Every sovereign government has to protect its nationals abroad. Consular agreements are among the first documents negotiated after countries establish diplomatic relations. Among the many issues they cover, none is more sensitive than the protection of nationals whose physical freedom is restricted by the host government.
What obligations does the host have toward the foreign national and his government? Does it have to notify his government of the detention and relevant details? Must it allow the foreign government’s consular officials to meet the detained national? In what circumstances? What can be discussed? May the consuls arrange a lawyer for the detainee? May the consuls attend any trial in which the national is involved?
Such questions are mundane but important to smooth international relations, and agreeing on a set of rules is important even though it cannot be assumed that the answers agreed upon will always be honored in practice.
The People’s Republic of China (the PRC or China) is a state party to the Vienna Convention on Consular Relations, which requires detaining governments to allow consular officers to visit the detained person and arrange legal representation, among other protections. Most nations have bilateral consular agreements with China that specify more details. However, because both the PRC and the Republic of China (the ROC or Taiwan) claim to be the legitimate government of China, they do not maintain diplomatic relations with each other, and have not concluded a consular agreement.
Beijing considers Taiwan as part of the PRC and therefore does not recognize the application of international standards to China-Taiwan relations. Nevertheless, functionally the two sides interact like foreign jurisdictions in multiple ways, and their nationals increasingly find themselves on soil controlled by the other government, whether for tourism, business, sports, culture, family or other reasons.
The two sides of the Taiwan Strait urgently need the functional equivalent of a consular agreement to regulate the myriad problems that inevitably arise from their contacts, which have grown enormously since Taiwan’s then-new President Ma Ying-jeou initiated his momentous cross-strait reconciliation policy in 2008. The absence of consular-type protections for detained persons has proved particularly troublesome, especially for Taiwanese business people, and has had a serious impact on cross-strait trade and investment.
Taiwan’s recent unprecedented, student-led Sunflower Movement has thus far prevented legislative approval of the recent Cross-Strait Services Trade Agreement and seemingly cooled prospects for greater cross-strait exchanges. In fact, however, Beijing and Taipei have not discontinued negotiating further cooperation, including what President Ma has called a politically significant agreement that would allow the two sides to establish semi-official “representative offices” in each other’s jurisdiction for the first time. Although much remains to be pinned down and publicly-released details are skimpy, these representative offices promise to fulfill some of the traditional functions of government consulates. Recent reports on the negotiation show some progress, but major challenges lie ahead.
In July of this year, the two governments held their seventh round of negotiations concerning the functions of representative offices. They reportedly reached consensus on two issues that had earlier frustrated negotiators: host government notification to the other side’s representative office of any restriction of its nationals’ personal freedom, and “humanitarian visits” by officials from the representative office to its detained nationals. Taiwan’s Mainland Affairs Council has indicated that each side will need to hold discussions with its own law enforcement authorities in order to work out how relevant commitments will be carried out.
While the Chinese and Taiwanese governments are often criticized for sidelining human rights in their cooperation, this recent report is an encouraging sign that the two parties are becoming increasingly concerned about certain rights issues.
Yet, what was and still remains challenging for the negotiation is cross-strait disagreement over standards and expectations for assuring due process of law, including freedom from arbitrary detention and unfair legal procedures. Criminal justice is the weakest link in China’s legal system. Although Taiwan’s 1971 ouster from the United Nations has prevented it from acceding to the International Covenant on Civil and Political Rights (ICCPR), it has incorporated the ICCPR into its domestic legal system. China, on the other hand, has never ratified the ICCPR, which it signed in 1998.
Chinese law enforcement’s heavy reliance on a suspect’s confession and the prevalence of torture to obtain it have long resisted internal law reform efforts. In China, lawyers cannot be present during police and prosecutorial interrogations, and even their rights to visit detained clients are often hampered in practice. Nor are family visits usually allowed for detainees pending final criminal conviction. These harsh realities pose a stark contrast with Taiwan’s admirably reformed criminal justice system.
Hence, Taiwanese critics are particularly concerned about protecting the rights of Taiwanese who venture to the Mainland for business or other reasons. The most notable rights issue thus far negotiated is notification that a national’s physical freedom has been restricted. It was first dealt with in the Cross-Strait Agreement on Joint Crime-Fighting and Judicial Mutual Assistance signed in 2009 by the two sides’ “semi-official” organizations. That agreement requires each party to “promptly” inform the other of persons who have had their personal liberty restricted. This was a positive step but obviously limited, since no specific time frame was mentioned and other important details were lacking.
