Towards the end of second week into the occupation of Taiwan’s parliament by students and other protesters, there is still no sign of resolution. The protesters oppose the Cross-Strait Service Trade Agreement (CSSTA, also dubbed the Trade in Services Agreement – TiSA) and the way its negotiation and subsequent legislative review were handled by the government. They demand sending the treaty back to the Executive Yuan where it will be halted until the Legislative Yuan creates a monitoring mechanism that would provide a legal framework for dealing with future cross-Strait negotiations.
In addition, protesters are demanding that the CSSTA still be reviewed clause by clause. They also seek to hold a citizens’ constitutional assembly that would prepare constitutional reform, of which one of the intended goals is to clarify the balance of powers between the executive and legislative branches. The last response from President Ma was of mild agreement to demands for a clause-by-clause review, passing a monitoring mechanism and the option of holding civic constitutional meetings, but the key demand of returning the CSSTA to the executive branch was flatly rejected.
In a meantime, opposition to CSSTA has become known as the Sunflower Movement after flowers that were given to the student protesters by florists. Events so far culminated on March 30 when between 350,000 and 500,000 people gathered to support the Sunflower Movement in the area surrounding Ketagalan Boulevard in front of the Presidential Palace.
One of the central points pushed forward by the government is that reneging on the treaty would harm Taiwan’s international reputation and delay Taiwan’s entry into regional free trade arrangements. Background on the issue prepared by Taiwan’s foreign ministry reads (emphasis added):
“If the TiSA cannot be passed and thus come into force, the three major repercussions will be: Taiwan’s service industries will lose the advantage of early entry to the mainland Chinese market; Taiwan’s accession to regional economic integration mechanisms—including the Trans-Pacific Partnership (TPP) and Regional Comprehensive Economic Partnership (RCEP)—will be delayed; and future talks with mainland China under the Cross-Straits Economic Cooperation Framework Agreement (ECFA) on a trade in goods agreement and dispute settlement mechanism will be influenced, which will jeopardize the development of Taiwan’s external trade.
In a similar tone, Jonathan Spangler argues in The Diplomat that the:
“…deleterious effects of failure to implement the CSSTA would not only be domestic or bilateral; the international implications would be equally grave… Reneging on a bilateral agreement, such as the CSSTA, would serve as a clear indication to the international community that the local government lacks the capacity to effectively engage in international relations.”
Spangler further adds that “…If Taipei cannot succeed in fulfilling an already signed trade agreement with its closest neighbor and most significant trading partner, the risks involved for other countries in deepening economic ties with Taiwan may outweigh the potential benefits.”
However, this claim lacks substantial supporting evidence. In fact, states do often renegotiate treaties and usually there is a mechanism for such a procedure embedded in the treaty. The consequences are rarely as grave as is now being claimed. Ireland did not became an international outcast when it failed to approve the Lisbon treaty in a 2008 referendum and the Nice treaty in a 2001 referendum. In both cases, negotiations were opened again, changes were made and both treaties eventually entered into force.
In addition, the argument can be made that other democracies do understand the complexity of the ratification process, especially when it comes to free trade (or free trade-like) agreements. It is also likely that other governments would recognize that agreements with China are different than Taiwan’s dealings with other governments. The United States would hardly stop promoting Taiwan’s Trans-Pacific Partnership membership just because Taipei failed to ratify the CSSTA with China, nor would the failure to ratify the treaty deter Japan from entering into negotiations with Taiwan. In other words, Taiwan’s deals with China are not a reliable benchmark for measuring Taiwan’s reputation. It is hard to think that Taiwan’s partners are not aware of this.
Moreover, unless the treaty can be ratified by the government without legislative approval, the text of each treaty needs the consent of the legislature and therefore is not legally binding. Indeed, part of the controversy over CSSTA is that proponents of the pact argue that as a part of ECFA (itself approved by the LY), it is an executive order that does not require legislative approval. Yet, the MoFA’s letter quoted above seems to suggest that legislative approval is necessary for the CSSTA to come into force. Ultimately, this issue has to be settled by Taiwan’s courts. However, the key problem here is that a thorough review of CSSTA was agreed upon by a government majority in the LY. Whatever the government claims, it does not make for good public relations when the government backtracks from a commitment made by its legislative majority simply because it is convenient.
Naturally, Beijing would hardly be pleased if CSSTA were ratified with some major changes. Likewise, it is certainly not pleased by the emergence of a civic movement that crosses party lines and aspires to hold the government accountable. This is especially true because Taiwan’s movement appears to be seen as a model in the increasingly restive Hong Kong Special Administrative Region, which Beijing is already struggling to control. If (and only if) the Sunflower Movement succeeds in pushing CSSTA back to the negotiation table, Beijing will face a certain dilemma: if it appears to retaliate, it will only confirm that protesters were right to suspect sinister intentions. Moreover, any future arrangement between Taipei and Beijing will be under very close public scrutiny. Maybe it is, after all, a better option for Ma (and Beijing) to appease public opposition and return to the negotiation table.
At the end of the day, Ma’s administration has only itself to blame for its lack of transparency during the negotiations stage, for ditching the review process in the LY, and ultimately for ignoring a concerned public and trying to use scare tactics when the public demanded accountability. At the beginning of the legislative siege, Ma’s government could have argued that the “group of students” was not representing the public at large. Yet, a TVBS (generally considered as KMT-leaning media) poll from last week showed lackluster support for the CSSTA and majority approval for the movement’s occupation of the LY. In the light of Sunday’s protest that may have very well been the largest of its kind in Taiwan’s democratic history, the government finds itself in an increasingly awkward position, fighting a losing battle in trying to legitimize its actions. So are the KMT lawmakers who will soon seek re-election; January 2016 is close enough to make them feel very uneasy about their prospects.
Michal Thim is a Ph.D. candidate in the Taiwan Studies Program at the China Policy Institute, School of Contemporary Chinese Studies, University of Nottingham and a Research Fellow at the Prague-based think-tank Association for International Affairs. Michal tweets @michalthim.