We finally got to have a look at the actual wording of the Economic Cooperation Framework Agreement (ECFA) for the first time since it was signed on June 29, and we find that it is packed with issues that give us more cause for concern than the minutiae of what is, or what is not, on the “early harvest” list.
First of all, in its current incarnation, it is unlikely to get past the WTO, which has the power to veto the agreement, as both signatories are member states.
The free-trade agreements (FTA) Taiwan has signed with Panama and Nicaragua, and the Framework Agreement on Comprehensive Economic Cooperation between ASEAN countries and China, all specified from the outset which countries or regions were the signatories.
The individuals signing the agreements, too, were officials authorized by the governments of these signatory nations.
This was also the case for the Closer Economic Partnership Arrangement (CEPA) signed by China and Hong Kong.
The ECFA, on the other hand, was signed by representatives of the Straits Exchange Foundation (SEF) and the Association for Relations Across the Taiwan Strait (ARATS), two semi-official organizations not recognized, obviously, as WTO members in their own right.
As a result, the ECFA is little more than a signed agreement between two private organizations from two different countries and as such does not comply with WTO regulations.
The same applies to the individuals who signed it. The ECFA was signed by the respective chairmen of the SEF and the ARATS, but it fails to specify who exactly the individuals signing it represent, or which government authorized them to do so.
Compare this with the FTAs signed by Taiwan. The agreement with Panama was signed by former president Chen Shui-bian (陳水扁) and the one with Nicaragua by former minister of economic affairs Morgan Hwang (黃營杉).
It was specified at the time that they represented the Republic of China on Taiwan.
However, on the ECFA documentation there is absolutely no mention of the fact that SEF Chairman Chiang Pin-kung (江丙坤) represents Taiwan.
Consequently, in the eyes of the law, the ECFA is an agreement that solely exists between the SEF and ARATS, and is applicable only to the members and staff of those specific institutions.
It is difficult to pin down the actual legal status of the ECFA, more so than it was to define the CEPA, for example.
It is a curious piece of legislation and one suspects this is related to the government’s concerns that, once subjected to scrutiny by the WTO, the government’s adherence to the “one China” principle would be exposed.
The government has tried to play down this aspect of the agreement and says that by formulating an agreement that does not conform to WTO standards and is signed by private organizations, and not the government, it is possible that after the agreement has been passed through the legislature, it can be used as a model for Taiwan’s signing of FTAs with other countries that are not diplomatic allies.
This may well be.
However, at the same time, it makes it easier for Taiwan to bypass the WTO when signing future agreements and for agreements to be made by other institutions without the government’s involvement — effectively bypassing the government itself.
Lai I-chung is an executive committee member of Taiwan Thinktank.
TRANSLATED BY PAUL COOPER
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