International Human Rights Law, Constitution and ‘A Nation Founded upon the Principles of Human Rights’

Written by Kuan-Wei Chen.

In Taiwan, which experienced authoritarian rule after World War II, the pursuit of human rights protection was an important task in the process of democratization. The first political party rotation took place in 2000, and during the inauguration of President Chen Shui-bian from the Democratic Progressive Party (DPP), he declared the important policy guidelines of ‘a nation founded upon the principles of human rights (人權立國)’ as a goal (hereafter ‘the Goal’). Specifically, Taiwan has sought to connect with the world through human rights protection and practices and has aimed for the international community to recognize it and to provide assistance during diplomatic difficulties. This direction has been implemented in various ways since 2000. It can be considered a project on which the Taiwan government continues to work diligently. This article focuses firstly on the meaning, developments and strategy of the Goal.

Under President Chen Shui-bian, the Presidential Office established the ‘Human Rights Advisory Group’, and in 2003 the Executive Yuan first proposed the ‘2002 National Report’, which can be regarded as the beginning of the national report system. After the re-election of the Kuomintang (KMT) in 2008, President Ma Ying-jeou stated that he would continue to support the Goal. In addition to restarting the advisory committee’s mechanism, which was paused by the KMT (the largest party in the Legislative Yuan), during the second term of President Chen, the ‘Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights’ was introduced in 2009. President Tsai’s DPP government also announced that it would continue to support the Goal after it came to power in 2016.

It is also worth noting that since 2013, the Taiwan government has invited international experts to form a review committee based on the ‘reporting mechanism’ of Article 6 of the Act to Implement. These international experts, who are from different countries, conduct independent examinations of the practice of the two covenants in Taiwan. After the experts make their concluding observations, the government responds again.

The paper finds the Goal noteworthy from different perspectives. In terms of Taiwan’s democratization, the significance of the Goal lies in putting an end to the oppressive status of human rights in the era of authoritarianism, fulfilling the human rights guarantees under the constitutional democratic system, realizing freedom and democracy, and cautioning about the features of the previous ‘dark period of human rights’. From the perspective of the international situation, Taiwan’s ‘human rights dark period’ included difficulties with diplomacy, which at the same time created problems in connecting with the system of international human rights law. The declaration and implementation process of the Goal is also a way to gain recognition from other liberal and democratic constitutional countries in the world. Under the ‘China factor’, Taiwan’s democratic system and human rights protections are the most obvious institutional divisions from the People’s Republic of China. Based on human rights, the Taiwan government hopes to gain recognition from allies in the liberal democratic world.

In this regard, it is clear that one of the most important contents of the Goal is to meet international human rights standards. The most immediate and specific challenge here is how domestic law is in line with international human rights law, which the international community recognises. In terms of content, international human rights law has the same emphasis on basic human rights as the Constitution. However, they do not automatically engage. Therefore, the problem that must be addressed concerns how international human rights law intersects with the Constitution. The factual situation of this issue reflects the true attitude of a country’s human rights protections. We can find some clues from the National Reports and Conclusion Observations from international experts.

Although the Constitutional Court has added important basic rights such as privacy rights in Article 22 of the Constitution, Taiwan’s current list of constitutional human rights has not been revised since it was established (as the Republic of China) in the early twentieth century. Therefore, the new content of the international human rights law that takes contemporary society into account is a stimulus for Taiwan’s own constitution and a source that can be used for reference in response to various new cases and social issues. In other words, the application of international human rights law at the level of constitutional interpretation has considerable significance for improving the list and connotation of basic rights in the Constitution of Taiwan.

Compared with the right to freedom and other political rights, ‘Economic and Social Rights (ESR)’ in international human rights law often encounter considerable implementation challenges because they rely heavily on the real resources and historical context of each country. The Constitution of the Republic of China includes a focus on the ‘social state’. In addition to the Fundamental National Policy, Article 15 of the Constitution also regulates the ‘right to life’ and ‘right to work’ with social characteristics. The ESR have been developed over a long time, but the scope of ESR in international human rights law is broader, and the development of theory and connotation is also quite rich. That is, this study believes that the encounter of international human rights law and constitution in the scope of ESR is also an important viewpoint to examine the Goal.

This article uses ‘Covenant on Economic, Social and Cultural Rights’ as keywords to search for the constitutional interpretation and find its specific interactive trajectory. As a result, it can be seen that if the ‘full text’ is used as the search scope, there are 18 interpretations, including the Covenant on Economic, Social and Cultural Rights, but if ‘Interpretation Holdings and Reasoning’ is the search scope, only two are left (No. 756 and No. 709). This means that other documents such as petitions may refer to the Covenant on Economic, Social and Cultural Rights, but in fact there are only two cases in which the justices were willing to apply this international convention. Further, Interpretation No. 756 explains the fifth point of the Basic Principles for the Treatment of Prisoners in the footnote, and the fifth point refers to the Covenant on Economic, Social and Cultural Rights. In other words, in the constitutional interpretation of Taiwan, the direct reference to the Covenant on Economic, Social and Cultural Rights is only in ‘Reasoning for the Interpretation’ No. 709. We can see that in the use of international human rights law, there is material for constitutional interpretation, which is cited as the purpose of the law. Although it can be viewed as step worthy of affirmation, its application only involves a simple mention.

In conclusion, it is important to stress that alongside societal developments, ESR cases from international human rights law and constitutional viewpoints have emerged in Taiwan. However, the ‘treatments’ of judicial power are still ‘in progress’, or in a very early stage, including the way the judicial system understands and accepts the content of international human rights law. However, it can be seen in concluding observations, including several news and documents, that Taiwan did gain some positive reputation and informal acknowledgement through the practice of human rights protection. Although the Goal is not a guarantee of Taiwan’s recognition, it is still one direction that Taiwan should uphold and continue to address.

Kuan-Wei Chen is a Doctoral Student, Faculty of Law, Ludwig-Maximilians-Universität München, Germany. She holds LL.M. degree from National Taiwan University. This is a short introduction of the EATS 2019 paper, International Human Rights Law, Constitution and Taiwan’s Goal of ‘A Nation Founded upon the Principles of Human Rights’: Taking How Judicial Power Facing Economic and Social Rights as an Example. Image credit: CC by Wikimedia Commons.

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