育達研究叢刊 第五、六期合刊 民國 92 年 11 月 165-196 頁

On People’s Human Rights： From a Taiwanese Perspective

Chien-Yuan Tseng Assistant Professor, Center of General Education, Yu Da University Assistant Professor, Department of Public Administration and Graduate School of Business Administration Chung-Hua University

【Abstract】

The central subjects/holders of the third generation international human rights are collective people. Peoples’ human rights have a lot of things to do with the Socialist and the third world countries’ urge. They bring about greatest impacts to traditional individual human rights pedigree. This article focuses on the historical development and classification of the new category of human rights and introduces the Universal Declaration of the Rights of Peoples, which is drafted by international civil society. This article agrees the spirit of the Declaration on the Rights to Development and claims that the protection of Peoples’ human rights cannot justify the violation and denial of individual human rights what the Universal Declaration of Human Rights and the two international human rights’ covenants protect.

 This essay is an expanded and revised version of a paper given at the third Doctoral Students Conference on

THE NEW CHALLENGES TO THE PACIFIC RIM COUNTRIES IN THE 21TH CENTURY: THE LEGAL RESEARCH ABOUT HUMAN RIGHTS AND SOCIAL CHANGE co-organized by the Association of Pacific Rim Universities and National Taiwan University at Taipei National Taiwan University Students’ Activity Center Building 2 in March 24, 2002. I am indebted to a number of Associate Professor at Soochow University, School of Law, Teng, Yean-Sen（鄧衍森） for helpful comments. This essay’s draft was a report in Chinese for the seminar on POWER AND RIGHT at National Taiwan University, Graduate Institute of Law, and has been published in JOURNAL OF SUN-YAT-SENISM （ 中 山 學 術 論 叢 ） , Vol. 16, Taipei: National Taiwan

University, Graduate Institute of San Min Chu I, June 1998. Thanks are due to Professor Hsu, Chih-Hsiung（許 志雄）for teaching and suggesting in his seminar. Thanks are also due to Graduate student Lin, Shu-Ya（林淑 雅）for her comments on the first draft. At last, I would like to thank to Master Wang, Hui-ying （王慧螢）for

helping me to translate this paper’s draft version from Chinese to English. 165 166 育達研究叢刊 第五、六期合刊

Taiwanese as members of world citizens, our people’s human rights should be supported and recognized by the United Nations and international community. We should stand on the position of international fundamental human rights to call upon international community to rethink the question of Taiwanese international participation.

Key words：human rights, people’s human rights, the third generation human rights On People’s Human Rights：From a Taiwanese Perspective 167

人民權論 ─ 台灣人的觀點 ─

曾建元 育達商業技術學院通識教 育中心兼任助理 教 授 中華大學行政管理學系暨 經營管理 研 究所公共管理組助理 教 授

【摘 要】

第三代國際人權的權利主體乃是建立在集體的人民之上。人民權觀念的提出 與社會主義與第三世界國家的倡導有關，其在人權系譜中的出現，對於傳統以 個人為 中心的人權觀，起了極大的衝擊。本文旨在介紹人民權的歷史發展及其各 種權利類別，並且特別介紹國際民間社會兩次提出之〈世界人民權利宣言〉。本文 認同聯合國〈發展權利宣言〉之意旨，主張人民權之保障不得侵害〈世界人權宣 言〉和有關人權的兩項國際公約所保障的個體人權。 台灣人民作為 世界公民，其人民權理應受到聯合國 為 首的國際社會的共同 支持與承認，台灣人民的國際參與問題，應當從國際基本人權問題的立場，呼 籲國際社會予以新的思考。

關鍵詞：人權、人民權、第三代人權、世界人民權利宣言、台灣人民、聯合國 168 育達研究叢刊 第五、六期合刊

1. Foreword: The generational Changes in Basic Human Rights

Traditional conceptions of basic human rights are based on the political philosophy of liberal individualism and the economic and social doctrine of laissez-faire. Such conceptions stress a belief that people’s motivation in entering into social contracts and founding states is to protect their rights before the state, providing themselves with basic human rights. Therefore, they propose that a state’s responsibility lies in guaranteeing the freedom from interference of its citizens’ basic human rights, and moreover, an active effort to realize these rights. The embodying of these human rights consists of various types of negative liberties afforded as basic civil and political rights, such as the right to own property, freedom of speech, and freedom of person. The human rights thinking that originated in the 17th and 18th centuries’ enlightenment movement are represented by the Declaration of Independence of the United States of America and the French Declaration of the Rights of Man and of the Citizen. In the historical contexts, discussions of basic human rights are considered domestic legal issues in nation-states, particulairly constitutional ones. The international system for protection of human rights is in fact founded on “the right to protect citizens abroad’ and “humanitarian interference.”1 These measures with their national imperialistic overtones, do not possess universal support. The liberal individualist conceptions of human rights has been fiercely criticized by socialist thinkers, who believe that if human rights cannot be given a common material basis in society, providing the subjects of human rights capability to act as true equals, then they will inevitably become a legal tool of the bourgeoisie, by dominating the proletariat class to protect theirs own class interests. Therefore, socialists emphasize the state's role in actively guaranteeing the economic, social, and cultural position of its citizens—in particular, workers, women, minorities, and all other disadvantaged individuals. Weimar Constitution in Germany and Declaration of Rights of the Working and Exploited People in Russia best represent the results of the socialist revolution. As for capitalist states, their roles changed from watchman states to welfare states, and conceptions of human rights shifted from first- generation negative rights of protection against state intervention to second-generation positive rights for demanding state welfares, with the provisions for various types of rights to benefit or social rights like right to work and right to existence. In view of the ineffectuality of the established international system for protecting human rights against various violations during the Second World War, The President of the United States of America Franklin D. Roosevelt and British Prime Minister Winston Churchill were the first to link the objectives of their two countries’ war of resistance to international human rights demands,2 producing the Atlantic Charter in August 1941. This document called for restoration of national sovereign rights and self- government, as well as the realization of a free life for all the world’s people. On January 1, 1942,

1 Lee, Hong-Hsi（李鴻禧），〈現代國際人權的形成與發展概 說一一兼談「第三代國際人權」問題〉，《憲法 與憲政》，台北：自版，1997，p. 85. 2 Ray August, PUBLIC INTERNATIONAL LAW: TEXT, CASES, AND READINGS, Englewood Cliffs: Prentice-Hall Inc., 1995, p. 256. On People’s Human Rights：From a Taiwanese Perspective 169 tWenty-six nations assented to the Declaration by the United Nations, expressing subscription with the ideals of the Atlantic Charter. In forming the United Nations, each of the Allies gave special thought to how to achieve “international co-operation in promoting and encouraging respect for human rights and for fundamental freedoms for all”. A provision from the Paragraph 3 in the Article 1 of the United Nations Charter foresaw the trend toward internationalization of the human rights issue emerging after the War. The United Nations, and its subordinated organizations of human rights protection, played an active role in international oversight and support work. Contemporary human rights issues in various countries consequently superseded the constitutions of respective countries, and took on a supranational character. In addition, as the technological revolution in human societies is giving rise to ever more complex international relations, deepening the level of global interdependence, it is difficult for a single country to fulfill its obligation to protect human rights on its own. For its part, the international community will not easily tolerate any individual country's human rights violations. Development trends in contemporary mechanisms for protecting human rights show that these mechanisms must in the final analysis depend on international cooperation to jointly underwrite their application and to resolve problems thus arised. The Senegalese jurist Keba M’Baye, in his monograph on the rights to development “Le Droit du Developpement comme un Droit de l’Homme” in 1972, was the first to point out this trend in contemporary human rights. However, the first to make the concept of so-called “third-generation human rights” well known was French jurist Karel Vasak, former director of the United Nations Educational, Scientific and Cultural Organization (UNESCO)’s Division of Human Rights and Peace.3 In November 1977 at UNESCO, in a speech commemorating the thirtieth anniversary of the passing of the Universal Declaration of Human Rights, Vasak summarized the development of international human rights and made first mention of the concept of third-generation human rights. 4 He pointed out that third-generation human rights are those born to the obvious brotherhood of men and their indispensable solidarity, and provide that “everyone is entitled to a social and international order in which the rights set forth in this Declaration can be fully realized.” Vasak made an analogy to the three normative themes of the French Revolution—freedom, equality, and fraternity—to differentiate the basic values embodied by three generations of human rights. First-generation human rights concerned the value of liberty, used to counter the state, and are inherent rights. Second-generation human rights laid emphasis on equality, making demands on the state’s positive duties, and are creditors’ rights. Third-generation human rights focus on fraternity, and can be termed under the generic heading of rights to solidarity. In all, Vasak mentioned five related rights—the right to development, the right to

