Cross-Strait Agreements

An Observation of the Legal Characteristics & Political

Implications

Background: The Status of Cross-Strait Exchanges

• Trade

Trade Continued

Cross-Strait Residents& Tourism

• 人員往來：台灣常住大陸人數，陸配人數及佔外配比例，台灣赴大陸旅遊人次及年均數。

• 1. 台灣常住大陸人數 : 台灣地區居民 170,283 人(Taiwanese reside in Mainland)

• 2. 陸配人數及佔外配比例 : 外配＋陸配＋港澳配總數：448,821 人 (foreign spouses in Taiwan)

陸配探親、團聚、依親、長居總人數： 289,314 人 比例： 64.5 ％ (Mainland spouses in Taiwan)• 3. 台灣赴大陸旅遊人次及年均數 (tourist numbers) • 2010 年 1-12 月： 12,536,622 人次 • http://big5.cnta.gov.cn/html/2011-1/2011-1-26-16-10-

13510.html

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• 2009 年 1-12 月： 10,021,563 http://big5.cnta.gov.cn/html/2010-2/2010-2-10-15-14-19268.html

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• Although the cross-strait trade& people’s interactions are growing remarkably in terms of volume and percentage, up to 2008, travelers and goods across strait must travel through a third region(usually HK) before reaching the destinations because there is no direct flight or sea transportation between Taiwan and Mainland China.

• It is very abnormal. But for direct flight or sea transportation to be possible, there must be arrangements for the cooperation between government agencies, usually in the form of agreements. The sovereign issue makes this impossible.

The Distinct Characteristics of Cross-Strait Agreements

• Unresolved Sovereign Dispute and its Consequence

The sovereign dispute is a direct aftermath from the Chinese Civil War 1947-1949. The two sides of the war still entangle under one umbrella, one sovereignty. The consequence and difficulty in legal technique is there can not exist two subjects conceptually necessary for contract, treaty, agreement, etc.. All the legal characteristics of Cross-Strait Agreements are in fact techniques used to sidestep this Dispute.

• The characteristics from the outset

1, Who are the parties and to whom should the effect be

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Attributed? 2, Who represent to sign? Two private entities in law:

Straits Exchange Foundation of Taiwan and Association for Relations Across the Taiwan Straits of Mainland China respectively/ comparable design: AIT and TECRO

• The Characteristics of the Execution and Ratification Procedure

1, Unlike treaty and executive agreement, the execution and ratification procedure is set in a different and important statute: Act Governing Relations between the Peoples of Taiwan and Mainland Areas 兩岸人民關係條例

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2, The execution and ratification procedure is prescribed in Art.5 which distinguishes between the agreements in need of legislative actions and those not:

•  • Article 5• The institution, private organization, or any other non-profit juristic person entrusted to

execute an agreement in accordance with Paragraph 3 of Article 4 or Paragraph 2 of Article 4-2 shall submit the draft agreement through the entrusting authorities to the Executive Yuan for approval before its execution of the agreement.

• Where the content of the agreement requires any amendment to laws or any new legislation, the administration authorities of the agreement shall submit the agreement through the Executive Yuan to the Legislative Yuan for consideration within 30 days after the execution of the agreement; where its content does not require any amendment to laws or any new legislation, the administration authorities of the agreement shall submit the agreement to the Executive Yuan for approval and to the Legislative Yuan for record, with a confidential procedure if necessary.

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• The Legal Effect

1, Are cross-strait agreements sources of law? The perspectives from domestic and international laws.

2, According to Art. 5 of the Act, the cross-strait agreements seem non self-execution instruments.

3, The judgment call of the necessity of legislative actions lies with the Executive Yuan, though Legislative Yuan has enough instruments to greatly influence the judgment if it wants to.

Political Implications

• Domestic Politics

1, Power sharing and Struggle on the Power on Mainland Affairs:

Example: the Legislative Power of Ratifying article by article the difference on the leverage of power an US example for comparison: the withdrawal from the Joint Defense Treaty with Taiwan in 1979, see

Goldwater v. Carter 444 U.S. 996(1979).

2, A more “inclusion approach”

quote from Theodore Roosevelt’s autobiography on the agreement with Santo Domingo:

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“The Constitution did not explicitly give me power to bring about the necessary

agreement with Santo Domingo. But the Constitution did not forbid my doing what I did. I put the agreement into effect, and I continued its execution for two years before the Senate acted; and I would have continued it until the end of my term, if necessary, without any action by Congress. But it was far preferable that there should be action by Congress, so that we might be proceeding under a treaty which was the law of the land and not merely by a direction of the Chief Executive which would lapse when that particular executive left office. I therefore did my best to get the Senate to ratify what I had done.”

3, “Inclusion approach” seems to make sense politically in light of Taiwan’s two-party system and the deep division in society toward China policy each party representing. However, “timing” does not always stand by this approach in real world.

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• U.S.– China– Taiwan Triangular Relations

1, Imbalance, some friends in DC voice the concern; why:

the worst scenario up to now, 2003 12 19 with provocative words or actions gone with Taiwan’s former administration, some begin to worry the quietness of Taiwan here U.S. welcomes the improvement of cross- strait relations and its fruit of regional stability, the n why worry? the trend toward imbalance resulting from moving forward more institutionalizations v. standing still

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2, The erosion of three critical fronts of US- Taiwan relations: the economic, the political and the military relations.

3, Every party is loser in the end if the imbalance continues.

4, How to restore the balance?