Adoption and Function of International Instruments: Thoughts on Taiwan's Enactment of the Act to Implement the ICCPR and the ICESCR, The


THE ADOPTION AND FUNCTION OF
INTERNATIONAL INSTRUMENTS: THOUGHTS ON

TAIWAN'S ENACTMENT OF THE ACT TO
IMPLEMENT THE ICCPR AND THE ICESCR

Mark L. Shope*

1. INTRODUCTION

The Charter of the United Nations (Charter) aims "to reaffirm faith in
fundamental human rights, in the dignity and worth of the human person, in the
equal rights of men and women and of nations large and small."' The Charter
goes on to state that the United Nations (UN) serves the purpose of "promoting
and encouraging respect for human rights and for fundamental freedoms for all
without distinction as to race, sex, language, or religion."2 These
pronouncements were further expressed by the UN General Assembly in 1948
through the promulgation of the Universal Declaration of Human Rights.3 "In
accordance with the principles proclaimed in the Charter" and the Universal
Declaration of Human Rights, the UN adopted the International Covenant on
Civil and Political Rights (ICCPR)4 and the International Covenant on
Economic, Social and Cultural Rights (ICESCR)5 on December 16, 1966.

Taiwan implemented into its domestic law the ICCPR and ICESCR
(Covenants) on March 31, 2009, through the Act to Implement the International
Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights (Taiwan Act).6 Although Taiwan is not a

* J.D. Candidate, 2012, Indiana University Robert H. McKinney School of Law; LL.M.,

2009, National Taiwan University College of Law; B.F.A., 1999, Carnegie Mellon University.
The author can be contacted at markshope@gmail.com.

1. U.N. Charter pmbl.
2. ld. art. 1.
3. Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc.

A/RES/217(111) (Dec. 10, 1948) [hereinafter UDHR].
4. International Covenant on Civil and Political Rights, Dec. 16, 1966,999 U.N.T.S. 171

[hereinafter ICCPR]. The ICCPR was adopted by consensus through the United Nations
General Assembly Resolution 2200A (XXI); it entered into force on March 23, 1976.

5. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993
U.N.T.S. 3 [hereinafter ICESCR]. Adopted through the United Nations General Assembly
resolution 2200A (XXI). The ICESCR entered into force on January 3, 1976.

6. Gongnin yu Zhengzhi Quanli Guoji Gongyueji Jingji Shehui Wenhua Quanli Guoji
Gongyue Shixing Fa (EN PL'J n-1 M ) [Act
to Implement the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights], art. I (promulgated Apr. 22,2009), Laws
& Regulations Database of the Republic of China, MINISTRY OF JUSTICE,
http://mojlaw.moj.gov.tw/EngLawContent.aspx?id=3 (Taiwan) [hereinafter Taiwan Act]. Other



IND. INT'L & COMP. L. REV.

member of the UN and, therefore, cannot formally be a member of the
Covenants, Taiwan implemented the Covenant provisions with the ultimate
goal of strengthening its human rights protection system.7 Taiwan highly
respects the human rights of its citizens, and demand for this respect is
growing.8 But real human rights problems, such as corruption, discrimination
against women, human trafficking, and abuse of foreign migrant workers, still
exist in Taiwan and need to be addressed. 9 The implementation of the ICCPR
and ICESCR into Taiwan's domestic law has afforded Taiwan a brilliant
opportunity and an additional mechanism for holding itself accountable for its
human rights issues.10 Taiwan's human rights situation will likely be
strengthened by the fruitful and constructive dialogue among the government,
non-governmental organizations (NGOs), and other stakeholders that is
encouraged by the Covenants. ' This dialogue can be facilitated in part by the
formation of ad hoc committees that provide recommendations for the future
development of human rights guarantees. 12 Additionally, the Covenants
promote the tweaking of domestic law to conform to Covenant provisions and
hearten a passionate effort by States parties and NGOs to report on measures
taken to implement their human rights protections. 13 The next four years are
crucial for determining Taiwan's level of commitment to the ICCPR and
ICESCR.

14

This Note discusses two major themes that have emerged from Taiwan's
ratification of the Covenants. The first regards the salient meaning and
implications of ratification and non-membership of international treaties along

relevant legal information is provided by Taiwan Law Resources. See TAIWAN LAW RESOURCES,

www.taiwanlawresources.com (last visited Jan. 14, 2012).
7. Taiwan Act, supra note 6, art. 1.
8. See generally Wen-Chen Chang, An Isolated Nation with Global-Minded Citizens:

Bottom-up Transnational Constitutionalism in Taiwan, 4 NAT'L TAIWAN U. L. REv. 203 (2009).
9. Bureau of Democracy, Human Rights, and Labor, 2008 Human Rights Reports:

Taiwan, U.S. DEP'T STATE (Feb. 25, 2009), http://www.state.gov/g/drl/rls/hrrpt
/2008/eap/1 19038.htm.

10. An opportunity for Taiwan's accountability to international human rights norms also
occurred with its implementation of the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW). See infra Part V.A.

11. See U.N. Office of the High Comm'r for Human Rights, Manual on Human Rights
Reporting Under Six Major International Human Rights Instruments, at 262, U.N. Doc.
HR/PUB/9 1/1 (Rev. 1) (1997) [hereinafter Manual] ("The main function of the Committee is to
assist States Parties in fulfilling their obligations under the Covenant, to make available to them
the experience the Committee has acquired in its examination of other reports and to discuss
with them any issue related to the enjoyment of the rights enshrined in the Covenant in a
particular country.").

12. See infra Part VI.
13. Id.
14. This time frame takes into account the time necessary for Taiwan to make its domestic

law conform to the Covenants and gives the Government and civil society time to complete one
initial reporting cycle. See infra Figures 1, 2.

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with the judicial adoption and the function of these international instruments.15

This salience derives from the fact that Taiwan is not a member of the UN and,
in general, cannot be a member of the Covenants. 16 At the same time, Taiwan
has chosen to implement the ICCPR and ICESCR into its domestic law, leaving
open the issue of these instruments' legal status in domestic law and courts. 17

The second theme is how and to what extent Taiwan, through both its
government and civil society actors, plans to fulfill the duties embodied by the
Covenants and ensure its accountability for those obligations. 8 To this end, the
discussion in this Note is founded on Articles 5 and 6 of the Taiwan Act as they
relate to the Covenants. Article 5 states that "[t]he government should
cooperate with other national governments and international non-governmental
organizations and human rights institutions to realize promotion and protection
of human rights provisions in the two Covenants."' 9 Article 6 states that "[t]he
government should set up human rights reports system in accordance with the
two Covenants.,

20

Specifically, this Note begins with a discussion of the rights embodied in
the Covenants and briefly discusses their relation to Taiwan's constitutional and
legislative guarantees of civil, political, economic, social, and cultural rights.2

Further discussion includes the challenges of international human rights law in
Taiwan and the judicial adoption and the function of international human rights
law from both a monist and a dualist point of view. 22 This Note also discusses
the meaning and implications of ratification and non-membership of an
international treaty and suggests that Taiwan implement the reporting
obligations established by Article 40 of the ICCPR and Article 16 of the
ICESCR.23 Along with an overview of this State reporting process, this Note

24discusses an "alternative" NGO reporting process. It gives humble, yet

15. See infra Parts II.B, III.
16. This Note will not discuss political issues regarding Taiwan's sovereignty. "Under

precedent both dejure and defacto sovereignty are political questions-indeed, archetypal
political questions." Lin v. United States, 561 F.3d 502, 507 (D.C. Cir. 2009). Human rights, on
the other hand, "are based on what are assumed to be the permanent characteristics of human
nature" and not transient political issues. K. Lee Boyd, Are Human Rights Political Questions?,
53 RUTGERS L. REv. 277, 308 (2001). Issues surrounding membership in the Covenants and
being bound by the Covenants are distinguished and discussed below. See infra Parts II, III.

17. There have been changes to domestic law, but there are still laws that have yet to be
amended. See The Judicial Yuan Reviews Regulations in Response to the Promulgations of the
Covenants; It also Promotes Legislation on Speedy and Fair Trials, JuD. YuAN (Nov. 5, 2009)
[hereinafter Response to the Promulgations], available at http://jirs.judicial.gov.tw/
GNNWS/engcontent.asp?id=36952&Muchlnfo=l.

18. See infra Parts IV, V.
19. Taiwan Act, supra note 6, art. 5.
20. Id. art. 6.
21. See infra Part I.A-C.
22. See infra Part II.
23. See infra Parts III, IV.B-C.
24. See infra Parts IV, V.

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IND. INT'L & COMP. L. REV.

comprehensive suggestions for the mechanics of the Taiwanese government's
reporting obligations under the Covenants, Taiwanese NGOs' participation in
this process, and the makeup of the ad hoc committee on human rights and
economic, social and cultural rights. 5 This Note concludes with remarks
regarding the future of treaty implementation in Taiwan.26

Since Taiwan is not an official member of the UN, participation in
international fora is difficult, but it is not impossible.27 Taiwan has experience
participating with the international community through non-governmental

28entities as well as ad hoc bodies that have an international nature. This Note
takes the point of view that Taiwan will be able to accomplish the tasks of
conforming its domestic law to the Covenants while holding itself accountable
to the Covenant provisions through ad hoc committees made up of international
actors.29

A. Background of the Covenants

There exists a variety of human rights, which can be categorized in a
myriad of ways. 30 The current trend, however, is to classify human rights as
either civil and political rights or economic, social, and cultural rights.3' In
1997 the Office of the High Commissioner for Human Rights, the UN Institute
for Training and Research, and the UN Staff College Project published a
Manual on Human Rights Reporting, which explains the birth of the Covenants
as follows:

The Universal Declaration of Human Rights comprises these
two major categories of human rights in one document.
However, when the other component parts of the International
Bill of Human Rights were elaborated, it was decided to split
these two categories of human rights into two separate
documents, an International Covenant on Civil and Political
Rights, and an International Covenant on Economic, Social
and Cultural Rights. The rationale for this division was that
the two sets of rights differed in nature-one category of
rights was subject to immediate application, whereas the other

25. See infra Parts VI, VII.
26. See infra Part VII.
27. Taiwan was able to participate as an observer in the 62nd World Health Assembly in

May, 2009. Che-ming Yang, The Road to Observer Status in the World Health Assembly:
Lessons from Taiwan's Long Journey, 5 AsIAN J. WTO & INT'L HEALTH L. & POL'Y 331, 331
(2010).