3 Roland Rich, “The Right to Development: A Right of Peoples?”, in: James Crawford eds., THE RIGHTS OF PEOPLES, Oxford: Oxford University Press, 1992, p. 41. 4 Karel Vasak, “Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of law to the Universal Declaration of Human Rights”, UNESCO COURIER 30: 11, Paris: United Nations Educational, Scientific, and Cultural Organization, Nov. 1977, p. 2. 170 育達研究叢刊 第五、六期合刊 peace, the right to environment, the right to the ownership of the common heritage of humankind, and the right to communication.5 The greatest distinction between third-generation human rights and the two earlier generations is that third-generation human rights superseded the scope of national constitutions. Third-generation human rights are no longer a matter of the relationship of people to their respective states, nor are their subject individuals or minority groups per se. Rather, the subject of third-generation human rights is people taken as a whole, with their social solidarity—typically, the people of a country. Therefore, third-generation human rights are not traditional human rights of the individual, but a type of collective rights. Correspondingly, the nature of these rights entails their debtor, not being a single country, but all countries in the world and international organizations, led by the United Nations. The issue of third- generation human rights is therefore mainly situated in the realm of international human rights laws that supersede the constitutions of individual states. However, a complication is that international cooperation is deeply tied to international relations. With the crumbling of Cold War structures imposed between East and West, there still remains poverty and wealth gaps between the world's South and North nations, as well as regional conflicts. The realization of solidarity rights has always had restrictions imposed by the objective outer structure, and nations of multi-ethnicities must cope with the diversity of their populations with even more integrity—to say nothing of the fact that some of these ethnic minorities may be the subjects of these third-generation human rights. The question on how to define the extent of the affected groups as a subject and ensure the consistency of their consciousness of these rights must take into consideration restrictions imposed by the subjective inner structure, as well as the complex links to national sovereignty issues. Despite this large number of structural restrictions, the new system of collective human rights for people as a whole is gradually taking shape under the leadership of the United Nations, making it impossible for us to ignore their actual existence. The present article, in acknowledgement of this fact, will below attempt to further explore a theoretical understanding of third-generation human rights—people’s human rights.

2. The History of People's Rights Commencements

The modern history of human rights for "the people" began with the American Independence Revolution and French Revolution.6 The Declaration of Independence, which was issued in July 1776, asserted the right of the people to alter or to abolish their government. The Declaration of the Rights of Man and of the Citizen in France, issued in August 1789, incorporated Jean Rousseau’s theory of popular sovereignty as a provision in its Article 3: “The principle of all sovereignty resides essentially

5 Karel Vasak, “For the Third Generation of Human Rights: The Rights of Solidarity”, Inaugural lecture, Tenth Study Session, International Institute of Human Rights, July 1979, pp. 3, from: Henry J. Steiner and Philip Alston ed, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS, Oxford: Oxford University Press, 1996, p. 1111. 6 Ian Brownlie, “The Rights of Peoples in Modern International Law”, in: James Crawford eds., supra note 3, p. 34. On People’s Human Rights：From a Taiwanese Perspective 171 in the nation.” This article is a manifestation of an oppressed citizenry’s right to self-determination in opposition against tyranny. In May 1790, French Constituent Assembly issued a series of laws related to people's rights. However, the right of self-determination established by the French Revolution, when applied to external affairs, metamorphosed into an international expansion of the bourgeoisie’s national imperialist ambitions. Socialism asserted a view of self-determination affirmed by the proletariat, with the aim of uniting resistance of worldwide revolution led jointly by the proletariat of all countries and to achieve a genuine restoration of human freedom. The resolution of the London International Socialists Workers and Trade Union Congress of 1896, in which recognized the self-determination of nations was the historic guiding principle of international socialist movement in regard to the national question. Vladimir Lenin's defense of this principle was a historic contribution to the theoretical struggle. He insisted that so-called “national self-determination” could only mean “The right of nations to self-determination implies exclusively the right to independence in the political sense, the right to free political separation from the oppressor nation. Specifically, this demand for political democracy implies complete freedom to agitate for secession and for a referendum on secession by the seceding nation.”7 Lenin saw the process by which malevolent competition spawned by laissez-faire capitalist economies led to monopolistic alliances of capitalists, eventually evolved into imperialism. In order to monopolize world markets, in particular those for raw materials and capital outflows, each imperialist nation embarked on a struggle for colonies. The equanimity of class relations inside such countries was in fact the result of a diversion of internal conflicts to colonies and subordinate states—specifically, the approach of colluding with the comprador class in undeveloped regions or countries and exploiting its proletariat to plunder international capital and labor.8 When imperial powers go to war against each other, the warring parties actively seek the colonies and ethnic minorities under their umbrage as alliance partners. Lenin recognized that the political secession embodied in national self-determination, was without doubt revelation of the true face of imperialism’s so-called national-liberation. 9 This was an enormous blow to 19th-century treaties that regulated European international public legal order with provisions of protecting ethnic minorities—for example, the Berlin Treaty. This was so because Lenin turned what had been a question of the rights of ethnic minorities into a contentious one involving national self-determination and nation-states’ sovereignty independence. Lenin's theory of national self- determination also embedded a grand strategy for realignment of the international economy’s division of labor—enhancing a hope that the establishment of separate socialist national industries could be pursued through independent movements by oppressed ethnic minorities, thereby severing the global artery of capitalist world. Lenin’s conception of people’s rights were formally validated in law for the

7 Vladimir Lenin, “The Socialist Revolution and the Right of Nations to Self-Determination”, From LENIN, COLLECTED WORKS, Vol. 22, (English Translated by Yuri Sdobnikov, Edited by George Hanna), Moscow: Progress Publishers, 1964, p.146. 8 Vladimir Lenin, IMPERIALISM, THE HIGHEST STAGE OF CAPITALISM, Beijing: Foreign Language Press, 1973, p. 120. 9 Vladimir Lenin, SOCIALISM AND WAR, Beijing: Foreign Language Press, 1966, p. 26. 172 育達研究叢刊 第五、六期合刊 first time in the Peace Edict and the Declaration of the Rights of Russian Peoples and were issued after the successful October Revolution of 1917 in Russia, becoming a part of the Russian constitution in 1918 through the Declaration of the Rights of the Toiling and Exploited Peoples issued by Russia’s Constituent Assembly. Because Russia adopted a stance advocating world revolution in opposition to imperialism, it was collectively resisted by European capitalist countries, while not in actuality bringing the international human rights system into play. However, the Russian Revolution played a preeminent role in creating and disseminating the concept of people’s rights. As Lenin was promulgating a theory of national self-determination based on class identity, American President Woodrow Wilson initiated another ideological debate with Lenin through statements of national self-determination based on the self-identification of people. 10 During the First World War, Wilson sensed that the biggest reason for the destruction of world peace was the imperialist’s oppression on ethnic or religious minorities. In January 1918, in the U.S. Congress, he declared his “Fourteen Points”, advocating a people’s rights to self-determination. 11 Wilson’s principle of self-determination was however only applicable to European peoples; colonies involved in war and the various ethnic groups in Turkey were not included. In spite of this, the universalization of the principle of national self-determination was opposed because it would threaten the existing ruling arrangements between colonial powers. However, the victors of the War selectively used this principle to decide the disposition of the territory of vanquished countries. At this stage, the right of a people to national self-determination was not recognized as a kind of basic human right, but a guiding principle for resolving sovereignty issues for peoples and territories in specific regions.12 The stress on a people’s right to existence made in the Atlantic Charter of 1941 and in the Declaration by the United Nations in 1942 has already been the historical beginning of the development of people’s rights under the United Nations system after the Second World War, even though Churchill proclaimed in 1943 that A peoples’ self-determination is not applicable to colonial territories, but only in relation to the restoration of sovereignty of those nations conquered by Nazi domination.13 Not long after, at the San Francisco Conference of 1945, the Soviet Union sought to include people’s right to self-determination in the United Nations Charter, with the aim of giving it global applicability. This action met intense resistance from colonial powers such as Britain, Belgium, and France. The result of negotiation between the two sides was to treat self-determination as a “principle” rather than a “right” in incorporating it into the United Nations Charter.14

