Tue, Jun 10, 2003 page8

• WTO Secretariat's demands offbase

  • By Tony Jian 簡肇棟 and Cho Hui-wan 卓慧菀
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  With regard to the three de-mands that the WTO Secretariat presented to Taiwan under pressure from China, we find them unreasonable and would like to express our different views.

  Both Taiwan and China applied to enter the General Agreement on Tariffs and Trade (GATT), the predecessor of the WTO, in accord with Article 33 of that agreement. Hong Kong and Macau, however, entered GATT with the endorsement of their suzerains, Britain and Portugal respectively, in accord with GATT Article 26, paragraph 5(c). Clearly Taiwan's qualifications are fundamentally different from those of Hong Kong and Macau.

  When the WTO was established in 1995, neither Taiwan nor China had completed the GATT accession process. Therefore both changed tracks and applied for WTO membership on the basis of Article 12 of the WTO agreement.

  Examining the text of the agreement, we noticed that although both "state" and "separate customs territory" constitute qualification for accession, an explanatory note indicates that the terms "country" or "countries" as used in the agreement are to be understood to include any separate customs territory member of the WTO.

  Thus all members are equal under WTO writs and Taiwan clearly enjoys the same full membership status that China and other members do. Solid legal reasoning says that since China's representatives are referred to as a "permanent mission," Taiwan's should be as well.

  Some might say that two statements made by the GATT Council chairman in 1992 when the council approved the formation of a work-ing party to examine Taiwan's application -- "as a part of the understanding, the representation of Chinese Taipei in GATT would be along the same lines as that of Hong Kong and Macau" and "titles carried by its representative would not have any implication on the issue of sovereignty" -- are in fact a justification for Taiwan's name change and demotion by way of terms devoid of sovereignty. In this regard, we hold a different view.

  According to the minutes of GATT Council Meeting 259 in 1992, chairman Martin Morland stated that in view of the "one China" principle, many members felt Tai-wan shouldn't accede to the GATT before China did. Thus there was a consensus among members:

  First, the accession working party on China should accelerate the pace of its work. Second, a working party should be established at that meeting to evaluate the application filed by Chinese Taipei on the basis of Article 33. Third, the GATT Council should examine the report on, and adopt the protocol for, China's accession before adopting the protocol of Chinese Taipei.

  The minutes record, "The Council so agreed." However, after the chairman made the above-mentioned statements on the status and title of the Chinese Taipei delegation, the record merely indicates, "The Council took note of the statement."

  "Taking note" is not equivalent to "agreement." The statements made by the chairman regarding the status of Taiwan's delegation did not obtain the agreement of the GATT Council, so they do not constitute a legal basis for putting pressure on Taiwan.

  Moreover, Taiwan and China both entered the WTO on the basis of Article 12 of the WTO agreement. The power of that agreement is far greater than that of the GATT Council chairman's statements, which have no binding force. The power-oriented GATT has transformed into the rule-oriented WTO. Its operations are not decided by any single member state or by the WTO Secretariat. Taiwan's "permanent mission" is clearly spelled out in WTO documents and obviously represents the will of the WTO.

  Thus, our mission to the WTO must clearly present Taiwan's position on this matter to avoid a situation in which the Secretariat becomes biased toward Beijing and acts against Taiwan's interests before we have a chance to respond.

  Since Taiwan acceded to the WTO as a "separate customs territory," all terms that imply sovereignty such as Republic of China, Legislative Yuan, Executive Yuan,can be toned down with terms such as government, legislative organs and administrative organs. But the procedures and qualifications behind Taiwan's accession to the WTO were fundamentally different from those governing the accession of Hong Kong or Macau to GATT and cannot be equated.

  The history of GATT shows virtually all members that entered on the basis of Article 33 were "governments" of sovereign states. Taiwan was the only one to enter as the "government" of the "Sepa-rate Customs Territory of Taiwan, Penghu, Kinmen and Matsu." Thus there is no precedent to be consulted regarding the title of Tai-wan's delegation and similar mat-ters. It is a matter of law that since Taiwan entered the WTO under the same clause of the agreement, it is entitled to equal treatment.

  Tony Jian is a DPP legislator. Cho Hui-wan is an assistant professor in the Graduate Institute of International Politics at National Chung Hsing University.

  Translated by Ethan Harkness
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