28. See infra Part IV.
29. See infra Part V.
30. Manual, supra note 11, at 5.
31. Id.

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category required progressive realization-and therefore
different implementation measures were called for.32

Notwithstanding the popular distinction between these human rights categories,
the UN has emphasized the indivisibility and interdependence of all human
rights;33 it has also emphasized that these rights must first be implemented at
national and local levels.34

B. ICCPR Rights and Civil and Political Rights Embodied in the
Constitution of Taiwan

The Office of the UN High Commissioner for Human Rights (High
Commissioner for Human Rights) describes the ICCPR as elaborating "the civil
and political rights set out in the [Universal Declaration of Human Rights]. 35

That Covenant incorporates key civil and political rights and freedoms,3 6 and it
also requires States to report periodically to the Human Rights Committee.37

Civil and political rights can be found generally throughout the
Constitution of the Republic of China (Taiwan) (Constitution of Taiwan) but
specifically in Chapter II, Rights and Duties of the People,38 and Chapter XIII,
Fundamental National Policies.39 Some civil and political rights can also be
found in Article 10 of the Additional Articles of the Constitution of the
Republic of China (Taiwan) (Additional Articles).40

C. ICESCR Rights and Economic, Social, and Cultural Rights Embodied in
the Constitution of Taiwan

The High Commissioner for Human Rights describes the ICESCR as
developing "the corresponding rights in the Universal Declaration [of Human
Rights] in considerable detail, specifying the steps required for their full
realization." 1 Thus, the ICESCR elaborates on the right to education, health,

32. Id.
33. Id. at 6.
34. Id. at 8, 16.
35. Office of the U.N. High Comm'r for Human Rights, The United Nations Human Rights

Treaty System: An Introduction to the Core Human Rights Treaties and the Treaty Bodies 7,
Fact Sheet No. 30 (June 2005), http://www.unhcr.org/refworld/docid/479477490.html
[hereinafter Factsheet No. 30].

36. Id.
37. Id.
38. See ZHONGHUA MINGUO XIANFA [MINGUO XIANFA] [THE CONSTITUTION OF THE

REPUBLIC OF CHINA] ch. 11 (1947) (Taiwan).
39. See id. ch. XIII.
40. ZHONGHUA MINGUO XIANFA ZHENGX1U TIAOWEN [ZHENGXIU TIAOWEN] [ADDITIONAL

ARTICLES OF THE CONSTITUTION OF THE REPUBLIC OF CHINA] art. 10 (2005) (Taiwan).
41. Factsheet No. 30, supra note 35, at 8.

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IND. INT'L & COMP. L. REV.

and work, using the Universal Declaration of Human Rights as a model and
sometimes mirroring its specific language.42 Part IV of this Covenant, like the
ICCPR, requires periodic reporting by States parties.43 The Human Rights
Council created the Committee on Economic, Social and Cultural Rights
(CESCR) to carry out these monitoring activities.44 One notable difference
between the two Covenants is

the principle of progressive realization in Part II of the
[ICESCR]. Article 2(1) specifies that a State party "undertakes
to take steps, [...] to the maximum of its available resources,
with a view to achieving progressively the full realization of
the rights recognized in [the Covenant]." The principle of
progressive realization acknowledges the constraints States
parties may face due to the limits of available resources.45

The ICCPR does not recognize such progressive realization.
Relevant social, economic, and cultural rights can be found throughout

the Constitution of Taiwan and are further enumerated in Article 10 of the
Additional Articles.46 Article 10 guarantees the promotion of universal health
insurance and encourages "research and development of both modem and
traditional medicines., 47 It also safeguards the dignity of women by promoting
the elimination of sexual discrimination and gender inequality,48 and it
guarantees the allocation of social resources to physically and mentally
handicapped persons.49 In addition, Article 10 emphasizes the need for social
welfare services, funding for education, science, and culture.5 ° Further, Article
10 recognizes the need to preserve and develop aboriginal cultures,5 guarantees
ethnic cultures' political participation, and provides assistance and
encouragement for their education, culture, transportation, water conservation,
health and medical care, economic activity, land, and social welfare.
Significantly, all Article 10 guarantees are practiced and promoted in Taiwan,
not just enunciated on paper.53

42. Id.
43. See infra Part IV.B.
44. Factsheet No. 30, supra note 35, at 9.
45. Id. (citations omitted).
46. See generally ZHENGXIU TIAowEN.
47. Id. art. 10, para. 5.
48. Id. para. 6.
49. Id. para. 7. These protections include the guarantee of an obstacle-free environment. Id.
50. Id. para. 8.
51. Id. para. 12.
52. Id.
53. See International Covenant on Economic, Social and Cultural Rights - Its Value and

Stipulations on Human Rights, MINISTRY OF JUSTICE, http://www.moj.gov.tw/ct.asp?xltem=
154750&ctNode=1 1387&mp=095 (last updated Apr. 10, 2009) ("The enactment of the law of

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II. ADOPTION OF THE ICCPR AND ICESCR: THE CHALLENGES OF
INTERNATIONAL HUMAN RIGHTS LAW IN TAIWAN

A. Introduction

Throughout history, Taiwanese culture has been significantly influenced
by various parts of the world. 54 Taiwan has been a European possession (1624-
1661), a kingdom (1661-1683), a prefecture (1684-1885), a province (1885-
1895), a colony (1895-1945), and a province once again (1945-1949)."
Recently, Taiwan was claimed as a province by the People's Republic of China
(PRC), but it has never been under PRC control.56 From 1949 to 1991, Taiwan
was the only province effectively controlled by the Republic of China (ROC),
even though the ROC claimed control over all of China's territories.57 Finally,
in 1991 the ROC claimed that its effective control was limited to Taiwan,
Penghu, Jinmen, and Mazu.5s

Although the dominion labels placed on Taiwan have been disputed
throughout history,59 it is of ultimate importance for domestic implementation
of international human rights norms that, despite so-called regime changes and
portions of history where state institutions have been particularly oppressive,
Taiwan has remained largely in charge of its own affairs.60 As such, years of
struggle have yielded a strong democratic government system in Taiwan.61 Its
justice system has independent courts, judges, prosecutors, and lawyers,62 and
there is a thriving, well-established, and deeply-rooted legal education system;
one with internationally respected scholars and a bar that is strong and ethical.63

The Constitution of Taiwan guarantees basic human rights and emphasizes rule

enforcement represents Taiwan's embracement of the two covenants, which is helpful to Taiwan
in its promotion of human rights and in its effort to establish [a] link with the international
system. In compliance with the President's instruction, the Ministry of Justice has worked out a
plan for enforcing the two covenants.").

54. See generally DENNY Roy, TAIWAN: A POLITICAL HISTORY xi-xiii (2002).
55. See generally id. at 11-76.

56. See generally id. at 76-105.
57. Id. at 81-82, 152.
58. Id. at 184.
59. See MARK HARRISON, LEGITIMACY, MEANING AND KNOWLEDGE IN THE MAKING OF

TAIWANESE IDENTITY 5 (1 st ed. 2006) (discussing identity issues in Taiwan).
60. See Mark Shope, On the Taiwanese Identity as Shaped by the Development of Its Legal

System (2009) (unpublished LL.M. thesis, National Taiwan University College of Law) (on file
with National Taiwan University Library, National Taiwan University).

61. MINGUO XIANFA art. 1 (1947) (Taiwan) (noting that Taiwan is "a democratic republic of
the people to be governed by the people and for the people").

62. See id. art. 80 ("Judges shall be above partisanship and shall, in accordance with law,
hold trials independently, free from any interference.").

63. See ZHONGHUA MINGUO LOSHI GONGHUI QUANGUO LIANHEHUI
(]_t) [TAIWAN BARASS'N], http://www.twba.org.tw/index.asp (last

visited Jan. 14, 2012).

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IND. INT'L & COMP. L. REV.

of law and democracy.64 It also has a mechanism for constitutional review
through the Council of Grand Justices.65 Taiwan further has a strong consumer
protection framework, robust property laws,66 and laws aimed at preventing
domestic violence and maintaining equality among the sexes.67 In addition, civil
dispute resolutions in Taiwan are in keeping with international practice, and

68there is an arbitration mediation system that is international in character.
Taiwanese labor protection laws also are very strong, and the criminal code and
code of criminal procedure maintain high standards of human dignity and are
transparent and fair.69

The passing of the Taiwan Act is simply a natural consequence of
Taiwan's democratic system, which places a great deal of emphasis on the
rights of its citizens. These protections have arisen through domestic legislation,
but special situations arise when governments are limited in entering into
agreements with other governments but want to strengthen their domestic
commitments with international instruments.7 °

B. Judicial Adoption and Function of International Human Rights Law

There exist two very basic theories regarding the relationship between
international and domestic law: monism and dualism.71 The monist view holds
that international law and domestic law function as the same legal system,
meaning domestic courts may employ international law in making decisions. 72

The dualist view holds that international law and domestic law exist separately;
therefore, domestic courts may incorporate or reject international principles at
their discretion.73 One commentator, Melissa A. Waters, has discussed the
incorporation of human rights treaties into domestic law in light of these two

64. See MINGUO XIANFA (1947) (Taiwan); see supra notes 41-53 and accompanying text..
65. Justices of the Constitutional Court, JUD. YUAN,

http://www.judicial.gov.tw/constitutionalcourt/ EN/pO 1_03.asp (last visited Jan. 14, 2012).
66. Xiaofeizhe Baohu Fa ( WgRA ) [Consumer Protection Law] (amended Feb. 5,

2005) (Taiwan); Minfa (P ) [Civil code] (amended May 26, 2010) (Taiwan).
67. Jiating Baoli Fangzhi Fa (*f#jM ma) [Domestic Violence Prevention Act]

(amended Apr. 29,2009) (Taiwan); Xingbie Gongzuo Pingdeng Fa ( JST f ) [Gender
Equality in Employment Act] (amended Jan. 5, 2011) (Taiwan); Xingbie Pingdeng Jiaoyu Fa
(ftITl4*9o) [Gender Equity in Education Act] (amended May 26, 2010) (Taiwan).

68. Minshi Susong Fa (R:g-M.5) [Code of Civil Procedure] (amended July 8, 2009)
(Taiwan); Zhongcai Fa (frp1g) [Arbitration Law] (amended Dec. 30, 2009) (Taiwan).

69. Zhonghua Minguo Xingfa ( [J fIJ) [Criminal Code] (amended Jan. 26,2011)
(Taiwan); Xingshi Susong Fa ()fq:-M- ) [The Code Of Criminal Procedure] (promulgated
July 28, 1928, amended June 23, 2010) (Taiwan).

70. See supra note 16 and accompanying text.
71. John F. Coyle, Incorporative Statutes and the Borrowed Treaty Rule, 50 VA. J. INT'L L.