10 Dov Ronen, THE QUEST FOR SELF-DETERMINATION, New Haven: Yale University Press, 1979, p. 13. 11 Lee, Hong-Hsi（李鴻禧），〈論國際法上之人權保障問題〉，《憲法與人權》，台北：自版，1985, pp. 289- 290. 12 Chiang, Huang-Chih, “On the Applicability of ‘Self-Determination’ upon the Instance of Taiwan: An Examination Concerning the Substantive Criteria”, NATIONAL TAIWAN UNIVERSITY LAW JOURNAL 26: 2, Taipei: Department of Law National Taiwan University（＝姜皇池，〈論「人民自決」適用於台灣之可行性： 實質要件之考察〉，《國立台灣大學法學論叢》，第二十六卷第二期，台北：國立台灣大學法律學系）, Jan. 1997, pp. 53-55. 13 Ibid., p. 58. 14 Ibid., p. 59. On People’s Human Rights：From a Taiwanese Perspective 173

After the War, when the first statement of a comprehensive framework of international human rights laws—the Universal Declaration of Human Rights—was passed in 1948, it did not recognize a people’s right to self-determination. However, when the General Assembly of the United Nations passed the Resolution 421/5 in 1950, it requested that the Commission on Human Rights under the Economic and Social Council researches the manners in which they may promote respect for, and the progress of the right of peoples and nations to self-determination. In 1951, the General Assembly’s Resolution 545/4, “Inclusion in the International Covenant or Covenants on Human Rights of an Article Relating to the Right of Peoples to Self-Determination” asserted that Resolution 421/5 had already recognized the right of peoples and nations to self-determination as a fundamental human right. This was the first time that the United Nations used “right” in describing self-determination for peoples and nations.15 In December 1952, the United Nations General Assembly passed the Resolution 637A/7 “The Right of People and Nations to Self-determination” confirming that people and nations should first enjoy the right of self-determination, and only in this manner can all basic human rights be ensured. The right of people and nations to self-determination thus possibly became a precondition for all basic human rights. At this time, the United Nations was continuing its research on the significance of the right of people and nations to self-determination. In December 1960, the body passed the Declaration on the Granting of Independence to Colonial Countries and Peoples, finally confirming the right of colonies and their people to self-determination. Slightly earlier, the Natural Resources Permanent Sovereignty Issues Commission established in 1958, proceeded on December 14, 1962 to pass the Resolution, “Permanent Sovereignty Over Natural Resources”, recognizing the permanent sovereignty over natural resources to be a basic component of people’s and nations’ rights to self-determination. In 1966, the United Nations officially created the International Bill of Human Rights, and in Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights established the principle that the right to self-determination was a precondition for basic human rights. All evinced a shared conviction that “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development,” “All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence”. As for the States “in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”, this is asserted in the Article 27 of the International Covenant on Civil and Political Rights. This demonstrated that the subject of people’s rights is different from that of collective rights imposed by ethnic minorities.

15 Ibid., pp. 61-62. 174 育達研究叢刊 第五、六期合刊

In December 1974, the 29th General Assembly of the United Nations passed the Charter of Economic Rights and Duties of States, whose Article 1 in its second chapter asserted, “Every State has the sovereign and inalienable right to choose its economic system as well as its political, social and cultural systems in accordance with the will of its people, without outside interference, coercion or threat in any form whatsoever”. The Paragraph 1 of its Article 2 asserted that “Every State has and shall freely exercise full permanent sovereignty, including possession, use and disposal, over natural resources and economic activities”. It was evident that states were made subjects of self-determination rights and permanent sovereignty over natural resources. Conceptions of people’s rights and a nation’s rights are beginning to exhibit signs of possible overlap, also demonstrating a type of possible threat that notions on statehood may have on ideas about people’s rights.16 States are classic subjects of international law, and their nature stands in opposition to peoples’ rights. If states controlled by international relations are given free rein to define peoples’ rights, it is unavoidable that the development of people’s rights being adversely affected. There were development of framework for peoples’ rights in international civil society. Italian Senator and Socialist Lelio Basso, and a group of persons of high moral authority from the international civil society—including Nobel Prize winners, and well-known cultural, legal, and religious figures—established the International Foundation for the Rights and the Liberation of Peoples and International League for the Rights and the Liberation of Peoples in Rome, 1973.17 On July 4 1976, the bicentennial anniversary of the passage of the Declaration of Independence of the United States of America, an ad hoc international meeting was held at the Algerian capital Algiers. Representatives of political, law, and academic community from international movements for liberation of peoples were invited to attend and pass the Universal Declaration of the Rights of Peoples. This international civil conference was not a specialized meeting for legal experts, and did not represent the official positions of different states. It was an effort by the international civil society to utilize non-official channels to make appeal on humanitarian concerns and international opinion and supplement the insufficiency of the international positive laws. The declaration was mainly concerned with expressing a spirit of opposition to domination by states and governments, demanding that attention be paid to the rights and status of peoples in the international legal order. It therefore attempted to set a comprehensive conceptual framework for people’s human rights. The ideas and vision embodied in the Universal Declaration of the Rights of Peoples directly influenced the multilateral agreement the African Charter on Human and Peoples’ Rights passed by the African Unification Organization in 1981 and entered into force in October 1986, becoming an

16 Dong, Yun-Hu and Liu, Wu-Ping（董雲虎、劉武萍編著），《世界人權約法總覽》（WORLD DOCUMENTS OF HUMAN RIGHTS），成都：四川人民出版社，1991，pp.964-987, 992-1002, 1345-1350. 17 Antonio Cassess, “Progressive Transnational Promotion of Human Rights”, in: B. G. Ramcharan eds., HUMAN RIGHTS: THIRTY YEARS AFTER THE UNIVERSITY DECLARATION, The Hague: Martinus Nijhoff, 1979, pp. 254-258; Antonio Cassess, HUMAN RIGHTS IN A CHANGING WORLD, Cambridge: Polity Press, 1990, pp. 205-206; Richard Falk, “The Rights of Peoples (In Particular Indigenous Peoples)”, in: James Crawford eds., supra note 3, p. 28. On People’s Human Rights：From a Taiwanese Perspective 175 important component of international human rights law.18 The African Charter was the world’s first formal legal document concerning human rights that enumerated peoples’ rights. And in fact, the foremost contemporary advocate of the concept of peoples’ rights, M'Baye participated in drafting of the African Charter.19 In December 1977, the United Nations’ General Assembly passed Resolution 32/130 on Alternative Approaches and Ways and Means within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms regarding new concepts in human rights, which had been sponsored by Argentina, Cuba, Yugoslavia, the Philippines, and Iran. This resolution represented the beginning of the phase of a so-called structural approach to research on and exercise of international human rights laws—an approach entailing a global outlook in examining basic human rights issues.20 The resolution declared: “The full realization of civil and political rights without the enjoyment of economic, social, and cultural rights is impossible, the achievement of lasting progress in the implementation of human rights is dependent upon sound and effective national and international policies of economic and social development”, and that “Consequently, human rights questions should be examined globally”. In November 1979, the United Nations’ General Assembly passed Resolution 34/46 on Alternative Approaches and Ways and Means within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms regarding development rights, and which counseled that the Commission on Human Rights research approaches and ways and means for improving the effective enjoyment of human rights and fundamental freedoms based on the provisions and concepts of the Resolution 32/130 Regarding New Concepts in Human Rights. It is worth noting that the Resolution 34/46 Regarding the Rights to Development emphasizes “that the right to development is human right and that equality of opportunity for development is as much a prerogative of nations as of individuals within nations”, and again mutual reference is made between men and nations. After several years of debate, the United Nations’ General Assembly in December 1986 passed the Resolution 41/128 on the Declaration on the Right to Development,. This declaration’s Article 1 stated its intent in clear terms: “The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized”, “The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources”. Most importantly, the preamble of this declaration confirmed that “the right to development is an inalienable human right and that equality of opportunity for development is a prerogative both of nations and of individuals who make up nations.” The right to development is both individual and collective, and in the latter role, also national rights.

