Treaties, Contracts, or Political Commitments? What’s the Status of the China-Taiwan Deals?

Looking for a break from the round-the-clock U.S. election coverage today?  Then, check out the news stories coming out of Taiwan this morning.  The head of the highest-level PRC delegation to visit Taipei since 1949 has signed a series of instruments with his Taiwanese counterpart on a range of economic topics: 

Taiwan and China signed a range of deals on Tuesday that are aimed at bringing the two sides closer economically, after almost 60 years of hostilities that often took them to the brink of war.  Officials signed four agreements that are potentially worth billions of dollars, after talks that marked a significant warming of ties between the former bitter enemies.  The two sides agreed to introduce direct cargo shipping and postal services, to add passenger flights and shorten existing routes, and to discuss food security in the wake of scandals involving poisonous Chinese food imports.

Tourism also featured at the talks, which took place Tuesday morning in Taipei’s Grand Hotel between Beijing’s envoy Chen Yunlin, head of China’s Association for Relations Across the Taiwan Strait, and Chiang Pin-kung, his local counterpart as head of the Strait Exchange Foundation.  They discussed cooperation on issues related to the current global financial turmoil, and agreed to meet again in Beijing early next year. The two men shook hands as they held copies of the signed agreements bound in red silk brocade and exchanged gifts.

The two sides have agreed to triple direct passenger flights to 108 per week and expand services to a total of 21 Chinese cities, up from the current five.  The deals will introduce cargo flights, with up to 60 round trips per month crossing the 180-kilometre (112-mile) Taiwan Strait separating the island from China.

For the most part these stories have focused on the economic and political aspects of these deals, i.e., looking at how business pressures moved the two sides together, the thawing of relations this signals, and the backlash within Taiwan that’s emerged to what some perceive as capitulation to the PRC by Taiwan’s government. 

I’m interested, however, in the legal implications of these deals.  I haven’t been able to locate copies of the agreement texts, let alone English translations.  When they do become available, however, I’ll be looking to see if they have any new signals about the legal status of Taiwan vis-a-vis not just the PRC, but international law.  Although it’s not widely publicized, it’s important to recognize that Taiwan (or Chinese Taipei) already has concluded various treaty commitments, where the treaty text allows it (e.g., Article XII of the WTO Agreement, Annex I of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean).  Taiwan generally participates, however, in a capacity other than as a sovereign state; unlike the PRC, which often is a party to these same treaties, but joins under provisions on sovereign state membership.  Similarly, U.S. agreements with Taiwan are treated under the Taiwan Relations Act as if they are international agreements, even though they’re concluded by proxies for the two governments, TECRO and AIT. 

All of which leads me to wonder who are the parties to these new PRC-Taiwan deals?  Are these instruments being concluded between the government of the PRC and the government of Taiwan, between certain government agencies, or through some non-governmental proxies ala TECRO and AIT?  Given who negotiated the deals, the last option seems the most likely.  Similarly, I’d like to see whether and how the texts identify the nature of the deals themselves.  Do they say anything about the legal status of these instruments, and, if not, what should we presume their status to be?  Are these agreements treaties–international agreements by subjects of international law that the parties intend to be governed by international law?  Or, are they contractual in nature, relying on one or both of their domestic legal systems to give the instruments legal force?  Or, is it possible the two sides are not relying on law at all, forging political commitments instead, which avoid the complicated legal status questions and their implications for Taiwans’ position under international law?

Having negotiated with both China and Taiwanese officials during my days at the State Department, I know they will undoubtedly have thought through–and negotiated extensively over–these very questions in reaching the new deals.  I expect, therefore, that the texts will not reflect any dramatic changes in either sides’ position on Taiwan’s status or its ability to exercise a treaty-making power.  At the same time, however, simply by concluding such agreements, I think these texts have the potential to reframe the legal status questions over Taiwan that have fueled so much discussion (and debate) among international lawyers in the past.  At a minimum, they’ll give those lawyers some new fodder to digest going forward.