The EC is also a major player in the GATT. In principle, the EC offers conditional support for Taiwan’s accession to the GATT. The EC supports Taiwan’s accession to the GATT. But, it insists that Taiwan’s application must be considered on the following bases: Firstly, Taiwan’s position must be considered as a developed country. Secondly, Taiwan must adopt trade liberalization policies consistent with that of a developed country. Thirdly, Taiwan must endorse non-discrimination and other GATT rules as binding on it. Lastly, Taiwan must commit itself to accept the results of Uruguay Round. In 1984, the European Parliament had adopted a resolution in favour of Taiwan’s accession to the GATT.^^^ However, European Parliament resolution has little effect on the EC’s decision-making proced ures .Altho ugh Taiwan’s case was discussed in the so-called Article 113 Committee‘S^, the positive position of the EC in favour of Taiwan’s accession was not adopted until the U.S. had made its d e c is io n .
The GATT membership needs a two third majority from its members. In practice, the GATT decisions are based on " consensus In 1982, the tradition of consensus for GATT’s decision and dispute settlement was reaffirmed by the GATT.‘^ The World Trade Organization established by the Uruguay Round will also operate on the basis of c o n s e n s u s . I f one or few countries are against the consensus, these countries are often placed under severe pressure from other contracting parties, particularly the leading trading countries, to change their positions. Only in rare cases, will the GATT resort to voting as it will cause a split of GATT system. In most cases, dissenting countries might
‘^^Interview with the EC Commission official ( DG I - External Relations ) on 17 December 1993.
‘^^The European Parliament, Doc. 2-1756/84, Resolution on trade with Taiwan, OJ 1984, C229/108.
‘^^Hartley, T.C. The Foundation of European Law. (1988), 2nd ed., at 29, 30, and 34.
Article 113 Committee is a subordinate Body of the Council o f Ministers. While the role o f the Article 113 Committee is normaliy advisory, in practice this Committee, consisting of officials with detailed knowledge of the issues and the aims of their representative ministers, is an important link in the EC trade policy-making process. See Hayes, J.P. Making Trade Policy in the European Community. (1993), at 39, and 128-130.
‘^^Interview with Taiwan’s Trade Office’s official at Brussels on 22 December 1993.
Rules governing the procedure of the GATT Contracting Parties, see GATT BISD 12S/10 (1964).
‘^G A T T , BISD 29S/16 (1983).
‘^‘f.T. ‘ WTO - a new name heralds new powers ’, December 16,1993, p.5. The main exception to the consensus decision under the WTO is dispute settlement where offending countries will no longer be able to block adoption o f Panel reports.
just " disassociate themselves with the consensus " and opt not to block a decision. The GATT practice implies that: (1) it is up the Contracting Parties to make the decision, not China which is not yet a contracting party; and (2) the decision should be made according to GATT rules, so other issues under international politics should not be linked to Taiwan’s application.
3. Legal Aspects of Taiwan’s Accession
GATT does not require its members to be sovereign states. GATT members are defined as ‘ governments ’, and not as ‘ states ’ or ‘ nations ’ found in the United Nations and many other international organizations. Thus, a GATT contracting party is not necessarily a government of a sovereign state. In fact, three of the 23 original GATT members ( Burma, Ceylon and Southern Rhodesia ) were not independent nations at the time the GATT was d r a f t e d . T h e qualification for GATT membership can be mainly divided into three accession p r o c e d u r e s (1) Parties to the Protocol of Provisional Application: These include the 23 original GATT members; (2) Parties to Protocols of accession: This is Article XXXIII procedure for states or governments the route to GATT membership. This procedure is via a protocol of accession accompanied by a schedule of concessions. The terms are negotiated with the Contracting Parties, and a decision on entry is taken by a two-third majority. The protocol is concluded between the new member, and the individual contracting party, but to come into effect the protocol needs only the Contracting Parties’ decision and the signature of the new member; and (3) Previously dependent territories: This is Article XXVI:5(c) procedure for ex-colonies of existing contracting parties to obtain membership.
Taiwan referred to Article XXXni of the GATT for its application.^^ Article
XXXm states that
‘ A government not party to this Agreement, or a government acting on behalf of a separate customs territory possessing full autonomy in the conduct of its external
Jackson, J. World Trade and the Law of GATT (1969), at 96.
^^^McGovern, Edmond. International Trade Regulation (1986), at 15-17.
^^Memorandum on Foreign Trade Regime of the Customs Territory of Taiwan, Penghu, Kinmen and Matsu (January 1, 1990), reprinted in Chiu, Hungdah. (ed.) 9 Chinese Yearbook of International Law and Affairs: 1989- 90.(1991), vol. 9, at 226.
commercial relations and of the other matters provided for in this Agreement, may accede to this Agreement, on its own behalf or on behalf of that territory, on terms to be agreed between such government and the Contracting Parties. Decision of the Contracting Parties ... shall be taken by a two-third majority.’