18 Ian Brownlie, supra note 6, p. 11. 19 Ray August, supra note 2, p. 303. 20 Roland Rich, supra note 3, p. 42. 176 育達研究叢刊 第五、六期合刊

Besides this, the United Nations’ General Assembly in 1984 passed the Declaration on the Right of Peoples to Peace (Resolution 39/11). However, Resolution 33/73, Declaration on the Preparation of Societies for Life in Peace, which was passed in 1978, recognized society as the subject of the right to a peaceful life. Materials on people’s rights were still under development. The environmental protection rights and the right to communicate described by Vasak await confirmation by the General Assembly in the form of a resolution. Regarding the former, the United Nations in 1972 held the United Nations Conference on the Human Environments, passing the Declaration of the United Nations Conference on the Human Environment, proclaiming the importance of the environment to the fundamental human right to adequate conditions of life. The African Charter had earlier included environmental protection rights (the right to a general satisfactory environment) as one item of peoples’ rights. As for the right to communicate, in 1948 the United Nations held the Geneva Conference on Freedom of Information, offering a draft of international convention on freedom of information. In 1978 UNESCO passed the Declaration on Fundamental Principles Concerning the Contribution to the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War, ensured “the respect of the rights and dignity of all nations”. This somewhat presented history of contemporary people’s rights. The following sent of the article would try to understand the general pedigree of the current people’s rights as treated in relevant international legal documents.21

3. The Character and Significance of People’s Rights

The advent of the concept of people’s rights, marking a break from the form of traditional human rights, can be traced back to a fundamental distinguishing characteristic—the different subject for the rights concerned. The subjects of people’s rights are the people collectively of a state or region, while traditional human rights concerned with the rights of individuals. Even second-generation human rights, social rights arising from guarantees for disadvantaged groups—such as children’s rights, women’s rights, the rights of the elderly, the rights of physically or mentally handicapped, alien and refugee’s rights, detainee’s rights, and so forth—are directed not at specific groups per se, but rather at individuals within these groups. Therefore, people’s rights as a form of “group rights” are concerned with rights that are jointly exercised by a group, not with rights of individuals who must have a specific group affiliation. The latter are termed by some as “collective human rights”.22 However, the two are in fact extremely different. Traditional human rights include so-called collective rights, such as the rights of ethnic minorities, embodying both individual and group rights. When exercised as group rights, the ethnic group as a whole is taken as subject of the rights, and promulgated in the same manner as

21 Most of the material and history about the United Nations’ documents of human rights treated herein are derived and sorted from Dong, Yun-Hu and Liu, Wu-Ping, supra note 16, pp.201-217, 1341-1345, 1352-1385; Henry J. Steiner and Philip Alston, supra note 5, pp.1110-1127. 22 E.g., Sun Zhe（孫哲），《新人權論》，台北：五南圖書出版有限公司，1995, pp. 32-33. On People’s Human Rights：From a Taiwanese Perspective 177 people’s rights. The Article 27 of the United Nations’ International Covenant on Civil and Political Rights has relevant special provisions, and in December 1992, the United Nations proceeded to issue the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities. In addition, in recent years the United Nations has begun to pay special attention to issues related to indigenous peoples. Indigenous people’s rights likewise possess characteristics of both rights for individuals and for groups. The Working Group on Indigenous Populations, an auxiliary of the United Nations’ Sub-Commission on the Promotion and Protection of Human Rights, was established in 1982, and its proposed draft declaration on the rights of indigenous peoples is under discussion in the United Nations.23 However, whether ethnic minorities or indigenous peoples are concerned, the mechanisms for guaranteeing their rights can be handled by constitutional law, while people’s rights lie in the domain of international human rights law, which transcend national constitutions. The Universal Declaration of the Rights of Peoples is not a formal international legal document, but it represents the ideals of the international civil society regarding the people’s rights system. The Universal Declaration of the Rights of Peoples was built on an anti-imperialist perspective, sternly criticizing economic, industrial, and military forms of neo-colonialism. Not only does it oppose neo- imperialism, but at the same time, antagonistic to authoritarian regimes including those in socialist regions. The origins of the Lelio Basso International Foundation for the Rights and the Liberation of Peoples, the sponsor of the Universal Declaration of the Rights of Peoples, could in fact traced back to Russell Tribunal. Russell Tribunal was established by international civil society in 1966 for trial on charge of war and governmental criminal acts.24 The convicted in the second Russell Tribunal were authoritarian regimes, and we can thereby posit that the spirit of the Universal Declaration of the Rights of Peoples is one of strong empathy for popular democracy, and opposition to a confusion between people and anti-democratic states. For them, authoritarian or dictatorial regimes claimed to be popular democracies have no rights to represent their people, moreover, they were seen as opposing to their own people. Only countries truly exercise democratic principles can invoke the name of the people—in other words, an assertion of people’s rights must have its meaning of self-government, including as a minimum the right of a people to oppose its government.25 Such people’s rights, encompassing the right of resistance—such as the right to self-determination, and the right to have a democratic government— lie beyond the level of national constitutions in nature. On the level of national constitutions, such people’s rights are collectively equal to the popular sovereignty. But in a fundamental sense, from the perspective of the international human rights laws, these rights are international rights that the international community is responsible to recognize and fulfill all of them. The Universal Declaration of the Rights of Peoples includes eighteen articles defining the nature of people’s rights, the right to existence, the right to the respect of its national and cultural identity, the right to peace, the right to self-determination, the right to have a democratic government, permanent

23 Henry J. Steiner and Philip Alston, supra note 5, pp.986-1020. 24 see e.g., note 17. 25 James Crawford, “The Rights of Peoples: ‘Peoples’ or ‘Government’?”, in James Crawford eds., supra note 3, p. 56. 178 育達研究叢刊 第五、六期合刊 sovereignty over natural wealth and resources, the right to common heritage of mankind, the right to fair international trade, the right to choose economic and social system, language and culture rights; the right to artistic, historical and cultural wealth, the right to reject alien culture, and environmental protection rights. These can be classified into five categories: 1.A people’s rights to existence (the right to existence, the right to the respect of its national and cultural identity, the right to peace); 2.Political rights of a people (the right to self-determination, the right to have a democratic government); 3.Economic rights of a people (permanent sovereignty over natural wealth and resources, the right to common heritage of mankind, the right to fair international trade, the right to choose economic and social system); 4.Cultural rights of a people (language and culture rights; the right to artistic, historical and cultural wealth, the right to reject alien culture); 5. The environmental protection rights of a people. Although the African Charter was influenced by the concept of peoples’ rights and became the first, and still the only, international human rights legal document to focus exclusively on peoples’ rights issues, in a specific sense. Due to the unique political, economic, social, and cultural development, enormous discrepancy in Africa has developed between the theory and practice of Africa's peoples’ rights. The Universal Declaration of the Rights of Peoples is full of admiration and enthusiasm for popular democracy, and considers people’s rights to supplement the system of individual rights. However, the peoples’ rights encompassed by the African Charter are at their base derived from a group-oriented conception of “African values and morals”—for example, when a draft of the Charter was being produced, representatives from a number of countries pointed that in Africa individuals cannot be considered separately from their group, while individual rights can only be interpreted and realized in the context of group’s rights. These countries were especially eager to promote peoples’ rights, distinguishing them from individual rights and regulating them separately. Another example was the following text, which was added to the preamble of the preliminary draft by the Council of Ministers of Justice of the Organization of African Unity, which was also responsible for producing the draft itself: “Taking into consideration the virtue of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights”.26 However, we could be virtually certain that the faith to the peoples’ rights described in the African Charter were fundamentally derived from a value system based on group- oriented thinking, and this can be traced back to the pre-colonial system of tribe democracy. 27 For the different value system from West, this is why the African Charter provides human rights and peoples’