The safety of Taiwanese business people remains a serious concern. Available numbers suggest the severity of the problem. Over the past 20 plus years, Taiwan’s Strait Exchange Foundation has registered some 3,167 cases regarding personal safety and freedoms of Mainland-based Taiwanese business people. Among them, “restrictions on personal freedoms by authorities” is the most common complaint (929 cases). Other complaints include murders (112), death due to accident or illness (360), injury due to accident or illness (385), robbery, assault, intimidation and blackmail (184), kidnapping and illegal detention (154), disappearance (497) and others (546). These numbers do not capture the countless other cases that go unreported.
In light of this problem, when Taipei and Beijing concluded the Cross-Strait Bilateral Investment Protection and Promotion Agreement in 2012, they jointly issued a “Statement of Common Understanding on the Protection of Personal Freedom and Safety in regard to the Investment Protection Agreement.” It provides that each of the two semi-official organizations in charge of cross-strait matters should notify the other within 24 hours of the restriction of the freedom of any of the other side’s investors, their compatriot employees or accompanying family members. In addition, Mainland public security authorities must inform a detained person’s family in the Mainland within 24 hours. If the family is not in the Mainland, the Statement merely indicates that the police “may” inform the investor’s company.
The Statement, apart from its obvious limitations of scope to Taiwanese business people and their families in the mainland, says nothing about other rights of a person whose freedom has been restricted or of his family or lawyers. Nor does it eliminate exceptions to notification requirements in China’s inadequate Criminal Procedure Law, which, in cases of alleged endangering of national security or suspected terrorist activities, exempts China’s investigators from the obligation to inform the family if, in their judgment, notification may hinder their investigation. Indeed, the Statement is careful to maintain that all notification obligations are subject to the legal provisions of each jurisdiction. Presumably this relieves the Chinese side from its obligation to notify not only the family but also the other side itself if PRC police decide that the situation falls within an exception.
Taiwan negotiators fought unsuccessfully to persuade their Chinese counterparts to exempt Taiwan investors to the Criminal Procedure Law’s notification requirement exceptions. Chinese police are well-known for giving unjustifiably expansive interpretations to legislative clauses that were meant to be narrow exceptions to limitations on their powers. They have, for example, frequently claimed that a broad range of conduct deemed harmless by free societies falls within the ambit of “endangering national security.”
Both parties are now planning to make the representative office one of the channels receiving notification, but many related questions still need to be considered. For example, will a detained person be permitted to contact official representatives without delay? Will he be informed of his right to do so?
On the issue of contacts with the representative office, the negotiating focus has thus far been on whether official representatives will be allowed to visit the detainee. China resisted making a concession on this principle until recently. But we do not know the contemplated scope of such visits and their detailed timeframes and procedures. Again, the issues are similar to those involved in negotiations between states over consular access. Will the representatives be allowed to communicate with the visited person freely? What will official representatives be allowed to do to assist a detainee? Can they arrange for legal representation? Will they be able to attend any trial or other legal proceedings that develop? Will there be any restrictions in certain cases on any of such rights, as in cases allegedly involving “state secrets” or “endangering national security”?
The current negotiation over protecting the personal security of Taiwanese in the Mainland is merely the entering wedge of a broader, now widespread concern in Taiwan that the island’s increasingly close integration with China will undermine Taiwan’s core values and the personal freedoms for which Taiwanese have long struggled. As demonstrated by the Sunflower Movement, cross-strait relations are unlikely to make further significant progress unless people in Taiwan feel assured that they will keep their autonomy, their personal security and their democratic way of life.
Taiwan’s government can no longer acquiesce in keeping civil and political rights off the cross-strait agenda, but must gradually seek to engage China ono the basic rights of all the people on both sides of the water.
If the agreement on representative offices can offer meaningful criminal justice protections for Taiwanese in the Mainland, it will be a modest, yet highly significant, symbol that both China and Taiwan have begun to recognize the importance of at least some human rights in cross-strait relations. This may improve prospects for further, sustainable cross-strait cooperation.
Jerome A. Cohen is a law professor at NYU Law School, co-director of its US-Asia Law Institute and adjunct senior fellow for Asia at the Council on Foreign Relations. Yu-Jie Chen is a Taiwan lawyer and research scholar at NYU’s US-Asia Law Institute.