The government of the ROC acts on behalf of a separate customs territory of Taiwan’s areas ‘ possessing full autonomy in the conduct of its external commercial relations ’. It may accede to the GATT on terms to be agreed by existing GATT members. This accession procedure is to avoid China’s request for its sponsorship under Article XXVI:5(c) of the GATT. China’s arguments referred to Hong Kong joining GATT through UK recommendation. Hong Kong became the 91st member of the GATT on 23 April 1986.^^^ Article XXVI:5(c) procedure is usually applied to a colony. The request for Article XXVI:5(c) is clearly not the case for Taiwan. It would also violate the China (PRC) policy of anti-colonialism. In this connection. Article XXXin is feasible to allow Taiwan to have separate representation in the GATT.^^^ Taiwan’s application is being considered by the GATT Working Party on the basis of Article XXXIII. It should be noted that the WTO Agreement reiterates the concept of " separate customs territory " for new accession to the WTO in order to sidestep the contentious issue of state sovereignty.^®*
The GATT decision for its membership should avoid political consideration.^®^ The admission of Taiwan into GATT does not necessarily imply recognition of Taiwan by individual GATT members. Accession of a State or a government to the GATT, according to Article XXXm, is clearly determined by a collective act of two-thirds of the contracting parties to the GATT. Since, therefore, recognition is an individual act, and
^®^GATT. 39 GATT Focus (1986), at 2.
^®®Jacobson, Harold K and M. Oksenberg. China’s Participation in the IMF, the World Bank, and GATT. (1990), at 102. See also Penelope, Hartland-Thunberg. China, Hong Kong, Taiwan and the World Trading System (1990), at 159; and Qui, Ya. ‘ GATT Membership For Taiwan ’, in 24 JILP (1992), at 1096.
® GATT. International Trade and Trading System. July 1993, at 10.
^®*Art.XII(l) of the WTO Agreement states that ‘ Any state or separate customs territory possessing full autonomy in the conduct of its external Government relations and of the other matters provided in this Agreement and the Multilateral Trade Agreement may accede to this A greem ent..’.
^®\rticle 86 of the Havana Charter. UN Conference on Trade and Employment. Havana Charter for an International Trade Organization and Final Act and Related Documents, UN Doc ICITO/1/4/1948.
admission to GATT membership is a collective act. It would be inappropriate to link Taiwan’s application with individual diplomatic recognition. The United Nations has therefore made clear that: ‘ (1) A member could properly vote to accept a representative of a government which it did not recognize, or with which it had no diplomatic relations, and (2) Such a vote did not imply recognition or a readiness to assume diplomatic relations. The GATT also adopted this opinion that representation in an international organization was distinct from the question of recognition of a government by other members of that organization. Czechoslovakia made a protest against the accession
of West Germany and South Korea based on Article XXXin procedure during the GATT
Torquay Round negotiations in 1950. In spite of its protest, Czechoslovakia clearly recognized the distinction between accession and recognition. Under these circumstances, Czechoslovak was still a signature of the Final Act of Torquay and of the Torquay Protocol to the General Agreement. The Torquay Protocol to the General Agreement contained five countries for accession and about twenty Protocols of accession of individual countries including West Germany.
The particular eligibility requirements of a GATT member are determined by the objectives and nature of the GATT. The essence of the GATT lies in the willingness of the applicant to fulfil the GATT obligations. This accession requirement can be derived by analogy from Article 4 of the U.N. Charter. This Article requires that an applicant for membership of the United Nations must be able and willing to carry out the obligations of membership. The obligations of membership can be carried out by governments which in fact possess the power to do so. Taiwan actually possess fully autonomy in the conduct of its external trade relations. Taiwan is also able and willing to carry out the GATT obligations. Actually, Taiwan even shows its willingness to adhere to the Tokyo Round Codes on the same terms as developed countries.According to Article XXXIII of the
^^^U.N. Official Record of Security Council. 5th Year, 1950. Supplement. Document S/1466, ‘ Legal Aspects of Problems of Representation in the United Nations ’, at 22.
^^^GATT. Doc. SR.22/3, (March 16,1965), at 3.
^^^GATT. BISD, vol.ll. May 1952, at 158 and 159.
Memorandum on Foreign Trade Regime of the Customs Territory of Taiwan, Penghu, Kinmen and matsu (1990), in Chiu, Hungdah (ed), op. cit., vol.9 (1989-90), at 227.
GATT, it would seem to be appropriate for the GATT, through their collective action, to accord Taiwan membership, even though individual members may refuse, and may continue to refuse, to accord Taiwan recognition as the lawful government for reasons which are valid under their national policies.
Taiwan’s case is unique in the history of the GATT, not because it involves a revolutionary change of government, but because it is the first in which two rival governments exist. It has been demonstrated that the principle of numerical preponderance of recognition is inappropriate. It is necessary to note that China has confirmed the separate GATT membership of Hong Kong and Macau^^"^ after 1 July 1997 and 20 December 1999 respectively. Their separate membership is based on a separate customs territory to meet the GATT requirements. In essence, Hong Kong and Macau will possess full autonomy in conduct of their external commercial relations even after they are restored to C h i n a . A s far as GATT is concerned, it should regard that the four separate governments ( of China, Taiwan, Hong Kong and Macao ) are in fact in a position to employ the resources and direct Chinese people in fulfilment of the GATT obligations before the final unification of all Chinese territories and the transformation of China economy to one system.