26 Olusola Ojo and AInadu Sesay, “The O.A.U.and Human Rights: Prospects for the1980’s and beyond ”, HUMAN RIGHTS QUARTERLY, 8:1, Baltimore: John Hopkins University Press, Feb.1986, p.94. 27 Warren L Holleman（霍勒曼）著，汪曉丹譯，〈西方人權運動中的個人主義〉，沈宗靈、黃柟森主編， 《西方人權學說》，下，成都：四川人民出版社，1994, p. 334. On People’s Human Rights：From a Taiwanese Perspective 179 rights separately. Such approach demonstrated that the African Charter was ambivalent on the question of whether traditional concepts of human rights encompass peoples’ rights. The African Charter defines the peoples’ rights as: 1.Equality rights (Article 19); 2.Rights to existence, rights to self-determination and right to receive foreign aid (Article 20); 3.Permanent sovereignty over natural wealth and resources (Article 21); 4.Economic, social, and cultural development rights (Article 22); 5.International peace and security rights (Article 23); 6.Environmental rights (Article 24). If the whole of international human rights legal documents were considered, British scholar James Crawford believes that the United Nations resolutions that serve as a statement of people’s rights are not international treaties, and have not directly created a binding obligation for all states in the world. As a category of rights, People’s rights in fact have not achieved recognition in at least one international human rights instrument in treaty form.28 Therefore, legal sources must be sought for by looking back to the texts of the United Nations Charter and International Bill of Human Rights, as well as other international agreements. Crawford added the right of group to exist to P. Sieghart’s classification scheme, and proposed at least seven classes of people’s rights:29 1.Rights to existence; 2.Self-determination and equality of rights; 3.Rights relating to international peace and security; 4.Permanent sovereignty over natural resources; 5.Rights in relation to development; 6.Rights in relation to the environmental; 7.Rights of minorities. The above-mentioned classes can in turn be divided into two categories. The first is related to the existence and cultural or political continuation of groups, including rights to self-determination, the rights of minorities, and the rights of groups to existence. Their history of development is relatively long. The second category has only emerged in post-war period, includes permanent sovereignty over natural resources, rights to development, to the environment and to international peace and security. The post-war history of people’s rights was initiated by the principle of equal rights and self- determination of peoples described in the Paragraph 2 of the Article 1 of the United Nations Charter. The all peoples’ right of self-determination set in the first article of the two International Covenants of Human Rights provided the strongest basis for recognition of people’s rights. The right of self- determination is purely oriented toward groups, while people’s rights, which are distinguishable from state rights and governmental rights, are a pre-state conception. The right of self-determination is a class of rights that predated the emergence of the notion of people’s rights. The first articles of the two

28 James Crawford, supra note 25, pp. 57. 29 Ibid. 180 育達研究叢刊 第五、六期合刊

International Covenants of Human Rights further link self-determination rights to economic, social, and cultural development, and involve in permanent sovereignty over natural wealth and resources, and rights to existence. The subjects of these rights explicitly includes peoples of Non-Self-Governing and Trust Territories. Crawford believes that the subjects of the rights to existence should include ”a national, ethnical, racial or religious group” that do not qualify for self-determination rights.30 It is a special case of the subjects of people’s right. Because the Article 4 of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, regarding the parties who may be held accountable for genocide, includes “constitutionally responsible rulers, public officials or private individuals”. Constitutionally responsible rulers and public officials who are a part of authority representing the people in exercising the group will. Rights of minorities are also a class of rights recognized before the World War II, and were included in the Article 27 of the International Covenant on Civil and Political Rights. Rights of minorities possess the character of both individual and collective rights. However, the present article does not consider minorities to be appropriate subjects for general people’s rights as “a national, ethnical, racial or religious group” mentioned above, unless they become a people who are integral, identifiable, and even independent. As a part of minorities, indigenous peoples’ issues of being subject of peoples’ rights is identical with minorities’. The concept of minorities is relative to the majorities. Once a statistical or territorial change occurs, a minority may become the majority or “the people”. From this point, the group becomes an appropriate subject for general people’s rights. Of the people’s rights that have been promulgated in the post-war period, rights to international peace and security are treated in the Article 23 of the African Charter: “All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between States”. The African Charter treated peoples and states as identical, and linked this treatment to the Paragraph 3 of the Article 2 of the United Nations Charter: “All Members should settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”. Permanent sovereignty over natural wealth and resources, and rights to development are both extensions of the rights to self-determination. Rights to development are explicitly described in the text of the Article 22 of the African Charter as follows: “All peoples shall have the right to their economic, social, and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.” As for rights to the environment, they are treated only in the Article 24 of the African Charter: “All peoples shall have the right to a general satisfactory environment favorable to their development”. However, there is no global pact to serve as the basis for establishing peoples’ rights to the environment. The category of people’s rights is still in the midst of constant development. As seen in the present article, although the United Nations has not promoted for people’s rights anything equivalent to

30 Ibid., p. 59. On People’s Human Rights：From a Taiwanese Perspective 181 the Universal Declaration of Human Rights, one cannot thereby deny that the various resolutions of the United Nations possess the status of legal sources in the area of peoples’ human rights laws, but only that their effect is relatively low. Besides, the regionally oriented international charter, the African Charter, has already enumerated and acknowledged them. The African Charter defines human rights and peoples’ rights separately, while the Universal Declaration of the Rights of Peoples defines peoples’ rights only. In fact, this points out a possible solution for disentangling people’s rights from traditional human rights—define people’s rights, which transcend national constitutions, separately from human rights, which are under the aegis of national constitutional articles, distinguishing and clarifying their nature. However people’s rights for the most part are only promulgated through legally non-binding declarations or resolutions of international organizations. This fact tells us that they do not yet possess universality. Current international channels and mechanisms for protecting people’s human rights are not comprehensive enough to guarantee their actual implementation. Therefore, the current state of development of people’s rights has not yet gone beyond the stage of calls for international justice and humanitarian treatment.

4. Conceptual distinguishing of people’s rights

The biggest problem of people’s right lies in the definition of concept concerning the subject, people/peoples exercising the power. Secondly, the concept and relationship among nations, state, and sovereignty is also problematic. The third problem concerns right’s validity and adjustment between people’s rights and other collective human rights and individual human rights. Neither the Universal Declaration of the Rights of Peoples nor the African Charter provided definition and clarification on concepts of people/peoples. In all sorts of international treaties and charters, including those of the United Nations did not elaborate concepts on people/peoples. The equivocal definition on subjects exercising people’s rights turned out to be obstacle in development of the theory and practice of people’s rights. This somewhat relates to the ambiguous meaning of the word “people” in English. It means people and nation at the same time in which the original meaning of the latter relates to “race” in ecology, biology and anthropology and bears the same meaning as nation. But modern concept on nation relates to the ideology of nation-state, the subjective identity of a nation-state stands even more important in distinguishing one nation from another than objective characters of a nation. Deriving from European political history, British scholar Anthony Smith proposed two concepts of nation,31 territory/citizenship and race/culture, the former being product of political process, the latter being the combination of political system and the ideology of nation-state. Take the African Charter as an example, it was meant to protect peoples’ rights in Africa. Most African countries were former colonies, when they became independent countries, the boundaries between respective colonies were kept as boundaries between different countries. But the legacy of

31Anthony Smith, THE ETHNIC ORIGINS OF NATIONS, Oxford: Basil Blackwell, 1986, pp. 129- 152. 182 育達研究叢刊 第五、六期合刊 colonization was more of interest distribution and colonization need than reflecting the original differentiation of nations. Therefore most of African countries were not racial nation-states but civil nation-states. In other words, the subjects construction of African nation-states were not the nation of traditional meaning, but politically constructed “people” or nationals”. Africa is not alone in this situation; there are plenty of examples in Europe, Asia and America. If what the African Charter refers to as peoples were conceptually racial, it would be hard to imagine how African countries could ever manage self-determination issues in their respective countries. The African Charter strongly criticized colonialism, neo-colonialism and repeatedly declared liberation for the colonized and oppressed peoples; these wordings were based on the premise that they were against Western colonialism and imperialism. But for new African countries in pursuit of modern civil nation-states, the Article 19 of the African Charter declaring that “Nothing shall justify the domination of a people by another“ could not violate the Article 29 calling for the individual’s duty “To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to its defense”. When the boundaries between different nations were inconsistent with those of different countries, the African Charter asked individuals or nations to concede to the ruling of state. Obviously, the peoples or nations mentioned in the African Charter referred to were nation-states, or all nationals of modern civil nation- states. From here, we could understand why the African Charter would enlist a peoples’ permanent sovereignty on natural wealth and resources as well as state’s permanent sovereignty on natural wealth and resources, provide the peoples’ right to national and international peace and security, and emphasize that so-called solidarity and friendly relations refers to relationships between different states, and claim that any individual enjoying the right of asylum shall not engage in subversive activities against his country of origin or any other state party to the Charter. The United Nations did not officially state the definition of “people”, but the Sub-Commission on Prevention of Discrimination and Protection of Minorities appointed Aureliu Cristescu a special rapporteur for a research on people’s right to self-determination. The report proposed criteria differentiating people.32 Firstly, the word people refers to a social entity possessing a clear identity and its own characteristics. Secondly, it implies a relationship with a territory, even if the people in question has been replaced by another population. Thirdly, A people should not be confused with ethnic, religious or linguistic minorities, whose existence and rights are recognized in Article 27 of the International Covenant on Civil and Political Rights. In other words, a social entity related with specific territory, sharing identity, could be called people. UNESCO experts pointed out in 1989, a people must possess one or all of the following characteristics: 33 1. shared historical tradition; 2.

