Taiwan recently concluded the third independent review by leading current and former United Nations experts of its compliance with international human rights standards, building on the experience of previous sessions in 2012 and 2017. The process is tailored to Taiwan’s circumstances as a non-member state of the U.N. that has nonetheless incorporated several key U.N. human rights conventions into its domestic law, even though it is not recognized as a state party to these instruments.
The review’s results acknowledged Taiwan’s efforts to comply with international standards, while also critiquing its record on issues such as the death penalty, torture, gender equality, broader forms of discrimination, the status of indigenous peoples, and the rights of migrant domestic workers (especially given the greater burdens on caregivers in the wake of the COVID-19 pandemic). The findings highlight how Taiwan continues to struggle with several major outstanding issues in its still-incomplete processes of democratic transition and transitional justice related to the persistent legacies of abuses under the authoritarian, one-party rule of Chiang Kai-Shek and his Kuomintang (KMT, or Nationalist party) successors in Taiwan between 1949 and 2000.
A Tailored Review Process
The international review process was triggered by Taiwan’s 2009 ratification of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural rights (ICESCR) as part of the overall process of incorporating human rights norms into its domestic law. This is notable both because Taiwan is not recognized by the U.N. as a state party to these covenants, and because of the review’s methodology. Key differences between these reviews and those conducted for U.N. members include the location of the reviews in Taiwan, rather than at U.N. headquarters in Geneva and New York, as is customary.
The review was devised as a joint initiative of government officials, civil society organizations, and international and national experts to fill the vacuum in human rights monitoring that results from its exclusion from the U.N. system. Relevant documents (including lists of issues to be discussed, plus government and civil society inputs and responses) were posted in advance or during the review’s public hearings. All of the public components of the review were live-streamed and posted on YouTube, and included Mandarin/English simultaneous interpretation throughout three full days of sometimes marathon sessions.
The proceedings included extensive questioning by international expert members of the review committee (from Germany, Canada, New Zealand, the Philippines, Indonesia, and South Korea), and dialogue with government officials, civil society representatives, and the local human rights advocates, together with opening and closing press conferences (called both by officials and by participating groups). Unfortunately, however the sessions themselves were not widely publicized and generally drew a maximum of dozens of viewers at any one time.
This year’s review was focused on the two core covenants. This will be complemented by forthcoming reviews focused on the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which Taiwan has ratified, and on three others that Taiwan has incorporated into its domestic laws: the Convention on the Elimination of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the Convention on the Rights of Persons with Disabilities (CRPD).
Colonialist History
As much of the world focuses on the war in Ukraine and its increasingly globalized impact, superficial analogies are often drawn between Ukraine and Taiwan in terms of their potentially convergent vulnerabilities to Russian and Chinese pressures, respectively. Additional factors that often prompt comparisons include each country’s positioning as to Western interests and models related to their consolidation as democracies and their human rights records.
But Taiwan has unique complexities in each of these dimensions. Everything is shaped — and ultimately distorted — by the island’s unsettled relationship to the People’s Republic of China as an autonomous yet unrecognized political community. At least 1 million mainlanders fled to Taiwan when it became the site of the KMT’s government-in-exile as the losing side in the country’s bitter civil war, following the October 1949 victory of Mao’s People’s Liberation Army, which established control by the new communist régime in the rest of China. Since then, Taiwan’s official name, constitution, and flag have been that of the pre-revolutionary Republic of China (ROC), which traces its lineage and legitimacy to Sun Yat-Sen as founding father of the first Chinese republic in October 1911, on a date (October 10, known as “Double Ten”) still celebrated as the most important national holiday.
