Elite Legal Professionals Urged to Take the Two Covenants Seriously

Recently, some commentators argued that Taiwan has not accepted the Two Covenants without reservation, that the content and scope of the "most serious crimes" remain undetermined, and that signing the ICCPR has nothing to do with the abolition of the death penalty. However, these arguments seem to misunderstand the legal effect and connotation of the Two Covenants and are open to debate.

The Parliament Has Unreservedly Recognized the Domestic Legal Effect of the Two Covenants

In 2009, the Enforcement Act of the Two Covenants was passed through three readings by the parliament and promulgated by the President to take effect. Article 2 explicitly stipulates that "The provisions for the protection of human rights as revealed by the Two Covenants shall have the effect of domestic law." The legislative intent expressly states that "The provisions for the protection of human rights revealed by the Two Covenants, even if they cannot be deposited with the Secretary-General of the United Nations, shall have the effect of domestic law within our country, so as to clarify their positioning in our country's legal system." Since then, the Two Covenants have no longer been the rambling dreams of human rights zealots, but genuine positive law.

Contracting states may certainly enter reservations on certain provisions of a covenant. However, our parliament did not express reservations on specific provisions; "accepting the Two Covenants in their entirety" is a concrete decision made by the parliament based on its legislative freedom. If organs or courts believe that parliamentary legislation is improper, they should write books and treatises to educate the public, hold assemblies and processions to express their will, and agitate for trends to forge a consensus, thereby achieving the goal of amending or repealing the Enforcement Act of the Two Covenants. If elite legal professionals holding power treat the laws passed through three readings by the parliament as a dead letter and directly negate the lawmakers' decision to comprehensively undertake the Two Covenants, such an approach is hard to countenance.

"Most Serious Crimes" Have a Clearly Defined Scope

Article 3 of the Enforcement Act of the Two Covenants stipulates that "In the application of the provisions of the Two Covenants, reference shall be made to their legislative intent and the interpretations of the Two Covenants by the Human Rights Committee." The so-called interpretations of the Two Covenants by the Human Rights Committee include, in addition to General Comments, decisions on individual communications (Communications), and Concluding Observations made upon reviewing state reports of contracting states pursuant to the Two Covenants. These are all documents in which the Human Rights Committee expresses its views on the Two Covenants, and they should all fall within the scope of "interpretations of the Two Covenants by the Human Rights Committee" referred to in the legislative intent of Article 3 of the Enforcement Act.

Some commentators argue that the content and scope of "most serious crimes" referred to in Article 6, Paragraph 2 of the ICCPR are undetermined. Nevertheless, the Human Rights Committee pointed out when reviewing Iran's state report that any crime not resulting in death should not be punishable by death. Reviewing past General Comments, communication decisions, and concluding observations, they all adopt a negative listing approach, determining that subjecting crimes that do not infringe upon life to the death penalty violates the ICCPR. The Human Rights Committee positively affirmed murder as a most serious crime only in the case of Cox v. Canada.

Based on the Human Rights Committee's interpretations of the Two Covenants, we can outline a clear boundary for the most serious crimes: murder falls within the category of most serious crimes, whereas any crime that does not infringe upon the legal interest of life does not. Furthermore, other human rights documents within the United Nations system have further pointed out that the application of the death penalty should be limited to "intentional and lethal crimes" (ECOSOC Resolution 1984/50); and crimes "intentionally resulting in the loss of life" (UN Special Rapporteur on extrajudicial, summary or arbitrary executions, 2006). This clearly demonstrates that a consensus has gradually formed in international human rights law regarding the scope of application of the death penalty, moving in the direction of restriction.

The Connection Between the Two Covenants and the Abolition of the Death Penalty

Article 6, Paragraph 6 of the ICCPR—"Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment in any State Party to the Covenant"—clearly reveals the Covenant's rejection of the value of the death penalty. General Comment No. 6 of the Human Rights Committee further elaborates that "States parties are not under an obligation to abolish the death penalty totally, but they are under an obligation to limit its use... The article also refers generally to abolition and the tone strongly suggests that abolition is desirable [in paragraphs 2 and 6]... all measures of abolition should be considered as progress in the enjoyment of the right to life within the meaning of article 40." Since the parliament has legislatively accepted the Two Covenants in their entirety, the State is under an obligation to limit the use of the death penalty, under an obligation to ensure that death penalty judgments strictly abide by the substantive requirements (most serious crimes) and procedural requirements (trial procedures consistent with the Covenant) prescribed in Article 6, Paragraph 2, and adopting measures to abolish the death penalty is likewise an action consistent with the Covenant.

Once a state party to the Second Optional Protocol uses the death penalty, it constitutes a breach of the treaty. In short, the obligation undertaken by signing the Second Optional Protocol is not merely to abolish the death penalty, but to abolish the death penalty "immediately and completely." The difference between the ICCPR and the Second Optional Protocol is not that the ICCPR permits the arbitrary use of the death penalty while only the Second Optional Protocol requires its abolition; rather, under the ICCPR, states parties are under an obligation to limit the use of the death penalty and are strongly advised to move toward the abolition of the death penalty, whereas under the Second Optional Protocol, there is no room for gradual progression, and the death penalty must be abolished immediately. During the state human rights report review conducted in 2013 pursuant to Article 6 of the Enforcement Act, the concluding observations of the independent experts explicitly pointed out that "the experts strongly recommend that the Government of the Republic of China (Taiwan) should intensify its efforts toward the abolition of the death penalty." To claim that the Two Covenants have nothing to do with the abolition of the death penalty is a true departure from facts and a distortion of the law.

At the Crossroads of History

As commentators have noted, many countries have joined the Two Covenants without reservation, yet state violations and tramping of human rights continue to occur; such acts of signing while arbitrarily breaching treaties are precisely what we should severely condemn. Laws cannot enforce themselves; signing and ratifying the Two Covenants is not a panacea for human rights, and we must still rely on the contracting states' own strong will and concrete actions to protect human rights. Taiwan has voluntarily undertaken the obligations of a contracting state without reservation, and at this moment, it stands at the crossroads of history: we can choose to join the ranks of North Korea, Iran, and Rwanda, turning a blind eye while accepting the Two Covenants yet ignoring them; or we can choose to abandon sophistry, faithfully implement the Two Covenants, and become a model for human rights in Asia.