32 Aureliu Cristescu, “The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instruments”, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, New York: United Nation, 1981, p. 41, from: Theo van Boven, The Relations Between Peoples’ Rights and Human Rights in the African charter”, Arlington: HUMAN RIGHTS LAW JOURNAL, Vol.7, 198, pp. 192. 33 The International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, Paris: UNESCO, 27-30 Nov. 1989, SHS-89/CONF.602/7, from: Chiang, Huang-Chih, supra note 12, p. 92. On People’s Human Rights：From a Taiwanese Perspective 183 identification of race or ethnic; 3. culture in common; 4. language in common; 5. religious or ideological ties; 6. connection of territories; and 7. shared economic life. In comparison with Cristescu’s criteria, the first four factors characterizes basis of collective identity among people, and the last three constituted the living environment of people and relationship with specific territory. François Rigaux, who participated in the drafting of Universal Declaration of the Rights of Peoples, also pointed out 3 characteristics to distinguish people:34 1. the people constituting a human community and obviously different from another one; 2. people refers to whole or most of the population in a country sharing basic rights, i.e. they don’t succumb to the power of a few; 3. people could be structured group of people sharing common qualities or a minority recognized by the state of their rights collectively. In Rigaux’s standard, definition of people is similar to what Antonio Cassese claimed when he defined people, notion of “the lawful status of constitutionally recognized”. Yet the danger of constitutionally recognized or recognized by the state is that, the recognition could be canceled thus threatening people’s rights and status.35 Therefore explanation of a state should be elaborated in a broad sense, meaning a specific territory where people live in. Taiwanese scholar Chiang, Huang-Chih thought, a specific group of people were entitled to the rights of “self-determination” when they have “at least racial or ethnic tie with self identity and geographically sharing same territory.”36 In conclusion, this article considers that the proper subjects of people’s rights should be people with collective identity, sharing the same territory to operate their common economic life, in that specific geographic location, political organizations were established for people’s needs of management. In this definition, the notion of people equals that of “nation” and “nation-state”. The reason of emphasizing political organization in this article is that without being politically organized, the people in concern could not properly express their consciousness of rights. Without the existence of subjectivity, people’s rights could be founded nowhere, i.e. the right-holder is not a physical person, but an institutional person. Unfortunately, the state is the only body eligible to the rights.37 This definition also aims to contrast the difference among people, state and government, manifesting rights of self-determination and people’s rights. If a political organization is not democratic, then people could resist against it, manifesting national identity and voluntary people’s liberation groups could be considered organizations representing the people. In this perspective, people being occupied and ruled by another nation like nations without states as Palestine, Tibet, and East Timor38 were the proper subjects of

34 Frangois Rigaux, ”The Algiers Declaration of the Rights of Peoples”, in: Antonio Cassese eds., UN LAW/FUNDAMENTAL RIGHTS: TWO TOPICS IN INTERNATIONAL LAW, Alphen aan den Rijn: Sijthoff and Noordhoff,1979, p. 217. from: Theo van Boven, supra note 32, p. 36. 35 Alexandre Kiss, “The People’s Right to Self-Determination”, Arlington: HUMAN RIGHTS LAW JOURNAL, Vol.7, 1986, p. 174. 36 Chiang, Huang-Chih, supra note 12, p. 54. 37 Jack Donnelly, “In Search of the Unicorn: the Jurisprudence and Politics of the Right to Development”, (in part), in: Henry J.Steiner and Philip Alston ed., supra note 5, p. 1123. 38 On 30 August 1999, in a UN-supervised popular referendum, the people of East Timor voted for independence from Indonesia. On 20 May 2002, East Timor was internationally recognized as an independent state officially 184 育達研究叢刊 第五、六期合刊 people’s rights.39 If the political organization is democratized, the political entity is the representative of the subject exercising people’s rights, at this time, the terms people and “state” mean the same thing. For states established on the principle of people’s rights, people’s rights is the state’s rights, and also the government’s rights. The question on whether that state really exists was an issue of fact instead of a legal issue therefore it is not necessarily a state widely recognized by the whole world. Recognition of a state is based on diplomatic policy discretion of respective state rather than duty of international treaties.40 In consequence, in democracies the state is the substantive subject of people’s rights, and because the unit of international community is state, protector of international collective human rights is the whole international community, only collaboration in the international level could ensure the realization of people’s rights.41 If minorities and indigenous peoples could not satisfy the definition mentioned above, e.g. living among majorities, economic dependence, they could not be the subjects exercising people’s rights. In brief, this article assumes that the state, in the “is” level, is the representative organization of the subject of people’s rights; but in the “ought-to-be” level, the people of a colony should be recognized as the subject exercising people’s rights, the government in exile as their representative organization. As for the adjustment of people’s rights and other collective rights and individual human rights, this article agrees with the preamble of the African Charter, “the reality and respect of peoples’ rights should necessarily guarantee human rights”. That is claiming individual human rights and collective human rights should be placed on different right system. In the traditional context of individual human rights, group of course may enjoy individual human rights. As the Paragraph 3 of Article 19 of the Basic Law of the Federal Republic of Germany says: “Basic rights also apply to domestic legal persons to the extent that the nature of such rights permits.” Taiwanese constitution does not actually have any provision about human rights for legal person or group without legal personality, but if the nature permits, it is a matter of course in explanations. However, it is different from general legal persons to the state. Originally, individual human rights were developed to fight against the state and majority, if the collective constructed by individuals has the characteristics of fighting against state intervention and demanding the realization of human rights, the collective is naturally positioned as individual. In the national constitutional level, the constitutionalism is to protect individual human rights to limit state power. If the state as a legal person gifted with constitutional subject status of human rights yet competing limited right resources with the people, then the state legal person could possibly use

