Political Barriers Not Crossed by Eight Chiang-Chen Meetings

Political Barriers Not Crossed by Eight Chiang-Chen Meetings
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
August 7, 2012

Summary: Beijing's bottom line erected insurmountable political barriers for all eight Chiang-Chen Meetings. Cross-strait negotiations are based on the 1992 consensus, on the basis of "one China, different interpretations." Economic consultations need not dance to the tune of politics. Can Beijing transcend ideological barriers? Can it allow economics to remain economics? Can it allow cross-Strait relations to ascend to the next level? If the eighth Chiang-Chen Meeting can do so, then its achievements will transcend those of the past.

Full Text below:

The eighth Chiang-Chen Meeting will convene tomorrowin Taipei. The two sides will sign a Cross-Strait Customs Cooperation Agreement and a Cross-Strait Investment Protection and Promotion Agreement. The seventh Chiang-Chen Meeting took place during President Ma's first term. The two sides signed 16 agreements. Altogether the two sides have signed 18 agreements. They have established a solid record of cross-Strait interaction. They have heralded a new stage of mutually beneficial cross-strait relations.

The current Chiang-Chen Meeting will be different from previous meetings. President Ma recently began his second term. The leadership has changed. The CCP will hold its 18th Party Congress in October. Its leadership is also about to change. The current Chiang-Chen Meeting represents a farewell to the past. The eighth Chiang-Chen Meeting is a period. The ARATS-SEF consultations were a semicolon. They clearly connected the two.

The highlight of the eighth Chiang-Chen Meeting will be the signing of the Investment Protection Agreement. Consultations lasted nearly two years. The process was complex. The agreement was supposed to be signed during the sixth and seventh Chiang-Chen Meetings. But both times the meetings concluded without results. As we can see, the agreement was hard won.

During the final stages of consultation, BYD filed an infringement suit against the Hon Hai Group's Foxconn Company. The suit was not actually relevant to the Investment Protection Agreement. The landlord for the Pacific SOGO Dalian Store increased rents an unreasonable amount and cut power to the store. These have become test cases for the effectiveness of the Investment Protection Agreement. Taiwan businessman Chung Ting-pang, who attended Falun Gong events, was detained by Mainland authorities. This is why some oppose the Investment Protection Agreement. The Investment Protection Agreement was originally confined to protecting investments. As we can see, some people expect too much from it.

Nevertheless, the significance of the agreement cannot be denied. One. Taiwan investments on the Mainland were once protected unilaterally by the Taiwan Compatriots Investment Protection Act. Now they are protected bilaterally by the Investment Protection Agreement. ROC authorities can now intervene in any investment disputes. This has dramatically increased the degree of protection afforded Taiwan business people on the Mainland. Two. Mainland companies and individuals have investments on Taiwan. Ruling party changes on Taiwan could jeopardize their interests. The Investment Protection Agreement may help dispel their fears and facilitate the normalization of Mainland investments on Taiwan. Three. The Investment Protection Agreement is one of four follow-up agreements to ECFA. It constitutes a cross-strait economic and trade success. It will facilitate follow-up ECFA negotiations and accelerate cross-Strait free trade.

The Investment Protection Agreement has led to major breakthroughs. But more hurdles must be overcome. Our side was concerned about the personal safety of Taiwan business people. These concerns were addressed in the Investment Protection Agreement. We fought for Taiwan business peoples' personal freedom, and won. If Mainland authorities detain Taiwan business people, they must notify their families within 24 hours, in accordance with "citizen status." Our side sought exemption from the Mainland's newly amended Code of Criminal Law. Our calls for "extra-citizen status" and "unconditional notification" were rejected.

Consider the settlement of disputes between investors (P2P). Our side wanted immunity from Mainland regulations. We were able to secure only arbitration on Taiwan and third party arbitration under Mainland arbitration institutions and arbitration rules. Our side wanted international arbitration for disputes between investors and local governments (P2G). The Mainland side refused. Multilateral mediation with fewer teeth was substituted.

In the final analysis, the cross-Strait Investment Protection Agreement was dogged by political factors. The Mainland side objected to the internationalization of cross-Strait issues blurring the "one China principle." Turning cross-strait P2G disputes over to international arbitration bodies for arbitration violated the political bottom line. The Mainland agreed to notify the family members of those detained by Mainland authorities within 24 hours, based on "citizen status." But to avoid the misintrepretation of cross-strait relations, it substituted the concept of consensus for the concept of sovereignty in the standardized protocol.

Think back to protocols signed during the past seven Chiang-Chen Meetings. Whenever our demands touched upon sovereignty and jurisdiction, Beijing refused to budge. Consider the cross-Strait Maritime Transport Agreement. We have been fighting to get Mainland exports to other countries shipped to Taiwan ports for transit. But the Mainland sees re-exports as relations between sovereign states. It has balked. Our side wants cross-Strait air transport agreements merged into "beyond rights" Fifth Freedom of air travel. Our side wants Mainland visitors to transit Taiwan, then proceed to other countries. But this too is impossible due to political considerations. As a result our side's vision of a cross-Strait direct sea and air operations center has been set back.

