds.
Consistent with the United Nations Secu-
the end of the deal. TExT OF UNITED STATES-PEOPLES REPIIBLIO rity Council Resolution of December 21, 1971,
Senator HtTmPHREY says if the Chinese OF F CHINA COMMUNIQUE ISSUED AT SHANG- the United States favors the continuation of
consider this to be a breach of the deal, HAI, FEBRUARY 27, 1972 the ceasefire between India and Pakistan and
so be it, the deal is breached. The rest of President Richard Nixon of the United the withdrawal of all military forces to with-
us, I hope, will see that when you lay one States of America visited the People's Repub- in their own territories and to their own
issue beside the other, especially in view lic of China at the invitation of Premier sides of the ceasefire line in Jammu and
of the reservation which we made and Chou En-lai of the People's Republic of Kashmir; the United States supports the of South Asia to which different, are and implementing, it is China from February rPesident were Mrs. Nix- their own futurelin peace, free of milts y -
very phant and the and that one is ele- Accompanying
phant and the other a somewhat lighter r on, U.S. Secretary of State William Rogers, threat, and without having the area become
Assistant to the President Dr. Henry 1 issin- the subject of great power rivalry.
animal. ger, and other American officials. The Chinese side stated: Wherever there is
In other words, we have to make a President Nixon met with Chairman Mao oppression, there is resistance. Countries
choice here whether or not we will 90 Tse-tung of the Communist Party of China want independence, nations want liberation
through with this deal on the basis of on February 21. The two leaders had a and the people want revolution-this has be-
unofficial dealing with Taiwan. That is serious and frank exchange of views on Sino- come the irresistible trend of history. All iii-
what we are doing, and I think ex- U.S. relations and world affairs, tions, big or small, should be equal; big na-
tremely effectively legally. During the visit, extensive, earnest and tions should not bully the small and strong
I call attention to the preemption frank discussions were held between Presi- nations should not bully the weak. China will
bill dent Nixon and Premier Chou En-lai on the never be a superpower and it opposes hegem-
clause in this bill, which makes this normalization of relations between the ony and power politics of any kind. The
the paramount law, whatever may be the United States of America and the People's Chinese side stated that it firmly supports
District of Columbia law if we are going Republic of China, as well as on other mat- the struggles of all the oppressed people and
to organize a District of Columbia cor- ters of interest to both sides. In addition, nations for freedom and liberation and that
poration. So this bill will be paramount. Secretary of State William Rogers and For- the people of all countries have the right to
Either we make the deal or we do not.. eign Minister Chi Peng-fei held talks in the choose their social systems according to their
I believe the geopolitical situation of the same spirit. own wishes and the right to safeguard the
world, of which we are such a key part, President Nixon and his party visited independence, sovereignty and territorial in-
Peking and viewed cultural, industrial and tegrity of their own countries and oppose
makes this highly desirable in our na- agricultural sites, and they also toured Hang- foreign aggression, interference, control and
tional interest. chow and Shanghai where, continuing dis- subversion. All foreign troops should be with-
But let us call it what it is. The deal cussions with Chinese leaders, they viewed drawn to their own countries.
is off or it is on. We ought to be honest similar places of interest. The Chinese side expressed its firm sup-
enough, if we want the deal, to keep it. The leaders of the People's Republic of port to the peoples of Vietnam, Laos and
If we do not want the deal, we can junk China and the United States of America Cambodia in their efforts for the attainment
it. I think that is what this amendment found it beneficial to have this opportunity, of their goal and its firm support to the
after so many years without contact, to pre- seven-point proposal of the Provisional Revo-
is all The about. PRESIDING OFFICER: The Sen- sent candidly to one another their views on lutionary Government of the Republic of
a variety of issues. They reviewed the South Vietnam and the elaboration of Febru-
ator from Ohio. international situation in which important ary this year on the two key problems in the
Mr. GLENN. Mr. President, I concur changes and great upheavals are taking place proposal, and to the Joint Declaration of the
completely with the remarks of the dis- and expounded their respective positions and Summit Conference of the Indochinese.Peo-
tinguished Senator from New York. I attitudes. pies. It firmly supports the eight-point pro-
think if this amendment were to pass, we The U.S. side stated: Peace in Asia and gram for the peaceful unification of Korea
will have ruined our relations with Tai- peace in the world requires efforts both to put forward by the Government of the Demo-
reduce
and killed any relations we have reduce immediate tensions and to eliminate cratic People's Republic of Korea on April 112,
the basic causes of conflict. The United 1971, and the stand for the abolition of
with the PRC-resulting in the worst of States will work for a. just and secure peace: the "U.N. Commission for the Unification and
both worlds, really. I do not see that just, because it fulfills the aspirations of Rehabilitation of Korea."
there would be any advantage to us. peoples and nations for freedom and prog- It firmly opposes the revival and outward
The people of Taiwan I have talked ress; secure, because it removes the danger expansion of Japanese militarism and firmly
with-the two Government groups that of foreign aggression. supports the Japanese people's desire to build
have come through my office in the last The United States supports individual an independent, democratic, peaceful and
couple of weeks-have indicated a desire freedom and social progress for all the peoples neutral Japan. It firmly maintains that India
to get on with this new relationship of the world, free of outside pressure or inter- and Pakistan should, in accordance with the
under the institute and their coordinat- vention. The United States believes that the United Nations resolutions on the India-
effort to reduce tensions is served by improv- Pakistan question, immediately withdraw all
ing council here. ing communication between countries that their forces to their respective territories and
I think the hazards of this amend- have different ideologies so as to lessen the on their own sides of the ceasefire line in
ment are that it would, in effect, kill the risks of confrontation through accident, mis- Jammu and Kashmir and firmly supports the
whole normalization process, as I see it. calculation or misunderstanding. Countries Pakistan Government and people in their
Mr. GOLDWATER. Mr. President, may should treat each other with mutual respect struggle to preserve their independence and
and be willing to compete peacefully, letting sovereignty and the people of Jammu and
I ask the chairman if the so-called performance be the ultimate judge. No ooun- Kashmir in their struggle for the right of
Shanghai communique, or Shanghai let- try should claim infallibility and each coun- self-determination.
ter, has been printed at any point in any try should be prepared to re-examine its own There are essential differences between
RECORD? attitudes for the common good. China and the United States in their social
Mr. GLENN. Not in this debate, it has The United States stressed that the peoples systems and foreign policies. However, the
not. of Indochina should be allowed to determine two sides agreed that countries, regardless of
Mr. GOLDWATER. Does the Senator their destiny without outside intervention; their social systems, should conduct their
its constant primary objective has been a relations on the principles of respect for the
know if it is available? negotiated solution; the eight-point proposal sovereignty and territorial integrity of all
Mr. JAVITS. Yes, I have it right here. put forward by the Republic of Vietnam and States, non-aggression against other states.
Mr. GOLDWATER. The reason I raise the United States on January 27, 1972 repre- non-interference in the internal affairs of
the question, as I discussed earlier with sents a basis for the attainnent of that ob- other states, equality and mutual benefit.
after jective; in the absence of a negotiated settle- and peaceful coexistence. International d1a-
Dr. Kissinger, he told me that ment the United States envisages the ulti- putes should be settled on this basis, with-
President Nixon's visit to China there ' mate withdrawal of all U.S. forces from the out resorting to the use or threat of force.
had been no determination on what to do region consistent with the aim of -self- The United States and the People's Republic
with Taiwan. I am trying to find the let- determination for each country of Indo- of China are prepared to apply these prin-
ters he has written to me, and I think china. ciples to their mutual relations.
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 China. The United States Government does
not challenge that position. It reaffirms its
? interest in a peaceful settlement of the Tai-
wan question by the Chinese themselves.
With this prospect in mind, it affirms the
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March 7, 1979 CONGRESSIONAL RECORD -SENATE
With these principles of international re-
lations in mind the two sides stated that:
Progress toward the normalization of rela-
tions between China and the United States
is in the interests of all countries;
Both wish to reduce the danger of inter-
national military confiibt;
Neither should seek hegemony in the Asia-
Pacific region and each is opposed to efforts
by any other country or group of countries
to establish such hegemony; and
Neither is prepared to negotiate on behalf
of any third party or to enter into agree-
ments or understandings with the other di-
rected at other states.
Both sides are of the view that it would
be against the interests of the peoples of the
world for any major country to collude with
another against other countries, or for major
countries to divide up the world into spheres
of interest.
The two sides reviewed the long-standing
serious disputes between China and the
United States. The Chinese side reaffirmed
its position: The Taiwan question is the cru-
cial question obstructing the normalization
of relations between China and the United
States; the Government of the People's Re-
public of China is the sole legal government
of China; Taiwan is a province of China
which has long been returned to the mother-
land; the liberation of Taiwan is China's
internal affair in which no other country has
the right to interfere: and all V.S. forces and
military installations must be withdrawn
from Taiwan. The Chinese Government
firmly opposes any activities which aim at
the creation of "one China, one Taiwan,"
"one China, two governments," two Chinas,"
and "independent Taiwan" or advocate that
"the status of Taiwan remains to be
determined."
The V.S. side declared: 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
ultimate objective of the withdrawal of all
V.S. forces and military installations from
Taiwan. In the meantime, it will progres-
sively reduce its forces and military instal-
lations on Taiwan as the tension in the area
diminishes.
The two sides agreed that it is desirable
to broaden the understanding between the
two peoples. To this end, they discussed spe-
cific areas in such fields as science, technol-
ogy, culture, sports and journalism, in which
people-to-people contacts and exchanges
would be mutually beneficial. Each side un-
dertakes to facilitate the further develop-
ment of such contacts and exchanges.
Both sides view bilateral trade as another
area from which mutual benefit can be de-
rived, and agreed that economic relations
based on equality and mutual benefit are in
the interest of the peoples of the two coun-
tries. They agree to facilitate the progres-
sive development of trade between their two
countries.
The two sides agreed that they will stay
in contact through various channels, includ-
ing the sending of a senior U.S. representa-
tive to Peking from time to time for concrete
consultations to further the normalization
of relations between the two countries and
corrtinue to exchange views on issues of com-
mon interest.
The two sides expressed the hope that the
President Nixon, Mrs. Nixon and the Amer-
ican party expressed their appreciation for
the gracious hospitality shown them by the
Government and people of the People's Re-
public of China.
Mr. GLENN. Mr. President, I move
that the amendment of the Senator from
New Hampshire be laid on the table.
Mr. HUMPHREY. Mr. President, I ask
for the yeas and nays.
The PRESIDING OFFICER. Is there
a sufficient second? There is a sufficient
second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The
question is on agreeing to the motion
to lay on the table the amendment of
the Senator from New Hampshire, The
yeas and nays have been ordered, and
the clerk will call the roll.
The legislative clerk called the roll.
Mr. CRANSTON. I announce that the
Senator from Idaho (Mr. CHURCH), the
Senator from Hawaii (Mr. INOUYE), and
the Senator from Mississippi (Mr. STEN-
NIs) are necessarily absent.
I further announce that the Senator
from New Jersey (Mr. WILLIAMS) is ab-
sent on official business.
I further announce that, if present and
voting, the Senator from New Jersey
(Mr. WILLIAMS) would vote "yea."
Mr. STEVENS. I announce that the
Senator from Oregon (Mr. HATFIELD)
is necessarily absent.
I further announce that, if present
and voting, the Senator from Oregon
(Mr. HATFIELD) would vote "nay."
The PRESIDING OFFICER (Mr. DE-
CONCINI). Have all Senators voted who
wish to vote on this amendment?
The result was announced-yeas 57,
nays 38, as follows:
(Rollcall Vote No. 11 Leg; I
YEAS-57
Baucus
Glenn
Muskie
Bayh
Gravel
Nelson
Bentsen
Hart
Nunn
Biden
Heflin
Packwood
Bradley
Huddleston
Pell
Bumpers
Jackson
Percy
Burdick
Javits
Proxmire
Byrd, Robert C. Johnston
Pryor
Cannon
Kassebaum
Ribicoff
Chafes
Kennedy
Riegle
Chiles
Leahy
Sarbanes
Cochran
Levin
Sasser
Cranston
Magnuson
Stafford
Culver
Mathias
Stevenson
Danforth
Matsunaga
Stewart '
Durkin
McGovern
Talmadge
Eagleton
Melcher
Tsongas
Exon
Metzenbaum
Wallop
Ford
Moynihan
Zorinsky
NAYS-38
-
Armstrong
Goldwater
Pressler
Baker
Hatch
Randolph
?Bellmon
Hayakawa
Roth
Boren
Heinz
Schmitt
Boschwitz
Helms
Schweiker
Byrd,
Hollings
Simpson
Harry F., Jr.
Humphrey
Stevens
Cohen
Jepsen
Stone
DeConcini
Laxalt
Thurmond
Dole
Long
Tower
Domenici
Lugar
Warner
Durenberger
McClure
Weicker
Garn
Morgan
Young
NOT VOTING-5
up new prospects for the relations between
the two countries. They believe that the nor-
malization of relations between the two
countries is not only in the interest of the
Chinese and American peoples but also con-
tributes to the relaxation of tension in Asia
and the world.
Inouye Williams
Stennis
So the motion to lay on the table UP
amendment No. 29 was agreed to.
Mr. GLENN. 1VIr. President. I move to
reconsider the vote by which the amend-
ment was laid on the table.
52147
Mr. JAVITS. I move to lay that mo-
tion on the table.
The motion to lay on the table was
agreed to.
UP AMENDMENT NO. 30
(Subsequently numbered amendment No. 93)
(Purpose: Relating to termination of mutual
defense treaties.)
Mr. HARRY F. BYRD, JR. Mr. Presi-
dent, I send to the desk an amendment
and ask that it be stated. I offer this
amendment on behalf of myself, Mr.'
THURMOND, Mr. WARNER, Mr. HELMS, Mr.
HAYAKAWA, and Mr. GARN.
The PRESIDING OFFICER. The
amendment will be stated.
The second assistant legislative clerk
read as follows:
The Senator from Virginia (Mr. HARRY F.
BYRD, JR.), proposes an unprinted amend-
ment numbered 30:
At the. end of the bill add the following
new section:
"Sec. -. It is the sense of the Senate that
approval by the Senate of the United States
is required to terminate any mutual defense
treaty between the United States and an-
other nation.".
Mr. HARRY F. BYRD, JR. Mr. Presi-
dent, this is, I think, a very important
amendment. It is a very brief one. It
says that it expresses the sense and the
view of the Senate that approval by the
Senate is required to terminate any mu-
tual defense treaty between the United
States and another nation. It does not
deal specifically with Taiwan.
As the Senate knows so well, our Na-
tion has quite a few mutual defense
treaties. Some of these are of vital im-
portance to our Nation and to the free
world. All of these treaties have been en-
acted with the approval of the Senate
of the United States.
I think it is important to set the record
straight for the future as to how these
treaties may be terminated.
Now, I was persuaded to offer this
amendment because of a very significant
paragraph in the report from the Com-
mittee on Foreign Relations on the pend-
ing legislation, namely, S. 245. I refer to
page 19 of the committee report. It, of
course, deals with the President's action
in regard to Taiwan.
This is what the paragraph on page 19
says:
It appears to the Committee, therefore,
that the constitutional prerogatives of the
Congress and the Senate have not been in-
vaded in that neither the Congress nor the
Senate has elected to exercise the powers
granted it by the Constitution to participate
in the process of treaty termination. Had
either done so, a different conclusion would
likely obtain.
I say again, that is from the committee
report of the Foreign Relations Com-
mitt,3e dealing with S. 245.
That committee report states clearly
that the Senate has powers granted to
it by the Constitution to participate in
the process of treaty termination. it says
further that the Senate in this particular
case, the one dealing with Taiwan, has
not chosen to exercise its authority. Had
it done so, the committee report says, a
different conclusion "would likely
obtain."
So what this sense of the Senate pro-
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S 2148 CONGRESSIONAL RECORD -SENATE March 7, 1979
vision would be doing is saying that, in giving of notice serves only to make it
regard to the termination of subsequent possible for termination to occur; other-
treaties, subsequent termination of wise the treaty, under article X, con-
treaties, the Senate will play its consti- tinues indefinitely. The giving of notice
tutional role and is so serving notice now does not cause termination; it only makes
on whomever might be President at any it possible, after 1 - year, for a party to
future date. terminate without the consent of the
I realize that there are those in the other party but neverthless in accordance
Congress who feel that this matter, and with its own constitutional process.
matters of this type, and many matters, That is the issue. Article X says simply
should be turned over to the Chief Exec- that "a party may terminate 1 year after
utive. Some Members are glad to wash notice has been given to the other party";
their hands of this whole problem. But, it does not say a party must terminate
Mr. President, as this committee report nor does it say termination occurs auto-
states, the Senate has a constitutional
role in the process of treaty termination.
Now, does the Senate want to exercise
that role, or does it want it to go by
default?
The committee report says that, inso-
far as the treaty of friendship with
Taiwan is concerned, the Senate and the
Congress decided to let that go by
default.
If the Senate will approve the amend-
ment which has just been stated, then
it will serve notice that it is the sense
of the Senate that approval by the Sen-
ate of the United States is required to
terminate any mutual defense treaty
between the United States and another
nation.
I realize that there are different views
as to whether the Senate should partici-
pate or whether the matter should be
left entirely to our Chief Executive.
As one Senator, I feel the Senate
should participate. I hope the Senate will
approve this amendment.
Mr. President, I yield to my distin-
guished colleague from Virginia (Mr.
WARNER).
Mr. WARNER. Mr. President, as a co-
sponsor of this amendment, I join in the
remarks of the distinguished senior
Senator from Virginia.
It is apparent that the Founding
Fathers made clear the intent in arti-
cle 2, section 2, of our Constitution that
the executive branch is to share the
power of international treaties with the
Senate. The Senate was clearly meant to
have a major role in these dealings, and
the Founding Fathers thought it wise for
a deliberative body such as the Senate to
guard against certain actions of our
Chief Executive officer.
To me, this section in the Constitution
is a clear example of the checks and bal-
ances existing between the executive
branch and the legislative branch.
It is essential to the preservation of
the blueprint of our Nation that we, the
Senate, go on record with this amend-
ment. It is essential at this time in our
Now, Mr. President, to the Senator
from Virginia, "a party" means that
either government may terminate.
I take the Government of the United
States to be both the executive branch
and the legislative branch-and if it in-
cludes legislative branch, then it includes
the Senate in particular, which has re-
quired to ratify all the treaties we now
have.
So I think it certainly is reasonable
and appropriate that the Senate have
a role in the termination of such treaty.
I, for one, am very glad to see in this
committee report? a very clear, definite,
and precise statement in regard to the
powers granted to the Senate by the Con-
stitution.to participate in the process of
treaty termination. Frankly, I had not
expected to find such an unequivocal
statement.
I want to read it into the record
again, because to me it is clear. It says
on page 19:
It appears to the Committee, therefore,
that the constitutional prerogatives of the
Congress and the Senate have not been in-
vaded in that 'neither the Congress nor the
Senate has elected to exercise the powers
granted it by the Constitution to participate
in the process of treaty termination.
Those are the words of the Foreign
Relations Committee. Then the Foreign
I have been amazed, in my years in the
Senate, to hear Senators say, in effect,
"Well, on this nomination, the President
is entitled to have whom he wishes;
therefore, I am going to vote for the
nomination, even ' though I do not par-
ticularly care for the nomination." That
is not what the Constitution tells us to
do. The Constitution says that our re-
sponsibility is to advise and consent, and
the very same thing is true with respect
to the Senator's amendment.
It is time for the Senate to fish or cut
bait on this business of abrogation of
treaties. The Senator, with his amend-
ment, is putting the Senate on notice
that it has to take a position, yea or nay,
as to our responsibility.
I am proud to be a cosponsor of the
Senator's amendment, and I thank him
for letting me be.
Mr. HARRY F. BYRD, JR. I am glad
the Senator from North Carolina is a co-
sponsor.
I point out that the committee report,
in effect, chastises the Senate for not ex-
ercising what it says are our constitu-
tional prerogatives.
Mr. HELMS. Exactly. I hope the Su-
preme Court will read that section and
interpret it properly, as the Senator from
Virginia has, because the Senator is ex-
actly right in his statement.
Mr. HARRY F. BYRD, JR. I thank the
Senator from North Carolina.
Mr. President, I yield to my colleague
from Virginia.
Mr. WARNER. Mr. President, if it is
resolved that the President alone has the
authority to invoke the abrogation
mechanism, it would then follow that
he has the authority to do so with other
treaties containing similar language.
This would present major problems for'
the stability of the future of U.S. for-
eign relations, as a number of our other
treaties have similar, . if not identical,
abrogation clauses.