named the Democratic Republic of East Timor. 39 About the justifying nations without states’ group rights and political practices, see Montserrat Guibernau, NATIONS WITHOUT STATES: POLITICAL COMMUNITIES IN A GLOBAL AGE, Cambridge: Polity Press, 1999. 40 Lee, Tzu-Wen, “The International Law of Recognition and the Republic of China”, SOOCHOW LAW REVIEW 7:1, Taipei: Soochow University（李子文，〈國際法上之承認與中華民國〉，《東吳法律學報》，第 七卷第一期，台北：東吳大學）, Feb. 1991, pp. 27-29. 41 LI Buyun, “On Individual and Collective Human Rights”, in: Peter R. Baehr, Fried van Hoof, Liu Nanlai, Tao Zhenghua, and Jacqueline Smith ed., HUMAN RIGHTS: CHINESE AND DUTCH PERSPECTIVES, The Hague: Martinus Nijhoff Publishers, 1996, pp. ll9-120, 121. On People’s Human Rights：From a Taiwanese Perspective 185 powerful state apparatus to oppress disadvantaged individual freedom. The problems of state oppression soon take the issue of conflicts between so-called equal rights which is even harder to protect truly individual human rights. Moreover, as British scholar John Westlake described that the duty and rights of a state is the duty and rights of people constituting the state,42 what actually operate and in charge of the state apparatus are actual individuals instead of an abstract notion of state or people. The individual behind the state usually could use the power and influence to take over the national sovereignty, individual nationals would be powerless to go against it because all the people rely on, the parliament and jurisdiction were created by the national sovereignty. Since the state could cancel parts of its legislation, and make new ones, it could amend it to avoid legal responsibility. 43 The state has got all the advantages, then we really do not need to empower the state as the subject of human rights in national constitutional level, if we do, it would be disarmament of protection on nationals’ human rights. This article considers that, in the national constitutional level, endow the state legal person with human rights would be distancing itself from the constitutionalism. Therefore the hypothesis that people’s rights could derive from individual human rights is ill founded. Thus, in the level of international law, empowering and recognizing a collective people or state with individual human rights would be improper. Adding the alliance between states, it would be even more disadvantageous for the protection of individual human rights. If people’s rights could be brought into being, then we must reconstruct its legal source in international laws, and differentiate it from individual human rights and special ethnic group rights. People’s rights have the characteristics of a quasi-state rights, therefore must be strictly restricted on the operation so that it could exist along with human rights. People’s rights have the meaning and function only in the international laws level. The classes of people’s rights have to be restricted on legal provisions generally recognized by the international community. This article assumes that the third- generation human rights is different from traditional human rights; we could not magnify the proper subject of the latter to approve the existence of third-generation human rights. The classes of human rights in the two international covenants of human rights are not necessarily favorable for people and minorities. Concerning the relationship between people’s rights and the rights of minorities and indigenous peoples, minorities and indigenous peoples’ rights exist concurrently in international law level and national constitutional level, therefore their people’s status being double protected and approved in the international and national law. But as before mentioned, people’s rights function only for the state and people in the international level, hence in the level of national law, the state must help maintain minorities and indigenous peoples’ autonomy in order to realize systematic protection of their collective human rights. In the level of international law, except the sovereign rights of external self- determination to secession, the right status of minorities and indigenous peoples should be equal to that

42 Lassa Francis Lawrence Oppenheim, OPPENHEIM’S INTERNATIONAL LAW, Vol. I-PEACE, (edited by H. Lauterpacht), London: Longmans, Green and Co., 1955, sec.13-1. 43 Ibid., sec.148. 186 育達研究叢刊 第五、六期合刊 of the whole people. Minorities or indigenous peoples were protected for their human rights in national constitutional level because they were different to the majority constructing civil nation-state, affirmative protection actions could ensure equality. But in international community, all people as a whole belonging to different countries were seen as equal units, and there is no meaningful world government, so there is no necessity and possibility of specially protecting any specific disadvantaged people. Affirmative individual or collective treatments do not apply in the people’s rights level. After confirming lawful characteristics of people’s rights and rights for minorities and indigenous peoples, we need to deal with the relationship between people’s rights and individual human rights. In the justification given when USA withdrew from UNESCO, the USA Department of State claimed that, “UNESCO has been pressured, particularly by African states (encouraged by the Soviet bloc), to give equal or greater attention to ‘rights of peoples’. A political ‘right of self-determination ’ has long been recognized and endorsed by the United States, but other purported ‘rights of peoples’, generally economic in character, such as the ‘rights to development’, are exceedingly vague and ill- defined. This stresses on ‘collective rights’ trends to strengthen the prerogative of a non-democratic State, at the expense of the human rights of individuals”.44 This article is against the point of view that people’s rights conflict with individual human rights. Actually the Declaration on the Right to Development has long since clearly defined that the right to development is not limited to economic process, contrarily, it goes back to the origin of self-determination. The Paragraph 1 of the Article 2 of the Declaration on the Right to Development provides that “The human person is the central subject of development and should be the active participant and beneficiary of the right to development”, the Paragraph 2 of the Article 6 provides that “All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights”, and the Paragraph 2 of the Article 9 further provides that “Nothing in the present Declaration shall be construed as being contrary to the purposes and principles of the United Nations, or as implying that any State, group or person has a right to engage in any activity or to perform any act aimed at the violation of the rights set forth in the Universal Declaration of Human Rights and in the International Covenants on Human Rights.” All of the above provisions mean that individual human rights protections are still core of human rights and people’s rights protections. The practice of people’s rights cannot violate individual human rights. When the state uses collective rights as tool and excuse to harass individual human rights, it is the misuse of collective rights or people’s rights, not the problem of people’s rights in its self.

5. Political function of people’s rights

44 United State of America, Department of State, “Executive Summary of the US Department of States’ Policy of US-UNESCO Relations”, from: Gillian Triggs, “Peoples’, Rights and Individual Rights: Conflicts or Harmony?”, in: James Crawford eds., supra note 3, p. 142. On People’s Human Rights：From a Taiwanese Perspective 187

Fundamental human rights conceptions have gone into structural approach phrase at the same time as the passing of the Resolution 32/130 Regarding New Concepts in Human Rights. The influence of third world countries on structural problem of world human rights originated from the Declaration on the Establishment of a New International Economic Order of 1974. The declaration claimed sovereign equality and elimination of unbalance among states. This declaration had a lot to do with the ever growing difference between North and South and world economic crisis in the 1970s. In 1977 Argentina, Cuba, Yugoslavia, the Philippines, and Iran successively brought the Resolution 32/130 Regarding New Concepts in Human Rights to discussion, but researches about imprisoned human rights, political kidnapping and disappearance, national emergency measures were postponed in consequence.45 States proposing the Resolution 32/130 Regarding New Concepts in Human Rights were mostly notorious authoritarian states at that time, but this proposal also showed that it is common issue that third world countries put a lot emphasis on economic development, and viewed it as the prime strategy and target for the development of human rights. Cassess generated principles concerning human rights development in developing countries:46 1. Even if it is not the absolute priority, economic, cultural, and social rights realization took a larger proportion; 2. The international economic system has to change, it has to take the responsibility for the lack of human rights and the underdeveloped situation in poor countries. Unjust international order reflects in the internal disorder in these countries; 3. Economic and social factors are the roots and origins of human rights violation, improvement in international economic relationship helps soothing the situation; 4. The international community should solve and reject exceptional cases violating basic human rights with greatest efforts, eg former apartheid practicing South Africa, former Rodesia and Israel; 5. United Nations’ resolutions were more preferable than treaties because they are more flexible while treaties have the most powerful legal effects. The internal human rights issues in third world countries were therefore transformed into structural violent problem of international political economy system. In other word, if we were unable to review and criticize the social and economic development strategy in each country in the global context, argument and accusation on any human rights issues in the respective countries would be insufficient and unfair. Countries like South Africa, Rodesia and Israel, explicitly practicing racial segregation and discrimination would be the excuse for authoritarian states when they were accused of violating human rights. Although we agree the new concepts proposed in the resolution, we couldn’t deny the fact that there are plenty of authoritarian states in the third world. In fact, as Cassess pointed,47 many of the countries