655, 656, n.1 (2010); Jonathan Turley, Dualistic Values in the Age of International
Legisprudence, 44 HASTINGS L.J. 185, 201 (1993).

72. Coyle, supra note 71.
73. Turley, supra note 71.

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theories.74 Waters advocates a "narrow lens approach" that focuses on
exploring the variety of techniques that enable courts to utilize a particular
international source in interpreting domestic law.75 In areas with a civil law
tradition, international instruments, such as human rights treaties, are often
"automatically" incorporated into domestic law.76 The reason for automatic
incorporation of these instruments is that there is less of a distinction between
international and domestic law, in part because they have the same natural law
source. 77 Consequently, when governments from civil law traditions such as
Taiwan 78 refer to international treaties, 79 they act perfectly in line with their
legal tradition.80 Giving treaties a higher normative status than that given to
ordinary national legislation is not a new phenomenon.8' Indeed, some States
have given human rights treaties a normative rank higher than that of other
treaties.82

Regarding monist and dualist viewpoints, Article 2 of the Taiwan Act
states that the "[h]uman rights protection provisions in the two Covenants have
domestic legal status" (guoneifa de xiaoli).83 Thus, not only do the Covenants
have domestic legal status because of the civil law monist approach, but Taiwan
has explicitly given these Covenants domestic legal status through the Taiwan
Act.

C. Use of International Instruments as Aids in Interpreting the
Constitutionality of National Legislation - A Judicial Point of View

As of January 14, 2012, the Constitutional Court of the Republic of
China (Taiwan) (Constitutional Court) had rendered 695 Interpretations.84 The

74. Melissa A. Waters, Creeping Monism: The Judicial Trend Toward Interpretive
Incorporation of Human Rights Treaties, 107 COLUM. L. REv. 628, 628 (2007).

75. Id. at 632.
76. Id. at 641.
77. Id. (noting that civil law countries are monist in nature).
78. Andrew Jen-Guang Lin, Common Law Influences in Private Law - Taiwan 's

Experiences Relatedto Corporate Law, 4NAT'LTAlWAN U. L. REv. 107, 132 (2009) ("Taiwan is
a civil law country. However, common law rules, particularly those developed from the U.S.
courts, have significant influences on Taiwan's private law."). See also Tay-sheng Wang, The
Legal Development of Taiwan in the 20th Century: Toward a Liberal andDemocratic Country,
11 PAC. RIM L. & POL'Y J. 531, 531-39 (2002).

79. "Refer" in this sense is interpreted broadly to also mean, inter alia, ratify, accept,
approve, assent, and consent. See Vienna Convention on the Law of Treaties art. 2, para. 1(b),
May 23, 1969, 1155 U.N.T.S. 331 [hereinafter VCLT).

80. Waters, supra note 74, at 641.
81. Id.; Thomas Buergenthal, Modern Constitutions and Human Rights Treaties, 36

COLUM. J. TRANSNAT'L L. 211, 215 (1997).
82. Buergenthal, supra note 81, at 217.
83. Taiwan Act, supra note 6, art. 2.
84. See Interpretations, Justices of the Constitutional Court, JUD. YUAN,

http://www.judicial.gov.tw/ constitutionalcourt/en/p03.asp (last visited Jan. 14, 2012). Article

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Constitutional Court began referring to international human rights laws in the
1990s, 85 and in total, the Court has referred to international treaties in seven
majority opinions and eighteen separate opinions.86 So far, Taiwan has taken a
limited approach to incorporating international law into these interpretations;
however, when the judges of the Constitutional Court have made reference to
international instruments, their stance has been very strict. 87

The Bangalore Principles of Judicial Conduct require judges to stay
"informed about relevant developments of international law, including
international conventions and other instruments establishing human rights
norms." 88 This principle is listed under Value 6, regarding competence. 89 This
means knowledge of these international norms is necessary for a judge to be
competent, but that a judge is not necessarily required to refer to such
instruments. 90 But since the Constitutional Court began referring to
international laws in the 1990s, judges in Taiwan have been living up to the
international norms embodied in the Bangalore Principles and have been
adopting the monist tradition of incorporating international law. 9'

Importantly, the Constitutional Court has not only referenced
international treaties in its opinions, it has also utilized these treaties to interpret
the meaning of certain domestic legal concepts.92 For instance, Interpretation
392 states, "In light of the abovementioned international conventions, it is
obvious that the prosecutor shall not have the detention power enumerated in
the Code of Criminal Procedure., 93 In Interpretation 549, the Justices similarly
held that "an overall examination and arrangement, regarding the survivor
allowance, insurance benefits and other relevant matters, should be conducted

78 of the Constitution states that "[t]he Judicial Yuan shall interpret the Constitution and shall
have the power to unify the interpretation of laws and orders." MINGUO XIANFA art. 78. For
more information regarding Constitutional review in Taiwan, see Nuno Garoupa et al.,
Explaining Constitutional Review in New Democracies: The Case of Taiwan, 20 PAC. RIM L. &
POL'Y J. 1 (2011).

85. Chang, supra note 8, at 212.
86. See id. (referring to Interpretations No. 372 (Feb. 24, 1995), No. 392 (Dec. 22, 1995),

No. 549 (Aug. 2, 2002), No. 578 (May 21, 2004), No. 582 (Sept. 23, 2004), No. 587 (Dec. 30,
2004), No. 623 (Jan. 26, 2007), the CRC, ICCPR, ECHR, ACHR, International Labor
Conventions, and the UDHR).

87. See infra notes 92-103 and accompanying text.
88. BANGALORE PRINCIPLES OF JUDICIAL CONDUCT art. 6.4, U.N.E.S.C. Res. 2006/23 (2002)

[hereinafter BANGALORE PRINCIPLES] (adopted by the Judicial Group on Strengthening Judicial
Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The
Hague, Nov. 25-26, 2002).

89. Id. Value 6.
90. See id. Value 6.
91. See supra Part 1.B.
92. See, e.g., J.Y. Interpretation No. 392 (Dec. 22, 1995).
93. Id. (Referencing the European Convention for the Protection of Human Rights and

Fundamental Freedoms, the International Convention for Citizens and their Political Rights, the
Continental American Human Rights Convention, and a European Court of Human Rights
decision.).

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in accordance with the principles of this Interpretation, international labor
conventions and the pension plan of the social security system. 94 Likewise,
Interpretation 578 states, "The provisions of international labor conventions...
shall also be taken into account." 95 Although the Constitutional Court has not
used international instruments frequently, the instruments have clearly been
given great deference, to the level of being heavily influential on the outcome
of an interpretation. 96 Accordingly, reference to international treaties by the
Taiwanese courts is perfectly congruent with the precepts of Taiwan's legal
tradition.97 By stating that "[h]uman rights protection provisions in the two
Covenants have domestic legal status," Article 2 of the Taiwan Act simply
reinforces the fact that these international instruments will be given equal or
possibly higher normative status than ordinary national legislation.98

To fulfill the Taiwan Act's desire to strengthen Taiwan's human rights
protection system, the Judicial Yuan (the highest judicial organ of Taiwan), in
addition to incorporating international instruments into court Interpretations,
has drafted legislation to harmonize Taiwan laws with the Taiwan Act.99 This
includes the Act for Speedy and Fair Criminal Trials, many provisions of the
Code of Criminal Procedure, and the Law Governing the Disposition of
Juvenile Case. 100 In addition, the Judicial Yuan established a task force to
research amending the Compulsory Execution Act, 10 and amendments are
planned for the Legal Aids Act as well. 0 2 If Taiwan, like other civil law
countries, takes the monist view, the ICCPR, ICESCR, and domestic law will
continue to function as the same legal body currently available to the
Constitutional Court.10 3

D. Overriding Rights in the ICCPR and ICESCR and the Monist and
Dualist Theories - Legislative Point of View

While civil law traditions grant higher normative status to human rights

94. J.Y. Interpretation No. 549 (Aug. 2, 2002) (emphasis added).
95. J.Y. Interpretation No. 578 (May 24, 2004) (emphasis added).
96. Id.
97. Waters, supra note 74, at 641.
98. Taiwan Act, supra note 6, art. 2.
99. Id. art. 1; Response to the Promulgations, supra note 17.

100. Response to the Promulgations, supra note 17; Xingshi Tuosu Shenpan Fa
(fl% 31J%) [Act for Speedy and Fair Criminal Trials] (promulgated May 19, 2010)
(Taiwan); Xingshi Susong Fa (fJf- jzg) [The Code Of Criminal Procedure] (promulgated
July 28, 1928, amended June 23,2010) (Taiwan); Shaonian Shijian Chuli Fa (J' E $t/ _ )
[Law Governing the Disposition of Juvenile Cases] (promulgated May 18, 2005) (Taiwan).

101. Id.; Qiangzhi Zhixing Fa (qilq{fV- ) [Compulsory Execution Act] (amended June
29, 2011) (Taiwan).

102. Id.; Falti Fuzhu Fa (M--MM-) [Legal Aid Act] (amended Dec. 30, 2009) (Taiwan).
103. See Coyle, supra note 71, at 656, n.1.

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IND. INT'L & COMP. L. REv.

treaties,1°4 Monistic traditions do not draw a bright line distinction between
domestic and international law. 10 5 This is due in part to the fact that laws in
civil law traditions have the same natural law source and are automatically
incorporated into domestic law. 106 Elaborating on the theme of incorporating
international legal norms into national legal systems, one commentator, George
Slyz, notes that "[m]onism views international and national law as part of a
single legal corpus, with the various national legal systems being derived from
the broader framework provided by international law. 10 7 Therefore, within a
monist framework, human rights norms are not only part of the Taiwanese legal
order as local law, they may be superior to it.108 In this regard, since "no
theoretical barrier exists to applying international law," 109 the Taiwan Act
would bind the Taiwanese Legislature to the requirements of the ICCPR and
ICESCR in enacting legislation. 1 ° Furthermore, not only would the legislative
and judicial branches.. be obliged to observe these human rights instruments,
but presumably, the executive branch would be equally obliged to ensure the
laws are carried out.

112

The dualist view, however, holds that domestic courts may incorporate or
reject international elements as they see necessary. 1 3 Slyz notes that "a nation
is responsible to other nations for carrying out mutual obligations, but each
state determines the means and form by which it carries out its obligations."'1 14

Therefore, dualist states are usually required to change domestic law because
international law applies by virtue of the domestic law's recognition and
incorporation of such rules only.1 15 The international law is thereby transformed
into domestic law and avoids any question of supremacy. 16 Since Taiwan is of
a civil law tradition, it should grant a higher normative status to human rights
treaties like the ICCPR and ICESCR."7

If there was any debate as to whether Taiwan utilizes the concepts of

104. Waters, supra note 74, at 641.
105. Id.
106. Id.
107. George Slyz, Note, International Law in National Courts, 28 N.Y.U. J. INT'L L. & POL.

