Country Watch
government of Taiwan over protest from Beijing. At the time, Taiwan had requested the C/D version of the aircraft, but the Administration opted to sell the A/B package in order to stay within the terms of a U.S. promise a decade earlier to scale back its arms sales to Taiwan.
Fourteen years later, Taiwan’s government for- mally asked the George W. Bush Administration to authorize the export of a new fleet of 60 F-16 C/ Ds. The request languished for nearly three years under President Bush and another three years un- der President Obama, before being declined ear- lier this fall.
According to a statement by U.S. Defense Secre- tary Leon Panetta last summer, China maintains the capability to launch an attack across the Tai- wan Strait. China continues to increase its capac- ity “to fight and win short-duration, high-intensity (regional) conflicts.”
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At the core of the President’s action lies a balance of security and trade interests; though a rising mil- itary power, China is now a WTO member and the world’s fastest growing economy. Beneath sig- nificant Congressional discontent with the Presi- dent’s action, however, lies an ambiguity in U.S. law that calls into question the authority of the executive to make such a decision unilaterally.
Historically, trade and national security have always been inextricably linked: trade is an instrument of security, and military strength is an instrument of trade. Where nations trade at significant levels, they are far less likely to bring disagreements to active warfare.
Trade wars tend, tragically, to become actual wars. In the aftermath of World War II, the French government adopted, with the leadership of For- eign Minister Robert Schuman, of the view that integrated trade as the key to national security. In 1950, the French, along with four other nations, entered a monumental trade pact with West Ger- many. The European Coal & Steel Community evolved over six decades into today’s European
Union, the single largest trading bloc in the world. Schuman’s philosophy held out the hope that the entanglement of the nations’ industrial capability would lead to a Europe where it was simply too expensive to go to war.
This philosophy underpins the General Agreement on Tariffs and Trade (GATT) and its evolution into the agreements of the World Trade Organization (WTO) in the mid-1990s. Under GATT Article XI, member states may not prohibit, through quotas or license requirements, the exportation of any product. However, arms, ammunition, and war materiel are exceptions from this prohibition un- der GATT Article XXI. Specifically, where a mem- ber state considers an export restriction neces- sary to protect its essential security interests, the WTO takes a decidedly hands-off approach. No complaints have been brought to the WTO against any member using the Article XXI national secu- rity justification.
Under the Arms Export Control Act (AECA, 1976), the President holds the sole authority to control the shipment of defense articles, including combat aircraft, and the Secretary of State is authorized to grant exceptions to export licensing require- ments. The 1992 F-16 sale was made pursuant to this authority. This authority, like the GATT Article XXI exception, is so widely accepted that its ex- amination in caselaw is virtually non-existent.
However, the Taiwan Relations Act (TRA), which was enacted in 1979 following U.S. recognition of the People’s Republic of China (PRC), makes clear that the U.S. will provide defense articles and services sufficient to defend Taiwan. Further, the TRA directs the President and the Congress to “determine the nature and quantity” of those articles and services upon the recommendation of military authorities.
Herein is the source of the ambiguity and conflict: on one hand, the President holds exclusive au- thority to control arms exports, but on the other, the President shares with Congress the author-
ILSA Quarterly » volume 20 » issue 2 » December 2011
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