Relations Committee report goes on to The admission that the sanctity of
say: these treaties depends solely on the will
Had either done so, a different conclusion of the U.S. President would, at the least,
would likely obtain. create concern among our other allies
To me, that is highly significant. that a fate similar. to that of Taiwan
I have no quarrel with any Senator might await them should a future
who wants to take the position that the President find his diplomatic commit-
matter of terminating treaties is some- ments to them inconvenient. It might
thing that should be determined only by also create considerable concern among
the Chief Executive, that the Senate has U.S. citizens as to the future security of
no role to play. It is perfectly all right the United States itself, if no congres-
with me if those Senators want to take sional authority would be required to in
that view. However, I take the contrary yoke termination. - .
view; and I am very glad to note that the I ask unanimous consent to have
report of the Committee on Foreign Re- printed in the RECORD a list of the ter-
lations sustains the viewpoint of the Sen- mination clauses of the present treaties'
ator from Virginia in this regard. dealing with security. They are: Mutual
pe13ut116 upon VUl a111vo, V- olcuLa11y -- ----------
NATO, for the mutual security of the Mr. HELMS. I thank the Senator. United States February ' 11, 1955,
free world, that this amendment should The Senator from Virginia is address- article 10; North Atlantic Treaty
be adopted. ing with this amendment-perhaps I (NATO), ratified by the United States
Mr. HARRY F. BYRD, JR. I thank my should say that we are addressing with July 25, 1949, article 13; Mutual Defense
distinguished colleague from Virginia. this amendment, because the Senator Treaty, the United States and the Philip-
I point out, Mr. President, that the from North. Carolina is a cosponsor of it, pines, ratified by the United States,
major treaties the United States has of as is the junior Senator from Virginia April 15, 1952, article 8; Security Treaty
a defense nature do provide that either and others-we are addressing a very Between Australia, New Zealand, and
party may terminate the treaty after fundamental and vital issue, and that is the United States, ratified by the United
giving of notice serves only to make it whether the Congress of the United States April 15, 1952, article 10; Mutual
with the treaty with the Republic of States is going to abdicate its respon- Defense Treaty, the United States and
China. The provision is in article X. sibility under the Constitution. It is as the Republic of Korea, ratified by the
But it is important to note that the simple as that. United States February 5, 1954, article
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Mach 7, 1979 CONGRESSIONAL RECORD -SENATE S 2149
6: Southeast Asia Collective Defense Mr. WARNER. Mr. President, each of gress in addition to the constitutional
Treaty, ratified February 19, 1955, arti- these treaties has language closely re- provision providing for the President to
cle 10; Mutual Cooperation and Security sembling that found in the treaty with enter into a treaty with the approval of
Treaty, the United States and Japan, Taiwan which the President intends to the Senate of the United States. In spe-
ratified by the United States June 22, abrogate. cific words, "It is the sense of the Con-
1960, article 10; Inter-American Treaty Mr. HARRY F. BYRD, JR. Mr. Pres- gress," to do what? That there shall be
of Reciprocal Assistance, ratified by the ident, the Senator from Virginia (Mr. prior consultation between Congress and
United States December 12, 1947, article WARNER) has pointed out many of the the executive branch.
25. important treaties which the United My understanding is that there was
There being no objection, the material States has with other nations. If the no prior consultation, and I believe the
was ordered to be printed in the RECORD, Senate is unwilling to go on record as report on the Taiwan Enabling Act so
as follows: ? saying that it has a role to play in states. So here we really have, I think,
TERMINATION MECHANISMS or U.S. TREATIES regard to the termination of those two points raised:
IN Foacs treaties, that would mean, as my col- When this Government enters into a
1. Mutual Defense Treaty U.S. and Repub- league from Virginia has just pointed treaty, two specific steps are required:
lic of China; ratified by U.S.: February 11, out, that any of those treaties could be One is the President has to submit the
1955. Article 10: "This Treaty shall remain in abrogated by a future President on his treaty, and the other is the Senate has
force indefinitely. Either Party may terms- own initiative, at any time. to ratify the treaty. That conforms to
note it one year after notice has been given To quote again from the report of the the Constitution and is the constitution-
to the other Party." Foreign Relations Committee, the Sen- al authority for so doing. But in addi-
2. North Atlantic Treaty (NATO); ratified ate having refused to exercise its respon- tion to that, we have the statutory
by U.S.: July 25, 1949. Article 13: "After the
Treaty has been in force for twenty years, sibility in this regard, it would be con- authority here which says there shall be
any Party may cease to be a party one year sidered appropriate for the President to prior consultation between the Congress
after its notice of denunciation has been act unilaterally. and the executive branch on any pro-
given to the Government of the United I say again that the issue is clear-cut: posed policy changes affecting continua-
States of America, which will inform the Either the Senate feels it has a role to tion in force of the mutual defense
Governments of the other Parties of the de-
posit play and wants to play that role, or the treaty.
of each notice of denunciation." Senate feels it does not have a role to In other words, Congress was telling
3. Mutual Defense Treaty, U.S. and Philip- play and does not want to play a role. the President of the United States that.
U.S.: 15, 1952. 8: "This ratified by shall remain of force Mr. President, I ask for the yeas and "If you are considering any changes in
dTreaty Either Party may y terminate iforce it one e nays on the amendment. our relationship with Taiwan then there
definitely.
year after notice has been given to the other The PRESIDING OFFICER. Is there must be prior consultation."
Party." a sufficient second? There is a sufficient the There ofthe prior consultation. So
t nited States on his
apru io, iaon. ivir. Kin"- i ~. ~.~. _.. -
remain in force indefinitely. Any Party may ident, I yield to the Senator from South gress, and cast Taiwan to the wolves.
cease to be a member of the Council estab-
lished Carolina. That is the effect of his actions.
Aus- notice Mr. THURMOND. Mr. President, I commend the Senator from Virginia
has been n given t o the G VII oGeovern ernrment after
has b
tralia, which ch will l inform the Governments article II, section 2, of the Constitution for offering his amendment there which
of the other Parties of the deposit, of such provides: *provides that it is the sense of the Senate
notice." He- that approval of the Senate of the United
5. Mutual Defense Treaty, U.S. and Re- States is required to terminate any mu-
public of Korea; ratified by U.S. February 5, Referring to the President- tual defense treaty between the United
1954. Article 6: "This Treaty shall remain shall have Power, by and with the Advice States and another nation.
In force indefinitely. Either Party may ter- and Consent of the Senate, to make Treaties. Thatt to me makes sense and I think it
minate it one year after notice has been provided two-thirds of the Senators present makes sense to the American people. If
given to the other Party." ` concur. under the Constitution the Senate has
6. Southeast Asia Collective Defense
Treaty: ratified February 19, 1955 (SEATO).
Article 10: "This Treaty shall remain in force
indefinitely, but any Party may cease to be
a Party one year after its notice of denuncia-
tion has been given to the Government of
the Republic of the Philippines, which shall
inform the Governments of the other Parties
of the deposit of each notice of denuncia-
tion."
7. Mutual Cooperation and Security Treaty,
U.S. and Japan: ratified by U.S. June 22,
1960. Article 10: ". . . after the Treaty has
been in force for ten years, either Party may
give notice to the other Party of its inten-
tion to terminate the Treaty, in which case
the Treaty shall terminate one year after
such notice has been given."
8. Inter-American Treaty of Reciprocal As-
sistance (Treaty of Rio de Janeiro); ratified
by U.S.: December 12, 1947. Article 25: "This
Treaty shall remain in force indefinitely, but
may be denounced by any High Contracting
Party by a notification in writing to the Pan
American Union, which shall reform [sic? 1 all
the other High Contracting Parties of each
notification of denunciation received. After
the expiration of two years from the date
of the receipt by the Pan American,Union
of a notification of denunciation by any
High Contracting Party, the present Treaty
shall cease to be in force and with respect
to such State, but shall remain in full force
and effect with respect to all the other High
Contracting Parties."
That is the particular section to which to ratify a treaty, why would the Senate
I refer. in other words, the President can not have to ratify or approve the cancel-
make a treaty with another country if lation of a treaty?
two-thirds of the Senate concur. Can this Government enter into a
Mr. President, if the President of the treaty requiring the President and Con-
United States, acting under that author- gress both to act and then turn around
ity, made a treaty with a country and the and give the President alone the author-
Senate ratified it, then if he saw fit, un- ity to cancel that agreement any time,
der the procedure he used in canceling anywhere, any place as he sees fit?
the mutual defense treaty with Taiwan, I do not think that is the intention of
the President could turn around immedi- the Constitution. I do not think that is
ately' and cancel such a treaty. In other the proper construction of the Consti-
words, why could he not cancel every tution, and I hope the amendment of the
treaty this country has entered into? If able Senator from Virginia will be
the President could cancel a treaty with adopted.
Taiwan, why could he not cancel the Mr. HARRY F. BYRD, JR. I thank the
NATO Treaty or any other treaty? What Senator from South Carolina and to fur-
is the difference? ther buttress what the Senator from
Mr. President, evidently anticipating South Carolina has said the Foreign
that the President might pursue such a Relations Committee itself in its own
course, Congress last year inserted in report here on page 19 says that the
Public Law 95-384, the International Se- Senate has a constitutional role to play
curity Assistance Act of 1978, the follow- and that if it does not exercise that role
ing provision: it is its own fault.
It is the sense of the Congress that there That is what I am suggesting we do
should be prior consultation between the here. I think this matter of Taiwan is
Congress and the executive branch on any very serious, but I think something even
proposed policy changes affecting the con- more serious than the question of Tai-
tinuation in force of the Mutual Defense wan is what is going to happen to all
Treaty of 1954. these other defense treaties and how may
There we have a specific act of Con- they be terminated by some future Pres-
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CONGRIESSIONAIL RECORD - SENATE March 7, 1979
ident at some future date? And what the stand from the senator from Virginia an amendment to this particular bill-
Senate does in regard to this pending that the amendment he suggests will not this enabling legislation-that we could
amendment will establish a precedent for be applicable to this particular situa- take this to the committee on Foreign
many years to come as to what will hap- tion but only to apply to future situa- Relations and have hearings on it, and
pen in the way of terminating defense tions; is that correct? explore more fully how we should ap-
treaties with other nations. Mr. HARRY F. BYRD, JR. My feeling proach this; what the limitations on
Mr. THURMOND. Mr. President, will is that treaties ratified by the Senate can the President should be; how far we
the Senator yield further? be terminated only by Senate participa- should
Mr. HARRY F. BYRD, JR. I yield to tion. letely gn binding; ho dit be ia t o horns
ird
the Senator from South Carolina. The Foreign Relations Committee vote, for llinst nce,o to un at fy a trea
ty,
Mr. THURMOND. Mr. President, if the report says that since the Senate in its as well as two-thirds vote to approve
action of the President of the United judgment failed to exercise its constitu- it?
States here goes unchallenged and he is tional prerogatives then the treaty in I think there might be some different
allowed to cancel a treaty at any time regard to the Republic of China is not considerations there. I do not believe we
with any nation as he sees fit, where subject to Senate consideration at this have considered adequately all of the
does that leave the United States with point. ramifications. I would certainly support
regard to all of its treaties? I am not sure whether that is the cor- sending this to the committee, having
Mr. HARRY F. BYRD, JR. Where does rect interpretation or not. The proposal hearings on it, unfolding the case for it
it leave our allies? offered by the. Senator from Virginia and or against it, either one, and I hope the
Mr. THURMOND. Where does it leave my other colleagues does not specifically Senator from Virginia will agree with
our allies? mention any treaty. It states that: that approach.
In other words, our allies look upon It is the sense of the Senate that approval Mr. HARRY F. BYRD, JR. In regard to
this country as a republic where no in- by the Senate of the United States is required the treaties that have been terminated,
dividual or even no one branch of Gov- to terminate any mutual defense treaty be. of which the Senator has a list, has any
ernment has all the authority but where tween the United States and another nation. mutual defense treaty been terminated
we have a tripartite system of Govern- Mr. GLENN. I thank the Senator for by unilateral action?
ment, one branch of Congress, to make his comments. Mr. GLENN. I do not believe so, but I
the law, the executive branch to admin- Although I am sorry that the suit do not believe we had mutual defense
ister the law, and the judicial branch to brought by the Senator from Arizona treaties until after World War n, so that
interpret the law. Each branch is a (Mr. GOLDWATER) has come up in this limits the time period.
check and a balance on the other, and particular regard with Mr. HARRY F. BYRD, JR. But so far
that is exactly what we have in this in- respect to Taiwan
tta that Is have the have of the and the normalization processes with the as the Senator, the manager of the bill,
United n. States entering the into a Ptreaty resident o with PRC; it is good that we will have the knows there has been no case where a
anothr reaty ha
o even a majority, and for all. I think it is somewhat amaz- nated by executive action.
tw,
two-thirds vote approves such a treaty, ing that we have gone this far in our Mr. GLENN. In that time since World
If it require o vote a two-thirds such vote r history without having a similar issue War II, which is the only time we have
If
Senatk it to act upon treaties, does it of the
make brought to the courts, but that is not the had mutual defense treaties, the answer
sense undo that one man, the President, ident, case. is no. I believe the Senator is correct.
can a the all a that? To the it just sim- So I think the administration, in pro- Mr. HARRY F. BYRD, JR. The report
ply does not make sense, and I do not ceeding with the normalization process, of the Committee on Foreign Relations
ly d does
p
thin
to the ll be American arguments made treaties or to change them. There is a committee, that the Senate does have a
thItthe Preere i has such authority. long list of cases that I could read off constitutional role to play.
But he cannot termina u the Mutual that have demonstrated past president's The Senator from Ohio, the able Sen-
Bu
De without tense Treo termina Senate rutual utilization of this authority. There are ator from Ohio, mentioned that he hoped
cation. That is the some 15 or 18 of them, I believe all within this would be settled once and for all by
greatness of our this century, that fall within that regard, the courts.
Government. We have a 'Government of
the People, Lincoln said, - Therefore, I do not think this was just I am not certain I can share that view.
t e, and for she people. said, by the effort by the President to suddenly It seems to me this is a matter to be set-
in Congress have op Representatives take unto himself some now authority tled once and for all by the Senate of the
power, the that he did not have hitherto; he merely United States.
executive branch has so much power, followed the precedents created by his I do not know how the Court is going
and the judicial branch has so much predecessors. to rule-none of us do, of course-but
power. In the matter of treaties our .
forefathers frdid not wish to entrust sole Mr. HARRY F. BYRD, JR. Mr. Presi- the able Senator from New York, who is
o ft any one individual to n one dent, will the Senator yield at that an outstanding constitutional lawyer, in-
branch of any one
power vand or any that is one point? dicated earlier today that the Court
they provided Government, tha in the case the Mr. GLENN. Let me make just one might very well take the view that this is
re treaty that provided r v ded that t would submit of more point, if I may. On its face, the a Political decision to be made by the
tha the
tatty but t the Swould have it Constitution itself provides no senatorial Senate or by the Congress.
thify a, and not Senate t only approve ia but or congressional role in treaty termina- It seems to me that that is a view that
rapfyve it by two-thirds approve i , Sent tions. The President's constitutional re- the court could very logically take. My
appr veei by
voting. sponsibility for the execution of .the own judgment is that this is a matter
That was not voti , this case to laws and implementation of the treaties, that should be determined by the Sen-
cancel such a tot do I think would tO and his executive powers under article ate of the United States. Since it is the
a sound precedent here today if we II, section 1 of the Constitution have Senate of the United States which is the
turned down that action and followed been interpreted to give the President body that has the obligation and the
the dnstit n h I think it awould be nd ed the power to terminate treaties. This responsibility to ratify treaties submitted
helpful ti the future for other power, as I stated, has been firmly sup- by the executive branch, then it also has
dents to ktthey cannot rest- ported by the 20th century practice in a role to play, according to the report of
criminto know
dentsaties nnot l - this country, and in all those instances the Committee on Foreign Relations it-
na cancel that h e becatreaties
of alies own whims fmCongress acquiesced, and, I might add, self, a constitutional role to play in the
that maybe it is not a their own by the great majority of legal scholars termination of any treaties.
wish to thank the Senator treaty. who have addressed the issue. Mr. GLENN. I would say to the dis-
I VIr.BARRY thank nat I thank the I agree with the Senator it is good to tinguished Senator from Virginia that
Senator from South Carolina. get this thing settled, and I fully support my hope was that the courts would set-
TaPRESIDING OFFICER. The Sen- taking this issue to the courts, although tle it, that what I hoped the court would
ator from ES
Ohio. ID . I am sorry to see it taken up on this do would be to develop a case either for
particular
Mr. GLENN. Mr. President, I under- i hope that rather than making this orThehcourts can always say that this
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S 2151
is an area in which they do not have might very well hold that the Constitu- Mr. HARRY F. BYRD, JR. Just a
sufficient judgment or background. They tion gives the President, as the chief moment.
TS T4. t '
l t d
f
n
AVI
could toss it right back to us, claiming
that it is primarily a political decision.
In any event, if we did not like the
decision of the court we could still pass
legislation later on, after we had held
a sufficient number of hearings to devel-
op all sides of this particular question,
and decide what the vote should be.
Should it be two-thirds? 'Should it be a
majority vote? There are lots of ques-
tions I would like to see answered before
I would go ahead and try to pass this.
In the section, I might add, in the
committee report, the committee also
stated that the formulation which they
were referring to-termination. by the
President of this defense treaty-would
fall in sort of a twilight zone of cate-
gories which they had spelled out earlier
in this report, they went ahead and said:
The President would, accordingly, appear
to possess the constitutional authority to do
so absent any statute enacted by the Con-
gress or resolution adopted by two-thirds of
the Senate directing contrary action.
So we did not take a positive stand on
this one way or the other, as I saw it, and
our discussions of its were along the line
that there should be hearings to develop
whatever the process of deratification
might happen to be.
Mr. HARRY F. BYRD, JR. Mr. Presi-
dent, if the Senator would not mind
yielding at that point-
Mr. GLENN. I might add that I ex-
cerpted that from the same paragraph
there so we have to take that whole
paragraph to get the whole picture.
Mr. HARRY F. BYRD, JR. But what
the Senator from Virginia has been read-
ing is only one paragraph, so I will read
the whole paragraph:
It appears to the Committee, therefore,
that the constitutional prerogatives of the
Congress and the Senate have not been in-
vaded in that neither the Congress nor the
Senate has elected to exercise the powers
granted it by the Constitution to participate
in the process of treaty termination. Had
eiher done so, a different conclusion would
likely obtain.
That is the total paragraph.
Mr. JAVITS. Mr. President, will the
i
o -
n
is cer ai y
negotiator of the United States-and Mr. J
they have decided that time and again- ficult to understand, but it makes. a
the power to terminate, even though it policy declaration which is of a serious
gives us the power to ratify. nature. Again, it is a first in our history.
Therefore, I would like to say this to We have not done this for 200 years.
you, Senator BYRD-and you are uniquely I would like to hear what objection
a Senator to whom one can talk this there is to it. I am on your side, but
way-your amendment, with all respect, I would like to hear what is the opposi-
is so easy to vote for, because I am an ad- tion.
vocate of war powers, and I have spent Mr. HARRY F. BYRD, JR. Well,
most of my life here trying to seek a voice there are a hundred Members of the
for Congress in the war powers process. Senate. They can state their objections.
Mr. HARRY F. BYRD, JR. I know you Mr. JAVITS. No, I do not think that
have, and I have supported you. is quite true, Senator. I think here you
Mr. JAVITS. Of course you have. And need the witness, the President or the
I have always worried about voting for State Department representing him.
something without adequate hearings. Mr. HARRY F. BYRD, JR. You mean
This matter has not been considered. we need the State Department to tell
Secondly, we have a very effective way, the Senate what it should do about a
Senator, in which to enforce this. We do sense of the Senate resolution?
not have to depend on the Constitution Mr. JAVITS. No, that is not at all
or on a sense resolution. If we write a what I suggest. We hear the State De-
reservation into each treaty that we rati- partment all the time on lots of things
fy, saying: "If this treaty should be ter- that we have the power to do. We can
minated, the President has to come and deny the money, but we hear them. That
get two-thirds of the Senate to agree to is all I am saying; we ought to hear them.
it. before he terminates it," that is the So I would suggest again, most respect-
law, and there is no question about our fully, that this matter be held overnight,
constitutional power to do that. And I so that we have an opportunity to find
want no treaty unless he complies with out what the other side of the case is.
that reservation. Mr. HARRY F. BYRD, JR. I appre-
So what I would like to see, Senator- ciate that.
