Cross-Strait Economic and Trade Negotiations Require More than A Tacit Understanding and Goodwill

Cross-Strait Economic and Trade Negotiations Require More than A Tacit Understanding and GoodwillUnited Daily News editorial (Taipei, Taiwan, ROC)
A Translation
August 3, 2010

During recent cross-Strait negotiations, the addition of new airline destinations led to a disagreement over air traffic rights. Air traffic rights have been subjected to intense debate. A single clue tells all. The disagreement reveals the structural nature of Taiwan's cross-Strait economic and trade consultation problems. The government must pay close attention. It must seek appropriate solutions ahead of follow-up negotiations.

One problem is that negotiators for our side have equated "tacit understandings" with "articles of agreement," and given the public the wrong perception. Equating "tacit understandings" with "articles of agreement" is a mistake that rarely occurs when negotiating air traffic rights with other governments. One reason is that prior to negotiations, representatives for our side looked at the two sides' positions and arrived at unrealistic expectations. Statements made by Mainland representatives at the negotiating table were perceived as more generous and accomodating than intended. Even if Mainland China is genuinely inclined to be generous and accomodating, that is merely an inclination, a declaration of principle. It is an approach toward dealing with irreconcilable differences between the two sides. But just as in international economic and trade negotiations, it is not always possible to implement general principles when negotiating specific issues.

In recent years, Mainland China's economic system has undergone structural changes. Industry interests and industry viewpoints are given greater consideration during the formulation of economic and trade policy. In recent years, competition among Mainland China airlines has been intense. This is also true for high speed rail routes. Negotiations over air traffic rights involve the interests of airline companies and even airports. The operators are influential members at either the central or local government level. With the end of negotiations, they are having second thoughts. They are backpedaling on the concessions they are willing to make. They are asking themselves what is in the best interest of local governments and Mainland industries. This is not difficult to understand. This is why equating a declaration of general principles with a technical negotiation over a specific issue inevitably leads to dangerous miscalculations.

Secondly, negotiators for our side are deficient in political sensitivity. Another point of controversy concerns airline routes. The Mainland side is artificially directing new airline routes through Fuzhou and Xiamen, cities with lower market demand. These are the cities the Mainland is energetically promoting as the core of the Western Taiwan Straits Economic Region. We do not intend to speculate on whether Mainland airline routes for the Western Taiwan Straits Economic Region are part of a larger plan for the Western Taiwan Straits Economic Region. But our side has always had reservations about making the Western Taiwan Straits Economic Region part of cross-Strait economic and trade negotiations. At least we have yet to formulate an overall position on the matter. During negotiations over the cross-Strait economic agreement (ECFA) for example, our side did their utmost to avoid having economic cooperation equated with regional cooperation. But as we know from negotiations over air traffic rights, the Mainland side has made the Western Taiwan Straits Economic Region an objective larger than ECFA. Perhaps negotiators for our side fully understood the sensitivity of the Western Taiwan Straits Economic Region, and accepted the Mainland's proposals as a show of flexibility. But if they did so out of ignorance, or because the government was unclear about its significance, then it has a systemic problem that requires immediate correction.

The disagreement also highlights the need for increased participation by legal professionals in economic and trade negotiations. Outsiders have no way of knowing whether legal experts were present during recent air traffic rights negotiations. But based on the results, even if legal experts were present, they were ineffectual and their advice went unheeded. Current cross-Strait trade negotiations have proceeded smoothly only because the two sides agreed to tackle the easy issues first. Future negotiations will become increasingly difficult. More special interests and stakeholders will make demands. They will haggle over ever penny. They will dot every i, and cross every t. This is inevitable. The cross-Strait economic and trade agreement is one of the few agreements that can be written in our mother tongue. But just because it can be written in Chinese, that does not mean we can understand its legal implications. Legalese often saves something for a rainy day. Guarding against any downside often takes precedence over ensuring an upside. The atmosphere during negotiations was highly positive, with a high degree of tacit agreement. Insisting on the legal niceties could easily have been perceived as raining on the parade. But the air traffic rights incident highlights the importance of participation by legal professionals.

