By Yu-Jie Chen.

Earlier this month Taiwan concluded a United Nations-type review of its implementation of the two principal human rights treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is the first time Taiwan has undergone an outside, comprehensive evaluation of its human rights record in a wide range of areas. Although this on-site review received little international or local media attention, its effects on the island’s human rights should not be underestimated.

The review is a result of a decision taken by President Ma Ying-jeou during his first term to ratify the two treaties. In fact, as early as 2000, former President Chen Shui-bian had undertaken a similar initiative. The DPP’s proposal to ratify the two treaties came close to succeeding in 2002, but was ultimately frustrated because the DPP, insisting on the right of self-determination in Article 1 of the treaties, objected to the declaration attached by the KMT that “the Republic of China needs not exercise the right of self-determination because it has long been an independent sovereign.”

President Ma rekindled these efforts and attached no reservations or declarations. The Legislative Yuan, with overwhelming support from both the KMT and DPP, approved the ratification of the two treaties in March 2009.

As Taiwan is not a UN member state, the UN Secretary-General, as expected, rejected the government’s request to deposit the instruments of ratification. Nevertheless, the Legislative Yuan passed domestic legislation, i.e., the Implementation Act for the two Covenants, to grant the ICCPR and ICESCR the status of domestic laws.

The Implementation Act sets up several important institutions requiring Taiwan to incorporate international human rights standards. For instance, the Act requires the government to bring all laws, regulations and government measures in line with the two treaties by December 2011.  Modest progress has been stimulated in this respect, with over 180 rules and practices amended by the deadline. But many proposals to change inconsistent laws have been stalled in the legislature. The Legislative Yuan needs to step up to fulfil its own promise of applying international human rights standards in Taiwan’s legal system. Ma’s administration should also continue to examine, on a regular basis, whether its policies are compatible with the two treaties.

Another important invention in the Implementation Act is the requirement that the government establishes a human rights report system in accordance with the two treaties. As a result, ten well-respected independent experts from across the globe, many of them experienced in human rights treaty reviews, were invited by the Ma administration to examine Taiwan’s compliance in their individual capacity.

The review process was largely modeled on UN proceedings. The administration produced State Reports, which underwent several rounds of writing and rewriting by a variety of government agencies. A number of local scholars and civil society representatives took part in the government meetings to discuss the drafts. Compared with Taiwan’s previous human rights reports, which were usually outsourced to scholars and very rarely involved deliberations of government officials, this new drafting process prompted the bureaucracy to begin internalizing international human rights norms.

The review was marked by the impressive energy of the NGO community. More than a dozen NGOs prepared their own parallel reports to provide the international experts with additional information. Even more NGOs participated later in the hearings, making a deluge of requests to speak with the experts. The on-site review may have shortened the psychological distance between grass-roots groups and international legal platforms.

After months of document exchange, the experts carried out a three-day dialogue in Taipei with government representatives to raise concerns, understand implementation challenges and discuss possible solutions. At the same time, they were also informed by meetings with NGOs.

The experts recognized the government’s serious efforts to engage in the dialogue, in particular its efforts to involve a large number of officials from various departments. However, the government did not seem responsive to many difficult questions raised by the experts and tended to give formal answers without meaningful assessment of the actual impact of its policy measures on human rights.

In the “Concluding Observations and Recommendations” issued after the review, the experts took on a number of contentious issues, such as continuing executions, the concentration of media ownership, deteriorating prison/detention conditions and former President Chen Shui-bian’s serious health problems.

The experts also highlighted a multitude of chronic human rights problems often hidden from public view, especially violations of the rights of vulnerable populations, including women, children, indigenous people, migrant workers, people with disabilities, new immigrants, victims of forced eviction and people with different sexual orientations or gender identities. Practices such as protracted pre-trial detention and infringement of the rights of assembly were also criticized.

Overall, the new review model achieved notable effects in monitoring government practice and mobilizing civil society organizations. It was a commendable effort by the Ma administration and civil society that sets a remarkable precedent for future human rights reviews on the island.  The next crucial step for Ma’s administration is to put in place clear, effective follow-up mechanisms to end violations and to institutionalize human rights safeguards in accordance with the experts’ recommendations.

One recommendation that is likely to have a far-reaching effect is to follow internationally recognized standards to establish an independent national human rights commission that would carry out advisory, monitoring, investigative and reporting functions. The NGO community has long urged both DPP and KMT administrations to support such a commission. There have also been several good local studies that discuss its institutional design and address constitutional concerns, including a study by the Ministry of Justice. Ma has, however, been reluctant. He will leave an important human rights legacy if he can finally make this happen during his second term.

The value of the newly-established reporting system goes far beyond that of a periodic monitoring mechanism. The most significant value will be continuing dialogues. As noted by the experts, in many government processes affecting human rights in Taiwan, transparency and consultation with society are inadequate. It is their hope and the hope of many people in Taiwan that the participatory and consultative process witnessed in this innovative review will be extended to future dialogues between the government and civil society.

Ma’s administration should begin using international human rights law as a bridge to develop an ongoing, constructive and earnest discussion with civil society. This review should only be a beginning.

Yu-Jie Chen is a Taiwanese lawyer and Research Fellow at the US-Asia Law Institute, NYU Law School.

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