I am only giving you the optimum-a I might point out to the able Senator
declaration, perhaps a commitment- from New York that this resolution, in
FRANK CHURCH will be here tomorrow- these exact words, was introduced the
by the Foreign Relations Committee, in first day of this session, on January 15,
which we would undertake to consider the first day of the session, and the
this question, with the idea of either Foreign Relations Committee has done
bringing a piece of legislation to the Sen- nothing about.it. They had plenty of time
ate floor or with the idea of making it a to get witnesses in here if they wanted
rule of our committee that we would to get witnesses.
write into every treaty ratification a re- Mr. JAVITS. Oh, Senator BYRD, the
servation respecting this question of Foreign Relations Committee has been
termination. about as busy as the Finance Committee
To me that would be a very respon- or- any other committee you are a member
sible course, and I would most respect- of. They have not done lots of things
fully suggest, as we are not going to about lots of bills. This is not the only
finish this tonight, that perhaps the one.
Senator might consider just laying it . Mr. HARRY F. BYRD, JR. That is
over until tomorrow. I am the ranking true of many committees, I will say.
minority member of the committee; let But, Mr. President, have the yeas and
us give the chairman and myself an op- nays been ordered?
portunity to discuss this, take it up with The PRESIDING OFFICER (Mr.
the other members of the committee, BRADLEY). The Senator is correct.
and perhaps we could produce some- Mr. JAVITS Mr. President, I suggest
did not read this before thing satisfactory in terms of dealing the absence of a quorum.
Mr. JAVITS. -I'd-id-n- o--
It was put out, and I would like to give with this question in the substantial and The PRESIDING OFFICER. The clerk
? you my view as a lawyer. dignified way in which it should be, will call the roll.
k
pro-
I believe it is a question which the dealt with. The assistant legislative cler
courts may or may not decide. it is up to As I say, I just lay that before the ceeded to call the roll.
them. I have made it very clear that the Senator; he can press his amendment Mr. GOLDWATER. Mr. President, I
way is perfectly clear for a court deci- just as he likes. ask unanimous consent that the order
sion. We are not prejudicing it either Mr. HARRY F. BYRD, JR. I thank for the quorum call be rescinded.
way. - the able Senator from New York. The PRESIDING OFFICER. Without
I think what the Senator read is over- I just want to read this; it is only -objection, it is so ordered.
stated. We do not, know what the courts a few words, probably 18 words, and I Mr. GOLDWATER. Mr. President, I
will do, or whether they will take juris- think it is dignified. It says: ask unanimous consent that my assistant,
diction at all. What I would have writ- It is the sense of the Senate that approval Mr. Emerson, be accorded the privilege
ten, and what I think is the real feeling by the Senate of the United States is re- of the floor for the duration of this
in the committee, is that as far as we are quired to terminate any mutual defense debate.
concerned, we are willing to legislate on treaty between the United States, and an- The PRESIDING OFFICER. Without
the theory, on the hypothesis, that the other nation.
President does have the right to termi- That is not very difficult to under- objection, it is so ordered.
nate in the absence of contrary action stand. We either favor the Senate hav- Mr. CHAFES. I would make the same
by the Congress. But we do not know ing that right or we oppose it,,one way request for Mr. Don Prather of my staff.
what the court would decide in another or the other. The PRESIDING OFFICER. Without
suit, that we could even restrain it if - Mr. JAVITS. Will the Senator yield objection, it is so ordered.
we acted, if we passed the law. The court again? Mr. BOSCHWITZ. Mr. President, I
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S2162 CONGRESSIONAL RECORD -SENATE March 7, 1979
make the same request for Mr. James island's. political prier. The roots of the government. We ought,. therefore, to take
Cowie of my staff. Taiwanese m-ajc*"ity go back some 300 a long view of our interests regarding
The PRESIDING OFFICER. Without years and the native Taiwanese always Taiwan and lay the groundwork now for
objection, it is so ordered. have considered themselves to be sepa- a close and harmonious relationship with
Mr. JAVITS. Mr. President, I again rate from mainland China. The regime the Taiwanese leaders of the future.
suggest the absence of a quorum, of the mainlanders who arrived. only Mr. President, I am glad to yield at this
The PRESIDING OFFICER. The clerk after World War II has been character- point to the Senator from Minnesota.
will call the roll. ized by severe repression of the human Mr. DURENBERGER. Mr. President,
The assistant legislative clerk pro- rights of native Taiwanese, although I should like to take this opportunity,
ceeded to call the roll. there has been some improvement in re- as a new Member of this body, to com-
Mr. HARRY F. BYRD, JR. Mr. Presi- cent years. Tensions between the native pliment the Foreign Relations Committee
dent, I ask unanimous consent that the Taiwanese and the Nationalist Gov- for its work on S. 245. The members of
order for the quorum call be rescinded. ernment have, not surprisingly, been this committee have reworked the origi-
The PRESIDING OFFICER. Without high as the Taiwanese sought to have a nal administration proposal to provide
objection, it is s0 ordered. greater say in their own government. greater guarantees to the future secur-
Mr. HARRY F. BYRD, JR. Mr. Presi- In my view, the United States should ity of Taiwan,, to include more specific -
dent, I ask unanimous consent that the have been faithful to its adherence to the language defining our commercial and
pending amendment, unprinted amend- principle of self-determination by push- cultural relations,, and to generally in-
ment No. 30, be temporarily laid aside ing for an independent Taiwan after clude more creative and just solutions to
for a period not to exceed 20 minutes and World War II. the problems, created by the normaliza-
at the end of that time the present pend- I well remember this was the original tion of relations with the People's Re-
ing amendment would then become again American doctrine because in those public of China.
the pending amendment. years I attended military government I believe. that. the normalization of re-
The PRESIDING OFFICER. Is there school, and I trained for many months lations with the. PRC was an historic in-
objection? in the language, the geography, the cus- evitability, and I support this policy as
Without objection, it is so ordered. toms, and the culture of Formosa. We a significant, step, toward a new U.S.
THE TAIWAN BILL AND THE NATIVE TAIWANESE were told that if there was one group of 'policy in Asia. which better insures our
Mr. PELL. Mr. President, in my view people the Formosans disliked more than national security and national. interests,
S. 245, the Taiwan Enabling Act, is an the Japanese it was the Mainland Chi- and creates a framework for a lasting
appropriate and effective instrument to nese, therefore, the idea was that we peace and improved relations with all
facilitate the continuation of our 30- should govern them until they could gov- nations of this region.
year relationship with Taiwan. I support ern themselves. I especially commend the. committee
the President's decision to normalize re- That all changed after the Cairo Con- for its work on section 114 and for ad-
lations with the People's Republic of ference between Chiang Kai-shek, Stalin, dressing. the question of. the security of
China, but at the same time we cannot Roosevelt, and Churchill. Taiwan much more judiciously than did
in good conscience or in our own politi- Then, with the occupation of Taiwan the administration's. original bill. I share
cal and economic interest cut off all con- by Chiang Kai-shek, the belief of the the concern of the members of this com-
tract with Taiwan. Certainly, our con- United States in Taiwanese self-determi- mittee that. the. United' States honor its
tern for human rights would ring hollow nation was completely glossed over. traditional commitments and stand by
if, by cutting off all ties with Taiwan, we I believe the Senate should, in this bill, its allies in these. changing times.
were to signal that we were indifferent give some recognition to the plight of the As we move ahead in these next few
to an invasion from the mainland and Taiwanese, majority and the need for the days with debate on the question of our
the extension of Communist repression new institute to concern itself with the relations with Taiwan and the PRC, I am
to Taiwan. human rights of this majority. The re- concerned that we address- the issue-as
Under the bill we are considering to- cent events in Iran have, I hope, made it Senator PELL has done-of the right to
day, the United States will, through a clear that the United States ought not be self-determination as it applies to the
newly created private entity, have rela- seen as the underwriter of a particular people of Taiwan.
tions with the "people on Taiwan" in- regime. As ironic, as it. may be, I would like
stead of with the formerly recognized In promoting human rights on Taiwan, to use the same phrase from the Declara-
government of the Republic of China, it. is my expectation that the new Insti- tion of Independence that I found my-
which was situated on Taiwan but tute will apply all of the elements, in- self using frequently against this body
claimed to be the government of all of cluding the one relating to political and its counterpart body during my re-
China. The newly coined term of art, rights, that Secretary of State Vance set cent campaign: "The just powers of
the "people on Taiwan", is defined un- forth in his Athens, Ga., speech of government are derived from the consent
der the bill to include both the govern- April 30, 1977. The pertinent statement of the governed." This principle was in-
ing authorities on Taiwan and the peo- made by Secretary Vance on this point voked as a fundamental part of U.S.
ple governed by those authorities. In this is as follows : foreign policy, after World War I, by
connection, .the bill also contains lan- Third, there is the right to enjoy civil and President Woodrow Wilson, who ex-
guage, in section 107, which I sponsored, political liberties-freedom of thought, of panded on these words to state his belief
directing the Institute "to strengthen religion, of assembly; freedom of speech; that "No right anywhere exists to hand
and expand the ties between the people freedom of the press; freedom of movement people about from sovereignty to sover-
of the United States and all the people both within and outside one's own country; eignty as if they were property."
on Taiwan and to promote full human freedom to take part in government. I commend the Senate Foreign Re-
rights for all the people on Taiwan." Mr. President, through this bill the lations Committee and my colleague
This language was the result of a United States is defining a new relation- Senator PELL for addressing this issue
compromise in the Foreign Relations ship with Taiwan. In so doing, we ought, during the hearings. I concur with Sen-
Committee that modified my original in my view, to make clear that this new ator PELL that it would be wrong for
proposal which read as follows: relationship includes a heightened con- this body to treat this issue of U.S. re-
In carrying out its activities, the Institute tern for the real Taiwanese, whose ori- lations with the PRC and the ROC as
shall take all appropriate steps to strengthen gins on the island go back at least 12 though we were. "handing people from
and expand the ties between the people of generations. Throughout most of Tai- sovereignty, to sovereignty as if they
the United States and those individuals and wan's recorded history, except for the were property."
entities on Taiwan that are representative
of the majority of the people on Taiwan. period of Japanese rule from 1895-1945, The fact Is that there. Is a major split
the Taiwanese have run their own affairs between the. 85.
In proposing this amendment, it was and atlways considered themselves to be who are nativ . percent of Taiwanese,, and, the 15
my intention to underscore the need separate from China. I am confident, and percent. who, are. mainland Chinese and
for the United States to show its concern I hope, that before long the current came over to; the. Island beginning in
for the rights of the native Taiwanese mainland dominated government on Tal- 1949: The natives Taiwaneses. have been
who constitute 85 percent of Taiwan's wan will pass from the scene and be. re- systematically, exeludedi from, full' politi
population, but who share in little of the placed by a native Taiwanese controlled cal participation for 30 years. Martial
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S 2153
law began in 1949 under the rationale of PURPOSE OF THE TESTIMONY on China-U.S. Relations does not, to my
a continuing. "state of war." I fail to The declaration of Normalization provides knowledge, include a major reference to the
see the legitimacy of these grounds for the United States with the opportunity to re- political-economic conditions on Taiwan.
the abrogation of constitutional liberties structure totally our relations with the au- In summarizing, I urge the Committee to
thorities in Taipei. The United States can gather more information on Taiwan before
30 years later. discard the fiction that the Kuomintang making a considered decision regarding our
There have not been free elections in (KMT) represents any interests other than future relations with that island-province.
the history of the ROC in Taiwan. The the narrow interests of a ruling group which Our lack of correct intelligence has often
elections scheduled for this past Decem- keeps power only through the use of martial misled our good intentions into the abyss
ber were cancelled. While the change in law and the economic exploitation of its own of tragic policy-for ourselves and others.
U.S. policy at that time did cause some island base. Normalization provides the oc- HISTORICAL BACKGROUND
uncertainty and disruption, the Foreign casion to hear the voice of the popula- Two competing descriptions of Taiwan's
Relations Committee has heard testi- tion of Taiwan. history exist with contradictory conclusions
regime These Hearings can focus on the nature of for the status of Taiwan.
moray feared that defeat at the the hands of Kuomintang the o regime the rule of the Taipei government, and call On the one side is the argument from
attention to the historical fact that Taiwan's Beijing and Taipei. Taiwan has historically
tion "Non-Partisan Movement," and future has always been linked to interna- been part of China: the natives, with the ex-
welcomed the opportunity to cancel the tional power politics. Up until now, interne- ception of the aborigines (who number about
elections. Since then, no elections have tional power politics have never taken ac- 240,000 or 2% of the population) are ethni-
been rescheduled, and the Government count of the interests of the Taiwanese. cally and culturally Chinese, the island has
has broken up meetings of the opposi- Finally, my testimony will outline the been under the control of China since the
tion. On January 21 Yu Teng-fa, the growth of a strong opposition force in 17th century and achieved separate province
Taiwan. This is not simply an "old" struggle status in 1885. In 1895 Taiwan was ceded to
77-year-old leader of the opposition and between the dominant Mainlanders (the Japan as a war prize in the Sino-Japanese
a former magistrate, was arrested. Mr. refugees from 1949) and the Taiwanese, but War, 1894-1895. Whereas the Ch'ing dynasty
President, I believe that the Senate is the result of the economic and political and the Republic of China (founded in 1911)
should be aware that Yu Teng-f a is effects- of U.S. policy. The new struggle is never dropped its claim to Taiwan, the Chi-
sdheduled'to be put on trial this Friday parallel to struggles in developing countries nese Communist Party initially acknowledged
on trumped-up charges. I would like to throughout the world but especially in that Taiwan in the 1930's was a "weak and
South Korea, the Philippines, Indonesia, small nationality" which would have to have
go on record as protesting this repres- Thailand, and Malaysia. Rapid ecopnomic
sive policy and in favor of justice for growth has been unequally distl'ibuted. its own independent course of revolution
and its own authentic sovereignty.
Yu Teng-f a. Great growth has also produced great gaps The Cairo Conference of 1943 laid the In-
I have conferred with Dr. Richard between the. affluent and the poor. As in ternational legal foundations for Taiwan's
*
Kagan of Hamline University in St. Paul, many other countries, the governmental return to China. Since then both the Na-
Minn. Dr. Kagan submitted testimony to response has been to declare martial law tionalists and the Communists have argued
the Foregin Relations Committee. I ask and to exacerbate the ecological, social, and that Taiwan is in fact legally as well as his-
unanimous consent to have this testi- economic problems. torically part of China. With the establish-
The Senate's decision to consider Taipei, ment of the government of the People's Re-
mony, which can be found on pages Beijing, or the Opposition's claims will re-
865-873 of the hearings, printed in the suit in promoting or impeding the further- public of China in 1949 and the outbreak of
further-
the Korean, War in June 1950, U.S. policy
RECORD. ante of human rights and human welfare for supported Chiang K'ai-shek's claim to rep-
There being no objection, the testi- the people of Taiwan. I hope my testimony resent China. The Shanghai Communique in
mony was ordered to be printed in the will help to clarify the consequences of the 1972 reaffirmed the U.S. commitment to the
RECORD, as follows: choices that are made. proposition that Taiwan was a part of China.
PREPARED STATEMENT Or DR. RICHARD C. INTRODUCTION And normalization not only assumed this but
KAGAN, ASSISTANT PROFESSOR OF HISTORY, The historical writing regarding Taiwan is placed the legitimacy for rule back in the
HAMLINE UNIVERSITY, ST. PAUL, MINN. plagued by fabrications, propaganda, and domain of Peking.
I would like to thank the Senate Foreign sheer ignorance. Of course many excellent On the other side is the argument that
Relations Committee for the honor and op- works have appeared in Chinese and Jap- Taiwan has had a significantly different
portunity of inserting my views and mate- anese. But the English language works, and political and economic history which can
rials into the record. Because I had very little even more particularly the works for the legitimize a claim for independent nation-
time to prepare, I hope that this does not general public, are few and on the whole hood. This argument is abbreviated by the
seriously flaw my argument, my judgment, inadequate. . epigram: Taiwanese are ethnically Chinese
and my clarity. The earliest popular work on Taiwan was but not politically Chinese.
I am preparing these remarks on behalf of George Psalmanazar's "Description of For- The Taiwanese make a comparison be-
the Clergy and Laity Concerned. Through mosa" (1704). This work became a best- tween Anglo-Saxon's in England and Anglo-
their auspices I was able to travel to Taiwan seller in England, France, Germany, and Saxon's in North America. Their common
from Dec. 14 to Dec. 28, 1978, in order to ob- Holland. Yet the book was a thorough hoax ethnic heritage neither prevented a war of
serve the upcoming elections. During this and fabrication. The author who had revolution nor the development of American
time I travelled by car, bus, train, and air- claimed to be a Formosan was in fact a or Canadian nationalism.
plane from Taipei to Kaoshiung with many Frenchman who populated the area with The Taiwanese draw upon a history which
intermediate stops. Due to the announce- fictitious elephants and British knights, and stresses continual colonialization and ex-
ment of Normalization on the 16th of Decem- who described fanciful scenes of human ploitation by foreign powers and attempts
ber, the elections which were to be held on sacr6f6ce. Once the book was exposed, the for self-rule. The first wave of heavy Chi-
December 23rd were suspended. My stay in term "Formosan" became associated with nese migration occurred in the 17th century
Taiwan, nevertheless, was consumed with in- fraud and deception in British slang. under the sponsorship of the Dutch colonial-
terviews of both non-partisan (reform) can- This ignorance about Taiwan has not yet ists who required the services of migrant'
didates, the staff of Party candidates, and been dissipated. Secretary of State John Fos- laborers and skilled farmers. From 1662-1683
Government officials. Although the conversa- ter Dulles began his testimony of Taiwan's Taiwan was used as an island outpost for a
tions often included discussion of normaliza- history (Hearings on the Mutual Security pretender to the Dragon throne in Peking:
tion, they focused on the nature of the gov- Treaty, Executive Sessions of the Senate For- The defeat of this ill-fated undertaking re-
ernment's rule, and the future for the eign Relations Committee, 84th Congress, sulted in the loose incorporation of Taiwan
majority of Taiwanese. Vol. VII, First Session, 1955, p. 117) with this into. China's rule. In fact the Taiwanese
What follows in my remarks concentrates assurance: "There is a very long history lived outside the range of direct rule. Tai-
on this period of interviews and travels, but there which I have studied.. ... Yet in his wan was considered by Peking as a frontier
it also draws on my two month experience in brief survey he states that: "One of the post-a malarially infested island to send
Taiwan during the summer of 1978, and my main items of intercourse between Formosa convicts and exiles, and ruled by local gen-
own research on Taiwan history. and China in those days (17th-18th cen-- try and religious figures., China willingly gave
tury) was that as the Chinese on Formosa the island up to Japan in 1895 despite the
PROFESSIONAL BACKGROUND killed the indigenous people, they salted appeal of the citizenry to support an Inde-
I received a PH.D. in Asian History from their flesh and sold it back to China... ." pendent Republic. This was the first Re-
the University of Pennsylvania in 1969. Since The shade of Psalmanazar was definitely public in Asia, and was quelled by Japanese
then I have published bn U.S.-China Rela- stalking the hearing. troops and turned into an island colony.
tions, and the history of China. But most Now, twenty-four years later, the Senate is When Japan surrendered Taiwan in 1945,
germane to this committee is the book which again discussing the security of Taiwan. Yet, it was unclear who would receive the island.
I edited and for which I wrote the introduc- it has not significantly moved much closer Under the command of General Douglas
tion, "The China Lobby in American Politics" to an understanding of the history and cur- MacArthur, Chiang K"ai-shek was given the
by Ross Y. Koen, Harper & Row, 1974. Cur- rent condition of Taiwan than in 1704 or mission of disarming Japanese troops and
rently I am an Assistant Professor at Hamline 1955. For Instance the Congressional Re- bringing order to the island.