65,67 (1996) (emphasis added).
108. Id.
109. Id.
110. Id.
111. "The central government consists of the Office of the President and five branches, or

yuan-the Executive Yuan, the Legislative Yuan, the Judicial Yuan J]8, the Examination
Yuan T;4[ and the Control Yuan." The Republic of China Yearbook 2010, Gov'T INFO.
OFFICE 61, available at http://www.gio.gov.tw/taiwan-website/5-gp/yearbook/
04Govemment.pdf.

112. Slyz, supra note 107, at 67.
113. Coyle, supra note 71, at 656, n.1.
114. Slyz, supra note 107, at 67.
115. Id.
116. Id. at 67-68.
117. Waters, supra note 74, at 641.

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monism or dualism, it should be dispelled by a plain reading of Article 2 of the
Taiwan Act. Article 2 states that the "[h]uman rights protection provisions in
the two Covenants have domestic legal status,"' '1 8 meaning Taiwan "avoids any
question of the supremacy of one system of law over the other" regardless. Both
concepts legitimize the application of international human rights instruments to
Taiwanese domestic law. Therefore, looking forward, the Taiwanese legislature
should be bound by the Covenants in enacting legislation; no barrier exists to
applying international law into domestic legislation.

III. MEANING AND IMPLICATIONS OF RATIFICATION AND NON-
MEMBERSHIP OF AN INTERNATIONAL TREATY

Taiwan's unique history "has trapped [its] inhabitants ... in political
purgatory. [T]he people of Taiwan have lived without any uniformly recognized
government[, and i]n practical terms, this means they have uncertain status in
the world community which infects the population's day-to-day lives."" 9 The
existence of this political purgatory and the special status that arises from its
ambiguity will almost certainly influence a non-State actor's participation in a
treaty, mainly because it not clear whether a non-State can be a "party." Article
2 of the Vienna Convention on the Law of Treaties (VCLT) defines "party" as
"a State which has consented to be bound by the treaty and for which the treaty
is in force.' 20 A plain reading of the VCLT indicates that a "party" must be a
"State."' 2' With regard to whether an entity would be entitled "State" status,
Article 1 of the Montevideo Convention on the Rights and Duties of States
provides, albeit somewhat oversimplified, that "[t]he state as a person of
international law should possess the following qualifications: a) a permanent
population; b) a defined territory; c) government; and d) capacity to enter into
relations with the other states. 122 Although Taiwan is not recognized as a State,
it may meet the requirements to be considered a "State" for purposes of a
treaty. 23 And since Taiwan has consented to be bound by the Covenants, it
may be said that Taiwan is a kind of party to the Covenants, just not in the
conventional sense. 124

The VCLT also states that a treaty is an "international agreement

118. Taiwan Act, supra note 6, art. 2.
119. Lin v. United States, 561 F.3d 502, 503 (D.C. Cir. 2009).
120. VCLT, supra note 79, art. 2, para. 1(g).
121. See id.
122. Montevideo Convention on the Rights and Duties of States art. 1, Dec. 26, 1933, 165

L.N.T.S. 19 (1934). For perspectives on how the Montevideo Conventions may be imperfect,
see Thomas D. Grant, Defining Statehood: The Montevideo Convention and Its Discontents, 37
COLUM. J. TRANSNAT'L L. 403 (1999).

123. See generally Tai-Heng Cheng, Why New States Accept Old Obligations, 2011 U. ILL.
L. REv. 1, 47 (2011). The conventional view is that States do not need to be a member of the
club to guarantee human rights. See infra note 132 and accompanying text.

124. See generally Tai-Heng Cheng, supra note 123.

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IND. INT'L & COMP. L. REV.

concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation."1 25 Since Taiwan did not conclude the
Covenants with other States, it cannot be said that the agreements, as
recognized by Taiwan, are "treaties" in the traditional sense. But the VCLT
goes on to say that .'ratification,' 'acceptance,' 'approval,' and 'accession'
mean in each case the international act so named whereby a State establishes on
the internationalplane its consent to be bound by a treaty. 126 Taiwan no doubt
has expressed, through the Taiwan Act, its desire to implement (shishi) the
Covenants.127 Implementation is an expression of an international act and
suggests Taiwan's willingness and consent to be bound by the Covenants on an
international level. Furthermore, by declaring that "[a]ll laws, regulations,
directions and administrative measures incompatible to the two Covenants
should be amended within two years after the Act enters into force by new
laws, law amendments, law abolitions and improved administrative measures,"
Taiwan accepts that domestic laws, regulations, directions, and administrative
measures should be compatible with the Covenants and that it has consented to
be bound domestically, and arguably internationally, by their provisions.128

A. Participant Discontent of the Exclusion of Parties

The biased nature of Covenant membership has narrowed the
participation of certain parties, causing twelve Member States to each make
declarations upon signature of the ICCPR and ICESCR. 29 In essence, these
declarations recognize the discriminatory and limiting nature of Article 48 of
the ICCPR and Article 26 of the ICESCR.130 Article 48 of the ICCPR, which is
similar to Article 26 of the ICESCR, states that

[t]he present Covenant is open for signature by any State
Member of the United Nations or member of any of its
specialized agencies, by any State Party to the Statute of the
International Court of Justice, and by any other State which
has been invited by the General Assembly of the United

125. VCLT, supra note 79, art. 2, para. 1 (a).
126. Id. para. 1(b) (emphasis added).
127. Taiwan Act, supra note 6, art. 1.
128. Id. art. 8.
129. International Covenant on Civil and Political Rights, Declarations and Reservations,

Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter Declaration]. The States are the Russian
Federation, Romania, Guinea, Afghanistan, Bulgaria, Hungary, Mongolia, Syrian Arab
Republic, Vietnam, and Ukraine. Id.

130. See, e.g., infra note 132.

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ADOPT & FuNcTN OF INT'L INSTS

Nations to become a Party to the present Covenant. 131

The Russian Federation made the following declaration regarding Article 48
and Article 26:

The Union of Soviet Socialist Republics declares that the
provisions of paragraph 1 of article 26 of the International
Covenant on Economic, Social and Cultural Rights and of
paragraph 1 of article 48 of the International Covenant on

Civil and Political Rights, under which a number of States
cannot become parties to these Covenants, are of a
discriminatory nature and considers that the Covenants, in
accordance with the principle of sovereign equality of States,
should be open for participation by all States concerned
without any discrimination or limitation. 132

This declaration recognizes that, with regard to human rights treaties, all States
should be allowed to participate.1 33 The spirit of the declaration also could
support the conclusion that all territories or non-State actors should be granted
participation as well.134 The conventional wisdom is that "the promotion and

encouragement of respect for human rights and fundamental freedoms is an

undertaking to be carried out for all.' 35 To this end, issues of human rights,
arguably, should not be confused with issues of politics concerning
sovereignty.

1 36

Although it did not sign the Covenants with other States parties, Taiwan

should realize that by implementing the Covenants it is bound by their
provisions and that it has opened itself up to international scrutiny. 137 Through
both domestic and international scrutiny, Taiwan will have more types of
human rights enforcement than would be possible with its domestic legislation
alone.1 38 As a non-State actor, Taiwan should be able to freely implement the
Covenants into its domestic law, and at the same time, the international
community should recognize and respect this implementation.

131. ICCPR, supra note 4, art. 48, para. 1 (emphasis added).
132. Declaration, supra note 129 (emphasis added).
133. See id.
134. See id.
135. Manual, supra note 11, at 4.
136. See Boyd, supra note 16.
137. The author of this Note is of the opinion that scrutiny has been largely domestic, but for

examples of international scrutiny, see SHIRLEY A. KAN, DEMOCRATIC REFORMS IN TAIWAN:

ISSUES FOR CONGRESS (2010); Jerome A. Cohen & Yu-Jie Chen, Jerome A. Cohen and Yu-Jie
Chen on Taiwan's Incorporation of the ICCPR and ICESCR into Domestic Law, U.S. ASIA L.
INST. (May 29, 2009), http://www.usasialaw.org/?p= 1142.

138. Tom Ginsburg et al., Commitment and Diffusion: How and Why National Constitutions
Incorporate International Law, 2008 U. ILL. L. REv. 201, 215-16 (2008).

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IND. INT'L & COMP. L. REV.

B. Validating Alterations in Domestic Law through Human Rights Law
Mechanisms

The Constitutional Court is charged with interpreting the Constitution of
Taiwan, 139 and it has historically incorporated international human rights laws
into interpretations as a kind of "benchmark for domestic legal change." 140

Interpretation No. 549141 and Interpretation No. 578 14 advise the government to
"overhaul the entire statutory regime with relevant international labor
conventions.1 43 There, the Justices were urging the government to alter
domestic law so that it observes international law. 44 Alterations in domestic
law may be similarly justified by the Taiwan Act. Article 8 states,

All levels of governmental institutions and agencies should
review laws, regulations, directions and administrative
measures within their functions according to the two
Covenants. All laws... incompatible to the two Covenants
should be amended within two years after the Act enters into
force by new [or abolished] laws. 45

The Human Rights Committee's General Comment 31 expresses the
comprehensiveness of implementation required by the ICCPR and acts as a
reminder to the State that the provisions of that Covenant should not be taken
lightly. 46 All branches of government must take responsibility, and any one
branch cannot excuse itself of a violation by pointing to another. 47

Even though Taiwan, through Article 8 of the Taiwan Act, has
affirmatively committed to amend or abolish laws incompatible with Covenant
rights within two years, its commitment to conformity is already implicit in the
ICCPR.148 General Comment 31 states that States parties must take the

139. MINGUOXIANFA art. 78 (1947) (Taiwan).
140. Chang, supra note 8, at 216.
141. J.Y. Interpretation No. 549 (Aug. 2, 2002).
142. J.Y. Interpretation No. 578 (May 21, 2004).
143. Chang, supra note 8, at 218.
144. Id.
145. Taiwan Act, supra note 6, art. 8.
146. See Human Rights Comm., General Comment No. 31: The Nature of the General Legal

Obligation Imposed on States Parties to the Covenant, para. 3, 80th Sess. (2004), U.N. Doc.
HRI/GEN/I/Rev.9 (Vol. I) (2008) [hereinafter General Comment No. 31]. "Pursuant to the
principle articulated in article 26 of the Vienna Convention on the Law of Treaties, States
Parties are required to give effect to the obligations under the Covenant in good faith." Id.

