Yu-Jie Chen. A new experiment for international human rights treaty review: Taiwan’s experience

2013

On March 1, Taiwan concluded a United Nations-type review of its implementation of the two principal human rights treaties, namely the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).  A group of international experts, who were invited to Taiwan to conduct the review in their individual capacity, issued their “Concluding Observations and Recommendations,” (the Chinese version can be found here) identifying a slew of issues concerning whether Taiwan’s government has met the requirements of the two major treaties.  This on-site review was the first time that the government of Taiwan invited independent international experts to systematically evaluate its human rights records in accordance with the two Covenants.  It was a novel experiment for the island.  And more broadly, it was also an unprecedented experiment for human rights treaties that has the potential of being a review model.

Since the People’s Republic of China took China’s seat in the UN, the Republic of China’s government on Taiwan has been excluded from the international human rights regime for more than four decades.  Despite isolation, Taiwan ratified the Convention on the Elimination of All Forms of Discrimination against Women in 2007, followed by a more ambitious ratification of the ICCPR and ICESCR in 2009.  Although Taiwan’s attempts to deposit the instruments of ratification were rejected by the UN Secretary-General, it nevertheless has committed itself to following international human rights standards.  The ICCPR and ICESCR have been given the status of domestic laws by domestic legislation, but, as the Taiwan government acknowledges, the two Covenants trump inconsistent domestic laws.  Moreover, the legislation required the government to bring all laws, regulations and government measures in line with the two Covenants by December 2011 and to also set up a human rights report system.

Because Taiwan cannot submit its state reports to the human rights treaty bodies for review, its government, in consultation with the civil society, creatively designed an evaluation process similar to the UN treaty review in some aspects.  What it did was to invite ten international human rights experts, many of them experienced in UN treaty reviews, to evaluate Taiwan’s state reports as independent experts.  The process generally followed relevant UN guidelines.  Prior to the on-site evaluation were months of preparation and exchange of documentation.  Volumes of state reports, as well as “shadow reports” provided by NGOs, were sent to the experts for review.  The experts then prepared a “List of Issues,” asking the government for further clarification and information not provided in the state reports.  In response to the “List of Issues,” the government sent written replies before the meeting.  The meeting consisted of three days of hearings in which government and NGO representatives presented ideas and answered questions, followed by a fourth day of private discussions by the two expert committees.  After this review, the experts issued the “Concluding Observations and Recommendations.”

What made this process in Taiwan special is that it was conducted on the ground, which increased both governmental and non-governmental participation significantly in comparison with the comparable UN proceedings.  More than eighty official representatives from more than thirty government ministries, commissions or units took part in the review hearings.  This number is much larger than what is usually seen in the UN treaty review.  Because of its greater reach to officials, the educational value of the process is likely to expand.  Moreover, NGOs were given more time than they usually would have in the UN review.  The NGO community attending the meeting consisted of a wide range of groups that would not have had the resources to make their voices heard had the review been conducted in Geneva.  More than thirty civic groups were given opportunities to meet with the experts formally and informally before, during and after the review sessions.

The three-day hearing was also longer than the usual treaty review.  The two expert committees for the ICCPR and ICESCR held joint meetings with the government on the first day to discuss general issues raised by both committees.  The following sessions gave the committees plenty of time to focus on particular issues of concern in their respective Covenants.

Throughout the process, the experts stressed the importance of having frank and constructive dialogues.  Although the government, as a committee expert later pointed out, showed some level of resistance and self-denial in the review, its efforts to engage in the discussion seriously were recognized.  The President and the Vice President also showed support for this exercise by their appearance at the opening press conference and a private luncheon at the end to discuss issues with the experts.

Yet, three problems were still notable during the review.  In some instances, information necessary for understanding and monitoring human rights practice was lacking.  Second, like the practice of many countries, the government’s responses to the experts’ questions concentrated on the law on the books, instead of actual measures being taken to monitor and evaluate the enforcement of the law.  Finally, as some NGOs recognized, with a few exceptions the government did not send ministerial-level officials to the meetings despite the fact that it was relatively easy for these officials to attend an on-site review.  Had the government sent more high-level officials, the review might have an even greater impact on future decision-making.

The vibrancy of Taiwan civil society was on full display at these proceedings, although it was the first time for the local NGO community to engage in an exercise like this.  Each group that wanted to speak was given two to five minutes to make a formal presentation to the experts.  There was also lobbying at other times.  Groups advocating the rights of vulnerable populations were well represented in the review, including indigenous people, migrant workers, persons with disabilities, and lesbian, gay, bisexual, transgender and intersex persons (LGBTI).  Outside the venue, housing rights activists and victims of forced demolition from various development projects joined forces to inform the media.  As an NGO activist commented, this entire process was a great contribution to the solidarity of Taiwan’s NGO community.  Indeed, the review, along with its preparation, proved a focal point for mobilizing groups with a diversity of concerns, even though they adopted very different advocacy strategies and displayed different levels of resources and legal expertise.

One might expect that an on-site review would be more likely to benefit from local media attention than a review in far-off Geneva, but, surprisingly, media coverage was inadequate in this case.  The media did not seem to grasp the potential impact of the review, although some of the issues discussed in the meetings and in the experts’ Concluding Observations and Recommendations, such as the death penalty, media monopoly and transitional justice, have caused stirs in Taiwan’s public opinion in other contexts.

The seventeen-page Concluding Observations and Recommendations is a much-needed comprehensive report, covering issues that urgently need independent evaluation and monitoring in Taiwan.  Despite much impressive human rights progress in Taiwan since martial law was lifted in 1987, certain problems have remained unaddressed, sometimes because there is not enough political will to take up the challenge and sometimes because public awareness is still insufficient regarding new challenges.

On broader issues, the experts recommended that the government establish an independent national human rights commission, ratify other human rights treaties, enhance human rights education and training, increase transparency and participation of civil society in government decision-making, monitor corporate responsibility, and reveal the truth about the gross violations of human rights during Taiwan’s authoritarian past.

Specific problems highlighted in the Concluding Observations and Recommendations include gender inequality, discrimination against LGBTI people, deprivation of indigenous lands, exploitative labor conditions for migrant workers and domestic workers, inadequate minimum wage, marginalization of persons with disabilities, challenges facing “marriage immigrants,” violations of housing rights in favor of urban renewal projects, continuing executions, inhuman or degrading treatment of detainees and prisoners, prolonged pre-trial detention, leaks of investigation information in criminal cases, violations of people’s right to leave the country, undue concentration and potential monopoly of the media, and violations of freedom of assembly.

This review has given both the government and civil society in Taiwan an opportunity to use a tool that was not previously available to them to further the island’s progress in human rights and the rule of law.  Taiwan benefits from this exercise.  And international society can also benefit from Taiwan’s commitment to comply with international human rights law and from this novel experiment itself.  To say the least, the pros and cons of this process are worth the closer attention of the international community despite potential challenges of using this model in the UN system.  Observers have begun to see Taiwan’s experience as a noteworthy precedent for conducting human rights reviews.  This experience is particularly valuable in light of continuing calls for reforms in the effectiveness and efficiency of the UN treaty review system.

Yu-Jie Chen is a Taiwan lawyer and research fellow at the US-Asia Law Institute.

For a Chinese language version of the review panels' concluding observations and recommendations, click here.

News coverage of the event can be found here.