Many Taiwanese scholars and indigenous rights advocates have argued, additionally, that contemporary issues regarding the human rights of Taiwan’s native peoples of Austronesian origin (as in much of the neighboring Pacific region), must be understood within the context of multiple, enduring colonial, neo-colonial and even “settler-colonial” legacies. These include initial attempts at Portuguese exploration (and its naming, at first, as “Formosa”) followed by Spanish domination of portions of the island in the mid-1600’s, who were soon displaced by the Dutch, who promoted initial settlement from the mainland. Taiwan was gradually incorporated into Chinese imperial rule during the Ming and then the Ch’ing dynasties (between 1683 and 1895) through military conquest and more intensive migration from the mainland, followed by an additional layer of Japanese colonial rule (as in Korea) between 1895 and 1945.
All of this is, in turn, entangled with the pervasive legacies of Chiang Kai-Shek and the KMT. This includes the longest period of martial law in the modern world (known as the “White Terror”), first imposed in March 1947 following the bloody suppression of a rebellion against KMT rule, resulting in the deaths of thousands. These measures were not fully lifted until November 1992. For many of the island’s inhabitants, the KMT essentially became a vehicle for domination of Taiwan by exiles from the mainland, as key sectors of the opposition began advocating independence for the island, instead of reunification, which was the KMT’s ostensible objective.
This historical setting is especially striking today given Taiwan’s arduous, courageous repositioning during the last 30 years as a thriving liberal democratic, capitalist society. Taiwan stands out positively in Asia on key dimensions such as political pluralism and gender equality, and as the only country in the region that recognizes marriage equality (although it still limits adoptions by LGBTQ couples in certain cases).
Public opinion has increasingly swung in the direction of political autonomy for the island rather than absorption into the PRC along lines similar to those of Hong Kong (in the latter’s case, theoretically within the framework of “One Country, Two Systems”). This trend in public opinion has deepened following increasing repression in Hong Kong over the last two years. There are also increasing calls for Taiwan to complete its dual transition processes with a new constitution, as was done in Spain and is currently underway in Chile.
The ROC was a founding member of the U.N. in 1945, and holder of China’s permanent seat on the Security Council until a General Assembly resolution in October 1971 awarded this seat to the PRC. The United States maintained diplomatic relations with the ROC until 1979, when they were shifted to the PRC pursuant to the “One China Policy,” which acknowledges but does not endorse the PRC’s position that Taiwan is an integral part of China. The ROC has become increasingly isolated since then, with diplomatic recognition remaining, often due to PRC pressure, from only a handful of states (13 currently, plus the Vatican/Holy See), although the island has maintained strong informal relations with the United States and others. This is, of course, a crucial issue as fears and speculation regarding a possible Chinese invasion have intensified in Taiwan and internationally, and as questions arise as to whether and how the United States would respond.
A Legacy of Authoritarian Rule
The KMT, during the time it was backed by the United States, shared many characteristics with similar authoritarian, right-wing dictatorships elsewhere in Asia (for example in South Korea, and under Ferdinand Marcos and Suharto in The Philippines and Indonesia), and in the Global South. Convergences of this kind are especially notable between Taiwan and repressive regimes that the United States supported in Latin America during the same period – for example Colombia, Guatemala, Honduras, El Salvador, Nicaragua, the Dominican Republic, Paraguay, Brazil, Chile, and Argentina. Several of these, not surprisingly, have been among Taiwan’s most dependable diplomatic allies and trade partners. Chiang Kai-Shek’s role as an authoritarian leader and that of the KMT between 1925 and 1975 have also been compared to the case of Francisco Franco and the Falangist regime in Spain, during an overlapping period. All of these, along with Taiwan, are also key cases of democratic transition and transitional justice.
Taiwan became a key player in the Cold War during this period as a bastion of anti-communist rule and activism. It supported, for example, research and collaboration with apartheid-era South Africa and Israel in their convergent pursuit of nuclear weapons and provided military and paramilitary training in Taiwan at its notorious Political Warfare Cadres Academy (PWCA) for security operatives from dictatorships in Guatemala, El Salvador, and Panama.