147. See id. para. 7. "Article 2 requires that States Parties adopt legislative, judicial,
administrative, educative and other appropriate measures in order to fulfill their legal
obligations. The Committee believes that it is important to raise levels of awareness about the
Covenant not only among public officials and State agents but also among the population at
large." Id.

148. Taiwan Act, supra note 6, art. 8.

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ADOPT & FUNCTN OF INT'L INSTS

necessary measures "to give effect to the Covenant rights in the domestic
order., 149 In this regard, both the judiciary and the legislature have given the
green light to alter Taiwan's domestic law to achieve conformity with the
Covenants.15

0

IV. STATE REPORTING PROCESS

The nine articles of the Taiwan Act no doubt were implemented to
strengthen Taiwan's human rights protection system. 15' But a government's
responsibilities towards its domestic population do not end with implementation
alone; each State is required to engage in a comprehensive campaign to see that
every Covenant obligation is addressed. 152 As such, it is crucial for States to
have a correct and comprehensive understanding of the object and purpose of
the Covenants as well as an accurate grasp of the scope and meaning of the
obligations they create. 153

How the Covenant provisions can be implemented in the domestic legal
system has proven to be an ongoing learning process for both Taiwan's
government and its civil actors. 54 Through an initial reporting process,
however, Taiwan may learn how to further implement and realize these human
rights guarantees. 155 Implementation in the domestic legal system and the
concurrent reporting process represent just the birth of the Covenants, which
will continue far beyond the administration that initiated the process. Indeed,
"[a]ll politicians face problems committing to their promises," so the policies of

149. General Comment No. 3 1, supra note 146, para. 13. "Article 2 allows a State Party to
pursue this in accordance with its own domestic constitutional structure and accordingly does
not require that the Covenant be directly applicable in the courts, by incorporation of the
Covenant into national law. The Committee takes the view, however, that Covenant guarantees
may receive enhanced protection in those States where the Covenant is automatically or through
specific incorporation part of the domestic legal order." Id.

150. Although comment 31 only discusses the ICCPR, similar arguments may be made for
the ICESCR.

151. Taiwan Act, supra note 6, art. 1 ("This Act is made.., to strengthen our country's
human rights protection system."). See also id. arts. 2-9.

152. For one perspective on the current state of implementation, see Vincent Y. Chao,
Human Rights Day: Little Action on UN Human Rights Covenants: NGOs, TAIPEI TIMES (Dec.
11, 2010), http://www.taipeitimes.com/News/taiwan/archives/2010/12/11/2003490659.

153. See generally PEGGY BRETr & PATRICK MUTZENBERG, UN HUMAN RIGHTS COMMnrEE
PARTICIPATION IN THE REPORTING PROCESS: GUIDELINES FOR NON GOVERNMENTAL

ORGANISATIONS (NGOs) (1st ed. 2008) [hereinafter GUIDELINES], available at
http://ccprcentre.org/doc/CCPR/Handbook/full%20version.pdf.

154. For one example of such plan, see Renquan Dabuzou Jihua (X4'Yy - [Human
Rights Program of Action], MINISTRY OF JUSTICE,
http://www.humanrights.moj.gov.tw/public/Attachment/151910551973.doc.

155. See generally GUIDELINES, supra note 153 ("The Committee has often emphasized that
the drafting of State reports should be an opportunity to review the national legislation, as well

as administrative rules and procedures.").

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IND. INT'L & COMP. L. REv.

one politician must live beyond his or her term of office.156 The domestic and
international scrutiny that should result from Taiwan's implementation of the
Covenant's will generate valuable performance information and engage
domestic and international governance. This will create political consequences
for politicians who do not live up to their promises, 157 and ultimately enhance
the quality of human rights for current and future generations. 158

A. Motivations for the Implementation of the ICCPR and ICESCR into
Domestic Law

Admittedly, there may be motivations for signing or implementing
treaties into domestic law other than the mutual gain from cooperative
activity." 9

Governments form treaties to achieve mutual gains from
coordinated or cooperative activity at the international level.
Without such gains, there is no reason for governments to
enter into treaties. This approach[, however,] ignores the
domestic sources of government policy and, thereby,
underemphasizes the impact of domestic lobbying and the
structure of the domestic political system in foreign affairs. 60

While international instruments indicate to the international community
the positions of their ratifying parties, domestic lobbying and the influence on
the domestic political system, with regard to domestic interactions, are also of
importance. 16' This interest-group lobbying approach may be a more applicable
way of viewing Taiwan's implementation of the Covenants because Taiwan's
international interaction is limited.162 Ultimately, international commitments
have three functions: (1) creating information by "utilizing international
monitors, beyond the reach of any domestic politician, to generate neutral and
valuable information on performance"; (2) creating costs for future violations;
and (3) shifting decision-making authority to international actors.163

156. Ginsburg, supra note 138, at 213.
157. Id. at 214-15.
158. See supra Part II.
159. Rachel Brewster, The Domestic Origins ofInternationalAgreements, 44 VA. J. INT'L L.

501, 540 (2004).
160. Id.
161. Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L.J.

1935, 1940-41 (2002).
162. Taiwan's unique situation makes it difficult for the government to interact with other

Nations. See generally Eric Ting-Lun Huang, The Modern Concept of Sovereignty, Statehood
and Recognition: A Case Study of Taiwan, 16 N.Y. INT'L L. REV. 99 (2003).

163. Ginsburg, supra note 138, at 214.

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ADOPT & FUNCTN OF INT'L INSTS

B. Reporting Obligations Under Article 40 of the ICCPR

Taiwan recognizes the importance of reporting the implementation status
of the Covenants. This is evident in Article 6 of the Taiwan Act,' 64 which
states, "The government should set up human rights reports system in
accordance with the two Covenants.' '165 Articles of the ICCPR regarding
reporting include Article 40:

1. The States Parties to the present Covenant undertake to
submit reports on the measures they have adopted which give
effect to the rights recognized herein and on the progress made
in the enjoyment of those rights:

(a) Within one year of the entry into force of the present
Covenant for the States Parties concerned;
(b) Thereafter whenever the Committee so requests.

2. All reports shall be submitted to the Secretary-General of
the United Nations, who shall transmit them to the Committee
for consideration. Reports shall indicate the factors and
dijfficulties, if any, affecting the implementation of the present
Covenant.

3. The Secretary-General of the United Nations may, after
consultation with the Committee, transmit to the specialized
agencies concerned copies of such parts of the reports as may
fall within their field of competence.

4. The Committee shall study the reports submitted by the
States Parties to the present Covenant. It shall transmit its
reports, and such general comments as it may consider
appropriate, to the States Parties.

5. The States Parties to the present Covenant may submit to
the Committee observations on any comments that may be
made in accordance with paragraph 4 of this article. 166

Notwithstanding the initial reporting requirements under ICCPR, Article
40, paragraph 1 section (a), this Note recommends that a review process be
conducted in the fall of 2013, with the state submitting its initial report in the

164. See Taiwan Act, supra note 6, art. 6.
165. Id.
166. ICCPR, supra note 4, art. 40 (emphasis added).

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IND. INT'L & COMP. L. REV.

summer of 2012.167 The Taiwan Act states that "[a]ll laws, regulations,
directions and administrative measures incompatible to the two Covenants
should be amended within two years after the Act enters into force by new
laws, law amendments, law abolitions and improved administrative
measures."' 168 This gives Taiwan time to adjust laws incompatible with the
ICCPR and to submit a comprehensive report.169 During the beginning of 2013,
the ad hoc Human Rights Committee will have time to draft a List of Issues, to
which the State will have time to respond. 170 Additionally, NGOs will have
time to respond to the State Report and the State's response to the List of
Issues. 171

Article 40 also states that reports should be submitted to the Secretary-
General of the UN, who in turn should transmit them to the specialized UN
agencies; the Secretary-General should also transmit the comments of the
Committee to the Economic and Social Council.172 It is impossible for Taiwan
to fulfill these procedural aspects because of its non-membership. Nonetheless,
Taiwan should take responsibility for submitting a report to a neutral
Committee. 1

7 3

C. Reporting Obligations Under Article 16 of the ICESCR

The CESCR notes that, "in accordance with the letter and spirit of the
[ICESCR], the processes of preparation and submission of reports by States

167. See infra Figure 1.
168. Taiwan Act, supra note 6, art. 8. The Presidential Office Human Rights Consultative

Committee was established to "formulate human rights policies and review the nation's annual
human rights reports." News Release, Office of the President, President Ma and Vice President
Siew Attend First Meeting of the Presidential Office Human Rights Consultative Committee,
(Dec. 10, 2010), [hereinafter Consultative Committee], available at
http://english.president.gov.tw/Default.aspx?tabid=49 1 &itemid=23067&rmid=2355. The
President of Taiwan has set up The Presidential Office Human Rights Consultative Committee
to address these issues. Id.

169. It also takes into account the time Taiwan has given itself to make changes to domestic
law. See David Sloss, The Domestication of International Human Rights: Non-Self-Executing
Declarations and Human Rights Treaties, 24 YALE J. INT'L L. 129, 149-52 (1999) (discussing
different domestic applications of international human rights treaties).

170. See infra Figures 1, 2.
171. Id.
172. ICCPR, supra note 4, art. 40, paras. 2-3.
173. The Human Rights Committee reminds States parties that they "have undertaken to

submit reports in accordance with article 40 of the Covenant within one year of its entry into
force for the States parties concerned and, thereafter, whenever the Committee so requests."
Human Rights Comm., General Comment No. 30: Reporting Obligations of States Under
Article 40 of the Covenant, para. 1, 75th Sess., CCPR/C/21/Rev.2/Add.12 (2002), reprinted in
Compilation of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, p. 242, U.N. Doc. HRIIGEN/1/Rev.9 (Vol. I) (May 27, 2008) [hereinafter
General Comments].

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ADOPT & FUNCTN OF INT'L INSTS

,,174can, and indeed should, serve to achieve a variety of objectives. The first
objective recognizes the importance of the initial report so as to "ensure that a
comprehensive review is undertaken with respect to national legislation,
administrative rules and procedures, and practices in an effort to ensure the
fullest possible conformity with the Covenant."1 75 This spirit of reporting is
much like that expressed in the ICCPR.176

Like the ICCPR, and notwithstanding the initial reporting requirements
under Article 16 of the ICESCR,"7 7 this Note recommends that a review process
should occur in the fall of 2013, with the state submitting its initial report in the
summer of 2012.178 Again, the two-year timeframe for compatibility under the
Taiwan Act 79 will allow Taiwan to adjust its incompatible laws and to submit a
comprehensive report.1 80 The ad hoc CESCR will have time to draft a List of
Issues during the beginning of 2013, and the State and NGOs will have time to
respond accordingly.

