Monday, 15 March 2010

Taiwan and the International Covenant on Civil and Political Rights

In an intriguing development in the realm of international human rights treaties, the Republic of China (that is, Taiwan), attempted to deposit instruments of ratification of the International Covenant on Civil and Political Rights last year. This followed a vote in the Taiwan legislature, on 31 March 2009, by which the two Covenants were ‘ratified’.
The ratification was refused by the depositary, which is the United Nations Secretary-General. In a letter dated 15 June 2009, the UN Under Secretary-General for Legal Affairs, Patricia O’Brien, wrote that the Secretary-General ‘was in no position to accept Taiwan’s ratification because of UN Resolution 2758, which recognizes the People’s Republic of China as the sole and legitimate representative of China’.
Here’s the background. On 5 October1967, the Republic of China signed the International Covenant on Civil and Political Rights . At the time, the ‘Republic of China’ (i.e., Taiwan) occupied the Chinese seat at the United Nations. This all changed with Resolution 2758. It recognized the People’s Republic of China as ‘the only legitimate representatives of China to the United Nations’.
Then, in 1998, the People’s Republic of China declared that it had signed the International Covenant on Civil and Political Rights. The treaty website of the United Nations contains the following declaration of the People’s Republic of China: ‘The signature that the Taiwan authorities affixed, by usurping the name of “China”, to the [Convention] on 5 October 1967, is illegal and null and void.’ But the website of the United Nations continues to list 1967, not 1998, as the date of signature of the Covenant by China.
Here is the text of article 48 of the Covenant:
Article 48

1. The 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
Nations to become a party to the present Covenant.
2. The present Covenant is
subject to ratification. Instruments of ratification shall be deposited with the
Secretary-General of the United Nations.
The problem is that if the People’s Republic of China does not in effect acknowledge the 1967 signature, then the Republic of China remains a signatory to the Covenant and is therefore entitled to ratify it. There is no requirement that a ratifying State be a member of the United Nations. Any signatory State can ratify. General Assembly Resolution 2758 concerns the place of China with respect to the United Nations, and does not seem to contemplate treaties that have an autonomous existence. Isn’t the issue whether the Republic of China was a Member State of the United Nations in 1967, a fact that is confirmed by Resolution 2758? And if that is the case, is it not a State capable of ratifying the Covenant, even if it is no longer a Member State of the United Nations, provided it has legally signed the Covenant.
Is Taiwan a State at all? The question as to what is a State has been debated elsewhere on this blog in recent months with respect to the declaration by the ‘State’ of Palestine pursuant to article 12(3) of the Rome Statute.

1 comment:

Harlan said...

Serbia/Kosovo, and Israel/Palestine present a similar set of problems. It isn't enough to simply affirm the obligation of "all parties" to respect international human rights law. In some instances, an unrecognized entity may need to pursue a judicial remedy when violations of the rights guaranteed under the International Covenant on Civil and Political Rights occur that give rise to criminal responsibility. See for example the Report of the Independent Fact Finding Committee On Gaza: No Safe Place, para 429

When the General Assembly adopted "Definition of Aggression", UN GA Res. 3314 (XXIX) (1974), it provided that communities may not be targeted for aggression or threats under the color of law by parties which label them as "unrecognized". According to the General Assembly, any entity which is the target of aggression may be legally termed a State - without regard to recognition or UN membership - and benefit from the protections contained in article 2(4) of the UN Charter.

Professor James Crawford recently argued that we are all subjects of international human rights law, but that to be a subject of international law says nothing at all about the content of our rights and duties. He observed that "It would be odd if human groups were given status as subjects precisely to deny them capacity to become really effective subjects, that is, States." See CR 2009/32, 10 December 2009, page 55

The case for the State of Palestine illustrates the problem. In the process of answering the question put by the General Assembly, the International Court of Justice (ICJ) determined that Israel's territorial jurisdiction as the occupying Power was subject to an obligation not to raise any obstacle to the exercise of such rights in those fields where competence had been transferred to Palestinian authorities. The Court noted a report which said that Israel could not be held internationally responsible for the ICCPR and that "The fact that the Palestinian Council does not represent a State, does not, in itself, preclude its responsibility in the sphere of human rights protection." After the evacuation of the Gaza Strip by Israel, the Human Rights Commission held that Israel was only obligated to the extent that the measures it adopts affect the enjoyment of human rights of the residents of the Gaza Strip. See United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, 25 September 2009 para 302 and 303)

In his book on the Oslo Accords, Geoffrey Watson devoted a chapter to an analysis of the human rights provisions. He noted that the agreement required the Palestinian authorities to pay "due regard to internationally accepted norms and principles of human rights and the rule of law", not just the norms that have been accepted by Israel.

It is not without relevance that the General Assembly addressed a request to the Palestinian Authority, through the Secretary-General, to conduct investigations that are independent, credible and in conformity with international standards into the serious violations of international humanitarian and international human rights law towards ensuring accountability and justice - and that an Independent Investigation Commission was subsequently established by Mahmoud Abbas acting in the capacity of the "President of the State of Palestine". See Annex II of the Secretary-General's report A/64/651, 4 February 2010 Under those circumstances, it would be an odd result if the ICC determined that Palestine cannot be considered a state for the purposes of Article 12(3) of the Rome Statute.