In our first section, we have just discussed the Bill of Rights in the ROC Constitution. I'm sure you have discovered the ROC Constitution's Bill of Rights is not very elaborative, is a pretty much a short lists with very concise Bill of Rights. Over the years, the Constitutional Court has added many other rights in the constitution. Now, we are into the second subsection to discuss the other way the Constitutional Court or Taiwan can add rights into the existing lists, that is through domestic incorporation of international human rights. Typically in the area of national law and international law, what's the relationship between international law and national law? We often have two kinds of positions. One is monism, the other is dualism. In the understandings of monism, international law and national law are seen as part of one single legal system. Various national systems of law are seen as derived by way of delegation for international law. In other words, international law and national law, are integral part of each other. There's no any particular or special steps to be undertaken for international law to be part of domestic law. Treaties, conventions, international human rights recognized at the international level would be naturally recognized also in the domestic legal system. In the other understandings of the relationship between national law and international law, there is also a school of dualism. In dualism, international law and national law are deemed as separate legal systems. International law are not part of national law, and national law is not in any way derived by way of delegation from international law or inferior to international law. If you would like to have international treaties, conventions, international human rights recognized at the international level to be part of national legal system, it requires some actions taken by national legislature. These are the monism and dualism in deciding relationship between national and international law. Now the question comes to Taiwan. What is precise nature of relationship between international law and national law in Taiwan? Then we must first look into the provisions we have in the ROC constitution. Article 141 of the ROC Constitution, the mounds, the government must respect treaties and the Charters of United Nations. But other than this, it does not say much about whether is monism or dualism that the ROC legal system would follow. Then we'll look into other articles in the ROC Constitution. Article 58(2) of the ROC constitution, giving the legislature the final power to decide whether to incorporate or not incorporate any treaties into the domestic legal system. Articles 63, again, finalize the legislative power of such. Since we cannot find any clue in the ROC constitution with regard to which monism or dualism the ROC constitution is following, that we would require to see what constitutional interpretations made by the court. In JY interpretation numbers 329, the court has it's answer. In this decision, the court says that, treaties concluded according to the constitutional provisions we just elaborate, would hold the same status as loss. Given this interpretation, then the treaties, conventions, international human rights recognize in the international law level. Once they are concluded, they are accepted in accordance with the provisions which are seen the ROC Constitution would then have the same status as law. However, in Taiwan, because of our hostile relationship with People's Republic of China, then we are facing a very unsettling status and unsettling situation when it comes to international law and international law compliance. In 1971, the UN General Assembly has made a resolution deciding to expel Taiwan's representative from the United Nations. Since then, we have great difficulty in formally joining any UN related organizations including international human rights treaties. Because of this, it would not be possible for us to conclude any treaties, conventions, international human rights in accordance with either UN provisions, or the ROC constitutional provisions. Given the situation, it would be very difficult for Constitutional Court's decision, Interpretation numbers 329 to follow in Taiwan. Given the difficulty for Taiwan or the ROC to participate in any UN related international organization, so treaties or conventions, what kind of actions or strategies can any country take if it is not recognized by other states and prevented from joining any other international organizations? As a member of Taiwanese community, as a member of this very society, as a citizen of Taiwan, what actions or strategies can any citizens in Taiwan take? If Taiwan cannot join any international human rights conventions, cannot join any UN related organizations? Given particularly, our Constitution has a very shortlist of rights, and we need so much to supplement those rights; from international human rights conventions, from international human rights mechanisms. What actions you can take to supplement that? There are various ways. One way that's being officially undertaken by Taiwan's government is to enact the so-called Conclusion of Treaties Act. In this act, there are special provisions devoting to resolve these problems of Taiwan difficulty in joining all these conventions. In Article 11, first paragraph of conclusion of treaties act, It is stated that in special cases, in which an exchange or deposit of any international instrument is not possible, the competent authorities can send the treaties to our own government, the Executive Yuan, which shall submit them to the president for promulgation. Once this promulgation has been made, then the ROC government, in other words Taiwan, will unilaterally comply with these conventions or treaties promulgated. In other words, even though we cannot participate in the UN regime, at least we can do our own. We can comply these treaties in our domestic legal system. In other words, those treaties, international human rights regimes conventions, those international human rights that we cannot join, but we can have them domestically applicable to Taiwan. This is one way to supplement the list of rights using international human rights regime by concluding these treaties in our domestic legal system. Aside from the Conclusion of Treaties Act, there are most popular two models of constitutionalization of international human rights law in Taiwan. One is legislative model, the other is interpretive model. In terms of legislative model, as I just said, the recent enactment of the Conclusion of Treaties Act that is one way. The other way that the government has often used is to enact so-called Implementation Acts. You can see there are four examples where we domestically incorporate those international human rights treaties into Taiwan, even though we cannot join those treaties in the United Nations. But we have those treaties applicable to Taiwan, to Taiwanese people, to all those people in Taiwan. Four implementation acts has been added. The first one is the act to implement the international covenant on civil and political rights, and international covenant on economic, social, and cultural right. The second one is the enforcement act of the convention on the elimination of all forms of discrimination against women. The third one is with regard to children's rights; the act to implement the convention on the rights of the child. The last one is the act to implement the convention on the rights of persons with disabilities. In all of these implementation acts, their common article 2 is to provide domestic legal effect for those international human rights conventions to which Taiwan has unilaterally acceded. Which means that, we said we are going to apply them no matter what, no matter the fact that we cannot join internationally. By enacting these implementation acts, they obliged the government to implement the rights and freedoms of those conventions. The government is also obliged to issue state reports examining the compliance, things becoming effective. These implementation acts have created an international review system for each of the convention under which periodically we will have an independent group of international aspects coming to Taiwan and to help the government as well as the civil society NGOs to examine whether the government has complied for example, the covenant on civil and political rights. Whether the government has complied for example, the Convention on the rights of persons with disabilities. These have made possible constructive dialogues on human rights progress. These are so-called legislative model of constitutionalization of international human rights to Taiwan. That's one essential important way to help addition of unenumerated rights to our very brief and concise list of Bill of Rights in Taiwan's constitution. The other model will be the interpretive model, where the court would rely upon those international human rights instrument, to add, to supplement those unenumerated rights to our bill of rights.