181

All reports will ultimately go to ad hoc committees for review.182 Since
the Covenant prohibits members of the state being reviewed from serving as
committee members, it would be beneficial for Taiwan to cooperate with other
national governments and international NGOs to develop these ad hoc
committees.1 83 The ad hoc Human Rights Committee and the ad hoc CESCR

174. Comm. on Econ., Soc. & Cultural Rights [CESCR], General Comment No. 1:
Reporting by States Parties, para. 1, 3rd Sess., U.N. Doc. E/1989/22, annex III at 87 (1989)
[hereinafter CESCR General Comment No. 1], reprinted in General Comments, supra note 173,
p. 1-2. The Committee specifically notes seven objectives in their comment. Id. paras. 2-9.

175. Id. para. 2 ("Such a review might, for example, be undertaken in conjunction with each
of the relevant national ministries or other authorities responsible for policy-making and
implementation in the different fields covered by the Covenant.").

176. See supra Part V.B.
177. "The States Parties to the present Covenant undertake to submit in conformity with this

part of the Covenant reports on the measures which they have adopted and the progress made in
achieving the observance of the rights recognized herein." ICESCR, supra note 5, art. 16(1).
"All reports shall be submitted to the Secretary-General of the United Nations, who shall
transmit copies to the Economic and Social Council for consideration in accordance with the
provisions of the present Covenant. Id. art. 16(2)(a). "The Secretary-General of the United
Nations shall also transmit to the specialized agencies copies of the reports, or any relevant parts
therefrom, from States Parties to the present Covenant which are also members of these
specialized agencies in so far as these reports, or parts therefrom, relate to any matters which fall
within the responsibilities of the said agencies in accordance with their constitutional
instruments." Id. art. 16(2)(b).

178. See infra Figure 1.
179. Taiwan Act, supra note 6, art. 8.
180. See infra Figure 1.
181. See infra Figures 1, 2.
182. See infra Part VI.
183. Id.

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IND. INT'L & COMP. L. REv.

may be separate committees or combined into one; 84 one committee may be a
more practical option, but the concluding observations will likely be more
fruitful if the committees are separate.

D. ICCPR and ICESCR Reporting Process

Generally, State Reports are divided into two parts. 185 The first describes
basic information about the reporting State, such as its land and people, general
political structure, general legal framework within which human rights are
protected, and information and publicity used to promote human rights
awareness. 186 The second part describes measures the State has taken to
implement the specific provisions of the Covenants and should, as a rule,
address every relevant substantive article. 187 The remainder of this Note uses
the terms "State Report" and "NGO report" when referring to the reporting
process as it relates to the ICCPR.188 Although the specific reporting processes
under the ICCPR and ICESCR are slightly different, these ICCPR concepts can
easily be translated to the reporting requirements of the ICESCR. 89

1. Initial State Report

According to the Commission for Human Rights' Manual on Human
Rights Reporting Under Six Major International Human rights Instruments, the
second part of the initial report, which is important for Taiwan and its
implementation process, should contain the following with regard to each
article:

(a) The legislative, administrative or other measures in force in
regard to each right;

(b) Any restrictions or limitations, even of a temporary nature,
imposed by law or practice or any other manner on the
enjoyment of the right;

184. See Caroline Dommen, The UN Human Rights Regime: Is it Effective?, 91 AM. Soc'Y
INT'L L. PROC. 460, 483 (1997) (discussing the possibility of consolidation of human rights
treaty bodies).

185. Manual, supra note 11, at 59-61.
186. Id.
187. Id. at 173. See also infra note 190 and accompanying text.
188. For an in depth explanation of the reporting process for The International Covenant on

Civil and Political Rights, The International Covenant on Economic, Social and Cultural Rights,
The International Convention on the Elimination of All Forms of Racial Discrimination, The
Convention on the Elimination of All Forms of Discrimination Against Women, The
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
and The Convention on the Rights of the Child, see Manual, supra note 11.

189. Id.

180 [Vol. 22:1



ADOPT & FUNCTN OF INT'L INSTS

(c) Any other factors or difficulties affecting the enjoyment of
the right by persons within the jurisdiction of the State,
including any factors affecting the equal enjoyment by women
of that right;

(d) Any other information on the progress made in the
enjoyment of the right.

The report should be accompanied by copies of the principal
legislative and other texts referred to in the report.19

The Human Rights Committee has emphasized that "[i]t is of critical
importance that States ensure that they describe the factual situation, or, in
other words, the practical realities regarding the implementation and enjoyment
of Covenant rights, rather than limiting themselves to a description of the
formal situation as represented in the State's laws and policies."19' Of course,
the legal norms should be described and elaborated, but the practical
availability of remedies for violations of the ICCPR is equally important. 2

Taiwan will need to report its principal legislative measures as well as other
non-legislative or judicial measures it has taken to ensure the enjoyment of
Covenant rights. 193

In its Consolidated Guidelines for State Reports under the ICCPR, the
Human Rights Committee emphasizes that it is particularly important for a
State party to explain how Article 2 of the Covenant is applied.194 Article 2
includes the following two provisions:

1. Each State Party to the present Covenant undertakes to
respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or

190. Manual, supra note 11, at 174.
191. Factsheet No. 30, supra note 35, at 16.
192. See U.N. Secretary-General, Compilation of Guidelines on the Form and Content of

Reports to be Submitted by States Parties to the International Human Rights Treaties, ch. 1II,
sec. D.2.1, U.N. Doc. HRI/GEN/2/Rev.6 (June 3, 2009) [hereinafter Compilation of
Guidelines].

193. See id.
194. U.N. Human Rights Comm., Consolidated Guidelines for State Reports Under the

International Covenant on Civil and Political Rights, sec. D.2.2, U.N. Doc.
CCPR/C/66/GUI/Rev.2 (Feb. 26, 2001).

2012]



IND. INT'L & COMP. L. REV.

other measures, each State Party to the present Covenant
undertakes to take the necessary steps, in accordance with its
constitutional processes and with the provisions of the present
Covenant, to adopt such laws or other measures as may be
necessary to give effect to the rights recognized in the present
Covenant.' 

9 5

Article 2 also includes the availability of remedies for violations of the
ICCPR.196 Given the requirements set forth by the Human Rights Committee,
Taiwan will need to address how its government will ensure to all individuals
the rights recognized in the ICCPR, to what extent the laws or measures give
effect to those rights, and what remedies are available for their violations. 197

2. Response to the list of issues generated by the ad hoc committee

In the case of reporting under the ICESCR, a working group is
established for each State. 198 This working group is "to identify in advance the
questions that will constitute the principal focus of the dialogue with the
representatives of the reporting States."'199 The Human Rights Committee asks
each State party to provide in writing its replies to the lists of issues, far enough
in advance of the reporting session so as to enable the replies to be made
available to the Committee.200 These replies also should be timed so that NGOs
will have a chance to comment on their content.2

01 As explained above, this
Note recommends that a review process should happen in the fall of 2013, with
the state submitting its initial report in the summer of 2012.2°2 This timeframe
gives Taiwan time to amend or abolish laws incompatible with the ICESCR
(and the ICCPR) and submit a comprehensive report.20 3 It also leaves time for
the ad hoc committees to draft a List of Issues during the beginning of 2013 and
allows the State time to respond to that list.20 4 Additionally, NGOs will have
time to respond to the State Report and the State's response to the List of

195. ICCPR, supra note 4, art. 2, paras. 1-2 (emphasis added).
196. Id. art. 2. para. 3; see Compilation of Guidelines, supra note 192, ch. III, sec. D.2.1.
197. This list is not comprehensive and should be expanded along with national NGO

participation. For a discussion regarding highly effective NGOs, see George E. Edwards,
Assessing the Effectiveness of Human Rights Non-Governmental Organizations (NGOs) From
the Birth of the United Nations to the 21st Century: Ten Attributes of Highly Successful Human
Rights NGOs, 18 MICH. ST. J. INT'L L. 165 (2010).

198. CESCR, Working Methods, OHCHR.ORG, http://www2.ohchr.org/english/bodies/cescr/
workingmethods.htm (last visited Jan. 14, 2012).

199. Id.
200. Manual, supra note 11, at 163.
201. See generally GUIDELINES, supra note 153.
202. See infra Figure 1.
203. Id.
204. These committees may be combined. See infra Part VI.

[Vol. 22:1



2012] ADOPT & FUNCTN OF INT'L INSTS 183

Issues.20 5 Below is a chart with the timeline for State reporting suggested
above.2 °6

AD HOC COMMITTEE REPORTING PROCESS

Taiwan tale Paridpation

2012

Preparalion of the Report alet FPMo

2013

by-leadhoc eson: Draft riMtten repliestotheLiatOflatues tarIrS proces

Corriifleed hoodfto ~t1e %at.,
rapporteur CFtes Ln

2014

Ot'te Draft iate pat Mkstow rMintain Fu 1t

I tlenreragon of the Conduding Ooservtio infos, n rolebant Foow-up Erur tl Dialogue
go enrmnt agencies and rninislries. report t dt e 5pecia Rappoteur

V. NGO REPORTING PROCESS

There is no doubt that NGOs have held an increasingly prominent role in.- 207

the Covenant reporting process. The Human Rights Committee encourages
NGOs to provide detailed, country-specific reports on States parties whose
reports will be reviewed by the Committee °8 The Committee also invites
NGOs to submit reports to the country task forces in charge of drafting the lists
of issues.20 9 Breakfast or lunchtime briefings are often organized for the
members of the Human Rights Committee so that NGOs can have a personal
dialogue with and provide current information to the members.2'0 NGOs also
are important once the concluding observations have been issued.2 1  Among the
activities in which NGOs are engaged after the issuance of the concluding
observations are reporting the steps taken by the government to the Human
Rights Committee or CESCR, lobbying national government for the effective
implementation of the concluding observations, and raising awareness about the

205. See infra Figure 2.
206. Figure 1 source: Author.
207. See Comm. on the Elim'n of Discrim'n Against Women [CEDAW], Statement by the

Committee on the Elimination ofDiscrimination Against Women on its Relationship With Non-

governmental Organizations paras. 5-7, 45th Sess. (2010), available at

http://www2.ohchr.org/english/bodies/cedaw/docs/statements/NGO.pdf.
208. Office of the U.N. High Comm'r for Human Rights, Report on the Working Methods of

the Human Rights Treaty Bodies Relating to the State Party Reporting Process, para. 112, U.N.
Doc. HRI/ICM/2010/2 (May 10, 2010).