University, St. Paul, Minn. search Service in its Issue brief (#IB76053) At first the Taiwanese greeted the Nation-
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S 2154 CONGRESSIONAL RECORD- S]ENAT]E' March 7, 1979
alist troops and Mainlanders with joy. They Soviet dissidents with the numerous trials budgetary decisions, etc. Local elections for
believed' naively that the new government in Taiwan: "Iii the Soviet Union, one can this assembly and for municipal offices have
would abolish the colonial policies of the at least demonstrate; even if only for 5 been allowed in recent years with a limited
Japanese an dwould promote the Democratic minutes. and' for 100 feet. Here, now there is time for electioneering. But one trend seems
goals of Sun Yat Sen's Three People's Princi- not even that opportunity." clear:' whenever non-Party candidates be-
plea and the New Deal of Franklin Delano What is obvious to anyone who travels come too. powerful they are either arrested,
Roosevelt. By their actions, the Nationalist around the island is the large number of or their position is no longer available. Thus
troops and officials expressed their disdain military police, secret police, and government the mayorship of Taipei, and governorship
for the Taiwanese. Considered either as trai- agents. Uniformed military police are sta- of Taiwan are now appointed positions.
tors or as un-Chinese and thus uncivilized ,tioned at all major crossroads, tunnels and In fact, the government is run by the Na-
the Taiwanese suffered under illegal confisca- bridges. Plainclothed counter-insurgency tionalist Party or KMT. The pledge of Allegi-
tion of property, vandalism, the spread of military men have been brought into the ance to the Flag is directed not to the state
lawlessness, rape, and the destruction of cities. One can observe these young men or nation but to the Party. Membership in
health and hygenic facilities. Within 18 hanging around street corners with small the Party provides. some privileges and
months the economy was reduced to a bar- walkie-talkies in shoulder bags. status. Threat of excommunication is used
ter system, and diseases hitherto wiped out The new president of Tung-has University to prevent deviance.
began to reappear. is the former head of the Taiwan police SOCIAL AND ECONOMIC PROBLEMS
In 1947, an unarmed rebellion attempted academy. The regulations regarding student
to create an autonomous republic. History activities have become so restrictive that, as The non-partisans are responding to the
appeared to be repeating itself. The Nation- one University professor put it, "There is consequences of economic and social change
alists, utilizing U.S. troop carriers, attacked nothing they are allowed to do but follow which have resulted ic from unplanned
do and trolled econom the Island and brutally killed and imprisoned the unconrei n. thin h Ile umaad domestic
the leadership, Up to 20,000 people may have line." The II nd milit are receiving more and foreign. Within the last decade, a large
been slaughtered. (One of the major groups political affairs and military intelligence off-
been cers and police to oversee student affairs in group of writers have written realistic novels
to suffer from death and imprisonment were and poems about. the hardship of workers,
the Presbyterians, who had been active in the class room. women, farmers, and the unemployed. After
opposition to Japanese rule. In 1948 they The size of the military (300,000 troops a local study in 1970, the analysis by four
quietly changed the name of their press or- with 2.5 million in reserve for a population university professors confirmed the view of
gan from "Restoration to the Mainland Pub- of 17 million in fact, is not necessary just for these writers of social realism:
lishing House" to the former name of the return to the Mainland. In the Senate Hear- "The daily lives of the workers have no
"Taiwan Church Press.") ings of 1955 on the Mutual Security Treaty, protection nor do their lives have security.
In 1949, the Nationalists established their Secretary of State Dulles revealed that They desperately need higher wages, and oc-
regiment in Taipei and declared martial law, Chiang Kai-Shek had assured the Secretary casionally they ask help from the labor
Although certain democratic rituals are al- that the Republic of China could not capture unions. But when they find out that the
lowed, the Nationalists have ruled Taiwan the mainland by military force. leaders of their unions are none other than
through the military for thirty years. The - To many observers, the size of the military their employers,, they can only wish that
Taiwanese regard themselves as colonialized is maintained to intimidate the population, some day their employers might feel the
again. For those Americans who declaim and to enforce loyalty through military pangs of conscience. in the. uiet of the night
against sells q ng out Taiwan to the Mainland, discipline. and grant them the favor. From time to time
the Taiwanese reply: why were you not con- Yearly expenditures on the military ac- some of the more daring workers might at-
cerned about selling us out to the National- cording to the 1977 report from the Repub- tempt to seek higher wages through bargain-
ists? In 1979 a strong independence move- lic of China, amount to 57,753,587,639 Tai- ing with their employers, but they usually
ment has again developed. In sum, it is in wan dollars (over L5 billion U.S. dollars) or- are easily disposed' of by. severe political
the interests of both the Nationalists and 53.82 ? percent of the entire budget. The means. The. other workers can only help-
Communists to prevent the expression of an closest figure is the 10+ billion Taiwan dol- lessly drive their wives and daughters to seek
independent Taiwan. In the New Year's lars (260+ million V.S. dollars) spent on jobs so that they can maintain a-subsistence
"Message to Compatriots in Taiwan" the economic development. This expenditure living. Most of them live in the outskirts of
Communist Party seeks an alliance with amounts to 10.3? percent of the budget. Be- the cities or in dark alleys behind huge
the KMT against the purveyors of the poli- sides the Administration of Finances (6.6 buildings. In a tiny room of two or three
tics of independence: "The Taiwan authori- percent), and Miscellaneous projects (7 per- mattresses.a family of seven or eight exists.
ties have always taken a firm stand of one. cent), all other categories range well under A nineteen-inch television, set on the mat-
China and have been opposed to an inde- 5 percent of the budget. The Ministry of the tresses might maintain. the facade of civilized
pendent Taiwan. We have this stand in com- Interior, which supervises health, worker, living; however, from shouldering the heavy
mon and it is the basis for our co-operation:" and other social' services received 1.1 percent. burden of civilization on their pale and
In previous Senate testimony, Professor John Within the national defense, the bureau for bloodless faces are carved the deep lines of
K. Fairbank ironically observed: "When one intelligence work receives almost 1.6 billion sorrow . . " (cited from the Chinese "An
mentions the idea oLtah Independent Taiwan, Taiwan dollars or 41.5 million U.S. dollars. It Analysis of Social Forces").
one a known as a Gagitalist spy in Peking, has not been possible to ascertain what per- Taiwan's prosperity- has, been gained pri-
tr>i.1tor in Taipei," (U.S. cent. of this is. spent on domestic surveil- marily through a disregard for the environ-
Policy with respect do Mainland China, U.S. lance, (as opposed to surveillance on the mend and a reliance. on a cheap labor force.
Senate Committee on Foreign Relations, 89th Mainland), but we can assume that it Is a The continuation of these conditions can
Congress, 2nd Session, 1988, p. 177) significant amount. only result ip negative, consequences for the
Whichever view of Taiwan's history is ac-
cepted or rejected will effect policy consider- _ GOVERNMENT
t to pro-
copeople mmunity; Taiwan and for the
ations
ations and the people's welfare. Working under the protective umbrella of community: It is not in our nterest to pro-
LAW martial law are the national' legislative mote, growth which- results in the complete
bodies: The National' Assembly which meets pollution of 19 of Taiwan's 24 rivers. Liu
Since 1949; the Republic of China has' only once every six years to elect the Presi- Wen-Kui, director of the Taipei City Sanita-
rtiled Taiwan by means of martial law. Al- dent, and the Legislative Yuan, which makes tion and, Sewage Administration, has noted,
though today, the government claims that laws. The representatives for both bodies "that daily waste water from residences and
only a small percent of the country's laws were elected on the Mainland in 1948. No factories in Taipei totals 1.1 million tons."
fall under the military jurisdiction, in fact, general elections have been held since then, The human and monetary costs of water
the threat and use of the military is a reality, because both branches represent all the peo- pollution are- extreme. A study completed in
The Taiwan Garrison Command enforces all ple in China and elections cannot be held 1970 has, indicated: "Of. 3,313 schoolchildren
in 6 in , 2M
aspects of martial law through the use of until the Mainland' is recovered. ascarid a schools roundw tr19 s; in 4 aipei percent b harbored
s In
military police, secret military courts, special The National' Assembly originally had 1970, 4 - percent of 2,629- 4 Taipei suburbs In
agents who monitor meetings, tap phones, 2.961 members; only 1.248 a re still living and oun 4o percent k 2mchildren
and' l harbored
Inspect the mails, and use provocateurs to their average' age is 74. In 1969, 15 supple- roundworms; hookworms, and' liver-flukes;
7break up, meetings, create disturbances, and mentary. representatives from Taiwan were born all nfTaiwan p e1970,, b,ore~ of some ater-
confiscate materials which are deemed sub- added' to the National Assembly, and these n (in rams s" An artier harbored t some waer-
versive. One cannot exaggerate the conse- are elected positions. borne pa concluded, earlier study ent of all
quences and effects of this system. Because The Legislative Yuan has a similar prob- is o 1968 cnsn, ad that erce percent of all
it acts in secret, a pall of fear and a sense lem-of its 759 members elected in 1948, only' schoolchildren; and.: percent of the s." 73.
of paranoia impedes and often prevents any 406 are left, including 60 supplementary population harbored: intestinal parasites."
open critical political; religious, or economic representatives from Taiwan added in 1969 The non-partisans argue that conditions
discussion. I have been present at peaceful and 1972, have worsened: The. government. responds by
meetings which were broken up by agents The government takes the position that banning the., criticism and, restricting re-
who physically threatened the participants. Taiwan is just a province of China. Thus search:.
One leading'Mainlander intellectual, writer Taiwan. has- its' own Provincial Assembly in FEMALE: LABOR IN' TAIWAN,
for several important journals, and former Taichung. This, Assembly has almost no No where: is the, dependence. on cheap labor
political prisoner; compared the trials of power-no control' over taxes, expenditures, more consciously and' institutionally expert-
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March 7, 1979 CONGRESSIONAL R]ECO1D- SJENATlE S 2155
enced than in the lives of female factory percent. The announcement of Normaliza- demonstrators were drawn from young stu-
workers. In a 1974 report to the Conference tion on the 16th provided the government dents frightened by government propaganda
on Population and Economic Development in with the excuse to suspend the elections about an imminent Communist Invasion and
Taiwan, Ms. Yen Hwa describes the role of and to harass and arrest the leaders of the from cadets of the military and government
female workers: "(Taiwan) expanded its opposition. academies. These anti-American demonstra-
labor-intensive manufactures for export to The primary centers for this resistance tions did not reflect the views of the majority
developed countries as a basic strategy to were in the Taipei Taoyuan area, the Tai- of the people there, many of whom actually
accelerate its economic growth. The female chung-Changhua region, and the cities of welcomed normalization. Why? Because nor-
labor force has played a significant role in Tainan and Kaoshiung. In the 1977 local malization destroys the myth which has jus-
providing a part of the ample labor supply elections of Taoyuan county, the KMT elec- tilled the martial law and huge military ex-
as well as in maintaining the competitiveness tion officials were charged with election penditures used by the government on Tai-
of products in international marXets." fraud. The people demonstrated in protest. wan to legitimize its claim to represent all
Work is not a vocation. There is no chance They burned the police station, destroyed of China. Normalization has encouraged those
for upward mobility. The total female labor official cars, and drove the police off into who wish to replace the ruling ?KMT Party,
force in 1974 only records .39% attaining the the safety of the military barracks. Several which represents the interests of mainland
and after a few refugees, with a government reflecting the
tive workers
ath
t t
d
,
o
e
rank of administrative or execu
. people were sho
interests
The most significant use of women workers days order returned. But the non-KMT mag- of the 17 million Taiwanese.
is in the development of light industry for istrate won! What is significant is the gen-
export, notably the textile and electronics eral refusal of the troops forcefully to quell
industries in Taiwan's 3 Export Processing the riot. The crowd chanted to them-you
Zones. 85% of the 67,000 workers are women
and the overwhelming majority of these are
young and unmarried. As of December 1977,
well over 60 percent of these workers earned
between NT$1600 and NT$3400 per month-
this is equivalent to U.S. $40490 per month.
To begin to relate the preceding discussion
of the EPZ labor force and wage levels to the
issue of the quality of life, one might ask the
question, "Are EPZ workers, and especially
women workers, satisfied with their position
in the factories?" Contrary to many reports
published in this country, a number of recent
studies addressing the issue of worker atti-
tudes have shown considerable levels of dis-
satisfaction, especially among women. An-
thropologist Lydia Kung's research has shown
the bitterness of many women workers:
"Many workers at the factory say that
working here amounts 'wasting away' our
time, 'burying our youth', because each day
by the time we get off work, it's already very
late. There's hardly any time or opportunity
to meet with friends. In the factory, where
one has no freedom, it is as if we've sold our
lives to the company."
Kung concludes:
" . the "bitter" quality of factory work
derives from a combination of working con-
ditions and the attitudes they encounter in
the course of their work. They earn money
through manual labor; their hands may be-
come coarse and rough; the plant can at
times be hot; inadequate ventilation leaves
fumes or lint in the air; their uniforms be-
come soiled; their tasks repetitive and mo-
notonous; and many cannot leave the as-
sembly lines or walk around."
A detailed study of 576 women workers in
the Nantze Export Processing Zone has con-
clusively indicated significant levels of dis-
satisfaction, especially in the electronics in-
dustry. The survey found that over 70 per-
cent (124 out of 173) were either somewhat
(40 percent) or very dissatisfied (30 percent)
with their job6 in that industry. Principal
reasons for dissatisfaction included low sal-
aries, the perceived difficulty of the work,
the loss of eyesight due to working with
mini-electronic circuits, execessive noise, and
the basic feeling of alienation from their
? labor. Nowhere is the general sentiment of
unhappiness shown more pervasively than
in the high turnover rate in NEPZ factories.
Of the workers questioned in 1978, nearly
50 percent said that they had changed jobs
one or more times in their first year of em-
ployment in the NEPZ. Many women workers
are driven to prostitution. Abortion clinics
the Presbyterian Church, which in its Decla-
ration of Human Rights in 1977 urged the
Taiwanese to take "effective measures where-
by Taiwan may become a new and independ-
ent country." Following President Carter's
announcement, leading Presbyterians re-
solved to intensify their appeal for self-
determination. They feel that the future of
Taiwan is likely to be determined-unless
there is direct interference from the main-
land-by the struggle between the awaken-
ing Taiwanese and a weakened KMT.
The second major group to criticize the
KMT's claim to rule all of China is the exist-
ing opposition party in Taiwan. One opposi-
tion candidate reflected the dominant views
of his organization when he commented: "In
the short run, normalization is bad because
of its effect on the elections, but in the lon'
run it is good because the KMT no longer
can defend its claim to represent China. The
Taiwanese now have a chance to rule their
own territory."
A minority view within this opposition
looks forward to reunification with the main-
land-but under Taiwanese terms and based
on widespread popular support. Supporters
of this view argue that 10 years is needed
to re-educate people away from anti-Com-
munism thinking. Their great fear is that
Pei=ins., either will become impatient and in-
vade-th,,s producing tremendous disorder
and loss of life-or will loin with the United
States in bq"king's KMT puppet regime over
the isiand. The latter scenario would mean
the stifling of internal reform and contin"a-
tion of a semi-colonial status for Taiwan.
In sum, most self-conscious Taiwanese be-
lieve that normalization merely "recognizes
the fact of 30 years of history." They have
always agreed that the KMT should return
to the mainland; they just disagree on why
thev have to pay for the KMT's financial and
military preparations.
One politician, a former political prisoner,
expressed this resentment and independence:
"The KMT has neither the duty nor the
right to forever assume full responsibility
for national and governmental affairs. . .
We are all in the same boat. whether we
continue to hold recovery of the mainland
as an ultimate goal or whether we seek a
temnorarv alternate route of survival."
Whether the Taiwanese are allowed to find
such an "alternate route" to develop their
own island in their own self-interest, or
whether international powers will stifle them
again, remains to be seen.
GOVERNMENT RESPONSE
The government had been well aware of
the threat of the non-partisans. The Taiwan
Garrison Command had prepared to inter-
fere with the elections by means of a plan
The most significant local political develp- For the government of Taiwan, normaliza- called "Operation Clear Sincerity." Con-
ment in 1978 was the rise of a collection of tion of relations between the United States cerned agents were to pay close attention to
non-partisan candidates and embryonic op- and the People's Republic of China was a the every utterance of army personnel dur-
position party. This group of candidates syn- blow. But for the Taiwanese, it provided the ing the period approaching the election, and
chronized their campaigns for the Decem- opportunity to argue for independent devel- during the campaign itself. This was in
troops and to Into those
her 23rd national election. Political observers opment of their own island in their own self- order strong differentiate to the
hr who
on the island predicted a substantial victory interest. with for the non-partisans, with estimates of the Normalization produced a wave of anti- were less vocal in their "patriotism."
total non-partisans vote reaching over 60 American demonstrations on Taiwan. The Ten days before the balloting, each house-
are our brothers, don't join the government.
Large wall posters queried whether Com-
munist tactics differed at all from the KMT's
? rigged election tactics. Although no deaths
resulted, a similar incident occurred in the
Changhua area. In Kaohsiung, the second
largest city in Taiwan, a four day riot oc-
curred over the same issue. There troops
were brought in, but there was no violence.
Whereas these incidents revealed the exist-
ence of mass based opposition, they also
signaled the government that long-range
pre-emptive measures must be organized to
limit the power of this group.
THE NONPARTISAN MOVEMENT
Perhaps the best way to describe the move-
ment is through its political platform. A ten
point declaration was drawn up for the non-
partisan convention called for December
25th, and to be held in the Ambassador Hotel
in Taipei. However, the Garrison Command
refused to allow the meeting. The Hotel was
surrounded by military and police, and
special agents waited inside to take pictures
of all non-partisans who entered. Conse-
quently, the platform was not fully dis-
cussed, and only a few signatures could be
obtained. Nonetheless, the platform repre-
sents the consensus of the candidates.
Point number one demands the full imple-
mentation of constitutional government.
This would include completely reelecting the
representatives of the central government,
the proclamation of self rule for all the cities,
counties, and the province, the establishment
of an independent judiciary, the severance of
the military from KMT control, the protec-
tion of academic independence, freedom of
speech, unobstructed debate, and repeal of
the press censorship. At the heart of this
plank of the platform is the charge to abolish
martial law and to protect civilians from
receiving military trials. Finally, the govern-
ment is petitioned to respect personal dig-
nity, i.e. to protect personal freedom, stop
torture, illegal arrest and imprisonment, and
to desist from invasion of privacy through
wire taps and forced entries.
The remaining nine points of the platform
focus on social and economic problems: ad-
ministration of fair elections, creation of a
national medical and unemployment insur-
ance, aid to the farm population, enactment
of basic labor laws which would guarantee
collective bargaining (striking is a capital
offense), enactment of tax reforms, creation
of a reasonable sales system that will protect
the producers and give protection for the
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S 2156 CONGRESSIONAL RECORD -SENATE March 7, 1979
hold in the military dependent villages was publication of China Tide, a major forum
to be visited, and three days before, to be for the opposition. In addition rumors vilify-
given their "assignment cards," indicating ing non-partisan's moral and political be-
to whom they were to give their "sacred bal- havior were circulated, and posters were
lot." On the day of the voting, party person- pasted on walls which called for the death of
nel were to be sent to drum up votes and oppositionist candidates. A non-partisan
furnish "necessary assistance" to achieve official explained: "We accepted the suspen-
voter turnout in the military dependent sion of the elections because it was a defen-
villages. Soldiers known to be pro-KMT were sive move by the Kuomintang. But the ar-
to be given assignment cards, and on elec- rest of Yu.... is an attack on us." Another
tion day were to be ferried to vote in street opposition politician said: "I'm not optimis-
clothes. Soldiers in vehicles, were to stop tic about the future." (See "Far Eastern Eco-
over 200 meters from the polling booth and nomic Review" Feb. 2, 1979) .
get out and proceed to the station individ- Most recently, in order to attack anyone
ually, and not in groups. This was to avoid critical of the KMT the Taiwan Garrison
giving people the impression that it was an Command announced that during the period
operation organized by the military. After- January 20th to February 19th, over a mil-
wards, the soldiers who had cast their lion security agents, reserve troops, police-
"sacred ballot" would be given a day's leave. men, military police, and aboriginal youth
Those believed to be of less sure loyalties, - would be mobilized for an all-out day and
however, were to be given military duties night effort to root out all kinds of "criminals
which would prevent their leaving the base and subversives."
+w .... ---g bmulull.
The military was instructed to maintain
close collaboration with the election offices'of
their local KMT candidates throughout the
campaign period. In the dependents' villages
and on the bases, non-partisan and other
"illegal" and "bad" publication, leaflets,
fliers, posters, etc. that "distorted the truth"
were to be found out and confiscated. People
living in the villages were to be organized
into hit squads that would leave their refuge
for the battlefield of the election place and
heckle non-partisan candidates, etc. The aim
of this was to contribute to "mass opposi-
tion" to the "poisonous thoughts." Non-
partisans were always to be referred to as
"some social personages". Seven agents were
to be assigned to each non-partisan election
office to watch and create disturbances. Dur-
ing campaign activities such as rallies, the
pollee would step in if "violence" was about
to break out between non-partisan support-
ers and their "opponents"-and the latter
whisked off to the safety of the local police
station so that their agent provocateur
identity would not be exposed..
But the suspension of the elections ob-
viated the need of "Operation Clear Sincer-
ity." The day following the announcement of
normalization and suspension of the elec-
tions, President Chiang Ching-kuo "ordered
the Executive Yuan to collect all opinions
made by candidates during the campaign in
the past week and send them to related de-
partments for reference." (China Post, De-
cember 18). General Wang Ching-hsi, Com-
mander of the Taiwan Garrison Command
warned that application or martial law would
intensify if "a small minority of conspira-
torial elements, used by the communist
bandit or Taiwan independence elements,
take advantage of the situation to develop
splittist, destructive or subversive activities
damaging to national security and the peo-
ple's welfare. Illegal activities include the
holding of illegal marches or assembles."
