Taiwan Today

I. National Security and Well-being of the Individual

The stream of historical events indicates that the barrier to International peace does not lie in failure to spell out an articulate peace formula, nor to devise a splendid peace institution. It rather lies in the misconception of the omnipotence of the state, which, under the palliative of national security, strengthens its domination over the individual. By marking off the state through controlled communication of ideas, censorship of the press, films, radio and other mass media; restriction of free movement, of freedom of speech, assembly and other civil liberties, it is always hard for the free states to ascertain the degree of popular feel­ing. In so doing, it is easy for political charlatans to embark upon an adventurous under­taking of aggression.

It is to be noted that the pretense of national security falls into the pitfall of inconsistency, since national peace and security should ultimately reside in the peace and security of the individual. It is anachronistic to assume peace for the state, while the feelings of the people are constantly agog because of impending violence. It is no persuasive argument to maintain peace and security at the expense of the fundamental rights of man, even under emergency measures, unless such arrangement rallies genuine popular support, which, it is submitted, cannot be ascertained without the intervention of a disinterested international agency. This of course raises the question whether under the present state of international society, the structure of international organization and the rules of international law are powerful enough to meet the challenge of social evolution.

International law in its fundamental nature is based upon the value of the individual, and rules are evolved to protect the rights of man. But this is made applicable to a modicum of the population. The protection of minorities, usually recognized as the precursor of human rights, was applied only to smaller powers, exempting Germany and Italy from assuming responsibility under the multipartite treaties. The institution of diplomatic protection, aside from its close association with politics, is fur­ther impotent in the exclusion from its sphere of application to stateless persons, for which it is not responsible. The plethora of nation­alism and the inveterate concept of sovereignty have plagued the protection of civil liberties which have been regarded as coming exclusively within domestic jurisdiction. It follows that the extent to which the individual is entitled to protection is entirely subject to the state's discretion. In the absence of an international standard resort to coercion is subject to the volition of the state. This virtually amounts to placing the maintenance of world order at the mercy of the state, if it is powerful enough to have recourse to coercion. If force takes precedence of law and order, international anarchy is bound to occur. This suggests the inadequacy of traditional international law, which is, if it is to survive this stormy epoch, destined to undergo a process of modernization.

2. Formal Structure of the Declaration and the Draft Covenant of Human Rights

The protection of human rights at the international level is one way of meeting this challenge. The foundation was first laid in the Charter of the United Nation by declaring that the "people" instead of the "sovereign state" reaffirm their faith "in the dignity and worth of the human person, in the equal rights of men and women..." The avowed purpose was given objective reality by the creation of the Human Rights Commission, and the recommendation that the General Assembly initiate studies to assist “in the reali­zation of human rights without distinction as to race, sex, language or religion". The signa­tories are obligated to observe and to carry out the provisions relative to the universal respect for human rights and fundamental freedoms without distinction. These provisions are equally applicable to the inhabitants of the territories under the Trusteeship system of the United Nations. The Genocide Conven­tion reflects likewise the basic objective of respect for the fundamental rights of men by calling upon the signatory parties as well as public officials and private individuals to refrain from the destruction of national, ethnical, racial and religious groups. All these principles are the overture leading to the subsequent Universal Declaration of Human Rights and the Covenant of Human Rights presently open for discussion in the United Nations (1). As previously intimated, the Charter laid down generic provisions relative to respect for human rights, the contents of these rights were not specified until the adoption of the Declaration in 1948 by forty-eight states. Caution was exercised in relation to the optimun range which the Declaration intended to cover, and many alterations were added to the original text. It might well be said that in its final form, it virtually reflects "the fundamental conviction of the present age in regard to what constitutes the inherent dignity and worth of man".

The Declaration was featured by the inclusion of economic and social rights: social security, right to work, right to form and join trade unions, right to rest and leisure, right to a standard of living adequate for well-being, special care and assistance to motherhood, right to education, right to participate in cultural life.

A new light was shed on the acquisition of nationality. Art. 15 contained the provision that everyone has the right to a nationality, and no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. The signatory parties are accordingly obligated not to resort to totalitarian practices of mass denationalization. In this aspect, the draftsmen had presumably in their mind the Russian decrees of I921, 1924 and 1925, whereby the nationality of soviet citizens Was forfeited, if they had lived abroad for more than five years without having applied for a passport, or had failed to register with the representatives of U.S.S.R or taken part in Counter-revolutionary organizations. As a result thereof, thousands of Russians were deprived of nationality, and as such, in the opinion of Sir Fischer William, the measures were unprecedented. Analogous denationaliza­tion practices were resorted to by Nazi Ger­many in November 25, 1941, and by Italy in 1926. The Nazi decree effectively deprived of nationality all Jews living abroad, irrespective of their political behavior. The Nazi and other totalitarian decrees were enacted in pursuance of domestic law, since measures governing na­tionality had traditionally been regarded as of domestic concern. Under Art. 15 of the present Declaration, measures governing nationality would therefore be lifted from the domestic to the international level. The provisions look forward to future conduct among nations in international society, but fail to clarify the nebulous reference to those persons who have already been deprived of nationality. In the absence of concrete terms it is difficult to imagine how it can reify the guaranty that every private individual is entitled to a nation­ality. It is to be noted that this was omitted in the subsequent Covenant which purports to bind upon the signatory states 1egally. It has to confront the question whether the stateless person, so arbitrarily deprived of his nation­ality, may place himself under the protection of an international agency or modernize the traditional rule of diplomatic protection so as to give any state the right to interpose on his behalf. It is preferable that the stateless person may be allowed to take his case to the Human Rights Commission or other kindred institu­tions which will act on his behalf, if direct access to world judiciary still remains improbable.