209. Id.
210. Id. para. 117.
211. See generally GUIDELINES, supra note 153.



IND. INT'L & CoMP. L. REV.

212concluding observations through media and other appropriate outlets.
Therefore, at each step of the reporting process, it is important for NGOs to be
actively involved in providing region-specific information.213 Taiwan has a
number of national NGOs with the capacity to provide detailed reports to the ad

214hoc Human Rights Committee. These NGOs are capable of and should be
pro-active in providing useful information in every aspect of the reporting
process.

A. Consulting NGOs

As stated above, the Human Rights Committee welcomes NGO
reports.215 In the case of Taiwan,

It is clear that NGOs and citizens have been pivotal in
mediating international human rights and domestic
constitutional/legal rights. In the course of their rights
advocacies, they have taken commitments as well as
responsibilities to make Taiwan into part of international
human rights community and incorporating these international
human rights laws firmly into the domestic legal soil. What
these NGOs have built is not merely a domestic constitutional
regime providing only domestic constitutional protections for
individual rights. Rather, with their domestic/transnational
natures of agency, they have built an intermediating
transnational/constitutional regime where both international
and domestic human rights laws meet with each other.2t 6

The change has not been easy, but the following commitments by NGOs paved
the way for greater progress in the area of human rights.

In the late 1980s NGOs began pushing for the enactment of the
Convention on the Rights of the Child (CRC).217 These NGOs asked the
government to formally recognize the CRC and to enact or revise domestic laws
in accordance with its provisions.2 1 8 Their demands were heard, and the

212. Id. at 14-15.
213. See generally id.
214. Infra note 225. For detailed information regarding NGOs in Taiwan, see Ministry of

Foreign Affairs, About NGO Affairs Committee, TAIWANNGO.TW,

http://www.taiwanngo.tw/english/about.asp (last visited Jan. 14, 2012).
215. See CEDAW, supra note 207.
216. Chang, supra note 8, at 229.
217. Chang, supra note 8, at 222-23. Among these NGOs are the Garden of Hope

Foundation, Taiwan Branch of the International Campaign to End Child Prostitution in Asian
Tourism (ECPAT Taiwan), Taipei Women's Rescue Foundation (TWRF), and the Rainbow
Project of the Presbyterian Church in Taiwan. Id. at n.59.

218. Chang, supra note 8, at 222-23.

[Vol. 22:1



ADOPT & FuNcTN OF INT'L INSTS

Government of Taiwan amended its Child Welfare Act2 19 to reflect many of the
CRC principles embodied. 220 This ultimately led to full compliance with the
CRC in 1993.221

[T]he CRC has since occupied a prominent normative status
regarding rights of the child. In all subsequent legal processes,
whenever relevant laws were to be made or amended, the CRC
has been always referred to and even served as a firm ground
for such legal change. Even the Constitutional Court referred
to it twice in constitutional interpretations related to children's
rights.222

In August 2004 numerous NGOs joined forces, forming a league for
promoting the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW).223 The League pressed the issue of CEDAW
accession with the Government of Taiwan, and on January 5, 2007, the
Legislative Yuan passed the accession.224 This NGO coalition was also key in
lobbying the government for its initial state report, which was published in
March 2009.225

The increased involvement of NGOs in lobbying the Taiwanese
government to ratify these agreements should continue under the Taiwan
Act.226 It is also highly important that Taiwanese NGOs be actively involved in
providing relevant information regarding the Covenants.227

219. Ertong ji Shaonian Fuli yu Qianyi Baozhang Fa (
[Children and Youth Welfare Act] (amended May 12, 2010) (Taiwan).

220. Chang, supra note 8, at 222-23.
221. Id.
222. Id. See also Int'l Campaign to End Child Prostitution in Asian Tourism, [O]rigin and

History, ECPAT TuAWAN, http://www.ecpat.org.tw/english/history.htm (last visited Jan. 14,
2012) (discussing issues relating to children's rights).

223. Chang, supra note 8, at 225. These included NATWA, the Awakening Foundation, the
Taipei Chapter of the Awakening Foundation, Chang Fo-Chuan Center for the Study of Human
Right, Human Rights Program Center at Soochow University, Women's Research Program
Center at National Taiwan University, ECPAT Taiwan, Taiwan Women's Film Association, the
Garden of Hope Foundation, and the Taiwanese Feminist Scholars Association. Id.

224. Id. at 226 & n.82
225. Id.
226. "These NGOs and citizens ... advocated much more strongly for treaty accessions as

well as domestic statutory incorporation. Even after the attempts at accession failed, these NGOs
continued pressing the government to voluntary compliance with the treaties and incorporation
into domestic laws. In the course of their rights advocacies, these NGOs and citizens have
become much more informed, more transnational in their knowledge and connections, and last
but not the least, pivotal in mediating transnational /constitutional norms." Id. at 228.

227. See generally GUIDELINES, supra note 153.

2012]



IND. INT'L & CoMP. L. REV.

B. Follow-up Procedures and NGO Involvement

Once the concluding observations have been issued, "[t]he [Human
Rights] Committee may request the State party to give priority to such aspects
of its concluding observations as it may specify. ''228 Regarding "such aspects,"
the Special Rapporteur for follow-up on concluding observations, Sir Nigel
Rodley, has suggested:

Once the follow-up information has been received by the
Special Rapporteur, he undertakes an assessment, with the
assistance of the Secretariat, by carefully analysing whether all
the recommendations of the Committee which were selected
for follow-up have been addressed by the State party. Based
on this assessment, the reply is classified as incomplete,
partially incomplete or complete. Where information from
non-governmental organizations is available, it is also taken
into consideration in the Special Rapporteur's assessment.
Currently, most follow-up information provided is classified
as partially incomplete and, based on such finding, the Special
Rapporteur sends a letter to the State party requesting
additional information, detailing the exact information needed
by the Committee. A draft letter is provided by the
Secretariat.

2 29

It is therefore important that NGOs are involved in the follow-up process, not
only to fulfill reporting obligations but also to inform the public of Covenant
challenges.

The Special Rapporteur classifies the State follow-up information
according to the following five categories: (1) "Largely satisfactory," (2)
"Cooperative but incomplete," (3) "Recommendation(s) not implemented," (4)
"Receipt acknowledged," or (5) "No response., 230 Basically, the Special
Rapporteur should remain in contact with a State until the next periodic report
is due, and that State's cooperation should be noted in the next concluding
observations. 23' NGOs should also maintain contact with the State and Special
Rapporteur so they may provide relevant information to the public.
Communications between the Special Rapporteur and the States parties are
published on the High Commissioner for Human Rights website, and it is

228. U.N. Human Rights Comm., Rules of Procedure of the Human Rights Committee, R.
71(5), U.N. Doc. CCPR/C/3/Rev.8 (Sept. 5, 2005).

229. Paper of the Special Rapporteur for Follow-up on Concluding Observations:
Strengthening of the Follow-up Procedure, para. 5, U.N. Doc. CCPR/C/CCPR/C/95/3 (July 2,
2009) (emphasis added).

230. Id. para. 32.
231. Seeid. paras. 31,33.

[Vol. 22:1



2012] ADOPT & FUNCTN OF INT'L INSTS 187

important for NGOs to be aware of these communications and to transmit this
information to the relevant authorities and media outlets.232 The website
contains country specific information as well as follow-up information for all
States parties.233 Equally as important, Taiwan must be aware of the

communications of the ad hoc Rapporteur in order to aid in appropriate
lobbying of relevant governmental bodies. 34 The Government of Taiwan
should maintain a similar website so that stakeholders may be aware of
similarly relevant information.

Additionally, the UN Office in Geneva maintains a website that contains
press releases and meeting summaries. 235 These summaries are fairly
comprehensive and are valuable for NGOs who cannot attend Human Rights
Committee sessions.236 This Note suggests Taiwan have a similar media outlet
so that NGOs and media outlets may stay current with issues during the
reporting to the ad hoc committees.2 37 Below is a chart reflecting the suggested
NGO reporting timeline.238

AD HOC COMMITTEE REPORTING PROCESS
Taiwan NCO Partiipation

2 S fef HhDra33. Rigto is OcrLis'ofRIGes,

20 lI)

2012)..

232 Ma.n of ra ine4.

234. Lobbying activities have been seen as an important means to ensure Covenant rights.

See GUIDELINES, supra note 153, at 15.
235. See U.N. Office at Geneva, Press Releases & Meeting Summaries, UNOG,

http://www.unog.ch/80256EDDOO6B9C2E/%28httpPages%29/CBD30 1FF98AF69B980256EE

700376D86?OpenDocument&count=10 (last visited Jan. 14, 2012).

236. See id.
237. Currently, a non-profit umbrella organization called "Covenants Watch" maintains

updates on Covenant activities. See COVENANTS WATCH, http://covenants-watch.blogspot.conl
(last visited Jan. 14, 2012).

238. Figure 2 source: Author.



IND. INT'L & CoMP. L. REv. [Vol. 22:1

VI. MAKEUP OF THE AD Hoc COMMITTEE(S) 239

Articles 28 and 31 of the ICCPR refer to the composition of the Human
Rights Committee. 240 Article 28 states that the eighteen-member Committee
"shall be persons of high moral character and recognized competence in the
field of human rights, consideration being given to the usefulness of the
participation of some persons having legal experience. 24 1 In addition, Article
28 provides that Committee members serve in their personal capacity and not
on behalf of a country.242 The Secretary-General of the UN invites States parties
to submit nominations for Human Rights Committee membership.243 The
Secretary-General then submits a list of the nominees to the current Committee
for a vote.244 Article 31 states that "[t]he Committee may not include more than
one national of the same State" and, further, that "consideration shall be given
to equitable geographical distribution of membership and to the representation
of the different forms of civilization and of the principal legal systems. 245

The UN Economic and Social Council (ECOSOC) created the CESCR to
246 rsltomonitor ICESCR implementation by State parties. ECOSOC resolution

1985/17 states that "[t]he Working Group established by [ECOSOC] decision
1978/10 and modified by Council decision 1981/158 and resolution 1982/33
shall be renamed 'Committee on Economic, Social and Cultural Rights.' ' 247

The renamed committee should have eighteen human rights experts elected for
a term of four years248 by the Council from nominees submitted by States

249parties. Similar to the Human Rights Committee, the CESCR shall give due
consideration "to equitable geographical distribution and to the representation

239. Ideally, there would be two committees -one for the ICCPR and one for the ICESCR.
But see Dommen, supra note 184, at 483 ("What is needed, in my opinion, is the consolidation
of the six committees into two bodies: one with power to review country reports under all six
treaties, the other to deal with individual communications under the treaties that confer such
jurisdiction.").