General Wang then commented that he was
pleased to see that all the (non-partisan)
campaign posters had been ripped down. The
following day, December 18, President Chiang
declared to a high-level KMT meeting,
"Taiwan is always a part of the Republic of
China and anyone talking of an independent
Taiwan is betraying his country and people.
We will not allow talk, organizations, or ac-
tions like that to exist on this bastion."
Nonetheless, the non-partisans continued
to organize. Seventy-seven year old Yu Teng-
fa, a former magistrate of Kaoshiung County,
CONCLUSION AND RECOMMENDATION
In concluding, I would like to bring to
your attention the speech of a Catholic Fa-
ther on December 10th, 1978 on the occasion
of the 30th Anniversary of the Universal Dec-
laration of Human Rights. Despite intensive
pressures by the KMT threatening the lay-
men and priests if they attended the cere-
mony, the celebration was well-attended.
Speaking in Taiwanese, the priest expressed
the bitterness of his situation: "When I tell
a polar man not to steal a chicken, everyone
praises me and says that this is what the
Church should do. On the other hand, when
I tell a legislator not to steal, I am accused of
being involved in politics." He told his flock
that Human Rights is not just the job of a
church specialist but is "now regarded as a
basic responsibility of every Christian." He
then elaborated on the rights which were
lacking in Taiwan. Primary among them
were the right to just economic order, right
of conscience and political participation, and
the right to a secure life.
I entreat this Senate Committee to con-
sider seriously the human rights of the peo-
ple on Taiwan. The initial means to accom-
plish this is to understand that the KMT
does not express the wishes of the majority
of the Taiwanese. For many Taiwanese the
Senate's worry about the possibility that Pe-
king might attempt to solve the "Taiwan
question" by force begs the issue if at the
same time the Senate neglects the reality of
the KMT's seizure and control of Taiwan.
Taoyuan County Magistrate Hsu Hsin-
liang, a leading member of the non-partisans
and currently under KMT harassment,
warned that, "if the government and ruling
party do not have the confidence to move
democracy and freedom but attempt to sup-
press the movement for democracy by force,
they will fall in the same way as the Shah
of Iran."
The U.S. Government should ensure that
,the people on Taiwan have the opportunity
became the head of the opposition and called in U.S.-Taiwan contacts. Third, appoint a
another conference for Februrary 1, 1979. study Committee to research the political-
However, on Jan. 21st he was arrested on social-and-economic conditions of Taiwan,
charges of having "met and discussed sub- Although we cannot make up for past ne-
versive matters" with a communist agent. glect, we should not repeat it.
He was forcibly taken out of his home and Finally, it is in our self-interest to end
his family could not learn of his where- our involvement in the civil war in China.
abouts. Two days later, the KMT suspended A genuinely democratic, and economically
to pursue their rights and welfare. Their
desire to express their own position of the
future of Taiwan without KMT or outside
threats should be respected. Most important
is to remove U.S. government policies and
support from furthering the exercise of mar-
tial law. Second, advise the Undersecretary
of State for Human Rights that the condi-
tions of the Taiwanese are still of great im-
portance to U.S. policy. This can be effectu-
ated by insisting that whatever continued
relations are established with Taiwan, a per-
son fluent in Taiwanese be directly involved
and socially sound Taiwan will be a benefit
to Beijing, Taipei, Tokyo, and Washington,
D.C.
Mr. DURENBERGER. Mr. President,
Dr. Kagan has been a frequent visitor
to Taiwan. He last visited Taiwan from
December 14 to 28, 1978, on behalf of
the Clergy and Laity Concerned and had
an opportunity to investigate the politi-
cal situation first,hand and in depth.
Some of the crimes punishable by
death are: circulating rumors and be-
guiling the public; strikes; and the very
ambiguous and convenient category of
inciting rebellion.
I should like to address a few questions
to the distinguished Senator from Rhode
Island.
In light of this evidence of a lack of
democracy and self-determination, I
would like clarification of section 107 of
this bill. Specifically, what monitoring
of the political situation will be done by
the AIT? Will there be a specific official
assigned to report to the State Depart-
ment? And does -section 107 effectively
require ongoing and regular reporting to
Congress?
Let me say, in conclusion, that I do
not raise these issues as an abstract
statement of moral concern. I am con-
fident that many of us in this Chamber
would like to see a greater embodiment
in our foreign policy of the principles of
"just consent of the governed" and for
the self-determination of all peoples.
From a practical as well as strategic
point of view, I believe that our security,
economic and overall foreign policy in-
terests are linked inextricably to politi-
cal stability in Asia. Yet, it is possible that
the ROC Government may be inciting
greater instability through its repression
of the huge majority of the population
who are native Taiwanese. In Iran, we
have seen all too bluntly what can hap-
pen when we stress support of foreign
governments and pay too little attention
to the rights and interests of people.
As we consider this bill, I am concerned
that we lose sight neither of our long-
term strategic interests nor, more im-
portantly, of our historic commitment
to the right of all people to national
self-determination.
Mr. PELL. I thank my colleague for
his remarks and kind words.,
Mr. JAVITS. Mr. President, will the
Senator yield to me momentarily?
Mr. PELL. I yield.
Mr. JAVITS. Mr. President, I have
been advised that this is Senator DUREN-
BERCER's maiden speech, and I congratu-,
late him, on behalf of the minority, for
this speech. He could not have chosen a
topic more characteristic of the freedom-
loving nature of the people he represents
in Minnesota.
This is a very key, deeply troublesome,
and aggravating point. I do not wish to
interfere in any way with the answers.
Perhaps I will join in the answers. I just
wish to congratulate the Senator on
speaking up for the people of Taiwan
the way he has done in his maiden
speech. It does great credit to him and
the State he represents.
Mr. DURENBERGER. I thank the
Senator.
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Mr. PELL. Mr. President, I Join in con-
gratulating the Senator from Minne-
sota. I did not realize it was his maiden
speech. It was delivered effortlessly and
professionally. .
In answer to the Senator's question as
to who would have the responsibility for
monitoring the human rights involved
here, the man responsible for that func-
tion would be the Foreign Service officer
who is assigned to that post as a so-
called human rights officer. He, in turn,
would be under the supervision of the
man-he would not be Ambassador; I do
not know what he would be called-who
? is in charge of the institute. He would
be the man responsible, and his reports
would be sent to the State Department
and would be made available to us if we
? wished to see them.
Mr. JAVITS. Mr. President. does that
terminate the colloquy?
Mr. PELL. I yield the floor.
The PRESIDING OFFICER. The ques-
tion now recurs on the amendment of
the Senator from Virginia.
Mr. JAVITS. Mr. President, I suggest
the absence of a quorum.
The PRESIDING OFFICER. The clerk
will call the roll.
The assistant legislative clerk proceed-
ed to call the roll.
Mr. HARRY F. BYRD, JR. Mr. Presi-
dent, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. HARRY F. BYRD, JR. I yield to
the Senator from Arizona.
Mr. GOLDWATER. I thank my friend
from Virginia.
Sitting here this afternoon listening
to the colloquy, I was rather particu-
larly impressed by the lack of knowledge
that was displayed on exactly what the
Constitution says in this field, but more
particularly what our Founding Fathers
had to say in this important field. I
simply wished to interrogate my friend.
For example, John Jay wrote in the
Federalists, and this relates to the prob-
lem we are talking about:
They who make laws may, without doubt,
amend or repeal them; and it will not be
disputed that they who make treaties may
alter or cancel them.
I think that leads toward the idea
that the Senate has to participate in the
abrogation of treaties, particularly de-
fense treaties. Will the Senator agree?
Was the Senator aware of that Ian- this particular treaty, is it not true that
guage by Thomas Jefferson? he can abrogate treaties with NATO
Mr. HARRY F. BYRD, JR. Thomas .without coming to us for advice and con-
Jefferson was perhaps somewhat closer sent?
to the Constitution and understood it Mr. HARRY F. BYRD, JR. I certain-
better than the lawyers down at the ly think so. The purpose of the pending
Department of State. I think that his amendment is to make clear to a Pres-
statement is a highly significant state- ident, that mutual defense treaties can.-
ment, and I thank the able senator from not be terminated without the question
Arizona for reading it to the Senate. of termination being submitted first to
This clear statement by Jefferson fur- the Senate.
ther emphasizes the fact that a Presi- Mr. GOLDWATER. I further ask the
dent cannot unilaterally, acting on his senator if he does not think it is true
own, abrogate what becomes, as the that the President could also unilater-
Senator from Arizona pointed out, the ally pull out of the United Nations
supreme law of the land once the Senate Charter Treaty all right without even asking us
concurs and approves it as a treaty.
Mr. GOLDWATER. He can no more Mr. HARRY F. BYRD, JR. Well, if the
do that than he can repeal any law that Senate accepts the precedent that the
might be on the books because, if we President, acting alone, can abrogate or
agreed, by any action that we do or do eliminate the treaty of friendship with
not take in this body, that the President Taiwan, by the same reasoning he can
has this power, then a treaty being a law, certainly abrogate any other treaty that
I suggest. that any law that the Presi- the United States has ratified.
dent does not like he can repeal. That is why I think this amendment
Mr. HARRY F. BYRD, JR. That cer- is so vitally important way beyond the
tainly sounds logical to the Senator from question of Taiwan.
Virginia. That is only one treaty. We have a
Let us take a case. The Senator from dozen or more treaties, mutual defense
New York (Mr. JAVITS) several years ago treaties, such as NATO, which the Sen-
developed legislation regarding Presiden- ator from Arizona just mentioned. which
tial war powers. I think the Senator are vitally important to the United
from Arizona opposed that. States and vitally important to the en-
Mr. GOLDWATER. That is right. tire free world.
Mr. HARRY F. BYRD, JR. The Sen- Mr. GOLDWATER. I wanted to en-
ator from Virginia favored it, and I gage the Senator from Virginia on this
voted with the Senator from New York question because while the Constitution
and supported that. is not too precise in this field-and I
But it ?cerainly seems logical that if think the Senator would agree to
a President can unilaterally- set aside a that--
treaty then he can also unilaterally set Mr. HARRY F. BYRD, JR. Yes. But
aside the War Powers Act which seeks neither is it precise in specifying a mode
to curb the powers of his office and for rescinding statutes; it only states how
which does curb the power of his office. they may be enacted.
If he can set aside a treaty, why can Mr. GOLDWATER [continuing].
he not set aside any other law on the Nevertheless, the Founding Fathers, in
statute books, as the Senator from Ari- my opinion, made it very clear that the
zona suggested? I think the Senator is power to make treaties rested in part
quite right. Obviously, the President can- with the Senate or the entire Congress,
not. _ and the power to repeal or abrogate a
I think too that we should note that treaty rested with the Senate or the
the Constitution does not provide specifi- entire Congress.
tally a method for repealing a statute I believe I am correct in saying that
yet no one asserts that the President can there has only been one defense treaty
void a statute without Congress. He can- abrogated in the entire history of our
not void a treaty without the Senate. country, that was by an act of Congress
Mr. GOLDWATER. I may continue, either just during the end of Adams'
Mr. President, if the Senator will yield time or during his time. The Congress
further. did it, and the President later agreed
Mr. HARRY F. BYRD, JR. I yield to it.
again. So I wanted to get these points made
Mr. GOLDWATER. The same parallel if I could, thinking that possibly we
between laws and treaties was made by might not vote tonight, and that some of
James Madison. On January 2, 1791, less the Members who are not present, think-
than 4 years after the Constitutional ing we would not vote today, could have
Convention, he wrote a detailed exposi- a chance to read these comments in the
tion on treaties to Edmund Pendleton in RECORD tomorrow.
connection with the Treaty of Peace I will just close by observing that in
with Great Britain explaining: ' his careful analysis of the treaty abroga-
That the Contracting powers can annul tion power, Madison did not once con-
the Treaty can not, I presume, be questioned, Sider the possibility of the President
the same authority, precisely, being exercised alone terminating a treaty, even where
in annulling as in making a treaty. the other side had committed a breach
I see my friend from New York is in of it, which offers an insight, in my opin-
the Chamber. ion, into what the Founding Fathers
Mr. HARRY F. BYRD, -JR. I think the
Senator from Arizona is quite right.
Mr. GOLDWATER. Every one of us
has a book on his desk, or he should
have, called the Rules and Manual of
the Senate. These rules still include a
precedent which was set forth by
Thomas Jefferson who, as we all know,
compiled the first manual of rules and
practices of the Senate when he was
Vice President. He said, and I quote, and
it is in the manual:
Treaties being declared equally with the
laws of the United States, .. .
And get this:
inds of
i
.,.
n oue m
is understood that an act of the legislature over
alone can declare them infringed and tending to vote either this afternoon or ginia, the State which is the home of one
rescinded. tomorrow. If the President can abrogate of my favorite liberals, Tom' Jefferson.
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0 Z1~16 CONGRESSIONAL RECORD -SENATE March 7, 1979
who did so much to make this country
what it is.
I hope when we do get ready to vote
that our colleagues in this body will pay
very careful attention to what the
Founding Fathers said about this, and
the fact that this is the first time a
President has ever tried this.
I thank the Senator for yielding.
Mr. JAVITS. Mr. President, does the
Senator from Virginia have the floor?
Mr. HARRY F. BYRD, JR. Could I
just make a brief comment?
May I just say that the able Senator
from Arizona has made a most significant
contribution to this debate.
I think the facts and statements that
the Senator from Arizona has made
available to the Senate should be tre-
mendously helpful to the Members of the
Senate in deciding how to vote on the.
pending legislation.
Undoubtedly the Senate, if it wishes,
can say, "Well, we will table this amend-
ment; we will vote it down. We do not
want to have anything to do with the
treaties after they are made. We will
just let the President do whatever he
wants." We have the authority to do
that. Those Senators who want to do
that certainly have the right to so vote.
The Senator from Arizona and the
Senator from Virginia happen to take a
different course. We believe the Senate
has a constitutional role to play, just as
the report of the Committee on Foreign
Relations states. Here is the time to play
that role.
Those who do not want to participate
in it can say, "We are going to vote down
this amendment. We are going to table it.
We are going to oppose it one way or
another. We are going to get rid of it
some way."
Well, that is all right. The Senator
from Arizona and the Senator from Vir-
ginia have been on losing sides before.
It is nothing new to us.
But I just wonder why a person would
want to be in the Senate if he is going
to abdicate a vital constitutional role,
namely, the role of the treatymaking
process and, as the report of the Com-
mittee on Foreign Relations says, "the
constitutional role to participate in the
process of treaty termination?"
As the entire history of our country
Mr. GOLDWATER. I might just re-
mind my colleagues that last fall we
passed a resolution asking that the Pres-
ident come to us before he did anything
about this treaty, not just his body, but
the other body, too. I think there were
four votes against it in the entire Con-
gress. I may be wrong, but I think it
was that. So while it was not law, it was
certainly an expression of the Constitu-
tion the President should have under-
stood.
I thank the Senator from Virginia for
yielding.
Mr. HARRY F. BYRD, JR. I yield to
the Senator from Maryland.
(Mr. BAUCUS assumed the Chair.)
Mr. SARBANES. Is the approval to
which the Senator refers, the approval
of the Senate, is that by a majority
vote of the Senate?
Mr. HARRY F. BYRD, JR. Approval
is ordinarily in that form; what is crit-
ical is that some formal legislative ac-
tion occur.
Mr. SARBANES. The Senator means
it would take two-thirds to ratify the
treaty but that only a majority could
terminate it?
Mr. HARRY F. BYRD, JR. I think it
could. However, if the Senate would
prefer to have it spelled out as two-
thirds I would bewilling to accept such
a proposal.
, Mr. SARBANES. I do not have an
answer for the Senator from Virginia
on that question which, I think, is a
rather important one. That question,
however, is one of the reasons that
seems to me to support the suggestion
made earlier in the afternoon by the
managers of the bill that an amendment
of this sort which raises some very basic
constitutional questions, ought to be the
subject of hearings.
I appreciate the thrust of some of the
arguments which the Senator from Vir-
ginia has advanced. On the other hand,
as a matter of logic one could quite
easily argue that if it takes two-thirds
to approve a treaty it ought to take two-
thirds to terminate a treaty.
Let me ask the Senator from Virginia
this question: Does the Senator feel that
the Senate could terminate a treaty if
The President did not wish a treaty
terminated?
shows, going back to the lines quoted a Mr. HARRY F. BYRD, -JR. Well-
moment ago by the Senator from Ari- possibly the entire Congress; I believe
zona from passages written by Virgin- that has happened once already.
ians, incidentally, Thomas Jefferson Mr. GOLDWATER. Mr. President; will
and James Madison, the entire history of the Senator yield at that point?
our country shows that it was certainly Mr. HARRY F. BYRD, JR. Yes.
the clear view of those famous men of Mr. GOLDWATER. I might say the
that era, and I think it is certainly log- oily treaty, defense treaty, that has ever
ical, as the Senator from Arizona men- been abrogated was done precisely that
tioned in his earlier remarks, that if a way by the entire Congress.
President could unilaterally set aside Mr. SARBANES. The entire Congress,
what is known as the supreme law of the the House and the Senate.
land, then if he could do that in this Mr. GOLDWATER. Just a moment.
case then he could do that in many, If the Senate did not choose to do it,
many other cases, including statutes of then the whole Congress could do it. But
the Congress. it does require a two-thirds vote in the
Here is an opportunity for the Senate Senate to abrogate a treaty when they
to express its own view on this vital issue, are asked to do it alone or the President
and I associate myself with the Senator sends down a message he wants it done
from Arizona, and I am proud to stand that way which, I think, is the proper
with him, way.
Mr. SARBANES. Mr. President, will Mr. SARBANES. Well, now, can Con-
the Senator from Virginia yield for a gress, meaning the House and the Sen-
Mr. GOLDWATER. That was the
case, as I related earlier, either at the
end of Adam's term or thereabouts. They
abrogated a treaty with France. Later
the President came back and approved
what Congress had done.
If the Senator from Virginia will allow
me, I ask unanimous consent to have
printed in the RECORD at this point the
history of the terminations of 51 treaties
or treaty provisions that have taken
place, during the history of our country
since July 7, 1798.
There being no objection, the material
was ordered to be printed in the RECORD,
as follows:'
TERMINATION OF TREATY OR TREATY PRO-
VISION WITH LEGISLATIVE ACTION (51) 1
A. Termination with legislative approval
or ratification (48) 9
Authorizing legislation, treaty, and total
treaties affected:
Act of July 7, 1798, 1 Stat. 578, French-
American Treaties of 1778-1788, 4.
H.J. Res. of April 27, 1846, 9 Stat. 109, Con-
vention on Boundaries with Great Britain, 1.
S. Res. of March 3, 1855, 9 Senate Execu-
tive Journal 431, Commercial Treaty with
Denmark, 1.
J. Res. of Jan. 8, 1865, 13 Stat. 566, Reci-
procity Treaty with Britain, 1.
J. Res. of June 17, 1874, 18 Stat. 287,
Treaty of Commerce and Navigation and
Commercial Convention with Belgium, 2.
Act of February 26, 1883, 22 Stat. 641,
Amity Treaty with G. Britain, 1.
J. Res. of December 21, 1911, 37 Stat. 627,
Treaty of Commerce and Navigation with
Russia, 1.
Seamen's Act of March 5, 1915, 38 Stat.
1164, Several treaties and conventions, 25.
S. Res. of May 26, 1921, 61 Cong. Rec. 1793,
International Sanitary Convention, 1.
Treaty on Principles and Policies Concern-
ing China (Nine Power Agreement) of Feb-
ruary 6, 1922, 2 Bevans 375, Treaty of Com-
merce and Navigation with Japan, 1.
1944 Chicago Convention on International
Civil Aviation, 3 Bevans 944, 965, 1928 Pan
American Convention on Commercial Avia-
tion, 1.
1946 Convention for the Regulation of
Whaling, 4 Bevans 249, 1937 Convention for
the Regulation of Whaling, 1.
Trade Agreements Extension Act of 1951,
65 Stat. 72, Treaties of Friendship, Commerce
and Consular Rights with Hungary and Po-
land, 2.
1948 Convention on Safety of Life at Sea,
1929 Convention on Safety of Life at Sea, 1.
Foreign Assistance Act of 1961, 75 Stat. 424,
Commercial Convention with Cuba, 1.
Export Control Act of 1948, 50 USC App.
2021 et seq.
Trading with the Enemy Act, 50 USC App.
1 et seq.
Mutual Assistance Act of 1954, 22 USC
1934.
Inter-American Treaty of Reciprocal
Assistance of 1947, 4 Bevans 559.