The basic civil and political rights provided in the Declaration relate to the right to life, protection against torture, slavery, forced labour, arbitrary arrest or detention, freedom of movement and residence, freedom to leave a country, right to a fair and public hearing before an independent and impartial tribunal, protection against ex post facto laws, right to recognition as a person before the law, freedom of religion, assembly and association, and equal protection of the law, all of which were incorporated in the subsequent Covenant, The Declaration merely suggests a pattern for the conduct of state in international society, leav­ing the enforcement of these rights to the­ Covenant.

With respect to economic and social rights in the Covenant of Human Rights, the repre­sentative of Australia and U.S.S.R. proposed that the Covenant should include articles on economic and social rights as well as on civil and political rights, which was opposed by delegations of some other countries. Aside from the fundamental rights, the range of interests of these two documents is diversified: the measures of social security and economic and social rights are presently deleted from the Covenant; other rights such as rights to marriage, right to property, access to office­-holding and election; right to seek asylum, free participation in trade unions without coercion, and the right to nationality, which are specifically inserted in the Declaration are either ambiguously referred to or completely excluded from the sphere of the Draft Co­venant. The Covenant on the other hand has also entered into some new fields untouched upon by the Declaration, such as the protec­tion against involuntary physical mutilation or medical experimentation, protection of aliens against illegal expulsion and prohibition of imprisonment for the non-performance of contractual obligation due to inability.

The text of the Draft Covenant is lacking in conciseness and systematization, and it is, in some instances, meticulously detailed or over­ lapping in others. The provisions governing the administration of justice and fair trial were formulated in more painstaking detail than other protections. Articles relating to freedom of religious faith, slavery and forced labour were likewise inappropriately expanded as com­pared with those of the Declaration. Again, Art. 5 para. 2 provides for capital punishment which can only be imposed as a penalty for the most serious crimes. Needless to add, whether a crime is the most serious varies with the cus­toms and laws of that country, which of course will argue, if it so happens, that it is the sole judge of the nature of a crime. As a matter of fact, any perversion of justice and gross disregard or human life is well protected by Art. 5 para. 1, 9 and 13.

Provisions governing propaganda can be mer­ged with freedom of speech, to which a proviso­-description of the circumstances under which propaganda is allowed, may be attached. The recognition of the individual qua person as con­tained in Art. 15 represents the essence of human rights for which the Covenant is formu­lated. It is preferable that it stands as a part of Preamble than as independent article. As the Covenant partakes of the nature of a per­manent constitution governing the rights of man, it goes without saying that a systematic and logical framework will shed more light on the future course governing human relations.

So much for the formal structure of the twin documents.

3. Impediments to the Implementation of International Undertakings.

For the implementation of human rights, numerous barriers stand in the way. It involves incompatible fundamental concepts, the composition of judiciary, diversified legal system, and the absence of an adequate international institution for enforcement, to enumerate but a few.

With the impact of social evolution, we are confronted with the departure of social values, both in the vertical and horizontal senses. On the vertical side in terms of the national level, Thucydides pointed out two thousands years ago, "the meaning of words had no longer the same relation to things, but was changed by them as they thought proper." In a bi - polar power structure as the world stands today, the verbal symbols are further confounded by ideo­logies and the extent of national government. It is noted that democracy produces a totally different concept in the Soviet Union and the United States. In terms of Leninism, democracy is an organization for the systematic use of violence by one class against another, by one section of the population against another (2). In the western concept, however, democracy refers, to certain inalienable rights, including "the right of every individual to develop his mind and soul in ways of his own choice, free of fear or coercion–provided only that he docs not interfere with the rights of others." (3). Even within the framework of the western front among the most acknowledged democracies, heterogeneity has not infrequently been present. The concept of the United States in respect of laissez faire toward free spread of information through mass media does not represent the norm of other democracies. Inherent in the nature of the national bill of rights, it has been a manifestation of antithesis between the state and the individual, always reflecting the class interests of the bourgeoisie. In terms of communist ideology, Mr. Vyshinsky stated that the contradiction between classes has been eliminated, there can be no contradiction between the go­vernment and the individual. Carrying this to the logical extreme, it follows that the protection of human rights is entirely within the discretion of the state, and the application may be so flexible as to be restricted only to specific classes of persons. As Mr. Vyshinsky com­mented:

"In our state, naturally, there is and can be no place for freedom of speech, press and so on for the foes of socialism." (4).

