1. Introduction
1.4. Overview of the three indicators
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Chen’s time in office (two terms) was significantly longer than Ma, still in his first term, Chen was limited by an obstructive legislature while Ma has a KMT super majority. Nevertheless, this time difference will be taken into account and projections as to future developments will be considered.
1.4. Overview of the three indicators
Human rights are not a new concept. Earlier annunciations of human rights standards can be found in such famed documents as the French Declaration of the Rights of Man and of the Citizen and the American Declaration of Independence. Overtime, more and more states considered it important to make reference to the principles of human rights in their constitutions. The events of World War II, however, resulted in an international effort to ensure the protection of human rights and from this time, the international legal regime through the United Nations have vigorously pursued this.
Some states were quick to adopt and implement this newly internationalized concept, while others ignored these international developments. As for Taiwan, Neary states:
“Until 1987/88 merely to mention human rights was equivalent to criticizing the government, practically the language of traitors, an attitude which has not completely disappeared.”2 Thus, in any study of human rights in Taiwan it is important to be aware of its historical background and political development.
Under the international human rights regime, there exists a set of universal standards that must be met by governments. These universal standards – human rights – should apply to all and protect the weakest in each state but this is often not the reality. The international human rights standards, set out in the ICCPR, its protocols and the ICESCR require states to carry out implementation of the treaties and ensure
protection of the human rights set out within those documents. National human rights bodies are an effective means of protecting these standards. Furthermore, considering the death penalty as an extreme denial of the fundamental right to life, efforts to abolish capital punishment are enshrined in the ICCPR and the Second Protocol.
2 Neary, I. 2002. Human Rights in Japan, South Korea and Taiwan. London: Routledge. p. 113
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1.4.1. Implementing international human rights standards
“The ICCPR is more than just a listing of rights” cites the American Bar Association.
“The drafters – delegations of states’ representatives – agreed that a central obligation of the ICCPR would be the implementation of its provisions at the national level.”3 The present international system relies heavily on state enforcement of these
principles. Some states have positively acted to ensure the protection of human rights in their jurisdictions while others, have not acted and continue to flaunt international law and violate their citizens’ human rights. Notwithstanding, Taiwan’s unique international status and exclusion from many international bodies, there are no limitations on the unilateral domestic implementation of international human rights standards. While historically, Taiwan’s record on human rights particularly under its authoritarian regime was a blight, Taiwan’s isolation has arguably contributed to its democratic improvements in the last twenty years. Indeed, Chen states: “Many areas of human rights law and practice have been reformed in Taiwan in the era of
democratization, including criminal procedure, police powers, administrative
procedure, and the freedoms of speech, assembly and association.”4 Therefore, it can be seen that Taiwan has moved towards the promotion and protection of human rights within its borders in several areas, albeit in incremental steps and in the absence of comprehensive human rights policy prior to 2000. Although Lin considers Taiwan’s non-recognition an incapacity to participate in the international system for the
protection of human rights, Taiwan is not domestically so limited and can unilaterally implement international standards.5
1.4.2. The importance of NHRCs
Smith states: “[National Human Rights Institutions] play a crucial role in promoting and protecting human rights in a wide variety of ways.”6 She cites their abilities to monitor rights situations, handle complaints, audit laws, make recommendations to the government, train personnel and create public awareness as among their
3 Central European and Eurasian Law Initiative, 2003. ICCPR Legal Implementation Index. Washington:
American Bar Association. p. 1
4 Chen, A.H.-Y. 2006. Conclusion: Comparative reflections on human rights in Asia. In Peerenboom, R., Petersen, C.J. and Chen, A.H.-Y. (Eds) Human Rights in Asia: A comparative legal study of twelve Asian jurisdictions, France and the USA. London: Routledge. p. 497
5 Lin, F.C.-C. 2006. The Implementation of Human Rights Law in Taiwan. In Peerenboom, R., Petersen, C.J. and Chen, A.H.-Y. (Eds) Human Rights in Asia: A comparative legal study of twelve Asian jurisdictions, France and the USA. London: Routledge. p. 315
6 Smith, A. 2006. The Unique Position of National Human Rights Institutions: A mixed blessing? Human Rights Quarterly, 28:4 904-946. p. 905
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noteworthy features. Furthermore, Smith points out their distinctive role in society, which she sees as a position in between government and civil society, independent of both and critical to their success.