Beijing's bottom line erected insurmountable political barriers for all eight Chiang-Chen Meetings. Cross-strait negotiations are based on the 1992 consensus, on the basis of "one China, different interpretations." Economic consultations need not dance to the tune of politics. Can Beijing transcend ideological barriers? Can it allow economics to remain economics? Can it allow cross-Strait relations to ascend to the next level? If the eighth Chiang-Chen Meeting can do so, then its achievements will transcend those of the past.

八次江陳會尚未跨越的政治藩籬
【聯合報╱社論】
 
2012.08.07

第八次江陳會明起在台北舉行，將簽署「兩岸海關合作協議」及「兩岸投資保障和促進協議」，連同馬總統第一任內七次江陳會所簽署十六項協議，總計十八項協議，寫下兩岸互動的豐盛紀錄，也標幟兩岸關係互利雙贏的新階段。

這次江陳會意義不同於以往，一方面，舉行時間在馬總統第二任開始不久，有「展布新局」的意義；另方面，攸關中共人事換屆的「十八大」即將於十月召開，此時江陳會又是「總結過去」的象徵。喻以標點符號，「江陳會」名稱在第八次會議後可能劃下「句點」，但在兩岸兩會協商則是「分號」，承上啟下的意義至為明顯。

簽署投資保障協議是第八次江陳會的重頭戲，但協商歷時近兩年，過程一波三折，第六次及第七次江陳會兩次事前預告即將簽署，但最後皆告落空；可見該協議難度甚高。

在協商進入最後階段，和投保協議關聯不大的鴻海集團旗下富士康公司遭比亞迪侵權纏訟案，以及太平洋SOGO大陸大連店遭房東無理調漲租金及斷電案，先後浮上檯面，成為測試投保協議有效性的指標案件。修習法輪功的台商鍾鼎邦遭大陸羈押事件，更成為部分人士反對簽署投保協議的重要理由。可見原本侷限於保障投資相關權益的一紙協議，承載了多少過度期待。

儘管如此，投保協議簽署仍有不容抹殺的重要意義：第一，對台商大陸投資的保障，從大陸以單方面制定「台灣同胞投資保護法」作規範依據，轉變為依雙方協議加以規範，我方公權力可直接介入投資爭端協處，對大陸台商保護程度大幅提升；第二，對大陸企業或個人來台投資，投保協議可祛除投資人擔心台灣政黨輪替可能影響投資權益的心理障礙，有助促進陸資來台正常化；第三，對兩岸經貿布局而言，投保協議是ECFA後續四大協議之一，其成功達陣，有利推進ECFA後續談判，加速邁向兩岸自由貿易的既定目標。

從投保協議實質內容來看，我方爭取到若干重大突破，但也有難以克服的障礙。如我方將台商關心的人身安全保障納入投保協議，並爭取到台商人身自由受限制時，須在二十四小時內通知家屬的「國民待遇」，但在訴求排除大陸新修正「刑事訴訟法」國安條款適用、「超國民待遇」的「無例外通知」，則鎩羽而歸。

在投資爭端方面，關於投資人間（P2P）爭端，我方為排除大陸法規只能在大陸仲裁機構仲裁的規定，爭取到可在台灣及第三地仲裁的待遇，但關於投資人與在地政府間（P2G）爭端，我方訴求援引國際仲裁機制遭大陸拒絕，而代以強制力較低的「調解」、「協處」等多元方式處理。

追根究柢，兩岸投保協議很多限制都是政治因素作祟，大陸強力排斥兩岸問題國際化及兩岸關係定位模糊「一中原則」。因此，訴求兩岸P2G爭端交由國際仲裁機構仲裁，自是違反北京政治底線。大陸同意限制人身自由須二十四小時內通知家屬的「國民待遇」，但似為避免兩岸關係被錯誤解讀，據知將不在協議本文規範，而改以無主權意義的共識文件代之。

事實上，回溯過去七次江陳會簽署的各項協議，我方訴求只要碰觸到主權及管轄權問題，都很難突破北京的底線。如兩岸海運協議，我方一直爭取大陸輸往其他國家貨品能運到台灣港口中轉，但大陸視轉口為主權國間運輸關係，一直不願放行。我方訴求在兩岸空運協議納入延遠權，並爭取大陸來台旅客能從台灣轉往其他國家，也因北京同樣的政治考量而卡住。台灣藉由兩岸直航發展海空運轉中心的願景因之重挫。

總結過去經驗，北京設下的底線，就是八次江陳會難以跨越的政治藩籬。兩岸協商是建立在「九二共識」、「一中各表」的基礎上，經濟事務協商大可不必再箍上政治的條條框框。北京如能跨越意識形態的障礙，讓經濟的歸經濟，兩岸關係發展始可能再上層樓。第八次江陳會若能有所調整，成就必可超越過去。