Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

In new democracies, if the original constitution is not written with an inter-


national spirit, subsequent constitutional revisions may undertake certain efforts to


change it.^38 Rewriting the list of constitutionally protected rights in accordance


with major international human rights documents has been typical in the consti-


tutional revisions of the many new democracies.^39 In Taiwan, however, the seven


rounds of constitutional revisions throughout the 1990 s and 2000 s did not touch


upon issues concerning international human rights, nor did they involve the


rewriting of constitutionally protected rights. Nearly all the constitutional revisions


ever undertaken addressed issues concerning separation of powers among insti-


tutions. Constitutional codification of international human rights laws has been


considerably limited in Taiwan even after democratization began in the 1990 s.


As an alternative, domestic legislative actions play an important role in filling the


gap. While there are a few judicial references to international human rights laws in


constitutional interpretations, a stronger trend in statutory incorporation of inter-


national human rights laws has taken place in Taiwan. The most recent example


was the enactment of the implementation Act regarding the two international


covenants, the ICCPR and ICESCR. The key actor behind the increase of statutory


incorporation of various human rights treaties has been nongovernmental organiza-


tions (NGOs) in the course of their rights advocacy. These globally minded citizens


and NGOs have built an intermediating transnational/constitutional regime, where


both international and domestic human rights laws coincide, forming a distinctive


model of “bottom-up transnational constitutionalism.”
40


Joining the WTO and signing the ECFA


Trade is another field in which Taiwan has been able to connect itself to the


international community. International trade is one of the rare fields in which


Taiwan has been successfully making its presence felt in international organiza-


tions. Taiwan’s participation in the world trade system began in the late 1940 s.


However, despite the fact that the ROC was one of the original signatories of the


General Agreement on Tariffs and Trade (GATT), the KMT government withdrew


from GATT in 1950 , in part because it could no longer fulfill trade commitments of


mainland China, and was subsequently expelled in 1971.^41 Nevertheless, Taiwan’s


(^38) See e.g. Duc V. Trang, “Beyond the historical justice debate: the incorporation of
international law and the impact on constitutional structures and rights in Hungary”
( 1995 ) 28 Vanderbilt Journal of Transnational Law 1 at 11 – 12.
(^39) See V.S. Vereshchetin, “Some reflections on the relationship between international law
and national law in the light of new constitutions,” in Rein Mu ̈llerson et al. (eds.),
Constitutional Reform and International Law in Central and Eastern Europe(The Hague:
Kluwer Law International, 1998 ), p. 5.
(^40) Chang, “Bottom-up transnational constitutionalism,” 230.
(^41) Concerning Taiwan’s history of participating in international trade and the WTO, see Lori
Fisler Damrosch, “GATT membership in a changing world order: Taiwan, China and the
former Soviet republics” ( 1992 ) 1992 Columbia Business Law Review 19 at 24.


A decade of changing constitutionalism in Taiwan 155

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