In some countries, the constitution even requires a two-thirds majority in the legislature for treaties to be approved.
Executive agreements, on the other hand, do not have to be considered by the legislature, but this does require authorization through an enabling act. In Taiwan, air transport agreements and tax exemption agreements, for example, are classed as executive agreements. In general, executive agreements come into force the day they are signed.
After treaties are signed, they are still subject to ratification — a process involving close scrutiny and final approval by the legislature. For the most formal treaties, after they have been approved by the legislature, the head of state is required to issue an instrument of ratification as a mark of solemnity.
This is the accepted procedure for concluding treaties in the international community, which has evolved from state practices over the centuries.
If a legislature examines a treaty or agreement and finds it not to be in the nation’s interest, it may reject it altogether.
Examples of this include the US Senate’s rejection of two treaties — the Treaty of Versailles and the UN Convention on the Law of the Sea.
If the legislature does not reject a treaty in its totality, it may approve it with conditions attached.
In some countries, the legislature may choose to set a treaty bill aside by delaying its consideration indefinitely, leaving it up to the executive branch to withdraw it. In the US, the executive has withdrawn at least 85 treaty bills up till now.
Approval with conditions attached includes amendments, reservations, understandings, interpretations and declarations.
In the case of multilateral treaties, reservations are most commonly applied. Then the executive has to decide whether to accept the conditions attached by the legislature. If it accepts them, it will reopen negotiations on the provisions of the treaty, or, if it rejects them, the treaty will automatically become null and void.
In 2002, the US Congress passed the bipartisan Trade Promotion Authority Act, authorizing the president to negotiate trade agreements. On condition that Congress would set the objectives of the negotiations, and that the executive would consult fully with Congress and the business community during the course of negotiations, Congress agreed to give treaty bills speedy consideration and vote them up or down in their entirety.
Later on, the impact that trade agreements have on US domestic businesses and the nation’s employment market led to this authorizing act expiring in 2007.
Given that no authority such as that previously delegated by the US Trade Promotion Authority Act is applicable in the case of the cross-strait service trade agreement, and that the government departments responsible for negotiating the agreement did not fully consult with the legislature, business and other interested parties, the agreement must undergo close scrutiny in the Legislative Yuan.
Chen Rong-jye is a former secretary-general of the Straits Exchange Foundation.
Translated by Julian Clegg