Issues highlighted for reiterated concern in each of Taiwan’s international human rights reviews since 2012 often stem from the legacies of the authoritarian KMT regime. This includes the failure to abolish the death penalty, which continues to be imposed despite a sharply diminished number of executions, and whose widespread abuse upon the direct instructions of Chiang Kai-Shek was a key characteristic of the martial law era. That may have included as many as 45,000 executions, mostly extrajudicial, during the harshest period of repression in the 1950’s. Many of those targeted were indigenous opposition activists, at least in part because of assumptions about their greater degrees of likely supposed disloyalty or purported “communist” sympathies due to their indigenous identities and/or advocacy of indigenous rights.
Missing Norms in Domestic Law
The Concluding Observations and Recommendations of the international review committee underlined the importance of Taiwan completing its process of incorporating key norms into its domestic law, by adding the three conventions – the Convention Against Torture, the Convention on Migrant Workers, and the Convention on Enforced Disappearances. The committee also reiterated the need to explicitly prohibit torture in Taiwan’s criminal code and to address two other crucial vacuums that had also been stressed in previous reviews: Taiwan lacks an overall law regarding non-discrimination (despite the ratification by the ROC of CERD and of the Genocide Convention), and a law regulating issues of refuge and asylum, which is especially crucial as increasing numbers flee to Taiwan from Hong Kong (and previously from Tibet). The review committee also urged Taiwan to issue a declaration (pursuant to Article 12 of the Rome Statute) recognizing the jurisdiction of the International Criminal Court, as both Ukraine and Palestine have done.
Taiwan’s failure thus far to incorporate the Convention on Migrant Workers or to adopt a domestic workers protection law is of additional concern given the vulnerability of these workers — many of them women who provide crucial long-term services to the elderly and disabled — to adverse, discriminatory measures related to the pandemic. Their precariousness is further underlined by their low pay, lack of union representation, and the subordination of their bargaining power to the interests of the governments of their home countries because of Taiwan’s reliance on a Philippines-style labor-export model.
Many of these workers are identifiable as observant Muslims because of their dress, and are of Southeast Asian (primarily Indonesian, Filipino, Malaysian, and Vietnamese) origin, which differentiates them from most of the population in Taiwan and could make them susceptible to forms of discrimination that are not regulated – hence the need to incorporate the convention’s terms into law. The committee also noted the need to bring migrant workers within the protections of Taiwan’s overall system of labor regulation and received multiple reports regarding limitations on migrant workers’ rights to change employment, to obtain permanent residency, and bars to the migration of family members, resulting in the induced separation of families. The committee also noted its concerns regarding widespread reports of abuses against the conditions of labor for fisheries workers. Many of these are also migrants.
The committee’s overall concerns regarding the rights of indigenous peoples in Taiwan were framed in especially stark terms:
The Review Committee is concerned that land grabbing of indigenous land without free, prior and informed consent continues to take place in Taiwan. Reports from Indigenous Peoples’ organisations and NGOs show the absence of adequate and inclusive procedures in obtaining free, prior and informed consent. This violates the right to self-determination under article 1 of both Covenants, as well as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Without further delay, the Government should review and revise, in cooperation with Indigenous Peoples, the existing mechanisms to obtain free, prior and informed consent in the conceptualising and planning phases of development projects and programmes that affect them. The mechanisms shall include procedures to ensure reparation and return of the land to Indigenous Peoples where necessary… (paragraph 36).
Taiwan formally initiated a transitional justice process in 2018, addressing a complex range of hotly contested issues, within the framework of a still incomplete process. But unfortunately, the international review committee made no specific reference in the conclusions or recommendations to the evident relationship between the unfinished tasks of transitional justice and the serious, persistent human rights violations which it emphasized. The review’s failure to explicitly address- much less explore- this context opens a troubling gap between what should be understood as two complementary domains of an overall architecture of human rights challenges in Taiwan. These must be addressed concretely, in an integral manner, in subsequent reviews.
(The author thanks research assistant Serena Chen for contributions to this report.)