A closer look at international and domestic legal practice will show that there is no reason why the agreement cannot be amended.
This point has been a contentious one in international law, with some believing that conditions should not be applied to agreements, and others believing that conditions are not necessarily an obstacle. The UN’s International Law Commission provided some clarification in its annual report in 1999, saying: If all parties involved agreed, amendments could be made, that if they did not then a new round of negotiations could be held and that this complied with the Vienna Convention on the Law of Treaties.
In international practice, when the US Congress has reviewed bilateral treaties, there have been many instances in which approval has been given for amendments to be made after requests were made of administrative departments to amend specific clauses.
From 1795 until 1991, the US Senate reviewed 901 bilateral treaty cases and 115 were passed conditionally. The amendment process for these was simple.
To use the 1985 Supplementary Treaty of the US-UK Supplementary Extradition Treaty as an example, the US and UK governments used an “exchange of notes” to agree on the conditions amended by the US Senate and the amendments were made.
In 1993, when the legislature was reviewing the resolution for the Agreement for the Protection of Copyright Between the Coordination Council for North American Affairs and the American Institute in Taiwan, it was passed with eight reserve clauses. The legislature informed the Cabinet of this decision by letter and the Cabinet sent officials to the US for negotiations.
Article 24, Subparagraph 1 of the cross-strait service trade agreement states that after the agreement is signed, both sides should complete the related procedures and inform each other when this is done and that the agreement will become effective the day after both parties have received written confirmation. “Completing the related procedures” means each side should follow the legal procedures of their countries.
Since the agreement must pass through a review by the legislature, there is the possibility that it may be amended. Therefore, amendments are something that should be expected.
Even when it comes to bilateral treaties, the possibility that specific clauses may have to be passed conditionally cannot be excluded. This is why negotiations with other countries conducted by democratic nations should be subject to monitoring from elected representative assemblies, because if it is necessary for amendments to be made, these amendments will not be in breach of the principle of good faith.
Chiang Huang-chih is a professor of law at National Taiwan University.
Translated by Drew Cameron