Foreign affairs are more often than not concerned with highly specialized matters that are confidential. Negotiations are therefore handled by specific departments with the requisite information and competencies at their disposal.
If negotiations have just started and legislators representing different interests become involved, confidentiality could be jeopardized and this would also be out of line with the principles of work specialization. Furthermore, if the outcome of negotiations is eventually reviewed by the legislature, people should not lightly make accusations that the negotiations included backroom deals.
However, given that governments normally wish to see an agreement smoothly enacted, it is normal for those who will be most affected by the signing of an agreement to be consulted, and the leaders of the legislature will be informed about the overall direction and content of the negotiations.
The government did not allow the negotiations for the cross-strait service trade agreement to be debated in the legislature. Because the agreement will affect many areas and involves a large number of interests, an impact assessment and consultation with those likely to be affected should have been carried out. This is the only way to ascertain where the nation’s economic interests lie.
However, the vast majority of those in the service industry had no idea what was happening and it was not until it was announced that the agreement had been signed that they found out how it would affect them. This saw notionwide protests erupt, and only then did the government commission research on the potential repercussions.
The government released an overall economic impact assessment report, in which it said that after the agreement is signed, GDP would increase by only about 0.0025 percent. The report suggests that no assessment on economic interests was carried out, not to mention any analysis on national security or the political implications.
How much communication occurred during the process? A report released by the Mainland Affairs Council stated that the negotiation process involved “individual visits and telephone correspondence” and “small scale, closed communication to gain the opinions of China.” It would therefore seem that only a small minority of businesses from the service sector that have close relations with the government were able to have their interests considered, given that “private telephone correspondence” was used.
This is truly shocking. A report from the Council of Labor Affairs stated that it “cannot deny the possibility that some manufacturers, the self-employed and workers will be affected by the agreement due to stronger external competition,” and recommended the government should “assist people in finding employment and getting professional training.”
If the government plans to sacrifice the many local small and medium-sized businesses in the service sector to meet the financial interests of a few large financial corporations in China, it is little wonder that it has been accused of conducting backroom deals with the Chinese government.
Just as people were getting angry with the government and the legislature was preparing to conduct a detailed review of the agreement, the government once again “instructed” the public about how, according to international law, the agreement cannot be amended, otherwise Taiwan would be in breach of good faith.
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