In the second place, the diversification of legal systems poses another difficulty in the course of implementation. In both the Declaration and the Covenant, the guaranty of pro­tection is qualified by the phrase of "in accordance with the law." Accordingly, the protec­tion or aliens against unlawful expulsion may be suspended or limited according to law. Added to this qualification are the other palliatives, such as the protection of national security, public health, morals and order. All these are, it is submitted, very ambiguous re­ference, and are subject to abuse through the manipulation of lega1 technicalities.

In the third place, the difficulty lies in the declining state of judicial independence, and especially in totalitarian states, the influence of the executive has almost relegated the judiciary to formal authority. Not infrequently the party machine or politburo such as in Soviet Russia exerted real power even to dictate the outcome of decisions. The guaranty of irremovabi1ity of judges is not respected in some countries, such as. Hungary. Under the provi­sions of Act xxiii of March 19, 1948, the Minister of Justice in the Hungarian Govern­ment was vested with the authority to transfer or retire any justice, as he saw desirable.

In Bulgaria, arbitrary arrests and Imprisonment, deportation and forced labour are com­monly practiced through the channel of the "people's militia," which is empowered by law to detain and send to "labour-educational communities" persons alleged to be of Fascist or anti-national inclinations, dangerous to pub­lic order and state security or disseminating false rumors (5). The exercise of this authority in both countries and the establishment of the politically controlled, "people's militia" have reduced the judiciary to political, subservience to the regime.

In the fourth place, barrier to implementa­tion lies in the increasing tendency, of socialized and state controlled measures. In com­munist and socialized society, the state is empowered to nationalize, private property, and the means of production become governmental monopoly. Even in a democratic society the canon of the inviolability of property rights and the protection of private enterprise are in the process of disintegration by continuing state interference through heavy taxation and suppression of free enterprise. In customary international law alien's right to property is protected against arbitrary expropriation, the violation of which constitutes on the part of the state an international delinquency. In prac­tice, however, the right is impaired by nation­alization and expropriation measures without due indemnification. Individual's rights are fast losing that amount of international protection, which, in pre-war international society, was granted as a matter of course. The ascendancy of absolutism, reinforced by nationalism and socialistic ideas accentuated the degrada­tion of the individual’s status as such, who is merely employed as a means to serve the state's end. Accordingly, it becomes more difficult for the states to arrive at agreement upon the content of these rights and upon the measures of implementation.

In respect to the means for the spread of enlightenment, the press, radio, film and other mass media of communications are no longer entirely independent and private institutions. In the pre-war period, the attacks by press, radio and mass media on foreign countries in totalitarian states were largely instigated and instructed by the governments. Radio has be­come a powerful weapon of propaganda in the arena of power politics, and in view of its importance, practically no state in international society gives up its control; although it is expressed in kaleidoscopic forms, such as political pressure, financial subsidies or concessions. In the light of the strengthening control by the state, it is not difficult to find pyramiding barriers to the implementation of the free spread of ideas, freedom of press and information; the disagreement in the United Nations in the debate on the transmission of news suffices to indicate all this. It is to be noted that the prerequisite of the free spread of ideas and information should lie in removing the barrier of censorship. In the course of de­bate, many states doubted in the interest of national security the appropriateness of unqualified freedom of information. The objection­ was finally sustained by an overwhelming majority vote. Freedom was qualified by the proviso of censorship namely,

No Contracting State shall impose censorship in peace-time of news material leaving its territory except on grounds of national defense. (6)

It is further compromised by the refusal of the delegations to abrogate the stoppage clause contained in the International Telecommunica­tion Convention of Atlantic City in 1947 (7). In doing so, the states are free to resort to censorship within the limit of the latter Con­vention. All these serve to create a lacunae through which a fleet of infringements on human rights may sail.

(to be continued)

(1) International Declaration of human Rights, Bull. of State Dept., No. 3381, 1949, Draft Covenant of Human Rights, United Nations Documents E /1371

(2) Waiter Bedell Smith, My Three Years in Moscow, The New York Times, p. L. 17, November 26, 1949

(3) Statement of ex-Secretary of State George Marshall, Ibid

(4) Vyshinsky, The Law of the Soviet State; Durward V. Sandifer, New International Frontiers in Human Rights’ Bull. of State Dept. vol. xx p. 261

(5) Benjamin V. Cohen, Suppression of Human Rights in Bulgaria and Hungarian, Bull. of State Dept. vol xx, no. 513, p. 558

(6) Convention on the International Transmission of the News and the Rights of Correction, Bull. of State Dept., vol. xxi, no, 541, p. 742 et seq

(7) Art. 29 of the International Telecommunication Convention of Atlantic City in 1947 which reserves to Con­tracting States an absolute right of stoppage in respect of any messages, which may appear "dangerous to the security of the state, or contrary to their laws, to public order or to decency."