Mon, Mar 12, 2001 page3

• New human rights law being drafted

  MAKING PROGRESS Taiwan will soon have its first domestic human rights law that will include protection for civil, political, educational, social and economic rights

  • By Irene Lin / STAFF REPORTER
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  Having been isolated from the international human rights system for decades, Taiwan is soon to have its first domestic law which covers a range of international human rights standards.

  As a fulfillment of President Chen Shui-bian's (陳水扁) post-election pledges on human rights, the draft of the Human Rights Basic Law is scheduled to be completed in mid-March and the Executive Yuan is expected to send the bill to the legislature by May 20, the first anniversary of the Chen administration.

  The basic law, which incorporates the spirit of the International Bill of Rights and the European Convention on Human Rights, covers protection for civil, political, educational, social and economic rights.

  It also specifies protection for such groups as women, children, the elderly and Aborigines, as well as for laborers' rights and soldiers' rights.

  To effectively enforce human rights standards, the basic law will prevail over other domestic laws in legal application. That is, any domestic law will be amended when it is found to violate the standards declared in the basic law.

  "With the coming of this law, there will be an overhaul on all domestic laws so as to get the idea of human rights down to earth,"said officials from the Ministry of Justice, who are charged with the task of drafting the bill.

  For years Taiwan's human rights activists have been worried about the country's isolation from the UN-led international human rights system as a result of its peculiar political situation.

  Having been an outsider since 1971, when Taiwan's membership in the UN was replaced by China, it has rarely been a concern of the Taiwan government or the general public as to how the international community has developed a series of universal human rights standards.

  Domestic research on this topic has been rare, and collections of books, documents and archives related to human rights have also been sparse in national or university libraries.

  Presidential promise

  It was a fresh idea when the president, in his inauguration address last May, pledged to incorporate the International Bill of Rights ? The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), as well as the International Covenant on Economic, Social, and Cultural Rights (ICESCR) -- into the domestic legal system.

  As a matter of fact, few know that Taiwan, in the name of the ROC government, had signed several international human rights conventions, which include the ICCPR and the ICESCR, before 1971.

  According to research by Hwang Jau-yuan (黃昭元), associate professor at the law school of the National Taiwan University, Taiwan had signed at least 11 human rights treaties and had even ratified seven of them before 1971 when it was still a UN member.

  However, since 1971, the documents on these treaties have been shelved at the Ministry of Foreign Affairs (MOFA) and have remained inaccessible to the public.

  Under such circumstances, these human rights treaties carry no legal or domestic weight. They are hardly ever applied in court judgements and few individuals would think of claiming their rights under these treaties.

  However, Peter Huang (黃文雄), a well-known human rights activist, is making a difference with his own case.

  Huang, who once attempted to assassinate late President Chiang Ching-kuo (蔣經國) in New York in 1977, had been blacklisted and stopped from returning to Taiwan since the incident.

  In 1996 he finally came back to the country by secret means, but he was then charged with violating the National Security Law for illegal entry.

  Through the legal proceedings, the former chairman of the Taiwan Association for Human Rights (台灣人權促進會) has made it clear he would be fighting not only for his acquittal, but also for domestic acknowledgment of the effect of international human rights conventions in Taiwan.

  During court hearings, he from time to time cited international human rights standards to assert his rights in the criminal procedure.

  In his defense against the illegal entry charge, he contended that any citizen shall have the right to return to their own country, as specified in the Universal Declaration of Human Rights and the ICCPR.

  As Taiwan had been a signatory to the ICCPR, the court should take the treaty into account when delivering its judgement, Huang argued.

  It is unknown at this moment whether Huang, whose case is pending a constitutional review, will succeed in calling attention to the long-ignored human rights treaties.

  However, he has certainly exposed the ambiguous status of these treaties and called for a reflection on the gap between the domestic legal system and international human rights standards.

  Establishing boundaries

  Though human rights issues are supposed to be universal and without boundaries, they are invariably influenced by politics. That Taiwan remains isolated from international human rights system is an obvious example of this kind.

  Beijing, while it is denying the national status of Taiwan, has also denied the effect of the treaties the KMT government signed before 1971, calling the signing and ratifying of these treaties as "illegal, null, and void." The UN also holds that these treaties are not binding on the Beijing government.

  Taiwan has made no attempt over the decades to clarify the effect of the treaties, to which it had been a signatory, nor has it mentioned the possibility of its accession to these and other international human rights conventions.

  "I think the UN will welcome Taiwan applying international human rights standards domestically, but it wouldn't carry any legal weight internationally," said an official from the foreign affairs' department of treaty and legal affairs, on condition of anonymity.

  He said a state has to ratify and finally deposit instruments of ratification to the institution specified in the treaty, following signing or declaring accession to a treaty.

  "We could declare accession and ratify a treaty on our own, but problems would come at the final phase of deposit. It's unlikely to be accepted," he said.

  Taking action

  However, some international law scholars, such as Hwang Jau-yuan, think Taiwan should take a more active role in the international system through its accession to human rights conventions.

  They argue that some of the conventions have evolved as customary international law and Taiwan would be bound by these conventions, though it is not a member.

  On the other hand, they believe to become a member of the human rights conventions is a sensible approach for Taiwan to strengthen its links with the international community.

  "There must be a difficult and complicated process to go through if we are going to tackle the issue of the international treaties. Even domestically, I expect there'll be a heated row in the legislature in the process of ratification. But it'll be stupid not to go forward this way," said Kenneth Chiu (邱晃泉), member of the president's human rights advisory group.

  The attorney, who is considered as a possible candidate for ambassador-at-large, thinks the creation of the Human Rights Basic Law has in essence "confirmed" the effectiveness of the treaties Taiwan had signed before 1971.

  In the future, there will be other legal reform and the establishment of the National Human Rights Commission. The legal system has therefore signaled an intention by Taiwan to keep up with international human rights standards.

  Publication Notes

  Human Rights Treaties

  A.Human rights treaties signed and ratified by the ROC government before 1971 * Convention on the Prevention and Punishment of the Crime of Genocide * Convention on the Political Rights of Women * Protocol amending the Slavery Convention signed at Geneva on Sept. 25, 1926 * Slavery Convention signed at Geneva on Sept. 25, 1926, as amended by the Protocol * Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery * Convention on the Nationality of Married Women * International Convention on the Elimination of All Forms of Racial Discrimination B. Human rights treaties signed by the ROC government before 1971 but remain unratified: * Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage * International Covenant on Civil and Political Rights * Optional Protocol to International Covenant on Civil and Political Rights * International Covenant on Economic, Social, and Cultural Rights Soruce: Taipei Times

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