Cuban Resolution of 1562, 78 Stat. 697.
Byrd Amendment of 1971, 85 Stat. 427,
? 503, "One aspect of our treaty obligations
under the U.N. Charter." Diggs v. Shultz, 470
F. 2d 461 (D.C. Cir. 1972), 1.
Fishery Conservation and Management
Act of 1976, 16 USC 1801, Three Conventions
on Fisheries, 3.
B. Termination with implied authority con-
ferred by inconsistent legislation (3)
Date of legislation, treaty, and total
treaties affected:
Tariff Act 'of July 24, 1897, 30 Stat. 151
Commercial Convention with Switzerland, 1.
National Industrial Recovery Act of 1933,
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March 7, 1979, CONGRESSIONAL RECORD- SENATE S 2159
48 Stat. 195, Convention on Abolition of party" means, in this case, either the course. But once legislation becomes
Import and Export Prohibitions and'Restric- United States or Taiwan. Any other con- law, whether it be a treaty or a statute,
tions, 1: elusion would not be logical. I am certainly of the same persuasion
Trade Agreements Act of June 12, 1934, Mr. SARBANES. There is legal author- as the Senator from Louisiana, that the
48 Stat. 943, Treaty of Commerce and Navi- ity that says that "party" means the President by himself cannot repeal that
gation with Italy, 1. President, and termination has occurred law, that it takes joint action with Con-
FOOTNOTES in the past on that basis. That has been gress to do that.
1 One incident of Congressional ratification a part of treaty law, and that is what has Mr. LONG. It totally baffles me try to
of a Presidential notice is not included in the taken place. understand how a law could be amended
Execu-
because the treaty was notice wte withdrawn before Mr. HARRY F. BYRD, JR. If the Sen- by the stroke of the pen of the Execu-
after Great ator will yield at that point, I think he tive, unless Congress has acquiesced in
after Prtresident Lincoln coln tei d. had In 186 notified shortly
Britain of our withdrawal from the Rush- will find that no mutual defense treaty that, or unless the Senate has ac-
Baggot Convention regulating naval forces has been unilaterally abrogated. And all quiesced by a two-thirds vote as to a
upon the Great Lakes, Congress defended its that has happened here is that notice treaty. I do not understand how a trea-
power in the field by passing a Joint Resolu- has been given. "Either party" may now ty could be repealed by a simple declara-
tion, based on the principle that Lincoln's terminate or not terminate as each sees tion of the President.
action was invalid until ratified and con- fit, in accordance with its own constitu- Mr. HARRY F. BYRD, JR. The Sen-
firmed by Congress. H.J. Res. of Feb. 9, less; tional process. ator from Virginia does not-understand
13 sten. 588. gress terminated all existing treaties Mr. LONG. Mr. President, will the how that would be done-at least con-
2 Co n
of the Hawaiian Islands with foreign nations Senator yield to me at that point? stitutionally-either. If that can be
in the Joint Resolution of July 7, 1898, but Mr. HARRY F. BYRD, JR. I yield. done, it seems to me that ratification
the action is not included in the table be- Mr. LONG. I came into this discussion of treaties by this body serves little
cause those treaties were not ratified under rather late in the game and have not purpose.
the Constitution. heard all the profound discussion of this Mr. GLENN. Mr. President, will the
3 treaty
be- cause ofhin onsistentii gi la onnis thed1891 matter one way or the other, but it was Senator yield?
Treaty of Amity, Commerce and Navigation my impression that the authority is made Mr. LONG. A President once told me
t
with the Independent State of the Congo. In clear by article VI of the Constitution, a that he could stroke of a pen, but ethat verything was a way st
1916, Belgium, which had annexed the Congo, which reads:
twice' denounced the whole treaty after 'Con- This Constitution, and the Laws of the changing a policy in a department.
gress directed the termination of a substan- United States which shall be made in Pursu- Mr. HARRY F. BYRD, JR. An Execu-
tive article thereof in the Seamen's Act of ante thereof, and all Treaties made, or which tive order.
1915. The treaty is counted only once in the shall be made, under the Authority of the Mr. LONG. Yes, an Executive order,
above tables, being included with those trea- United States, shall be-the supreme Law of telling the people working under him
ties affected by the Seamen's Act in Table A. the Land, and the Judges in every State shall or his cabinet officers that they are to
Termination of the treaty is reported by the be bound thereby, any Thing in the Consti- do business in certain ways, because he
State Department under the heading "Abro- tution or Laws of any State to the Contrary thought it in was wrong certain to do business, he
gation of Treaties and Provisions of Treaties notwithstanding.
which Conflicted with the Seamen's Act of otherwise.
March 4, 1915," Foreign Relations, 1920, vol. The impression I gather from that ar- That, I think, is strictly within the
1, pp. 207-209. title is that a treaty signed by the Presi- ballgame. There are all kinds of Execu-
dent SARBANES. Will the Senator dent and ratified by a two-thirds major- tive agreements the President can
ity of the Senate is the law, and if you make, as long as he can get us to up-
from Virginia continue to yield for fur- have a later law to the contrary, it would hold them. A succeeding President
ther colloquy? supersede that law. In case of conflict- could respect them or not respect them,
Mr. HARRY F. BYRD, JR. Go ahead. ing laws, whichever law is the latest of depending on his view of the matter.
Mr. SARBANES. Is it the view of the the two would prevail. That is the im- But I fail to see how a treaty can be
Senator from Virginia that the Congress, pression that I have. treated so casually.
meaning the House and the Senate, can If you want to repeal a law, you have Mr. HARRY F. BYRD, JR. The Sen-
terminate a treaty? to do it with another law. The Execu- ator from Louisiana has been around this
Mr. HARRY F. BYRD, JR. A treaty tive can make agreements, but he is Chamber almost as long as any Senator,
being in the nature of a statute, I sup- sworn to uphold the law himself, so that with two or three exceptions. In all those
pose that Congress, by joint action, the he cannot repeal a law just by saying "?I years, can the Senator from Louisiana
two Houses acting together, could do it. just don't like the law; I am not going recall a time when any President-and
It has already happened at least once. to abide by it." he has served under many of them-has
I believe it was in 1798. If one of us tried to do that, we would attempted unilaterally to strike down
Mr. SARBANES. But is it the Sena- be put in jail. They would say, "You don't either a major treaty or a major piece
tor's view that the Senate alone could have the right to decide what law you are of legislation by his own act, without the
terminate a treaty? going to abide by or what law you are acquiescence of Congress?
Mr. HARRY F. BYRD, JR. I would not not going to abide by." As I say, they Mr. LONG. I cannot recall it.
think the Senate alone could do it, no. would put us in jail. Mr. GLENN. Mr. President, will the
Under most of the treaties we have, as I am told the Attorney General has Senator yield?
,the Senator from Maryland knows, the stated in recent years that even the Pres- Mr. HARRY F. BYRD, JR. IYes.
provision that termination may be un- ident is subject to the law and has to
dertaken by either party only after 1 abide by it, or get in deep trouble. So I Mr. GLENN. I think all the questions
year's notice implies that such termina- just cannot understand how, if you make that have been raised by the Senator
tion will be done in accordance with a a law, it would cease to be the law un- from Maryland are very good questions;
party's internal constitutional process. less you repeal it by a subsequent law or and the discussion which the Senator
The Senator from Virginia contends amend the Constitution. Can the Senator from Louisiana, the Senator from Vir-
that "either party" means either govern- explain to me how you go about repealing ginia, and the Senator from Arizona
ment. Under our form of government, the a law? A treaty is described here as being have had indicates the lack of certainty
Senator from Virginia contends, it is the the supreme law of the land. It is de- and lack of knowledge that we have with
executive branch and the legislative scribed, with the Constitution and the respect to what is constitutional and'
branch acting together which forms the statutes, as being the supreme law. How what is not, the time that would be re-
Government or the "party" which may can the President abrogate a law, just by quired to abrogate or to go through a
terminate after 1 year's notice. saying, "I don't like it any more, it no deratification process, what the voting
Mr. SARBANES. Well, of course, we longer suits our purpose, out with it"? numbers should be, whether it be a ma-
could write into a treaty prior to ratify- How can you repeal a law just by the jority or whether it be two-thirds, and
ing it provisions defining what we mean Chief Executive saying he is tired of it? so on.
by "party" in terms of terminating a Mr. HARRY F. BYRD, JR. I am just All of. these are very relevant ques-
treaty. as much in the dark about that as the tions to the proposal of the Senator
Mr. HARRY F. BYRD, JR. Certain- Senator from Louisiana is. A President from Virginia. I would like to state again
ly. But it is patently clear that "either can veto a bill before it becomes law, of that I would be happy to accept this as
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CONGRESSIONAL RECORD -SENATE March 7, 1979
a matter which the Foreign Relations loquy with Senator HELMS. I told him
Committee should look into, hold hear- that I thought this was overstated. And
ingg and get a hearing from our consti- also with Senator GOLDWATER.
tutional scholars in on both sides. Al- Mr. HARRY F. BYRD, JR. The fact is
though we have not looked into this that this is a committee report. It was
question indepth, we had no intention of submitted to the Senate by the Foreign
dodging this. Since it was being brought Relations Committee.
up in the court, we expected that this Certainly, the Members of the Senate-
issue would be thoroughly examined. If have some reasonable right to accept this
we were required to take action after report and the accuracy of the report,
that, we would be willing to. Certainly, particularly when the report dovetails
court action would not preclude any ac- precisely with what the Senator from
tion we might want to take, either pro or Arizona has been saying, and many other
con. But the complexity and great im- Senators have been saying, and with
portance of this matter leads me to cau- what the Senator from Louisiana has
tion against passing it on a hasty basis been saying, that a President cannot
tonight just to get it on this bill. particularly when the report dovetails
I
ld
wou
be happy to accept this for the exactly with the arguments made by
Foreign Relations Committee, to have those two Senators as well as with those
hearings on it, to look into it indepth, of my colleague from Virginia, and with
and bring it back to the floor. I would those two Senators as well as with those
sincerely hope, as I expressed earlier, the. Senator from South Carolina, and
that the Senator from Virginia would many other Senators in this Chamber.
take that course, rather than forcing a As for the precise amendment which
vote upon us tonight, when we are, ob- the Senate hopefully will be permitted
viously, ill-prepared to consider some- to vote on at one time or another, it is
thing of this magnitude. clear. We do not need any public hear-
Mr. HARRY F. BYRD, JR. I thank the ing to know what our own judgment is
Senator from Ohio. I think this proposal as to whether it is the sense of the
we have before us tonight, if adopted, Senate that approval by the Senate of
would not in any way preclude the hear- the United States is'required to termi-
ings that the Senator from Ohio has nate any mutual defense treaty between
generously indicated he would hold. I the United States and another nation.
want to again read just what we will be We either feel that way or we do not.
voting on, if and when we are able to get Mr. GLENN. If the Senator from Vir-
to a vote. It just says this: ginia feels that way, can he give very
It is the sense of the Senate that-approval specific clearcut answers to all of his
by the Senate of the United States Is required 99 colleagues on the issues raised by
to terminate any mutual defense treaty be- the Senator from Maryland? What
tween the United States and another nation. would be. the number- of people who
We are expressing our own view. Cer- would vote on this?
tainly we have a view as to whether we do Mr. HARRY F. BYRD, JR. This says
or do not have a role. The Foreign Re- that the question of termination of any
lations Committee report on page 19 mutual defense treaty shall be submitted
states we have a constitutional role, to the Senate by the Chief Executive.
right here in black and white. I think that is clear. I would have no
Mr. GLENN. Will the Senator yield in objection to requiring a two-thirds vote
that regard? if the Senate feels that is desirable.
Mr. HARRY F. BYRD, JR. Yes. Mr. SARBANES. Will the Senator
Mr. GLENN. The Senator has quoted yield?
repeatedly that particular part of the Mr. HARRY F. BYRD, JR. Yes.
report today. I can only say that he Mr. SARBANES. I want to respond in
is well aware that these hearings and the part to some of the comments made also
reports that follow do not have the force by the Senator from Louisiana.
of law behind them nor are they any- There are two separate issues. One
thing but expressions of opinions. In fact, is should the President alone be able to
sometimes there are errors. I was sur- terminate a treaty? That matter is the
prised when I read that particular part, subject of a suit now pending in the
because I think it overstates the situation courts. There is historical precedent
and should not have been there. I am for the view that he can. I can envision
certain that if we took that back to the a situation in which we would want the'
committee, had everyone read that par- president to be able to terminate a treaty
ticular item and vote on it, that language and to move quickly. I suggest to the Sen-
would have been stricken from the re- ator from Virginia if he thinks about it
port. So I hope the Senator from Vir- he could also envision like situations in
ginia will not pin us to the wall too hard which the President, possessin
on the exact language of the committee g the
report. Executive power, has to move quickly
and terminate
Mr. HARRY F. BYRD, JR. I think a treaty.
unless the
those of us who are not on the commit- President cannot submits make it a true. There no
tee have to be governed to some extent way y that the submits
Congress, t the the House and d
the
at least by the committee report. It is that , can make
certainly a clear report. I had not heard Senate, or the e Senate alone, a any member of the committee object to submitted treaty of to its is by the initiative. It President. be
it until I brought it up. As a matter of that respect, ectoare very ery different
different
fact, the committee- , treaties u
from statutes.
Mr. GLENN. I objected to it. I agree . That issue is a very complicated con-
with the Senator objecting to it. stitutional question. The way to address
Mr. JAVITS. I objected to it before, it if it is desired to have a Senate role in
long before it was brought up. In the col- the formulating may well be to spell it
out in the resolution of ratification.
The Senator from Arizona is in court on .
this issue. He has testified before our
committee and has raised some very
interesting questions.
Leaving the question of termination
by the Executive alone to one side, there
is still the very difficult question of how
do you terminate a treaty even if it re-
quires more than the Executive alone.
This amendment itself by the state-
ment of the Senator from Virginia is
unclear as to whether you do it by a
majority vote of the Senate or by a
two-thirds vote. If you do it by a major-
ity, what is the logic of requiring two-
thirds to approve a, treaty and a majority
to terminate it?
On the other hand, the Senator from
Louisiana when he drew his analogy to
repealing a law, said that the Congress
could repeal a law. That is quite true.
But the Congress is the House and the
Senate and, it takes both to repeal a law
just as it takes. both to pass it.
Mr. JAVITS. And the President.
Mr. SARBANES. I will get to the Presi-
dent in a minute.
It is the House and the Senate acting
together by a majority vote that pass
and repeal laws. Yet you make a treaty
by two-thirds of the Senate without
action by the House. It is now suggested
you can repeal it by a majority vote of
the House and the Senate. Can a Presi-
dent veto the repeal of a treaty passed
by a majority of both Houses? If he does,
can the Congress override his veto of the
repeal of a treaty by a two-thirds vote
in both the House. and the Senate?
Suppose a President does not want to
terminate a treaty to begin with? Can we
initiate the termination of the treaty in
the Congress? Can the House of Repre-
sentatives initiate the termination of a
treaty? Can the House pass a resolution
terminating a treaty and, if so, what vote
would be required? If the House sent
such a repeal over to us what Would we
then do with it? If we passed it, by what
vote? Would the President have a veto
authority with respect to the termina-
tion of that treaty?
I have raised all these quesitons really
to underscore and subscribe- to what the
Senator from Ohio has suggested.. There
are a great number of unanswered ques-
tions. Even if you take the most narrow
view of the amendment offered by the
Senator from Virginia there will remain
unanswered questions. It seems to me
that the suggestion made by the Senator
from Ohio that there is a need to delve
into this matter in a very careful and
considered way, is a very good suggestion.
All the questions raised concerning
the. very difficult issue of how one pro-
ceeds in this area makes the counsel that
the Senator from Ohio _was offering
earlier particularly wise and prudent
counsel.
Mr.. GOLDWATER. Will the Senator
yield?
Mr. HARRY F. BYRD, JR. I yield to
the Senator from Arizona.
Mr. GOLDWATER. I think this is a
good point to get some history into this.
That is why I absented myself from the
floor long enough to look up-some things
that I do. not think have been in the
RECORD yet.
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March 7, 1979 CONGRESSIONAL RECORD -SENATE S 2161
The answer to how a treaty is ter- Ing its responsibility or a senator is not merit as a lawyer that what this does is
minated is in history. The normal pro- in favor of that. That is what the Sen- Put U.S. foreign policy in one of the worst
cedure for terminating treaties is by ator from Virginia is saying, is it not? tailspins it has ever been in. I shall say
joint action of the President and Con- Mr. HARRY F. BYRD, JR. That is why.
gress or the Senate. On 51 occasions, correct. I see no objection to hearings The power of the President to ' have
treaties have ended with legislative ac- if the Senate will pass the amendment given this notice of termination, which he
tion. In only four instances have treaties now pending. That does not preclude has given, is being challenged. This says
been ended without legislative action, hearings. If they want to have hearings the Senate agrees with the challenger.
and, that was done under international and go into other details, that is per- Therefore, it raises a big legal question:
law, such as the principle that a treaty fectly satisfactory with me. If the action of the President in giving
ends if the other nation goes- out of I would think that the Senate would notice of termination of this treaty is in-
existence-as in the case of the Nether-, .want to make clear its own view, and valid, this whole piece of legislation falls.
lands, which I mentioned was in the days that is what it is expressing, its own It would really be ridiculous to adopt it,
ex-
of Adams. view that the Senate has a role in the .because we would be doing something
the
The Senate did not have a specific treatymaking process and in abrogating actly contrary to what we believe. So the
reservation to treaties spelling out the a treaty. - Mutual Defense Treaty, if he has no pow-
power of the Senate to act on treaty There is no need to write this pro- er to terminate it, remains in effect. That
termination because it was obvious that, cedure into each new treaty nor to is what this resolution says.
during all of history, the Senate has amend the ones already ratified. It is It does not say, "should be," it does not
participated in this act under treaties clear from the face of the Constitution; say "will be." It says "it is." So we are
,.dentical to the language of the notice there is no more ambiguity here than substituting for the Supreme Court of the
provision in the Taiwan treaty. there is in the constitutional provisions United States and we are deciding this
I just wanted to make that a matter of for making statutes. We do not write question now, in the Senate.
heard, that
history so that we know what we are up into each statute the method of repeal; that may b I believe, be the he clear what I have purpose and intent
to. We are establishing a precedent by nor do we do it in treaties. All that is
allowing the President to get away with written into a treaty is that, as a matter of the Senator from Virginia, the Sen-a
this. As I said earlier, if the President of international law, 1 year's notice 'majority, from North Carolina, and perhaps
e
cares to send a message to the Senate will be given before, pursuant to inter- jority, I do o not t know. . But let us face
saying he wants to abrogate this treaty, it: That is what it is.
nal constitutional process, abrogation Mr. President, I think the Senate
there is no question in my mind that will occur, or not occur, as the case ought to have an opportunity to' vote very
the Senate will comply with the Presi- may be. clearly on whether it wishes to take this
dent's request. So we are not trying to Mr. HELMS. It is amazing to me that, legal position and to say to the President,
knock down any decision of the Presi- depending on which side of an issue a "We are going to really say that we do
dent. I think we are just trying to keep person may be on, his opinion may not consider your action to have been
the record straight and trying to keep change. I notice the discussion about lawful in giving notice to the Republic of
the President on the right track so arithmetic, whether it is a majority vote China that this treaty is terminated. It
that somebody might not come along or two-thirds. They had no problem with sounds like a sense resolution, but it is
someday and say, "I am tired of NATO," that arithmetic when the matter of ex- not, because this is our opinion. It is un-
sign his name and we are out of NATO; tending the ERA ratification period was lawful, Mr. President, what yoti have
"I am tired of the U.N.," sign his name up. Those of us who tried to say, "two done and we say so. It is the sense of the
and no more U.N.; "I don't like this law thirds," heard, "Oh, no, a majority vote Senate that you cannot do this. You have
against this," sign his name, and no more is just right." But when the Senator from to get our approval,- whatever that may
law. Virginia comes forward with an amend- mean."
