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Trade pact open to
amendment
By Chiang Huang-chih «¸¬Ó¦À
Foreign affairs are more often than not concerned with highly specialized
matters that are confidential. Negotiations are therefore handled by specific
departments with the requisite information and competencies at their disposal.
If negotiations have just started and legislators representing different
interests become involved, confidentiality could be jeopardized and this would
also be out of line with the principles of work specialization. Furthermore, if
the outcome of negotiations is eventually reviewed by the legislature, people
should not lightly make accusations that the negotiations included backroom
deals.
However, given that governments normally wish to see an agreement smoothly
enacted, it is normal for those who will be most affected by the signing of an
agreement to be consulted, and the leaders of the legislature will be informed
about the overall direction and content of the negotiations.
The government did not allow the negotiations for the cross-strait service trade
agreement to be debated in the legislature. Because the agreement will affect
many areas and involves a large number of interests, an impact assessment and
consultation with those likely to be affected should have been carried out. This
is the only way to ascertain where the nation¡¦s economic interests lie.
However, the vast majority of those in the service industry had no idea what was
happening and it was not until it was announced that the agreement had been
signed that they found out how it would affect them. This saw notionwide
protests erupt, and only then did the government commission research on the
potential repercussions.
The government released an overall economic impact assessment report, in which
it said that after the agreement is signed, GDP would increase by only about
0.0025 percent. The report suggests that no assessment on economic interests was
carried out, not to mention any analysis on national security or the political
implications.
How much communication occurred during the process? A report released by the
Mainland Affairs Council stated that the negotiation process involved
¡§individual visits and telephone correspondence¡¨ and ¡§small scale, closed
communication to gain the opinions of China.¡¨ It would therefore seem that only
a small minority of businesses from the service sector that have close relations
with the government were able to have their interests considered, given that
¡§private telephone correspondence¡¨ was used.
This is truly shocking. A report from the Council of Labor Affairs stated that
it ¡§cannot deny the possibility that some manufacturers, the self-employed and
workers will be affected by the agreement due to stronger external competition,¡¨
and recommended the government should ¡§assist people in finding employment and
getting professional training.¡¨
If the government plans to sacrifice the many local small and medium-sized
businesses in the service sector to meet the financial interests of a few large
financial corporations in China, it is little wonder that it has been accused of
conducting backroom deals with the Chinese government.
Just as people were getting angry with the government and the legislature was
preparing to conduct a detailed review of the agreement, the government once
again ¡§instructed¡¨ the public about how, according to international law, the
agreement cannot be amended, otherwise Taiwan would be in breach of good faith.
A closer look at international and domestic legal practice will show that there
is no reason why the agreement cannot be amended.
This point has been a contentious one in international law, with some believing
that conditions should not be applied to agreements, and others believing that
conditions are not necessarily an obstacle. The UN¡¦s International Law
Commission provided some clarification in its annual report in 1999, saying: If
all parties involved agreed, amendments could be made, that if they did not then
a new round of negotiations could be held and that this complied with the Vienna
Convention on the Law of Treaties.
In international practice, when the US Congress has reviewed bilateral treaties,
there have been many instances in which approval has been given for amendments
to be made after requests were made of administrative departments to amend
specific clauses.
From 1795 until 1991, the US Senate reviewed 901 bilateral treaty cases and 115
were passed conditionally. The amendment process for these was simple.
To use the 1985 Supplementary Treaty of the US-UK Supplementary Extradition
Treaty as an example, the US and UK governments used an ¡§exchange of notes¡¨ to
agree on the conditions amended by the US Senate and the amendments were made.
In 1993, when the legislature was reviewing the resolution for the Agreement for
the Protection of Copyright Between the Coordination Council for North American
Affairs and the American Institute in Taiwan, it was passed with eight reserve
clauses. The legislature informed the Cabinet of this decision by letter and the
Cabinet sent officials to the US for negotiations.
Article 24, Subparagraph 1 of the cross-strait service trade agreement states
that after the agreement is signed, both sides should complete the related
procedures and inform each other when this is done and that the agreement will
become effective the day after both parties have received written confirmation.
¡§Completing the related procedures¡¨ means each side should follow the legal
procedures of their countries.
Since the agreement must pass through a review by the legislature, there is the
possibility that it may be amended. Therefore, amendments are something that
should be expected.
Even when it comes to bilateral treaties, the possibility that specific clauses
may have to be passed conditionally cannot be excluded. This is why negotiations
with other countries conducted by democratic nations should be subject to
monitoring from elected representative assemblies, because if it is necessary
for amendments to be made, these amendments will not be in breach of the
principle of good faith.
Chiang Huang-chih is a professor of law at National Taiwan University.
Translated by Drew Cameron
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