International guidelines that outline a minimum set of standards for national human rights commissions (hereafter, NHRCs and also known as national human rights institutions NHRIs) have been agreed to by the United Nations. The ‘Paris Principles’
as they are known7 state that a mandate as broad as possible is desired. Specifically, NHRCs should possess the following capabilities: the capacity to monitor the domestic human rights situation, the duty to advise the government on human rights proposals and/or violations, powers to link with international human rights bodies and, a role to educate and inform the public of human rights obligations. There exists also the option of having quasi-judicial powers; however of these, Kjaerum states:
“Whereas an institution can hardly be recognized as fulfilling the Paris Principles if one of the first four elements is left out of its mandate, it is facultative to give it the mandate to hear and consider individual complaints and petitions.”8 Therefore, this fifth power is technically optional, yet the Human Rights Commission states it is increasingly seen as the norm and preferred for NHRCs to possess this mandate as well.9 The Paris Principles set out comprehensive guidelines for country’s planning to establish a NHRC. In 1990, only eight countries possessed such bodies but by 2002, this number has risen to 55.10
Mohamedou states:
“An NHRI has the possibility of effecting positive change. Even national institutions established for cosmetic purposes can transcend the limitations initially imposed upon them. This transformative effect on the broader society
7 Approved by General Assembly Resolution 48/134 (20 December 1993)
8 Kjaerum, M. 2003. National Human Rights Institutions Implementing Human Rights. Copenhagen: Danish Institute for Human Rights. p. 7
9 Declaration and Programme of Action. 2000. UN World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, paragraph 90
10 Kjaerum, M. 2003. p. 5
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is in fact vital to the inculcation and perpetuation of human rights awareness.”11
Given that NHRCs have such potential, they clearly have a valuable role to play. Such a role, though, is not secure without certain conditions being met. These include legitimacy, accessibility, networking ability and importantly, independence, factors which Mohamedou has examined extensively.12 Furthermore, Smith supports this argument and states: “These questions of independence go to the very heart of the debate about the effective functioning of a NHRI and highlight the difficulty for NHRIs in defining and protecting their space.”13 Particularly, in countries in periods of political change, those undergoing democratic transition and those trying to consolidate such reforms a NHRC can be a very effective tool.
1.4.3. International death penalty trends
Internationally, the situation of the death penalty and its continued use is one of decline. A majority of the world’s states have considered it necessary to prohibit its use and it is considered possible that international opinion and pressure could
eventually bring an end to executions throughout the world;14 however, this issue still sparks controversy and is by no means settled. Dieter states:
“Gradually, in the course of social evolution, a consensus forms among nations and peoples that certain practices can no longer be tolerated. Ritual human sacrifice is an example; slavery, too, has been largely abandoned;
physical torture is widely condemned by most nations. Vestiges of these practices may continue, but those are aberrations that further underscore the fact that the world has turned against these practices.”15
Clearly, Dieter is an abolitionist but his view draws on a common conception that capital punishment is barbaric and antiquated and scholars draw on statistics that
11 Mohamedou, M.-M. 2000. The Effectiveness of National Human Rights Institutions. In Lindsnaes, B., Lindholt, L. and Yigen, K. (Eds) National Human Rights Institutions: Articles and Papers. Copenhagen: The Danish Centre for Human Rights. p. 58
12 Ibid.
13 Smith, 2006. p. 912
14 Dieter, R.C. 2002. The Death Penalty and Human Rights: U.S. Death Penalty and International Law. Oxford Roundtable. [Online] www.deathpenaltyinfo.org/Oxfordpaper.pdf [Accessed 7 May 2010] p. 1
15 Ibid.
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indicate a movement away from the death penalty. Hoods states: “The average rate at which countries have abolished the death penalty has increased from 1.5 (1965-1988) to 4 per year (1989-1995), or nearly three times as many.”16 From 1989 to 1998, change in the number of abolitionist states was impressive. Dieter recalls that while in 1989 a mere 45 states had abolished capital punishment, that figure has risen to 88 in 1998 and when added to those de facto abolitionist at the time, it reached 110 states around the world.17 These statistics reveal a trend but fail to take into account three significant exceptions: the United States, Islamic countries and Asia. Johnson and Zimring state: “Asia should be important to students of capital punishment, therefore, for the same reason that Hawaii is of interest to volcanologists: because that is where the action is.”18
Under international law, the status of the death penalty is divided. The ICCPR does not categorically prohibit the death penalty. Article 6 protects against the arbitrary deprivation of life and does expressly ban the carrying out of executions on pregnant women and those whose crimes were committed under the age of 18. For countries, which have not yet abolished the death penalty, the ICCPR restricts it to ‘the most serious of crimes’. Moreover, the ICCPR provides that the right to pardon or commutation of the death sentence must exist. 19 Significantly, the Second Optional Protocol to the ICCPR, which does unequivocally prohibit the death penalty, has not been as widely adopted as the ICCPR generally.
16Hood, R. 1996. The Death Penalty: A World-wide perspective. Oxford: Clarendon Press. p. 8
17 Dieter, 2002. p.2
18 Johnson, D.T. and Zimring, F.E. 2006. Taking Capital Punishment Seriously. Asian Criminology, 1. 89-95, p.
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19 Art. 6 (1),(2),(4),(5) ICCPR