240. See ICCPR, supra note 4, arts. 28, 31.
241. Id. art. 28, para. 2.
242. Id. art. 28, para. 3.
243. Id. art. 30, para. 2.
244. Id. art. 30, para. 3.
245. Id. art. 31, paras. 1-2. Considering the requirements of article 31, the so-called

Presidential Office Human Rights Consultative Committee cannot be the body that reviews the
implementation of the Covenants. This body is there to "implement the covenants" and not to
oversee the review of the implementation. Consultative Committee, supra note 168.

246. U.N. Econ. & Soc. Council Res. 1985/17, Review of the Composition, Organization
and Administrative Arrangements of the Sessional Working Group of Governmental Experts on
the Implementation of the International Covenant on Economic, Social and Cultural Rights,
pmbl., para. a, 22nd plen. mtg., May 7-31, 1985, ECOSOC, Supp. No. 1, U.N. Doc. E/I985/85,
at 15 (May 28, 1985).

247. Id.
248. Id. para. c(i).
249. Id. para. b.



ADOPT & FuNcTN OF INT'L INSTS

of different forms of social and legal systems. 25°

For Taiwan, this Note recommends that an ad hoc coalition of both
international and domestic academics and NGOs convene to prepare a list of
nominees for one or more ad hoc committees. This list, along with the curricula
vitae of nominated parties, should then be voted on by the ad hoc coalition,
resulting in around twenty members for each ad hoc committee.

Rule 17 of the Rules of Procedure of the Human Rights Committee states
that the "Committee shall elect from among its members a Chairperson, three
Vice-Chairpersons and a Rapporteur." 251 These officers are normally elected for
a term of two years, but this Note recommends that the ad hoc committee
officers be elected for four years to account for the time it will take Taiwan to
go from initial report to follow-up report. 2 The procedures also provide for
Human Rights Committee appointed special rapporteurs.253 These rapporteurs
may have the specific function of communications under the Optional
Protocols, which does not apply to Taiwan.254 The third rapporteur is in charge
of the follow-up to the Concluding Observations, which is crucial to the
reporting process.255 Ultimately, Taiwan's ad hoc committee should mirror as
much as possible the composition of the Human Rights Committee and the
CESCR.

A. Duty to Create and Importance of the Ad Hoc Committee(s)

The purpose of the meeting with the reporting State is to "establish a
constructive dialogue between the Committee and the State Party."256 The
Human Rights Committee and the CESCR are neither judicial nor quasi-
judicial but are there to "assist States Parties in fulfilling their obligations under
the Covenant, to make available to them the experience the committee has
acquired in its examination of other reports and to discuss with them any issue
related to the enjoyment of the rights enshrined in the Covenant., 257 The ad hoc
committee too should exist to engage representatives in fruitful dialogue.58

The Human Rights Committee has noted that its task is to "supervise and
monitor the implementation of Covenant obligations by States parties.''

259 Since

the Committee is made up of actors from all over the world, there is no "single

250. Id. para c(ii).
251. U.N. Human Rights Comm., supra note 228, R.17.
252. Id. R.18.
253. Id. R.95(3).
254. Id. R.101.
255. Id. R.97.
256. Manual, supra note 11, at 262.
257. Id.
258. Id.
259. Office of the U.N. High Comm'r for Human Rights, Civil and Political Rights: The

Human Rights Committee 14, Fact Sheet No. 15 (May 2005),
http://www.ohchr.org/Documents/Publications/FactSheetl 5rev. I en.pdf.

2012]



IND. INT'L & COMP. L. REv. [Vol. 22:1

geographical or national perspective, the Committee speaks with a global
voice., 260 Similarly, Taiwan should strive to have an ad hoc committee made up
of international actors with specialties in human rights;261 the intent being to
mirror, as much as possible, the philosophy of the Human Rights Committee
and the CESCR.262

B. Lessons from the CEDA WAd Hoc Committee

In Taiwan, the CEDAW was ratified by the Legislature and signed by the
President in 2007.263 Professor Wen-Chen Chang notes that the accession "was
passed by an overwhelming parliamentary majority .... The first official
State CEDAW report was published in March 2009 and addressed the

261substantive articles in the Convention, including an overview of the island.
Further, an international symposium was organized with the aim of having
independent experts examine the reports, much like if a state were to submit its
report to the CEDAW in Geneva.266 The three ex-CEDAW committee members

267were invited to this symposium and published their findings. Taiwan should
use a similar approach but should include more committee members.2 68 As with
the ad hoc committee's membership and philosophy, this Note recommends

269that Taiwan aim to mirror the procedure of the UN committees.

260. Id.
261. This Note accepts that the current system of reporting to the UN is sufficient. But see

Dommen, supra note 184, at 483 ("In short, the current UN treaty body system with its six
committees, ranging in size from ten to twenty-three members, and a mandate calling for the
administration of six human rights treaties with frequently overlapping human rights guarantees,
is every day less able to discharge its responsibilities.").

262. Taiwan's previous experience with the CEDAW ad hoc committee was less than ideal;
the Committee had only three members. See NAT'L ALLIANCE OF TAIwAN WOMEN'S Assoc'NS,

http://www.natwa.org.tw/ (last visited Jan. 14, 2012).
263. Id.
264. Id. at221.
265. Id.; Initial Report ofRepublic of China (Taiwan), CEDAW, (Mar. 25, 2009), available

at http://www.womenweb.org.tw/doc/CEDAWInitialReport.pdf.
266. Chang, supra note 8, at 226.
267. See Dr. Anamah Tan et al., Findings of the Taiwan CEDA W Committee, FOUND.

WOMEN RTS. PROMOTION & DEv. (Mar. 27, 2009), http://wrp.womenweb.org.tw/
Uploads/%7B 18F51 0E4-B8B8-4920-8F7D- 12F8EE2189CE%7D_
CEDAW%E5%BD%99%E6%95%B4NEW+%E6%A2%9D%E6%96%87.pdf.

268. Taiwan had three foreign experts, but the CEDAW is comprised of 23 experts. For a
general discussion regarding the CEDAW committee, see Hanna Beate Schdpp-Schilling, Treaty
Body Reform: The Case of the Committee on the Elimination ofDiscrimination Against Women,
7 HuM. RTS. L. REv. 201 (2007).

269. In addition, the Human Rights Committee has often emphasized the importance of civil
society input. See GUIDELINES, supra note 153, at 12.



ADOPT & FUNCTN OF INT'L INSTS

VII. CONCLUDING REMARKS

Before the Law stands a doorkeeper. To this doorkeeper there comes a
man from the country who begs for admittance to the Law. But the doorkeeper
says that he cannot admit the man at the moment. The man, on reflection, asks
if he will be allowed, then, to enter later. "It is possible," answers the
doorkeeper, "but not at this moment. "270

- Franz Kafka, Before the Law

Taiwan pays a high level of respect to the human rights of its citizens, and
making its laws conform to higher human rights standards is at the forefront of
judicial activity. 271 The Constitutional Court notes that "[t]he maintenance of
personal dignity and the protection of personal safety are contained in the
Universal Declaration of Human Rights, and are also two of the fundamental
concepts underlying [Taiwan's] constitutional protection of the people's
freedoms and rights. 272 Referencing and incorporating international
instruments in Taiwan is not a new concept. 273 In a single Interpretation, the
Constitutional Court reference the Sixth Amendment to the United States
Constitution, Article 37-I1 of the Japanese Constitution, Article 304 of the Code
of Criminal Procedure of Japan, Article 239 of the Code of Criminal Procedure
of Germany, Article 6-III(iv) of the European Convention for the Protection of
Human Rights and Fundamental Freedoms, and Article 14-111(e) of the
International Covenant on Civil and Political Rights. 274 Other Interpretations
reference Article 5 of the European Convention for the Protection of Human
Rights and Fundamental Freedom, Article 9 of the International Covenant on
Civil and Political Rights, and Article 7 of the American Convention on Human
Rights.275 Such references have helped legitimize international instruments in

276
Taiwan's domestic legal system.

Since Taiwan is of a civil law tradition, it should grant at least an equal
normative status to human rights treaties like the ICCPR and ICESCR.277 There
should be no "question of the supremacy of one system of law over the other"
because each is "supreme in its own sphere. 2 78

But human rights law, indeed, may be superior to the Taiwanese legal

270. Franz Kafka, "Before the Law, " The Trial, reprinted in LAW AND LITERATURE: TEXT

AND THEORY 255 (Lenora Ledwon ed. 1996).
271. See History, JUD. REFoRM FOuND, http://www.jrf.org.tw/newjrf/english.htm (last visited

Jan. 14, 2012). The Judicial Reform Foundation "aims to reform and improve the judicial
system." Id.

272. J.Y. Interpretation No. 372 (Feb. 24, 1995) (emphasis added).
273. See supra Part II.
274. J.Y. Interpretation No. 582 (July 23, 2004).
275. See, e.g., J.Y. Interpretation No. 392 (Dec. 22, 1995).
276. See supra note 139-50 and accompanying text.
277. Waters, supra note 74, at 641.
278. Slyz, supra note 107, at 68.

2012]



IND. INT'L & COMP. L. REV.

order.279 Since "no theoretical barrier exists to applying international law,' 28°

the Taiwanese legislature, through the Taiwan Act, should be bound by the
requirements of the ICCPR and ICESCR in enacting legislation. 281 The next
four years are crucial for Taiwan to prove its commitment to the Covenants.

The incorporation of the ICCPR and ICESCR into domestic law has
provided Taiwan with an exciting opportunity to hold itself accountable for
human rights issues and to realize further protections of human rights already
enjoyed to a large extent by Taiwanese citizens.282 This Note has legitimized
Taiwan's domestic implementation of these international human rights
instruments 283 and has given suggestions for proper reporting procedures under
each Covenant's mandate.284 Already, the commitments of Taiwan's
Constitutional Court, legislature, NGOs, and stakeholders have been pivotal in
imbedding international human rights norms into the domestic legal
landscape.285 The formation of ad hoc committee(s) in conjunction with other
foreign experts can facilitate a fruitful and constructive dialogue between these
actors so that the human rights situation in Taiwan may become even
stronger.286 The international community should, indeed must, respect this
implementation and provide its honest scrutiny of the ongoing implementation
of Covenant rights into Taiwanese domestic law.

279. Id. at 67-68.
280. Id.
281. Id.
282. For current information regarding the Covenants in Taiwan, see COVENANTS WATCH,

supra note 238.
283. See supra Parts II, III.
284. See supra Parts IV, V.
285. Chang, supra note 8, at 229.
286. See id.

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