Is it time to scrap the China-US ‘Three Communiques’?

Chinese officials have become increasingly strident about U.S. support for Taiwan. For years, they simply reiterated their well-worn positions while ignoring established U.S. policy. Then, they began conflating the two governments’ positions, dismissing the difference between Beijing’s One China “principle,” which claims Taiwan as part of China, and Washington’s One China “policy,” which recognizes the People’s Republic as China’s only government but maintains that Taiwan’s international status is undetermined.

Now, Chinese officials have escalated their argument to a new level, alleging American bad faith and duplicity. They contend that Washington always knew it was accepting China’s claim regarding Taiwan and is reneging and trying to change history.   

Zhao Lijan, China’s official military spokesperson, demanded recently: “The U.S. needs to abide by … its political commitment to China on the Taiwan question.” China’s ambassador to the United Kingdom elaborated: “The one China principle is … the political foundation of China-U.S. relations. The …U.S. side [is] attempt[ing] to deny [it] by misrepresenting history and distorting facts … be it the One China principle or the One China policy, the essence of both is ‘one China.’’’ 

The source of the controversy is the Shanghai Communique, the original sin of U.S.-China-Taiwan relations, the Indo-Pacific’s most dangerous flashpoint.

In Henry Kissinger’s memoir, “White House Years,” and in Winston Lord’s “Kissinger on Kissinger,” he describes the Sino-U.S. negotiations that produced the document. Even before the two sides met in Shanghai, the ground had been prepared for the critical wordsmithing needed to craft a communique both sides could live with after decades of isolation and hostility.

In accordance with the strategy he and President Nixon had devised, Kissinger wrote, “[For] the outline of a communique, I submitted a draft in the traditional form, stressing agreements. But Mao [Zedong], through Zhou [Enlai], had a different concept. He proposed listing disagreements because it was more credible, and then emphasizing the agreements we did reach. So we reversed what we had come to do. We accepted Mao’s scheme and brought it back to Nixon. … He never questioned one line of it.”

Under the Mao-Zhou approach, each side would make a statement of its positions and the other side could offer comments. The Chinese took maximum advantage of their counter-proposal by laying out a full-throated indictment of the U.S.-led international order and criticism of American “interference” in other countries’ affairs. The U.S. chose not to offer any rebuttal or reciprocal criticism of China’s international behavior. Nor did it even mildly disagree with the Chinese assertion that Taiwan is an integral part of one China ruled by the People’s Republic. To the contrary, it stated:

“The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position.”

Kissinger occasionally has said he found that formulation in an earlier State Department document. Among the Merriam-Webster definitions of “acknowledge” is “to take notice of,” which Washington insists was the U.S. side’s intended meaning. But another, equally accepted, synonym of “acknowledge” is “to recognize” or “admit as true.” Beijing obviously chose the definition more favorable to its position and has run with it since. In the Chinese version of the communique — and in the practice of Chinese diplomats — the term “acknowledge” is translated as “recognize.”

A passage in Kissinger’s book could be read as supporting the Chinese interpretation: “[W]e secured [the Chinese side’s] agreement stating that we acknowledged Taiwan as a ‘part’ rather than a ‘province’ of China, thus eliminating a suggestion of subordination.” But that nuance would have made no difference if the American negotiators were merely taking note of the position of “all Chinese,” rather than expressing concurrence in the position itself. Kissinger’s statement suggests the latter. In any event, China retained the term “province” in its own statement, and apparently the Kissinger team did not object — even as they were allowing the China side to urge changes in the U.S. statement.

Kissinger described a critical example of the negotiating process: “The Chinese wanted us to state that a peaceful solution was our ‘hope.’ We insisted on affirming it as an American interest, indeed on ‘reaffirming’ it, implying that it was a continuing commitment. … [W]e had achieved our basic objective. We would reaffirm our interest in a peaceful solution of the Taiwan question.”

But the Americans did not state it as a reciprocal condition, or even expectation, and did not ask China to commit to a peaceful solution to “the Taiwan question,” let alone insist that it “must” do so, as the Chinese commanded “all U.S. forces and military installations must be withdrawn from Taiwan.” Nor, apparently, did the U.S. ask China to reciprocate by at least “acknowledging” Washington’s “interest” in a peaceful resolution. 

Kissinger mentioned an interesting aspect of the negotiations: “[O]ne of the associates of Zhou Enlai… had a fantastic English vocabulary. He was a genius in finding an English word that would meet the requirements of both sides.” Kissinger took the U.S. acquiescence a step further, agreeing to use the Chinese interpreters, whom he considered superior to the American ones. 

The one-sided, strategically ambiguous Shanghai Communique has haunted the relationship ever since. The second (1979) and third (1982) Sino-U.S. communiques repeated and built upon the flawed language in the 1972 document.  

Both Beijing and Washington complain that the other side is not living up to the original agreement and, worse, is distorting its meaning. That amounts to the absence of a meeting of the minds, which, under the common law of contracts, constitutes a failure of actionable agreement. A legal argument could be made that the undertakings — exclusively by the U.S. side — are null and void.

Another legal principle applies, that of conditionality — condition precedent and condition subsequent. The Taiwan Relations Act (TRA) of 1979, enacted to complement the switch in U.S. recognition from Taipei to Beijing, captures the point precisely: “[The United States decision to establish diplomatic relations with the People’s Republic of China rests upon the expectation that the future of Taiwan will be determined by peaceful means.”  

Beijing rejects that “expectation” and passed its Anti-Secession Law to counter the TRA and mandate use of force to resolve Taiwan’s status. Kissinger has warned Taiwan that “China will not wait forever.” Chinese leader Xi Jinping agrees. President Biden, urgently and definitively, needs to inject some strategic clarity from the U.S. side. He should declare the U.S. understanding of the communiques as the only binding U.S. commitment.

After 50 years, China now claims the entire Taiwan Strait as Chinese waters, never contemplated at the time of the Shanghai Communique. Beijing has nullified it; it’s time for Washington to declare its One China-One Taiwan policy and return U.S. forces to Taiwan. 

Joseph Bosco served as China country director for the secretary of Defense from 2005 to 2006 and as Asia-Pacific director of humanitarian assistance and disaster relief from 2009 to 2010. He served in the Pentagon when Vladimir Putin invaded Georgia and was involved in Department of Defense discussions about the U.S. response. Follow him on Twitter @BoscoJosephA.