Yu-Jie Chen and Jerome A. Cohen. Taiwan quietly forging ahead in human rights protection. SCMP (South China Morning Post)

March 29, 2013

For over four decades after the Allied victors in the second world war allowed Chiang Kai-shek’s Chinese government to reclaim Taiwan from Japan, the generalissimo’s Kuomintang maintained a ruthless Leninist-style dictatorship over the island. Yet KMT propaganda hoodwinked many outside the island to believe that it, unlike the Maoist regime that chased it from mainland China in 1949, was the defender of democracy, the rule of law and human rights for Chinese people.

During the past generation, since the end of martial law in 1987, Taiwan has experienced a gradual, peaceful political revolution that established genuine democracy, government under law and respect for many internationally guaranteed human rights. This monumental achievement, unprecedented in Chinese history, is a tribute to both the adaptability of the decreasingly authoritarian KMT and the increasing maturity of its major domestic rival, the Democratic Progressive Party. Yet, because of Taiwan’s continuing exclusion from the United Nations, from which it was ousted as the representative of China in 1971, and because, until recently, both DPP and KMT administrations proved less adept than Chiang in foreign propaganda, Taiwan’s achievement has been too little noticed and supported by the world community.

Four years ago, however, President Ma Ying-jeou’s new KMT government, with DPP co-operation, finally adopted the UN’s two major human rights treaties – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which the Chiang regime had signed but never ratified.

The UN secretary general rejected Taiwan’s attempt to deposit the instruments of ratification, but Taiwan nevertheless implemented the two covenants. They were given not only the status of domestic laws but a higher status than ordinary legislation, a position just below the constitution. Moreover, the government was required to bring all laws, regulations and official measures into conformity with the two covenants by December 2011.

It was also required to establish a reporting system to monitor the progress of its implementation of the treaties. Because Taiwan, unlike governments that participate in the UN, cannot submit state reports for evaluation by the UN human rights treaty bodies, Taipei, in consultation with domestic non-governmental organisations, creatively designed its own independent evaluation process, similar to the UN treaty implementation review in some aspects but going beyond it.

The Ma administration invited 10 international human rights experts, many of them experienced in UN treaty reviews, to serve as independent experts – five each on two committees for the two treaties. Last month, they evaluated the reports prepared by Taiwan’s government and NGOs in a process that generally followed relevant UN guidelines.

What made this process special is that it was conducted not in Geneva but on the ground, which made possible participation of large official delegations as well as NGOs that would not have had the resources to fly to Geneva.

Although the government, as a committee expert later pointed out, showed some level of resistance and self-denial in the review, its officials did engage in serious discussions.

However, several problems were still notable. For example, information necessary for understanding and monitoring human rights practice was lacking on some important issues. And, the government’s responses to the experts’ questions tended to cite law on the books, instead of meaningful assessment of actual implementation.

One might also have expected the on-site review to generate more local media attention than a review in far-off Geneva. Yet media coverage was inadequate for educational purposes.

The 17-page “Concluding Observations and Recommendations”, issued on March 1, covered many topics that urgently need independent monitoring and evaluation, from institution building, human rights training and transparency of government decision-making to the rights of vulnerable populations. The government should put in place clear, effective follow-up mechanisms to implement these recommendations and continue to hold periodic independent reviews.

One crucial expert recommendation urged the government to follow international standards in establishing an independent national human rights commission to carry out advisory, monitoring, investigative and reporting functions. The NGO community has long urged Taipei to establish such a commission. There have also been several good local studies, including one by the Ministry of Justice, that discuss institutional design and constitutional concerns. President Ma will leave a major human rights legacy if he finally makes this happen.

Taiwan’s recent remarkable review gave both government and civil society opportunities to use a tool not previously available to them to further the island’s human rights. This exercise also heightened foreign awareness of Taiwan’s impressive progress. Moreover, international society can benefit not only from Taiwan’s compliance with international human rights law but also from this novel experiment itself. Amid continuing calls for improving the UN treaty review system, UN reformers may find it worthwhile to adopt certain features of the Taiwan model, such as the greater government and non-governmental participation and the more highly consultative review process.

That would be ironic, indeed, given Taiwan’s exclusion from the UN. Yet people in Taiwan, like those everywhere, often find it wise to “turn a vice into a virtue”.

This article was originally published in the South China Morning Post on March 29, 2013 under the title “Forging Ahead.” (简体中文)(繁体中文

Yu-Jie Chen is a Taiwan lawyer and research fellow at NYU’s US-Asia Law Institute. Jerome A. Cohen, an NYU law professor and co-director of its US-Asia Law Institute, was a member of Taiwan’s ICCPR review committee