With the review of the recently inked Economic Cooperation Framework Agreement (ECFA) now upon us, the government has decided that it will skip the preliminary legislative review and proceed directly to the second reading. The Legislative Yuan will be allowed to either accept or reject the deal rather than review it clause-by-clause. However, a purely legal perspective allows for other opinions on this matter.
First, even if we assume that the ECFA is a treaty, legal precedence in Taiwan shows that treaties do not have to go directly to a second reading, but that they can instead first be handed to the relevant committees for review. The majority of free-trade agreements (FTA) Taiwan has signed so far have been handed to the related committees for review prior to a second reading rather than being sent directly for a second reading.
Precedence clearly shows that the practice is to send FTAs for committee review and that skipping the first reading is the exception. The power to decide whether or not an agreement should be allowed to skip first reading lies with the legislature not the government.
Second, on the issue of reservations and bilateral treaties, some commentators have accurately said reservation is only applicable to multilateral treaties and not to bilateral treaties. However, international practice shows that in the past when the US Congress approves bilateral treaties, it demands that the government amend specific clauses before giving the final go-ahead.
The US Senate often inappropriately refers to this practice as reservation. Since the first incidence in 1795, the US Senate has made reservations on bilateral treaties more than 100 times and from 1975 to 1985, this happened at least 13 times. Of these 13 cases, nine were bilateral treaties involving the issue of double taxation.
Apart from economic affairs, in 1985, during an examination of an extradition treaty between the US and the UK, the Senate appended an auxiliary condition to its approval, demanding that certain clauses be amended. The US government notified the UK of the condition and said it would amend some clauses in line with the Senate’s new requests through an exchange of letters. The UK agreed and accepted the amendments via an exchange of letters. Then, in 1986, the two countries exchanged the instruments of ratification.
In other words, even when it comes to decisions on bilateral treaties, international practice clearly shows that treaties do not have to be subject to “wholesale reviews” with the only two choices being total acceptance or rejection of the entire agreement. International practice also shows that reservations can be made to certain clauses in view of seeking amendments.
Taiwan has also had cases in the past when it made, in essence, amendments to bilateral treaties and wrongly referred to this process as reservation. In 1993, the Agreement for the Protection of Copyright between the Coordination Council for North American Affairs and the American Institute in Taiwan that was decided on by the legislature was passed with eight auxiliary reservation clauses. The legislature reported its decision to the Cabinet, which then sent officials to the US to negotiate the deal.
However, the result was different to what happened between the US and the UK. The US was unable to accept the reservations and demanded that Taiwan pass the agreement according to the originally stipulated principles, threatening Taiwan with trade retaliation if it did not comply. The Cabinet then requested the legislature cancel the reservations and after considering the overall situation, the legislature agreed to do so, but also attached five additional resolutions.
While Taiwan did not get what it originally wanted, it still shows that even bilateral treaties can have reservations added to specific clauses. Given the closely interlinked relationship between Taipei and Beijing at the moment, if there are certain unacceptable clauses, demanding that we have the power to amend them is not illegal.
In conclusion, we can see that common practice for the review of FTAs involves the legislature adopting standard review procedures and handing the agreements over to the relevant committees for review. Once this is done, these agreements still have to pass a third legislative reading.
As for the ECFA, regardless of whether we view the issue from the perspective of common international practice, Taiwanese law or the precedence of treaty reviews, it is clear that the ECFA should not be subject to wholesale review. It should be possible to review the agreement clause-by-clause with the possibility of making amendments wherever necessary.
Chiang Huang-chih is a professor of law at National Taiwan University.
TRANSLATED BY DREW CAMERON
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