A False Alarm: A Legal Analysis of the Impact of U.S. Withdrawal from Afghanistan on Taiwan
The withdrawal of the United States from Afghanistan has inspired discussion both domestically and abroad about the credibility of the U.S. security obligations to Taiwan. The comparison is misleading in light of the various statutory commitments of the United States to Taiwan.
A view of Taipei, the seat of the Taiwanese government not officially recognized by the United States. Photo: Wikimedia Commons
By: Alex Herkert, Staff Member
Media Scrutiny of Withdrawal from Afghanistan on U.S.-Taiwan Relations
The impact of U.S. withdrawal from the protracted military conflict in Afghanistan in August 2021 reverberated around the globe, and brought about government and media pontification on the potential adverse effects on global political stability. Following the U.S. announcement, the Global Times (the hawkish and “aggressive” companion to the Chinese Communist Party’s primary news outlet, the People’s Daily) published a series of opinion pieces claiming that U.S. withdrawal signaled a broader policy of abandoning allies, and that Taiwan would be the next U.S. confederate to be deserted. The Global Times discussion was unencumbered by legal analysis, despite crucial differences in the U.S. statutory commitments to Taiwan versus Afghanistan.
The arguments made in the Global Times pieces trend emotional rather than legal. On August 16, the Global Times published no less than three English-language pieces on the topic. One quoted unnamed “experts” saying that “Afghanistan is not the first place where the US abandoned its allies, nor will it be the last.” Another cited unidentified Taiwanese internet users who posted comments saying “Yesterday’s Saigon, today’s Afghanistan, and tomorrow’s Taiwan?” Finally, a third opinion piece written by an anonymous “retired Marine Corps infantry officer who now serves as a US civil servant in the Pentagon” stated “What do Afghanistan, Iraq, Somalia, Lebanon and Vietnam share in common? Answer: Abandonment by an imperialist US.” No reference is made in the pieces to the Taiwan Relations Act passed in 1979, nor more recent Congressional legislation like the TAIPEI Act reaffirming U.S. commitments to Taiwan.
The Global Times was joined by a number of Western media outlets commenting on the implications of the withdrawal from Afghanistan on Taiwan. The conclusions and opinions offered in Western media outlets, however, are reversed. On September 13, the New York Times published an opinion piece by Oriana Mastro arguing that Taiwan is more strategically important to the United States than Afghanistan is, and the United States still stayed in Afghanistan for two decades. The logical conclusion to this line of reasoning is that the U.S. experience in Afghanistan indicates, if anything, that the United States. will not abandon its interests in Taiwan easily. Pieces in Time and Foreign Policy reach similar conclusions, citing the unique relationship between the United States and Taiwan, as well as statutory commitments made between the two parties.
A False Comparison
Both the alarmist coverage in the Chinese state media, as well as more balanced coverage from Time, Foreign Policy, Focus Taiwan, and the South China Morning Post, obfuscate what should be central in any comparative discussion: the vast gulf in U.S. statutory commitments to Afghanistan and Taiwan. While the United States began diplomatic relations with Afghanistan in 1935, the legal basis for U.S. military involvement over the past two decades was the 2001 Authorization for Use of Military Force (AUMF) passed by Congress in the wake of the September 11 attacks. The broad resolution gives the President authority to use all “necessary and appropriate force” against nations that “planned, authorized, committed, or aided” the terrorist attacks. The AUMF contains no sunset clause and no specific reference to Afghanistan.
The United States and Afghanistan agreed to the Security and Defense Cooperation Agreement in 2014, which served primarily as the legal basis for extending U.S. military presence in Afghanistan. It also included the shared goal of Afghanistan eventually taking full responsibility for funding its own defense and security needs, and stated that the United States would “regard with grave concern” any external aggression. It provided for U.S. troops and access to military bases in Afghanistan until 2024 and beyond, but provided for no minimum amount of assistance and is not a defense pact. Nor was the Agreement ratified by the Senate as an Article II treaty (and thus it was not the law of the land). The agreement was terminated in 2020 when former president Donald Trump signed the Doha Agreement laying out how and when the United States would withdraw from Afghanistan.
The relationship between the United States and Taiwan provides a direct contrast to the United States’ relationship with Afghanistan. While U.S.-Taiwan relations remain unofficial (for an analysis of the complicated trilateral relationship between the United States, China, and Taiwan, see this piece by scholars Shelley Rigger and Richard Bush), the two are bound by the Taiwan Relations Act passed by Congress in 1979. This comprehensive Act establishes the basis and mechanisms for the unique U.S.-Taiwan relationship, but, importantly for the comparison to Afghanistan, it also gives statutory backing to security commitments between the United States and Taiwan.
Article 2(b)(3) of the act states that “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.” The act then continues in 3(c) that “The President is directed to inform the Congress promptly of any threat to the security or the social or economic system of the people on Taiwan and any danger to the interests of the United States arising therefrom. The President and the Congress shall determine, in accordance with constitutional processes, appropriate action by the United States in response to any such danger.”
A final important provision is that the United States, per 2(b)(5) of the act, will provide Taiwan with “arms of a defensive character.” The Taiwan Relations Act recently passed its 40th year in operation, and has served as a lodestar in the trilateral relationship between the United States, China, and Taiwan.
Nor is the Taiwan Relations Act the final statutory word on U.S.-Taiwan relations. Reagan’s “Six Assurances” to Taiwan were promised in the 1980s. More recently, Congress has repeatedly approved arms sales to Taiwan through National Defense Authorization Acts, and since 2017 Congress has passed six acts in support of Taiwan including both the Taiwan Travel Act and the TAIPEI Act. The TAIPEI Act specifically rewards third countries that have upgraded their support for Taiwan in a direct reproach of the mainland’s attempts at isolating the island.
In Sum
In light of the myriad statutory commitments to Taiwan that implicate both Congress and the Executive, it is clear that comparison between the U.S. obligations to Afghanistan and Taiwan is at best inaccurate and at worst deliberately misleading. Attempts by the mouthpiece of the Chinese Communist Party to conflate the two are guided not by legal analysis but rather a desire to erode the relationship the United States and Taiwan have developed. In response to a reporter’s question about Chinese state-run media’s attempts to draw parallels, U.S. Secretary of State Tony Blinken responded: “As I said earlier, whatever protestations they may be making in newspapers or in their propaganda, there is nothing that China would have liked more than for us to have re-up the war in Afghanistan and to remain bogged down for another five, 10 or 20 years.”
While there are certainly many lessons and important implications arising from the U.S. withdrawal from Afghanistan, U.S. support for Taiwan is not primary among them. The United States’ statutory commitments to Taiwan are the most important reference point for the relationship moving forward.
Alex Herkert is a second-year student at Columbia Law School and a staff member of the Columbia Journal of Transnational Law. He graduated from Yale University in 2017. He completed a year of Chinese language study in Taiwan on the Blakemore Fellowship immediately prior to law school.