45 Antonio Cassess, INTERNATIONAL LAW IN A DIVIDED WORLD, Oxford: Oxford University Press, 1986, p. 311. 46 Ibid., pp. 308-309. 47 Ibid., pp. 309-310; “The general Assembly: Historical Perspective 1945-1989”, in: Philip Alston eds., THE UNITED NATIONS AND HUMAN RIGHTS: A CRITICAL APPRAISAL, Oxford: Oxford University Press, 1992, pp. 41-42. 188 育達研究叢刊 第五、六期合刊 proposing the resolution intended to use it to exclude the effort Western countries tried to establish the High Commissioner for Human Rights in the United Nations. That is transforming international attention from human rights violating authoritarian states to concepts on social and economic rights. Moreover, the deprivation of civil and political rights does not necessarily related to social and economic rights in authoritarian states or polities. In consequence, if international economic and social aid cannot be implemented to people through democratic government, it would in turn take international economic aid as the back force to reinforce authoritarian ruling. For the people whose rights being threatened and intervened, it is undoubtedly making the matter worse. But this article does not agree with the idea that ideological inconsistency between North/South, West/East countries would consequently result different application and explanation on people’s rights, the reasons are already stated above. What we need to look at is the function of people’s right in international politics. When the Resolution 32/130 Regarding New Concepts in Human Rights were in the voting, 126 countries voted for it, 11 Western countries waived their rights to vote. In 1982 when United Nations discussed the Resolution 37/199 Regarding Establishing New International Economic Order and People’s Rights to Development, 113 countries voted for it, only the US voted against it, other 26 Western countries waived their rights. Here it shows contrasting standing point between Western and developing/underdeveloped countries, Western countries were afraid that theories of people’s rights would destroy traditional human rights theory and also affect Western interests in post- colonial areas and countries. Non-Western countries resort to the human rights of people’s right to raise the issue of injustice of Western and neo-colonialism. To the authoritarian states, they brought the value of social rights to controvert Western accusation and critics on their undemocratic governing. This situation also shows that no country would dare to question the supremacy value of human rights explicitly. International political conflicts therefore start with the form of debates on human rights. State is the basic unit in action in international political society, in international laws, a state is often seen as a collective social and political organization. Seeing in this light, the state is the acting body of people’s will in a collective sense. So when certain people requests people’s rights through the state and the government, the international community could only assume that action of the state is action of people. The word state has always been closely related to ruler in which meaning more or less confronting people at the same time. If concepts of people replace state, it would be more powerful to manifest the symbolic meaning of human rights for people’s rights, and avoiding critics on government ruling and human rights conditions. Also the domination of hegemonism in international political relation consequently resulted in many non-international state legal person or state with withered legal personality unable to be protected in international human rights system. So the notion of people’s rights could avoid the entangled web of international political hegemony. Moreover this reveals even more of the treatments to people in some countries or regions received from international discrimination. Whether the argument were agreed upon or not, under the premise of equality of national sovereignties and people’s rights, the concepts of people’s rights Went into international human rights On People’s Human Rights：From a Taiwanese Perspective 189 laws system by third world’s support, for third world countries were of majority. That helped building up space for the development and realization of people’s rights. This article agrees that category of international human rights should be adequately controlled by their quality and quantity, to avoid the inflation of human rights concepts. This article also believes that concepts of people’s rights would be wider and wider applied as the moral basis and international legal source for national development strategies in the future. It could turn into a theoretical weapon for democratic movements around the world to fight against authoritarian states. This fact proves that the discourse of people’s rights were unavoidably born with huge political functions. The validity of the Two International Covenants of Human Rights cannot be neglected, debate on individual human rights and people’s rights would help bring maturity to international human rights laws.

6. Conclusion

In 1991 February, the Unrepresented Nations and Peoples Organisation（UNPO） 48was created by nations and peoples around the world. Participation in UNPO is open to all nations and peoples who are inadequately represented as such at the United Nations. Its ideal is to offer an international forum for occupied nations, indigenous peoples, minorities, and even oppressed majorities who currently struggle to regain their lost countries, preserve their cultural identities, protect their basic human and economic rights and safeguard the natural environment. Taiwan was one of the founding assembly members, and is current president of the steering committee. It is interesting for us to know how UNPO to define Nation or People. The Item A of the Article 6 of the Covenant of the Unrepresented Nations and Peoples Organisation provides that “A Nation or People shall mean a group of human beings which possesses the will to be identified as a nation or people and to determine its common destiny as a nation or people, and is bound to a common heritage which can be historical, racial, ethnic, linguistic, cultural, religious or territorial. A section of a people constituting a minority, living on a portion of its ancestral territory, incorporated into a State other than a State represented by that People, is included in this Article’s definition.” The concept of minority in UNPO’ Covenant indeed is relative to majority in the same State, and is more extensive than UNESCO’s definition, because it doesn’t stress the economic factor. However UNPO still stresses the political dimension, so People must have its own Representative Body. Item B of the Article 6 of UNPO’s Covenant reads as follows: “Representative Body shall mean a government, legislative body, liberation movement or other organ of leadership, whether in the territory of the Nations or People or in exile, recognised as such by a substantial section of the people which the Representative Body claims to represent; a Representative Body can also mean a coordinating organisation or other form of association of two or more organs of leadership of one Nation or People or an organisation or association of two or more Nations and Peoples”. While the article has been writing, in 2001 February 17th, the VI General Assembly of UNPO

48 For further details of UNPO, see: http://www.unpo.org. 190 育達研究叢刊 第五、六期合刊 adopted a new Universal Declaration of the Rights of Peoples and declared a pedigree of people’s rights in the context of the international law of human rights as what I classify as follows: 1. The equal right to existence (with the right to live in dignity and to be respected, the right to and return to their own abode, the right to self-preservation and physical existence, the right to live in peace, the right to security and international legal protection, the right to be informed about policies that affect their existence and their rights, the right to demand from state and international organisations the observance and protection of their rights.); 2. Political rights of a people ( the equal right to self-determination, the right to self-government and independent statehood); 3. Economic rights of a people (the right to sovereignty over the natural wealth and resources); 4.Rights in relation to the environmental (the right to ecological security and protection of their natural environment, the right not to allow the production, testing, storage, transportation and use of weapons of mass destruction); 5, The right to development; 6, Cultural rights of a people ( the right to self-identification). The new trend of ideas of people’s rights is not far from what I have observed. Although UNPO is not an official international organization, its existence is a proof of international civil society’s vitality in international human rights sphere. Ever since the United Nations was founded, large numbers of independent nation-states entered into international laws system. With the efforts made by the third world, many new human rights concepts, different from traditional western conceptions, were brought into international laws system. In any case, a lot of documentations of international human rights laws, being United Nations Charter, Universal Declaration of Human Rights, the Two International Covenants of Human Rights, all related international human rights treaties, resolutions of the United Nations and important international organizations, and international court’s decisions, all have their own effects on theorizing and practice of international human rights laws. All states concerned, whether being member of international organization or contracting party of treaties, must be bound and respond to it in international relationship. Neither People’s Republic of China nor the United States was full member signing the Two International Covenants of Human Rights, the former has long suffered from Western critic on human rights conditions and diplomatic problems, and the latter criticized of its double standard on human rights diplomatic policy. Although Taiwan is not a member of the United Nations, due to needs of international association, also consent to obey and follow all important resolutions passed by the United Nations. These examples proved the trend for internationalization of human rights. No state could avoid the regulation and obligations abide by international community, resorting to international human rights would generate invaluable and great effects on national image and expansion of political economic relationship. Oppressed by political reasons, Taiwan’s diplomatic support shrank rapidly after Taiwan withdrew On People’s Human Rights：From a Taiwanese Perspective 191 from the membership of the United Nations in 1971. Consequently Taiwan was barred from many important international conferences concerning development and benefit of the Taiwanese people and nowhere to express the will and opinion of the people. The internationally recognized lawful interests and benefit of Taiwan were neglected and infringed for a long time. When the international community was restricted by the claims of the People’s Republic of China and limited itself in the traditional international laws of sovereignty, Taiwan needed to be creative on the development of pragmatic international relations, in addition to endlessly trying to attend, participate in international organizations. Thus avoiding direct confrontation with the PRC and reducing possibilities of strong antagonism is useful for Taiwan to return to international community. The economic development in Taiwan used to be called a “Taiwan miracle” in the last few decades, the democratization and liberalization in the last decade won big success too. The experiences of social, economic, and political development in Taiwan are something to be proud of and worth sharing with the rest of the world, these also serve as the most powerful supports for Taiwan to contribute to the international community. This article suggests Taiwanese government turning some of the diplomatic attention to international civil society, fighting for public opinion supports and sympathy. Most of all, the government must not over look the development and trend of international human rights law and the part we could play in it to reinforce dialogue and connection in international people’s rights organizations. In one hand, Taiwan may earn worldwide respect by supporting human rights and people’s rights movement to build up the state as east Sweden; in the other hand, Taiwan may appeal to the international community of the discriminated situation and treatment Taiwan suffered, criticize PRC’s hegemony and violation on Taiwanese people’s rights, and ask the international community jointly to guarantee the realization of Taiwanese people’s rights. Facing the international political reality, we see the fact that Taiwanese people are not fairly treated and protected by the United Nations laws system. As Taiwanese, people of founding member of UNPO, we deeply aspire with all peoples in the world that the UNPO’s Declaration will be adopted by the United Nations and becomes one of the cornerstones of international law and political practice along with the Universal Declaration of Human Rights. For Taiwanese people to share justice and all that the rest of the world are entitled to enjoy by the name of people’s rights, in existence or coming to existence, would be the author’s wish as this article draws to a close. 192 育達研究叢刊 第五、六期合刊

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