The Research into the International Treaties and Cross-Strait Agreements Review Process in the Legislative Yuan (Taiwan Parliament)
Date Issued
2010
Date
2010
Author(s)
Liao, Hsiang-Shun
Abstract
Based on the legal principle discussion of experience of reviewing treaty bills and administrative orders in the Legislative Yuan (Taiwan’s parliament), as well as the regulations of reviewing international treaties and administrative agreements in other parliaments, this thesis aims to clarify and compare the parliamentary review process of international treaties with that of cross-strait agreements in the Yuan. This thesis also has done research into the problems and dilemmas having been occurring with current review system and then raises suggestions to improve the mechanism of parliamentary “substantive supervision” toward international treaties and cross-strait agreements, so as to be the reference for devising a treaty making process and review system of the executive and legislative branches. The above study could help to establish a long-term parliamentary supervisory mechanism which will maximize benefits and set up a safety valve for Taiwan in international and cross-strait negotiations in the future.
This thesis is comprised of six chapters. Chapter One is the introduction which includes the research motivation and purpose, problem statement, as well as the research approaches, methods, framework, scope and limitations. Chapter Two is literature review that illustrates the concept of international treaties and cross-strait agreements, the theory of Convention on the Law of Treaties, the status of international law and effect of domestic law, the supervisory mechanism of democratic parliaments toward treaty bills, etc. In Chapters Three and Four, I employ legal approach and method of case study to research the affirmation in laws and regulations, the concluding process, and the parliamentary review process of international treaties and cross-strait agreements.
Chapter five compares the parliamentary review process of international treaties with that of cross-strait agreements, so that the problems and disputes of review process arise with the inconsistent legal systems between the foregoing treaties and agreements. Chapter six is the conclusion which firstly sums up findings from the study by means of response to proposition, and secondly raises suggestions on policy dimension: to set up the “Legislative Yuan Cross-strait Affairs Committee” as soon as possible in order to enable the Yuan to participate in the concluding process first and review the treaty or agreement later, so as to achieve the “substantive supervision” and immediately feasible policy suggestions; to legislate the “Treaty-making Law ” and the “Regulations on Taiwan-China Agreement-making Process,” as well as to re-apply constitutional interpretation for the review process of “Cross-strait Agreements,” so that the aforesaid could be long-term suggestions to solve the systemic defects.
The main findings in this thesis are as follows.
First, “Whether the Cross-strait Agreement can be applied to a treaty” is not interpreted in the Judicial Yuan Interpretation No. 329, that results in two review systems for international treaties and cross-strait agreements, as well as the chaos and contradiction of similar bills and two review processes in a parliament, and the problem of poor supervisory function.
Second, the parliamentary review process of international treaties is more integral and pluralistic than that of cross-strait agreements. Besides, the supervisory mechanism and function of the former is better.
Third, there is no legal system of reviewing cross-strait agreements whose process is arguable continuously, so that all agreements signed by the Ma Ying-jeou government do not have complete parliamentary review process. For instance, some agreements stipulate a clause of automatic entry into effect after 7 days to 60 days from signing it, some have the problem of part items of an effective agreement being unenforceable after the review but the law amendments are not approved. The Legislative Yuan lacks the supervisory capacity completely over cross-strait agreements; that is, it merely endorses the agreements signed by the Executive Yuan.
Subjects
treaty
administrative agreement
cross-strait agreement
Legislative Yuan
parliamentary review
parliamentary supervision
SDGs
Type
thesis
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