The suggestion by opposition legislators to charter planes during Lunar New Year holiday to ferry Taiwanese businesspeople home from China immediately caused an argument between the opposition and the government. Then, Chinese Vice Premier Qian Qichen (
Naturally, we take a positive view of China's demonstration of goodwill, but since direct transportation links involve political factors such as cross-strait negotiations and legal questions, and because Taiwan has national security concerns, the government and opposition must therefore carefully evaluate and plan negotiations with China.
Basically, direct transportation links are an extremely complicated issue. Even if political issues could be avoided, it would be very difficult to avoid issues concerning the status of the governments on each side of the Strait and differences in legal classifications.
Direct transportation involves issues such as the nationality of aircraft, flight documentation, flight personnel and civil aircraft management, responsibility for investigation and compensation in case of accidents and the appropriate application of legislation involving foreign persons.
Chinese and Taiwanese aircraft carry their respective national registration numbers, and both sides have their respective sets of legal systems. Since these are not formally seen as international issues, international law does not apply, and they can at the most be handled according to international precedent.
Possible future legal issues could therefore come to include: nationality and national flag, mutual recognition of documents and applicable legislation and handling of disputes. Since these are not international issues, they cannot be handled according to international law. However, since they are not purely domestic issues either, they cannot be easily handled according to domestic Chinese or Taiwanese legislation.
In the final analysis, the main legal obstacles to direct transportation links are still Beijings's rejection of Taiwan as a political unit equal to China and Taiwan's substantive official powers. These obstacles will be very difficult to remove unless Beijing alters its stance on the "one China" issue, which only serves to show that these obstacles are extensions of China's political standpoint.
This conflict can only be solved by creating a consensus through cross-strait negotiations and drafting practical legal principles to be applied by both sides. The next step would be to sign an aviation agreement to function as a basis for direct links. This would guarantee that both governments apply their jurisdiction effectively, thus minimizing the risk of conflicts over administrative and legal jurisdiction.
Talks regarding future transportation links will decide the overall direction of legislation. Equal and reasonable talks must be held regarding issues such as mutual recognition of the other party's legal system, documentary verification and unitary compensation for passenger and goods transportation by air. For example, on Dec. 2, 1990, the Civil Aviation Administration of China announced regulations regarding nationality and registration of civil aircraft. The regulations state that all civil aircraft in Chinese airspace must display the regulated nationality and registration symbols and carry registration documents. Aircraft from both sides must therefore display both nationality and registration symbols.
There is no chance, however, that China will allow civilian aircraft carrying Taiwan's national flag to enter China. What's more, the 1948 Convention on the International Recognition of Rights in Aircraft clearly requires mutual recognition of rights of property in aircraft, rights to possession of aircraft and mortgages, hypothecs and similar rights in aircraft by the signatories to the convention. However, neither Taiwan nor China is a signatory to this particular convention.
Moving on to national security, some people have suggested that foreign aircraft and ships be allowed to operate regular routes across the Strait instead of Chinese and Taiwanese aircraft and ships to avoid the sensitive political and national security issues caused by cross-strait transportation links.
This, however, involves domestic transportation rights on both sides, and it will be very difficult to go against the wishes of authorities on both sides to protect the interests of their respective private operators and allow foreign aircraft.
Once direct transportation links have been established, the Taipei Flight Information Region (FIR) must establish direct communication channels with its Shanghai and Guangzhou counterparts. These communications will not differentiate between aircraft of different nationalities. If Beijing tries to achieve the goals of its war on Taiwan through direct transportation links, these links will have a major influence on national security.
First, before opening direct transportation links, FIR identification must be planned. Not only does this affect Taiwan's air defense capabilities, but it will also cause Taiwan to lose air superiority and early warning capabilities.
Second, existing Taiwan's civil airports are already over-used. Opening the Sungshan Airport in Taipei or military airports to be able to handle the increased pressure will have a negative impact on national security. Opening direct transportation links is certain to increase the burden on Taiwan's air defenses. This burden cannot be reduced by buying arms from the US.
The way to fundamentally solve this issue is to negotiate an end to cross-strait hostility. To this day, China is still unwilling to abandon the possibility of invading Taiwan and has continued to deploy large numbers of missiles along its coast.This makes it impossible for Taiwan to dismiss its national security concerns, which remain the greatest obstacle to direct transportation links. Transportation links will of course cut traveling time and transportation costs for Taiwanese businesspeople investing in China.
What's more, as a result of linking the two economies, Taiwan will to a certain extent be able to influence China's development. However, China's ability to absorb capital from Taiwanese industry will increase greatly. The impact this will have on the economy must first be evaluated.
To sum up, direct transportation links must be implemented only on the premise that national security and dignity and the economic prosperity of the Taiwanese people can be guaranteed.
Negotiations are necessary to solve the many political and legal issues involved in a future implementation of direct transportation links. Without such negotiations, it will all be a matter of loose talk which is not beneficial to any substantive developments in the direct links issue.
Wang Tuoh is a DPP legislator.
Translated by Perry Svensson
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