I think it is very simple, what we are ment that is just as clear and simple as So, Mr. President, this is not just an-
talking about. I do not think it is com- it can be, the question is, "Oh, is it 51 other sense resolution that gives some
plicated. I think 201 years of history votes or two-thirds, or what?" pious hope and expectation of what we
stand behind those of us who are arguing By the way, when are we going to vote may and may not wish to do; this is the
on behalf of the proposal of the Sen- on the Senator's. amendment? real McCoy. This is the end of it, because
ator from Virginia. Mr. HARRY F. BYRD, JR. The Sena- we are giving our legal opinion, our opin-
I thank my friend from Virginia for tor from Virginia has been ready for 2 ion that what the President has done is
having yielded again. or 3 hours. unlawful. And I cannot do that, however
Mr. HARRY F. BYRD, JR. I yield to Mr. HELMS. So has the Senator from much I may wish to construct and I will
the Senator from North Carolina. North Carolina. I ask the distinguished lend myself to constructing. -
Mr. HELMS. I thank the Senator. acting minority leader: When will we And I am not asking the Senator to ad-
Mr. President, also very clear is the vote? journ for 20 minutes, not at all. If he can
Senator's intent in his amendment. You Mr. JAVITS. As soon as the Senator get a vote, he will get it and he will get it
can drag in all these "what ifs" and from Virginia sits down, I shall put the very promptly, maybe tonight, maybe to-
other hypothetical things, but the point question. morrow morning. That is not my purpose
is that this question would not be before Mr. HELMS. Is that an answer to my at all. But let us understand what we
? the Senate if the President had sent it question? are doing and if the Senate wants to
to the Senate and had conferred with Mr. JAVITS. Yes. knock this whole thing down, this is as
the Senate and given the Senate an op- Mr. HELMS. Then I say to the Sena- good an occasion as any. It would be my
portunity to act on it. tor: sit down. purpose and intention and it has been my
As Ipnderstand it, the position of the Mr. JAVITS. Mr. President, I am go- purpose and intention, because I think
Senator from Virginia is very clear. He ing to take my text from the Senator this is a very pertinent question, just as
is saying, and I am putting this in the from Virginia. He says the words are I applied myself, and the Senator from
form of a question to him, the Senator plain, just as written. It says: Virginia was very gracious, about devel-
is saying and saying no more than this: It is the sense of the Senate that approval ooing a methodology respecting an area
The President can give notice of intent by the Senate of the United States is re- of the Constitution which was in the twi-
to terminate, but he can terminate only quired to terminate any mutual defense light zone; to wit, the war powers reso-
after he receives authority to act by treaty between the United States and another lution.
statute authorizing him to terminate a nation. It was a methodology. We cannot
treaty. So he wishes us to adopt the proposi- change the powers of a President under
Mr. HARRY F. BYRD, JR. The Sen- tion that it is not approval by the Con-- the Constitution. When that issue was
ator from North 'Carolina is quite cor- gress, it is approval by the Senate and, debated, I think my colleagues will re-
rect. we must assume, by majority vote. member that I said a President could say
Mr. HELMS. That is very simple. I He has himself conceded that that is to us, "I'm sorry, gentlemen, but I am
do not know that we need to have ex- not what he means. Those are the words. going to disregard this whole thing, be-
tensive hearings on this. A Senator is That is what he wants us to adopt. cause you are trying to take away my
either in favor of the Senate's exercis- Second, Mr. President, it is my judg- constitutional powers." .
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Senator GOLDWATER appeared before
us and argued that very strongly, that
very thing.
But we felt it was a methodology very
carefully worked out and, 'though the
President vetoed it, we passed it over his
veto. In that spirit of comity which rep-
resents the triumph of our society, the
Presidents previous and the present
President are accepting that methodol-
ogy as what the Congress wants.
But this goes a lot further than that.
This is not just a methodology. I think
we could probably work out a methodol-
ogy which would resolve this question.
But this resolution, if we adopted it, just
as the Senator from Virginia says, we can
read the words, it is simple. This is what
they said.
Well, what they say is that the Presi-
dent has acted unlawfully, that is the
sense of the Senate. Therefore, this whole
edifice we have been developing goes
crashing down.
That is great for people who are
against it anyhow. But, apparently, a
majority of the Senate is not against it.
So whether we vote tonight or tomor-
row, I think it is very important to get
that clear.
Finally, the Senator said something
which I do not agree with, with all re-
spect, and he knows my great regard for
him, and I would like to straighten it out.
That is, that a motion to table is some
kind of a substantive reverse. It is not.
This is precisely what a motion to table
was made for. It does not decide the
merits. It gives us another opportunity,
either never to do it, or to do it sometime,
or even to do it later in this bill, in some
way that suits us.
I will vote for the motion to table. I
do not intend to prejudice this effort to
find a way to deal with what is a very
knotty and, apparently, quite an original
question, can a President unilaterally
give notice of the termination-every-
body is using the word "abrogate" and I
know that is wrong. There is no abroga-
tion here at all. The treaty says it can be
terminated within 1 year by either of the
parties.
The question, Who is the Harty? It is
the Government of the United States.
But who acts for that Government? The
President does lots of things under the
Constitution. He commands our armies
without congressional action. He can
CONGRESSIONAL RECORD- SENATE March 7, 1979
yield for an observation, I do not believe The inference here may well be it
that this is a resolution. I believe it is an would take two-thirds. I do not know.
amendment. I do not think there is any But at least it would. take a majority
requirement in the Constitution that of those voting, and I have seen too
calls for a two-thirds vote on any amend- many times when on a purely political
ment, whether it is to a treaty or not. issue that was not there, and to deter,
I just wanted to make that clear, the President in his responsibility under
The PRESIDING OFFICER. Will the the Constitution in establishing new re-
Senator use his microphone? lationships, because of the lack of such
Mr. GOLDWATER. What the distin- support, I think would be wrong.
guished Senator from New York did with Therefore, I really cannot support the
the War Powers Act, he did not take position of the Senator from Virginia on
away the power of the President as Com- this. I hope the Senate will not support
?mander in Chief to go to war. He merely the Senator from Virginia.
put some limitation on it. I think we should insist to the fullest
So I see where we can draw a parallel extent possible that the Congress, and
between his successful action, and I particularly the Senate, have our full'
think we are trying to do the same thing, constitutional role in foreign affairs. I
the Senator will remember the debates know of nothing in the Constitution that
we had on this floor during the war gives us such a role as that sought by
powers debate. the Senator from Virginia.
It ' was repeatedly stated that the. Mr. JAVITS. I thank my colleagues,
courts, the Supreme Court four times, I Mr. President.
think it was, has turned down a chance May I say the reason I made the point
to decide whether or not the Constitu- about tabling is that we who may vote
tion meant for the President to be the to table, we do not want to be, at least
Commander in Chief. That is still a little I certainly do not want to be, prejudiced
fuzzy. in what I may do on this particular mat-
I just wanted to make the point that ter, and on another occasion, and with-
this is an amendment, not a resolution, in another frame of reference.
and it does not require a two-thirds vote It certainly is not going to foreclose
on it. me from trying to fashion some way of
Mr. HELMS. If I may ask the Senator dealing with what is a matter, obviously,
one question, just for the record, he does of great importance, not dealt with di-
agree that the Mutual Defense Treaty rectly by the Constitution, and, if we do
has no relationship to the proposal for choose to deal with it, we will do it in a
the Institute, the Institute would have deliberate and intelligent way and not
nothing to do with the Mutual Defense in what I consider a highly improvident
Treaty? way, which would be to negate the Pres-
Mr. JAVITS. But all the other provi- ident's'legal authority in an amendment
sions of this particular law, the very to this very measure which all falls if
reason for the law, the whole Taiwan we say right here and now that in our
provision and other essential aspects of opinion he has no such legal authority.
what we are doing, are occasioned by Mr. MOYNIHAN Mr. President, will
the fact we have assumed, it is certainly the Senator yield?
clearly assumed that there is a mutual Mr. JAVITS. I yield.
defense treaty which is being terminated
as of the end of this year, otherwise' MrMOYNIHAN? Mr. President, I as-
as-
we would have a very different statute. sociate myself fully with the Senator's
Mr. HELMS. I agree. But it has ' remarks, and I wish to make an observa
nothing to do with the Institute? tion which may be marginal at this mo-
tor. DAVITS. It does not have to do ment, but which in very short order may
with the Institute. be very, central to our considerations.
Mr. HELMS. I thank the Senator, President Carter, whom we all have
Mr. ELMS. Ithe Senator will just sent off to the Middle East with our STEVENS yield, I am constrained, Mr. Senator President, . prayers and our great hopes, in a recent
interview in
to say that I cannot support the position in an article b by James Monthly or Burns,
of the Senator from Virginia, maybe fop by es MacGregor Burns,
expressed it as his view that if th
S
e
enate
a reason that others would not think of.
send men to their death without con- should fail to advise and consent to the
gressional action. That is power given But I had the occasion to work in the ratification of a strategic arms limitation
him directly by the Constitution, administration of President Eisenhower treaty, he would proceed to act as if the
So I think this thing can be resolved, and I have seen now 8 years of control treaty were in effect. That is a matter
but it needs to be resolved effectively and of the executive branch by a party that which raises very large questions and
intelligently, did not control the Congress, and I can- ones which are going to concern us if that
As I see it, in this resolution, it is just not see fettering the actions of a Pres- eventuality should come about:' There-
a matter of torpedoing this whoe thing, ident by requiring confirmation of a de- fore, it is all the more important that we
cision to terminate a relationship, be meticulous in assertin
because we say the `resident did not I can understand full well, on the en- g what is our
have the authority to give the notice of teri power and what clearly is not.
termination? so the whole thing falls on ng into of a new relationship, the The idea of implied powers is pervasive
that ground. constitutional responsibilities to the Sen- in the Constitution, and nothing is more
St I hope very much a motion to table ate. But I do not see we ought to take clear than the initiative of the executive
will made that a may have the this position, and I hope the Senate will in foreign affairs. In the spirit of checks
will at we
up or down not support it, primarily because we do and balances, the Constitution places one
as right and dthe e whether uty to
t want to not have that constitutional power, so restraint on that initiative. It is common
go forward far as I am concerned, and we should throughout the Constitution to have
with this, we may even want to do some- not attempt to usurp the President's these restraints, one body on the other,
thing about this, or whether we want to power in the role of foreign affairs, par- and that the President may not enter
stop it here and' now on this resolution. titularly in a situation where the Pres- treaties without the advice and consent
I yield to the Senator. ident does not have a majority of the of the Senate. That. his initiative is oth-
Mr. GOLDWATER. If the Senator will Congress. _ erwise a full and plenipotentiary initia-
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March 7, 1979 CONGRESSIONAL RECORD -SENATE
tive in foreign affairs, extending to put-
ting an end to a relationship, it is clear,
has not been questioned in almost two
centuries of the Republic.
At a time when the President is sug-
gesting that he might assert a different
premise, it seems to me. that we have a
greater responsibility to be strict con-
structionists, to be careful to attend to
the precedent and to the clear practice
of two centuries.
I believe the Senator from New York
is clearly correct in this, and I shall be
happy to support him.
Mr. JAVITS. I thank my colleague
very much. I count his support very im-
portant, considering his very rich back-
ground in this field.
Mr. WARNER. Mr. President, as a co-
sponsor of this measure, I would like to
put a question to those voicing opposi-
tion to the vote.
Hearings have been requested as a
compromise. Would it be the intent of
those proposing the hearings that the
hearings would embrace the threshold
question of whether or not the President
acted properly in this case, before we, as
a body, proceed with the measure before
us, S. 245?
Mr. JAVITS. As for me, I cannot say
that I would agree to hold up this case
until we had those hearings; but I cer-
tainly would have no conceivable objec-
tion to having the hearings cover every
subject, including the President's action
in this case. The only point the Senator
made which I could not accept is that
this should be held up until we decide.
Mr. GLENN. Was it the Senator's in-
tent that this would be held up until a
decision was made?
Mr. WARNER. I think that in the de-
bate it has been brought forth that there
are many serious questions, and. that is
the predicate upon which the hearings
were requested. Therefore, on the as-
sumption that-there is a serious question
should we not hold up this matter until
the hearings produce a result on which
we can vote as a body, thereby interpret-
ing this provision in the Constitution?
Mr. GLENN. I concur with Senator
JAVITS. I think that in the consideration
of what we are going to do, we examine
every treaty that has been treated, in-
cluding this one. But I would not want
to hold up this legislation. Otherwise, it
might go on for a long period of time.
? Mr. WARNER. The point made by
Senator JAVITS was that we could make a
grievous error if we proceeded now to
vote on this matter, and suppose we came
to the conclusion that the President
lacks the power to terminate.
Mr. JAVITS. I will tell the Senator why
that is incorrect. I mentioned this morn-
ing-and I repeat-that the committee
had to answer two questions : one, what
was its legal opinion about the Presi-
dent's power to give notice of termina-
tion? It said that that question is un-
clear, and it gave no legal opinion, unless
we adopt this amendment, and that
squared away Senator GOLDWATER.
I said we had another question, and
that is, Shall we act on this legislation?
That implies that we accept the fact that
that mutual defense agreement is termi-
nated and will be at the end of the year.
We answered that in the afrmative. We
will act. We are not passing on the gen-
eral issue, but in this case we are going
to act on. the hypothesis that it is termi-
nated. .
That seems. to me to square. exactly
with why I say we would sit on this until
such time as we decided. We have de-
cided. We are ready to act on this partic-
ular matter.
Mr. WARNER. I thank the Senator.
I yield the floor.
Mr. ROBERT C. BYRD. Mr. President,
I had thought it might be possible to
reach a vote this evening in relation to
this amendment, but a good many Sena-
tors have gone from the Hill. Therefore,
I ask unanimous consent that a vote in
relation to the pending amendment
occur tomorrow at 12 o'clock noon.
The PRESIDING OFFICER. Is there
objection?
Mr. HARRY F. BYRD, JR. Mr. Presi-
dent, reserving the right to object, is it
the intention of the majority leader that
there be 20 minutes or a half hour, or
something like that, for debate prior
thereto?
Mr. ROBERT C. BYRD. I would be
glad to include that in the order, Mr.
President, that beginning at 11 a.m.,
there be 1 hour of debate, to be equally
divided between Mr. HARRY F. BYRD, JR.,
and Mr. GLENN; that, in the meantime,
the Senate, by unanimous consent, could
set aside this amendment in order to
take up other amendments or other
matters.
Mr. HARRY F. BYRD, JR. Would
votes be taken on other amendments?
Mr. ROBERT C. BYRD. They could
be. I doubt that there would be, at this
hour, it being almost 7 p.m. The agree-
ment would allow for only 1 hour
prior to the debate on the pending
amendment.
I really would like to come in at 9
o'clock tomorrow and have 2 hours on
other matters, but -I could assure the
Senator that there would be no other
amendment voted on prior to his, if he
wishes me to include that in the order.
Mr. HARRY F. BYRD, JR. I think
that might be desirable.
Mr. ROBERT C. BYRD. The Senator
understands that this request does not
waive the right of Senators to move to
table.
Mr. HARRY F. BYRD, JR. That is
correct.
The PRESIDING OFFICER. Is there
objection? The Chair hears none, and
it is so ordered.
Mr. ROBERT C. BYRD. I thank the
Senator from Virginia, and I thank all
Senators.
Mr. HARRY F. BYRD, JR. Mr. Presi-
dent, I ask unanimous consent that the
Senator from Wisconsin (Mr. PROXMIRE)
be listed as -a cosponsor of the pend-
ing amendment, imprinted amendment
No. 30.
The PRESIDING OFFICER. Without
objection, it is so ordered.
? Mr. BAKER. Mr. President, as we
turn to S. 245, the Taiwan Enabling Act,
I believe it appropriate to note the im-
portance of this legislation. It is impor-
tant not only to continuing our good
and mutually beneficial relationship
S 2163
with Taiwan, but also as a means to
insure that as we embark on the promis-
ing but uncharted course of our new
relationship. with the People's Republic
of China we remain steadfast in our al-
legiance to our friends and our princi-
ples as a nation.
As I have said many times in the past,
Mr. President, I have no quarrel with
our recognition of the People's Republic
of China, which I have long considered
the inevitable and logical conclusion to
the process begun with President Nixon's
visit to Peking in 1973. This significant
step in the process of normalization must
be managed carefully and developed with
a realistic appraisal on both sides of
the Pacific of its prospects.' It is a re-
lationship that offers both problems and
promises, but I am convinced that it
can contribute significantly to the inter-
ests of the United States.
Nevertheless,` in developing that new
relationship, however promising, the
United States must not sacrifice our prin-
ciples of integrity and credibility as a
nation. So as it pertains to' the manner
in which we treated our longtime friend
and ally, the people and government on
Taiwan, I do quarrel with the adminis-
tration's recognition of Peking. In not
seeking assurances that the dispute be-
tween Peking and Taipei be settled
peacefully-in not seeking to maintain
an official relationship with Taipei-and
by acting precipitously without prior
consultation with the Congress or with
officials of the Government of the Re-
public of China-the administration
treated cavalierly and shabbily a friend
of the United States. In doing so the
administration tarnished our integrity
and credibility and, if for no other rea-
son, this legislation, as amended by the
Foreign Relations Committee, is ex-
tremely important.
This legislation helps to remove that
tarnish, Mr. President, because it now
contains a provision that I believe re-
flects the overwhelming sentiment of the
American people to the continued secu-
rity and prosperity of Taiwan. Moreover,
it provides a mechanism of maintaining
our relationship with Taiwan greatly im-
proved over that proposed by the admin-
istration. Although no mechanism so
constructed could substitute for a con-
tinued official relationship, I believe this
will suffice as the foundation for a sound
and prosperous relationship in the years
to come.
It may be, Mr. President, that the
Senate will wish to modify or strengthen
the language reported out of the Foreign
Relations Committee. More important
than the mere words, however, is the
spirit of the commitment of the Ameri-
can people to preserve our relationship
with a secure Taiwan. That commitment
will hold firm even as we move forward
in the development of a new relation-
ship with the Chinese on the mainland.?
? Mr. LAXALT. Mr. President, although
I intend to support strengthening
amendments, I will not oppose S. 245,
the Taiwan Enabling Act. It seems to
me that it is essential that we provide
some mechanism for continuing relations
with Taiwan and clearly state our on-
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S 2164
CONGRESSIONAL RECORD -SENATE March 7, 1979
going security commitment to that island
nation.
But I deplore the sequence of events
which has made the bill necessary, a
sequence.which to my mind is part and
parcel of an overall foreign policy which
quite frankly frightens me. With this in
mind, I will leave it to my distinguished
colleagues to debate the finer points of
S. 245, while confining my observations
to the deplorable decision to jettison
Taiwan, which made this bill necessary.
THE DECISION
Few in this body seriously object to
extending diplomatic recognition to the
People's Republic of China (PRC). I
think most of us felt that this was a de-
cision bound to come and even to a cer-
tain extent overdue.
But I do object, and I believe many
of my colleagues object, to the manner
in which the announcement was made,
to the absence of consultation with the
Congress, and to the extremely poor na-
ture of the bargain struck.
Quite literally in the dead of night and
right in the middle of the holiday season
with Congress out of town and the. Na-
tion preoccupied with other matters,
President Carter presented us with a
secretly negotiated, fait accompli. As I
understand it, our allies of some 30 years
standing were cut loose with less than 1
hour's notice. This was a bit much from
an administration which had made a
campaign issue of the secretive nature of
its predecessor's "Lone Ranger" methods
and fancied itself to be in the Wilsonian
tradition of "open covenants openly ar-
rived at."
Yet, bad as it was to not consult with
our allies, neglecting "prior consulta-
tion" with the Congress in clear viola-
tion of the Dole-Stone amendment to the
International Security Assistance Act of
1978 was even worse. Although the ad-
ministration did claim to have consulted
with some Senators, this apparently con-
sisted of at best a few hours' notice prior
to the President's appearance on na-
tional television. As a cosponsor of the
Dole-Stone amendment, this was cer-
tainly not my idea of "prior consulta-
tion" and I doubt whether it will satisfy
any of the other 93 of my colleagues who
approved the amendment in a unani-
mous vote.
In fact, the suddenness of the decision
made in extreme secrecy at a time when
Congress was not in session could cer-
tainly lead one to believe that the admin-
istration intentionally chose to evade the
provisions of the Dole-Stone amendment.
This is particularly disturbing from an
administration which had chided its
predecessor for not working well with
Congress on foreign policy and which had
pledged to the electorate in 1976 to do
better.
But it is the substance of the China
decision that I object to most. The Peo-
ple's Republic of China got everything it
has asked for and then some. The United
States was left with scarcely a fig leaf to
cover what I consider a disastrous re-
treat. And Taiwan, of course, got nothing
at all.
President Nixon could have secured the
same terms in 1972 at the time of the
Shanghai Communique. President Ford
could certainly have secured them during
his term of office. Indeed, it is fair to say
that the terms offered by Teng Hsiao-
p'ing and accepted by President Carter
are little different than those offered to
and rejected by five Presidents over the
last 20 years.
The substance of the People's Republic
of China demands has been known for a
long time. The People's Republic of China
has insisted: First, that diplomatic rela-
tions with Taiwan had to be terminated;
second, that all.U.S. military forces and
installations had to be removed from the
island; and third, that the United States-
Republic of China Mutual Security
Treaty had to be terminated.