Over the coming months, negotiations over navigation rights will recommence. Six months after ECFA goes into effect, negotiations over investment protection measures, trade in goods, trade in services, and dispute settlements will begin. The cross-Strait economic cooperation committee must begin operations. But the dispute over air traffic rights betrays a lack of preparedness on the part of various ministries and departments. Therefore the government must quickly internalize its past experiences, publish strategy guides, and correct its structural problems. It must coordinate the various ministries' negotiating positions. Only then can it avoid turning a golden opportunity into a major crisis.

兩岸經貿協商不能只靠默契與善意
【聯合報╱社論】
2010.08.03 01:36 am

兩岸航權協商最近發生新增航點出現認知落差的爭議，各界對航權的計算也有頗多討論；見微知著，我們由此看到一些台灣在兩岸經貿協商中結構性的問題，值得政府重視，並尋求妥善解決的方案，以面對很快就會到來的後續協商。

這次事件的一個關鍵，在於我方談判代表將未條文化的「默契」，當做是協議事項，而讓外界對航班安排產生錯誤的認知。這種將「默契」當「協議」的錯誤也好，失誤也罷，相信在與其他國家洽簽的航權協定中很少出現。究其原因，一是我方代表在事前分析雙方立場時，可能對陸方的讓利說有著不切實際的期待，進而將陸方在談判桌上的討論，一律以善意、讓利的方式解讀。殊不知，即使中國大陸真有所謂讓利的意向，其自始至終都是一種大方向、大原則的宣示，藉為雙方無法化解歧見時的處理方針；但如同國際間的經貿談判，整體原則卻未必能落實在每一個議題的具體協商中。

特別是隨著中國大陸近年的經濟體制與結構改變，產業利益與意見在經貿政策中愈來愈受重視。大陸航空市場近年競爭激烈，各高鐵路段陸續通車後尤然；而航權談判涉及航空公司甚至航空站間的利益分配，其經營者若非中央權貴，也是地方大員，在談判後出現對台讓利說局部退縮，轉而加重考量大陸地方與產業利益的結果，並不難理解。也因此，以讓利這種原則性的宣示做為個別議題技術談判的立場研判基礎，必然存在著一定的誤判風險。

其次，我方談判代表的政治敏感度亦顯不足。這次事件的另一個爭議點，是陸方將新航線以人為方式導引至福州、廈門等市場需求較低的城市；這些城市，正是大陸近年大力推動所謂海西區的核心城市。我們無意猜測陸方的海西專屬航班安排是否屬於海西區整體布局的一部分，但對於海西區議題納入兩岸經貿協商範圍，我方過去基於對等性等考量，一直有所保留，至少整體立場尚未形成。例如在兩岸經濟協議（ECFA）中，我方便極力避免在經濟合作事項上，出現可能被解讀為區域合作的內容。但從航權談判事件可知，陸方將海西區納入協商議題的目標，並不限於ECFA協商。我方談判代表若是在充分認知海西議題的敏感性下，接受陸方提出的承諾，或許意味著政府立場的調整與彈性；但若是因為欠缺此一認知，或因政府本身對海西區的立場不清所致，就是一個結構性問題，需要整頓修正。

另外，這件事也凸顯出強化法律專業人才參與經貿協商的必要性。這次航權協商是否有法律專家參與，外界不得而知；但由結果論斷，法律專家即使有參與，在過程中不是未發揮功能，就是意見未受重視。兩岸經貿協商目前進展固然尚稱順利，但在先易後難的架構下，未來將會愈來愈複雜，牽扯的利益與利害關係人範圍也將加深加大，錙銖必較、字字斟酌的情形，勢將不可避免。確實，兩岸經貿協商是我們少數可以用母語擬訂條文的場合，但即使能以中文書寫，並不意味著瞭解其法律意涵。此外，法律意見往往是採未雨綢繆的觀點，防弊重於興利，因而在協商氣氛良好、默契十足之際，法律意見的堅持，很容易被當成攪局者；但此次航權談判事件，凸顯了強化法律專業的重要性。

未來數月內，除將重開航權談判，ECFA生效後半年內還須啟動投資保障、貨品貿易、服務業貿易及爭端解決等四大協商，兩岸經濟合作委員會也將開始運作；但航權談判爭議凸顯了各部會的準備程度似乎有落差。基此，政府應儘速歸納過去協商經驗，製作教戰手冊，並修正上述的結構性問題，統合各部會的談判立場與協商能量，才不會把好事談成憾事。