Sun, Jul 04, 2010 page8

• Sovereignty upheld? Think again

  • By J. Michael Cole 寇謐將
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  President Ma Ying-jeou’s (馬英九) administration on Tuesday was all jubilance after the Economic Cooperation Framework Agreement (ECFA) was signed in Chongqing, China, saying that it had managed to sign the pact in a way that upheld Taiwan’s sovereignty.

  While it is too soon to tell whether the breakneck pace with which the deal was negotiated (about six months) and the legislature’s likely rubberstamping of the ECFA documents will hurt Taiwan’s interests, the mechanism used to complete the process most certainly did. In that regard, the Ma administration could be accused of dishonesty.

  The reason for this is one important point that reports in the international media have generally missed — the ECFA was not signed by two governments but rather, two quasi-­official bodies, the Straits Exchange Foundation (SEF) and the Association for Relations Across the Taiwan Strait (ARATS). No government official on either side of the Taiwan Strait — and more importantly, no elected government official on Taiwan’s side — was involved in the signing.

  By relying on two semi-NGOs (the SEF receives government funding) to sign the deal, Taipei allowed Beijing to portray the ECFA as a domestic matter rather than one between two internationally recognized sovereign states. This alone, despite the alleged absence of “political” language in the ECFA documents, sends a dangerous political signal to the international community.

  To an outside observer, most Taiwanese appear to support the ECFA and the process has an aura of legitimacy, with the legislature — which, with three-quarters of the seats, is dominated by Ma’s Chinese Nationalist Party (KMT) — set to “review” it this month or next.

  However, all of this is pure theatrics meant to deceive people whose understanding of the domestic realities in Taiwan can only, by virtue of where they are, be superficial. No matter how hard his administration tries to make it appear legitimate, the fact remains that, unlike free-trade agreements signed by Taipei with other countries, the ECFA was not signed by the Taiwanese government or the Republic of China government, but rather by a semi-official body on its behalf. This is enough to cast doubt on an agreement that is likely to have wide-ranging repercussions on Taiwan’s sovereignty.

  While the SEF-ARATS dyad was set up in the 1990s to explicitly avoid the sovereignty issue during negotiations between Taiwan and China, we may, with the ECFA, have reached a point where that instrument has outlived its usefulness, as this deal is of far more consequence than anything the two bodies previously achieved. When it comes to agreements, pacts or treaties that affect a state in its entirety, something more official is required, especially when one party has made no secret of the fact that it sees the agreement as a political instrument — something Ma finally acknowledged on July 2.

  Beyond who signed it, there are also important unanswered questions as to how Taipei and Beijing interpret the agreement.

  At this point, we still don’t know whether the ECFA is or isn’t a treaty, as the Ma administration has purposefully obfuscated on this point, and in so doing scaled new heights of rhetorical convolution.

  On July 2, Premier Wu Den-yih (吳敦義) did a U-turn when he said the ECFA was not a treaty, but rather a cross-strait agreement the contents of which are similar to a treaty. This new stance, added to what Ma has said and Legislative Speaker Wang Jin-pyng’s (王金平) position that the ECFA is not a treaty but an agreement, reinforces the view that the ECFA does not involve two countries, as treaties can only be signed by sovereign states. Making the ECFA a non-treaty would underscore the fact that the trade agreement is a domestic matter, just as Beijing wants.

  Given the Ma administration’s aversion to the details being made public, it wouldn’t be surprising if it ended up regarding the ECFA as a treaty domestically — in which case the legislature would not be required to review it item by item (only approving or rejecting it as a whole) — but a non- or quasi-treaty externally, to not anger Beijing (ironically, this puts the opposition in a quandary, because only by not designating the ECFA a treaty can the document be debated clause by clause, as it has requested).

  Quasi-treaties and quasi-governmental agencies: For an agreement of such scope, that’s too many in-betweens and far too much Orwellian newspeak for comfort.

  By refusing to clearly state the nature of the agreement and by relying on semi-official bodies to sign it, the Ma administration has created so much uncertainty that accusations the ECFA is a threat to Taiwan are increasingly hard to deny. What we need is clarity.

  J. Michael Cole is deputy news editor at the Taipei Times.
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