Mr. President, the People's Republic of
China achieved each and every one of
these objectives. They also got a 1-year
moratorium on new arms sales commit-
ments by the United States to Taiwan.
In exchange for what? We can now
call our mission in Peking an embassy
rather than a liaison office. But, as the
Foreign Relations Committee noted in its
committee report on S. 245, the liaison
office already was an embassy in all but
name. The People's Republic of China
has promised to be somewhat more sym-
pathetic to economic offers tendered by
our businessmen. But then again, the
present political climate is very volatile
It could change, leaving our business-
men right back where they started.
Finally, the People's Republic of China
might even look the other way if we were
to sell Taiwan arms of a defensive nature
after the end of the year. But as the com-
mittee hearings show, even this is far
from certain.
What about the use of force? Would
the People's Republic of China pledge not
to use force in resolving the Taiwan
issue? Teng Hsiao-p'ing made it clear
while in this country that it would not.
Although the Foreign Relations Commit-
tee has gone to some length to express
our concern that the Taiwan situation
be resolved peacefully, the fact is the
administration proceeded to recognize
Peking without any commitment at all
from the People's Republic of China on.
this score.
In exchange for tangible concessions
of a concrete nature, then, we have se-
cured ambiguous assurances from a 74-
year-old leader of a highly explosive
country, and nothing at all about a re-
nunciation of the use of force. If Mr.
Teng is in control in the People's Repub-
lic of China today, he may not be tomor-
row, and there is no way for anyone to
be certain just what'will happen to Presi-
dent Carter's new China policy once
Teng passes from the scene.
ITS CONSEQUENCES
Mr. President, I strongly believe that
this new China policy is built on sand.
I also believe that it is morally reprehen-
sible in that we are abandoning a tried
and trusted friend without cause and
taking up with that friend's mortal
enemy.
Let me turn now for a moment to the
consequences. In foreign policy, as in
any other area of human endeavor, our
actions produce certain effects. It seems
to me that the effects of the new China
policy will be of at least three sorts:
First, on ourselves; second, on our al-
lies; and third, on our adversaries.
For ourselves, I cannot believe that
this action, in the aftermath of Vietnam
and in view of all the President's cam-
paign promises,of a more moral foreign
policy, says very much that is favorable
about the kind of moral image we Ameri-
cans wish to convey to the world. Surely
power politics is a' difficult business in
the best of times. But the American
people have always thought themselves
better than the sordid norm. Although
historically as a nation we have done
what we had to do to survive, we have
legitimately looked upon our nation at
something better, a moral beacon amid
the squalor of Old World rivalries.
In the past we left the bobbing and
weaving and moral ambiguity,to others'
Now we have turned, I believe viciously
and without cause, on a close friend. I
cannot believe that. this conforms to
what our people have a right to expect
this Nation to be in foreign affairs. And
I am sure that our people will waste no
time in repudiating it. But I am afraid
that the cynicism and arrogance char-
acteristic of turning on a friend will have
left an additional scar which it might
take some years to erase.
And what about our other friends and
allies overseas? Mr. President, how
would you like to be sitting in Bonn,
Tokyo, Riyadh, Tel Aviv, or Brussels?
To say nothing of London, Paris, Rome,
or anywhere else this ' country is relied
upon for security assistance? Quite
frankly, an American administration ca-
pable of turning 180 degrees and re-
pudiating its most solemnly pledged
commitment to an ally of 30 years'
standing is capable of most anything.
And those responsible for the destinies
of these and other friendly nations know
this very well.
We in Nevada have a strong tradition
of personal integrity. A man's word is his
bond, and either you can trust him or
you cannot. World politics, at bottom, is
no different. Nations, like individuals,
need to have reputations for trustworthi-
ness and reliability. Those who do will
find their share of friendship and sup-
port in the world. Those who do not risk
being thrust backward, alone and iso-
lated to face a hard world on its own
terms.
This country in particular needs to be
mindful of this lesson. Since the end of
World War II, we have entrusted our
security to a network of regional alli-,
antes, the common denominator of
which has been the very same mutual
security pledge violated by the adminis-
tration's December 15 announcement.
Whether we will be able to continue to
do so now becomes an open question.
For our adversaries the lessons of De-
cember 15 must be even more perplexing.
Press reports during the time of Vice
Premier Teng's visit indicated that the
administration had caved in so readily
on Taiwan that Teng apparently began
to wonder whether we would be of any
use to him in his efforts to contain Mos-
cow. The Russians are, of course, al-
ready strongly entrenched in Southeast
Asia, courtesy of their Vietnamese ally,
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and with their Navy present in ever
greater numbers in the Western Pacific
have been given a virtual carte blanche
to Involve themselves even more actively
in matters pertaining to the Formosa
Straits.
Yet I am sure that even Moscow and
Peking have had second thoughts about
our capricous abandonment of a close
ally. In the nuclear age, a certain amount
of predictability is desirable in relations
between adversaries, just as it is among
allies. Nations with their fingers on'a
nuclear trigger need to know that the
other side is reasonable, rational, and not
likely to do anything foolish. A policy
such as that announced by the President
on December 15, indicating an ability
and a willingness to turn a full 180 de-
grees throws all such reassuring assump-
-tions out the window and adds a disturb-
ing element of instability to the nuclear
balance.
Mr. President, I am unhappy with S.
245. Not for what it does, but for what it
represents. We in the Senate need to-pass
It to do what we can to make the best
of a bad bargain. But I am afraid that
our Nation and those immediately re-
sponsible will be long time living that
bargain down.O
ORDER FOR ROUTINE MORNING BUSINESS
Mr. ROBERT C. BYRD. Mr. President,
following any further discussion of this
amendment this evening, I ask unani-
mous consent that there be a period for
the transaction of routine morning busi-
ness, not to extend beyond 30 minutes,
with statements therein limited to 5 min-
utes each.
The PRESIDING OFFICER. Is there
objection?
Mr.. STEVENS. Mr. President, reserv-
ing the right to object, I ask the Senator
if this means there will be no more roll-
call votes tonight.
Mr. ROBERT C. BYRD. There will be
no more rollcall votes tonight.
Mr. HARRY F. BYRD, JR. The re-
quest of the majority leader was that
when the discussion of this amendment
concludes, there be routine morning
business?
Mr. ROBERT C. BYRD. Yes.
The PRESIDING OFFICER. Is there
objection? The Chair hears none, and
it is so ordered.
UP AMENDMENT NO. 31
Mr. GLENN. Mr. President, I send
technical amendment to the desk. The
present section 107 should be 106(c);
other sections should be renumbered
accordingly.
The PRESIDING OFFICER. The
amendment will. be stated.
The assistant legislative clerk read as
follows:
The Senator from Ohio (Mr. GLENN) pro-
poses an unprinted amendment numbered
31:
The present section 107 should be renum-
bered section 106(c). Other sections should
be renumbered accordingly.
The PRESIDING OFFICER.. The
question is on agreeing to the amend-
ment.
The amendment was agreed to.
Mr. HARRY F. BYRD, JR. Mr. Presi-
dent, I should like to make several very
brief comments.
The pending amendment, UP amend-
ment No. 30, does not take away from
the President any power the President
has. What it says is perfectly clear: It
is the sense of the Senate that approval
by the Senate of the United States is
required to terminate any mutual de-
fense treaty between the United States
and another nation.
It was brought out clearly in colloquy
between the Senator from North Caro-
lina (Mr. HELMS) and the Senator from
Virginia that it has nothing to do with
the President's right, the President's au-
thority, to give the 1-year notice of his
intention. to submit to the Senate the
abrogation of,a particular treaty. It does
not take any power away from the. Pres-
ident. What it seeks to do is to say to
the President that he cannot unilaterally
abrogate a treaty. It is a very clear
amendment.
All sorts of red herrings have been
brought into this discussion this evening,
but they do not apply in most cases. This.
takes nothing away from the President.
It does assert the Senate's constitutional
role in the treaty-making process, and
in the treaty terminating process.
Contrary to what has been implied by
the Senator from New York, this amend-
ment would have no effect whatsoever
to invalidate the notice already given by
the President. That has been done. The
amendment does not in any way chal-
lenge that authority. The amendment
does not even state an opinion for or
against that decision; the amendment
simply asserts the Senate's view of the
constitutional role of the Senate in this
important area. If we are unwilling even
to state our view, then we can expect to
be ignored in this and future cases.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Sena-
tor from Wisconsin.
Mr. PROXMIRE. Mr. President, I un-
derstand we are in the morning hour.
The PRESIDING OFFICER. Is there
further discussion on the-amendment
offered by the Senator from Virginia?
Mr. PROXMIRE. Mr. President, it is
my understanding there is no further
discussion of Senator BYRD'S amend
ment. The majority leader has secured
unanimous consent that we be in a
morning hour and that a morning hour
be permitted to make statements until
7:30 p.m.
ROUTINE MORNING BUSINESS
The PRESIDING OFFICER. If there
be no further discussion of the amend-
ment, pursuant to the previous order,
there will now be a period for routine
morning business.
Mr. PROXMIRE. Yes.
The PRESIDING OFFICER. Is there
morning business?
AMIN: A REMINDER OF GENOCIDE
Mr. PROXMIRE. Mr. President, re-
cently there have been news reports
from Africa that the government of Idi
Amin is beginning to crumble. After a
4-month war with Tanzania, the Ugan-
dan army is tired and discouraged. Ma-
chinegun fire can be heard in Kampala
,almost every night. Some reports claim
52165
that 80 members of Amin's family have
been evacuated from Uganda.
If the Amin government falls, it'will
mean the end of one of the most brutal
and oppressive regimes of the last
decade. It will mean the overthrow of
an egomaniacal tyrant of the last
slaughter of hundreds of thousands of
Ugandans. How has this butcher been
allowed to murder Acholi and Langi
tribesmen as well as Christians for the
last 8 years? What has the United States
done to halt these atrocities? Sadly, the
answer is nothing. While we have polite-
ly condemned genocide in Uganda, we
have dragged our feet in ratification_ of
the only international treaty which at-.
tempts to prevent and punish mass-
murder: the Genocide Convention.
Over the last 30 years while we have
considered and reconsidered the Geno-
cide Convention, millions upon millions
of people have been the victims of
genocide.
As we hail the imminent demise of the
regime of Idi Amin, we must see to it that
such human devastation never recurs.
One way to accomplish this is that we
must ratify the Genocide Convention.
MUTUAL SAVINGS BANKS
Mr. PROXMIRE. Mr. President, on
January 9, 1979, the U.S. district court
for the district of New Jersey ruled that
provisions of New Jersey law which pro-
hibit geographical discrimination in
mortgage lending are applicable to na-
tional banks. I am pleased with this re-
sult. It is consistent with the legislative
history of the Equal Credit Opportunity
Act Amendments of 1976 which I belive
makes clear that State laws prohibiting
discrimination in lending, and which
provide greater protection to applicants,
should apply to federally chartered
creditors. C
Last August, in a similar case involv-
ing the State of California's antiredlin-
Ing law, the U.S. district court for the
eastern) district of California ruled that
Federal law preempts State antidiscrim-
ination laws at they apply to federally
chartered savings and loan associations.
This case is now on appeal, and I hope
the appeal is successful.
Last. October, Congress passed legis-
lation to give mutual savings banks au-
thority to convert to a Federal charter.
One provision of this legislation explic-
itly provides that mutual savings banks
converting to a Federal charter must
continue to comply with applicable State
law pertaining to discrimination in the
extension of home mortgage loans or
adjustments in the terms of mortgage
instruments based on neighborhood or
geographical area, if the Federal Home
Loan Bank board determines that State
law and regulations impose more strin-
gent requirements than.Federal law and
regulations. When this legislation was
being considered by the Senate, I engaged
in a discussion with Senator Brooke on
the Senate floor designed to make clear
that this explicit provision addressed
only the issue of applicability of State
law to converting mutual savings banks,
and that this new provision did not affect
existing law applicable to Federal savings
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CONGRESSIONAL RECORD -SENATE . March 7, 1979
and loan associations. My remarks at
that time were certainly not intended,
and could not in any case, contravene or
reverse the legislative history of the
Equal Credit Opportunity Act Amend-
ments. Last year's legislation simply did
not address this issue, one way or the
other.
In response to a question from Senator
Brooke on the Senate floor last October,
one of my comments was that Federal
law will continue to govern Federal sav-
ings and loan associations in the anti-
discrimination area. This statement was
made in the larger context of a statement
explaining that the then pending legisla-
tion would not change existing law in
this area as it affects Federal savings
and loans. It also gave recognition to the
fact that at that time, the only court
interpretation of existing law was that
Federal savings and loans were not sub-
ject to State antidiscrimination laws.
Since that time, as I have noted, the
U.S. district court for the district of New
Jersey has issued a ruling with respect
to New Jersey's antiredlining law. While
that ruling applies to national banks, it
is possible that some of the court's rea-
soning may bear on the legal situation
as it affects Federal savings and loans.
Also, as I have noted, the California case
is on appeal. My remarks last October
were certainly not intended to affect the
outcome of the appeal of that case, which
should be decided on its own merits in
accordance with existing law regarding
the applicability of State antidiscrimi-
nation laws to Federal savings and loans,
which, as I have noted, was not changed
one way or the other by last year's legis-
lation. If the appeal of the California
case is successful, then certain of my re-
marks made last October would be ren-
dered inaccurate and inapplicable.
Mr. President, I am making these com-
ments because I have just learned that
the bank board has cited my remarks
of last October in its brief in defense of
the appeal of the California case. Since
I believe that the board's citation of my
comments was done in a manner which
misinterprets the basis and intent of my
remarks, I believe it is necessary for me
to set the record straight.
THE DEATH 'OF GEN. MUSTAFA
BARZANI
Mr. PROXMIRE. Mr. President, I
take a moment to take notice of the
death of Gen. Mustafa Barzani who for
40 years fought for the freedom of his
Kurdish people. On one occasion about
3 years ago General Barzani asked to
come to my office. Through an interpret-
er he explained that he was present to
thank me for a speech I had made deal-
ing with the repressive measures taken
against Kurdish tribesmen and women
by the Iraqi and Iranian regimes. He
spoke softly and directly. He indicated
that one of.the major disappointments
of his life was the reversal in policy dic-
tated by Secretary of State Kissinger
that led to the bloody suppression of his
revolt against the Iraqi Government. He
asked for assistance, where possible, for
Kurdish refugees. And then he left. He
had said what he came to say.
The story of the U.S. role in the Kur-
dish revolt is not a pleasant one. It is an
example of the worst form of geopoli-
tics, the political games played by indi-
viduals and nations. When it served U.S.
purposes, we supplied aid to the Kurdish
cause. And when Secretary Kissinger felt
it necessary to seal an alliance with the
Shah of Iran, who was increasingly con-
cerned about his western border, then
the United States abruptly withdrew its
assistance. The Kurdish people were the
pawns in the chess game.
When Secretary Kissinger speaks of
not allowing concern for human rights
to dominate U.S. policy, perhaps he is
thinking of the example of the Kurdish
people-a four century struggle for inde-
pendence that once looked promising but
was snuffed out in a quick behind-the-
scenes diplomatic agreement.
Mr. President, I ask unanimous con-
sent that articles from the Washington
Post and New York Times on General
Barzani be printed in the RECORD.
There being no objection, the articles
were ordered to be printed in the RECORD,
as follows:
[From the Washington Post, Mar. 3, 1979)
GEN. MUSTAFA BARZANI, EXILED
KURDISH CHIEFTAIN, DIES
(By J. Y. Smith)
Gen. Mustafa Barzani, the colorful guer-
rilla chieftain who unsuccessfully fought for
Kurdish independence in Iraq for more than
15 years, died Thursday evening at George-
town University Hospital following a heart
attack. He was 76.
Gen. Barzani, who was known to his fol-
lowers as "the grand old man of Kurdish
independence," came to the United States
in June 1976. He was suffering from lung
cancer and underwent treatment at the
Mayo Clinic in Rochester, Minn. He lived in
Washington, and at the time of his death,
in McLean.
His exile here began a year after the col-
lapse of his final campaign before an on-
slaught by the Soviet-equipped Iraqi army
in the spectacular mountain regions that are
the homeland of the Kurds.
The military defeat followed a political dis-
aster. In March 1975, Iran withdrew its sup-
port for the Kurds as part of the settlement
of a border dispute with Iraq. The two na-
tions had been on the point of open war
over the Kurdish question. The settlement
of the border question defused this threat
and with it what some regarded as a much
wider threat to stability in the Middle East.
Thus, the United States supported it.
Gen. Barzani and about 200,000 of the es-
timated 2 million Kurds living In northeast-
ern Iraq fled to Iran, which offered them the
choice of remaining-there is a sizable Kurd-
ish population in Iran-or of returning to
Iraq.
Shortly before We fled, Gen. Barzani told
an interviewer "Sometimes things are good.
Sometimes they are bad. Now they are bad.
It is a fact of life."
Ironically, Shah Mohammed Reza Pahlevi
of Iran, who had withdrawn Iranian support
of the Kurds, also was in exile at the time
of Gen. Barzani's death, having been forced
to leave his country by the revolution of
supporters of the Ayatollah Ruhollah Kho-
meini.
. Gen. Barzani's departure from Iraq in
1975 ended a 17-year period in which he was
i;he most visible of Kurdish leaders. In 1958,
he had returned from an 11-year exile in the
Soviet Union to a hero's welcome in Bagh-
dad, the Iraqi capital. The Iraqi army had
just overthrown the British-backed Hashe-
mite dynasty and had launched Iraq on a
I
path of socialism and intense Arab nation.
alism.
At first, it appeared that the new regime
would be agreeable to allowing the Kurds
a measure of autonomy. When these hopes
failed, Gen. Barzani led his troops, the Pesh
Merga, which means "forward to death,"
into battle.
The war continued intermittently for 10
years. In 1970, the Iraqis, their resources
sorely strained by the effort, agreed to give
the Kurds substantially what they wanted.
They were to have their own local govern-
ment and armed forces, five seats in the
Iraqi cabinet and a vice presidency.
On however small a scale, this would have
been the realization of a Kurdish dream.
The Kurds claim a history of 4,000 years.
There are an estimated 12 million of then
living in an area encompassing the borders
of five countries: Iran, Iraq, the Soviet Un-
ion, Syria and Turkey. An Aryan people with
an Indo-European language, they are Sunni.
Moslems.
An independent Kurdistan had been prom-
ised by the Treaty of Sevres in 1920 be-
tween the Allied powers and Turkey. The
promise was ignored by all parties.
Gen. Barzani apparently had doubts that
the Iraqi proposals of 1970 would be Im-
plemented. In September 1971, nine persons
dressed as holy men visited him at'his head-
quarters in the village of Haj Omran near the
Iranian border. One was a "human bomb."
When he exploded, four other "holy men"
and a Kurdish soldier were killed. Gen. Bar-
zani escaped unharmed. His followers blamed
the Iraqis for the attempt on his life.
The Iraqi concessions were to be imple-
mented by 1974. As the deadline drew near,
it appeared that they would not. The major
stumbling block was the Kurdish claim to
the rich Kirkkuk oil fields and a failure to
reach agreement on the boundaries of the
Kurdish sphere.
It was at this point that the shah of Iran
offered to support Gen. Barzani in a renewed
war against the Iraqis. The Israelis also re-
portedly offered covert assistance ,because
Israel shared Iran's interest in tying down
the Iraqi army and because it was concerned
about its Iranian oil supplies.
According to the House Select Committee
on Intelligence (the Pike Report), Gen. Bar-
zani insisted on a U.S. guarantee of the
shah's good intentions. The United States
agreed to this, and supplied the Kurds with
"untraceable" captured Soviet and Chinese
arms through Iran.
Iranian army units took part in the sub-
sequent fighting and Iraqi forces made In-
cursions inside the Iranian border.
The Pike report maintains that the Kurds
would have gained at least some measure of
autonomy without further fighting. It is
said the United States hoped that the Kurds
would wear down the Iraquis, but that there'
was no intention of supporting Gen. Barzani
through to victory.
In exile here, Gen. Barzani occasionally
spoke out in favor of Kurdish rights. Mostly,
his life was quiet.
He was born in the village of Barzan in
Iraqi Kurdistan into a family of religious
scholars and tribal leaders. He earned the
title of mullah, or religious wise man. After
his years in the Soviet Union, he sometimes
was called "the Red Mullah."
He got his first experience of oppression
at the age of 3, when he and 25 members of
his family were imprisoned by officials of the
old Ottoman Empire. He was in jail for nine
months on that occasion.
In 1931, he and 40 other members of the
family were restricted to a small village
after Gen. Barzani's brother, a tribal leader,
led an unsuccessful uprising against the Brit-
ish. But he remained acti,'ve in behalf of
Kurdish independence throughout the 1930s
and into the .1940s.
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