In response to China’s unilateral opening of four new flight routes in the Taiwan Strait, including M503, President Ma Ying-jeou’s (馬英九) government simply said the new routes will not affect Taiwan’s national security.
Why is Taiwan so weak, and responding to Chinese bullying with empty phrases? Why did other countries fail to offer assistance? The reason is quite simple: The exchanges between Taiwan and China have long been treated as domestic in nature, making it difficult for other nations to intervene.
If it had not been for the pressure from interest groups, there would have been no need for direct cross-strait flights. Taiwanese could easily have flown to China via Hong Kong, Macau, Japan and South Korea.
All these nations have air service agreements which include the fifth and sixth freedoms of the air, described by the International Civil Aviation Organization as the right or privilege “granted by one State to another State to put down and to take on, in the territory of the first State, traffic coming from or destined to a third State,” and “of transporting, via the home State of the carrier, traffic moving between two other States” respectively.
By doing so, Taiwan would have preserved a “lever” for negotiations with Beijing.
Although Taiwan chose to launch cross-strait direct flights, the quasi-international agreements it signed with non-diplomatic allies in the past could have served as examples for cross-strait talks. Flexibly applied, it could have tested Beijing’s needs and its strategic bottom line. Such techniques clearly work: How else could Taiwan launch air transport to the US and major European countries?
Since Ma came to power, Taiwan’s independence leverage has greatly weakened. The two cross-strait air transport agreements signed in 2008 excluded all international factors, including the possibility of resolving a dispute — such as the opening of the M503 route — through international arbitration, and they did not follow the patterns of other flight agreements. Like domestic Chinese airlines, Taiwanese companies only have the right to fly to and from specific destinations. They are not allowed to fly across China or to land for technical needs. Nor do they have the fifth freedom of the air.
China, however, can use Beijing and Shanghai as transfer points under the sixth freedom of the air, which makes Chinese airlines unbeatable in terms of price and transportation volumes. As a result, Taiwanese airlines are losing face and money.
Cross-strait air transportation agreements have also deprived Taiwan of the right to economic inspection — a right commonly included in international aviation service agreements. Freedoms of the air involve providing public facilities to engage in economic activities on foreign territories — closely related to freedom of movement and right of taxation. When two parties sign an agreement, they have the right to review each other’s flight routes, and economic inspection.
However, cross-strait air transport agreements merely state that the two sides agree to handle affairs according to international air transport customs and related regulations, and to improve cooperation to provide convenience for each other.
Direct flights involve mutual concessions over sovereignty built on the basis of friendly relations. If relations break down, each side no longer has to express goodwill. This is why Taiwan should use China’s opening of M503 route as an excuse to cut cross-strait direct flights, partially or completely.
It seems Taiwan has neither the guts nor the wisdom to do so — something that Beijing might have foreseen long ago.
Chris Huang is an associate professor at National Tsing Hua University’s Institute of Law for Science and Technology.
Translated by Eddy Chang
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