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The law and changes to the pact
By Wu Ching-chin 吳景欽
The Sunflower movement has come to an end and the cross-strait service trade agreement is to enter the legislative review process. This means that the question of whether it can be changed once again will come into focus.
The treaties and agreements that Taiwan has signed with other countries rarely take immediate effect. They must first be approved or transformed by the legislature so they can become part of domestic legislation. When it comes to international or multilateral treaties or agreements, they are decided by majority decision among the participating countries. If each country could adjust the contents of these agreements unilaterally, the above norms and standards would be meaningless.
For example, the 1998 Rome Statute which established the International Criminal Court stresses universal jurisdiction over international crime. It will thus interfere with national criminal jurisdiction, which is why over 30 signatories to the statue still have not ratified or transformed it into domestic legislation. The US and Israel even refused to sign it because they say it encroaches on their national interests. Although it can be changed, Article 121 of the statute states that changes to the text must be approved by two-thirds of the signatories and ratified by seven-eighths of all signatories before the changes can take effect. Reaching these numbers is quite a challenge. This means when signing international agreements of this importance, the legislatures of the signatory countries in effect have to approve or reject the agreement as a whole.
When bilateral treaties and agreements are signed under coercion, for example when the losing side in a war signs a peace agreement, the legislature likely has no choice but to accept the facts and forget about altering the document even if the agreement is unfair.
Any agreements signed with other countries that involve the public’s rights or have a major impact on the nation must of course be reviewed by the legislature, which can also alter the proposal, regardless of whether it is a treaty, an agreement or an accord. However, any changes made during the review must be negotiated with the counterpart and resigned after a consensus has been reached. It must then be sent back to the legislature, where it once again enters the cycle of review, re-signing and follow-up reviews.
Based on Constitutional Interpretation 329, because the service trade agreement has a great impact on the public’s rights and interests, the legislature has the right to review and amend it. However, once amended, negotiations with China must be restarted. This will lead to a long period of talks which might break down. This would of course have a negative impact on future talks with other countries. This issue shows that, in terms of the signing of any agreement with another country, democratic oversight prior to and during negotiations is more important than review after it has been negotiated. This shows it is necessary to institutionalize an oversight mechanism for cross-strait and other international agreements as soon as possible.
To sum up, the question of whether cross-strait agreements can be changed cannot be answered with a simple yes or no. In addition to considering international precedent and domestic legislation, it also hinges on international realities and political wrangling.
Wu Ching-chin is an associate professor and chair of Aletheia University’s law department.
Translated by Perry Svensson
source: Taipei Times
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