Abstract The power to detain holds the potential for oppression. Freedom from arbitrary detention therefore is one of the most universal protections that international human rights norms and domestic constitutions seek to guarantee. This chapter compares these protections across the People’s Republic of China(PRC), the Republic of China on Taiwan, and the PRC’s Special Administrative Region of Hong Kong. All have constitutional principles against arbitrary detention. Taiwan and Hong Kong have also incorporated the International Covenant on Civil and Political Rights, which the PRC has signed but never ratified, into their domestic law, yet their practices differ vastly. The rampant resort to unlawful and arbitrary detention in China paints a sobering picture of how law on the books can remain an empty promise. Taiwan and Hong Kong, on the other hand, have made significant strides in limiting arbitrary detention, but the events of the 2019-2020 Hong Kong protests, marked by police brutality and mass arrests, expose the fragility of these safeguards under authoritarian influence. This chapter explores these diverse experiences, offering critical insights into effective mechanisms for restraining governmental detention powers, while also highlighting the precarious nature of such safeguards when confronted with authoritarian regimes.

In January 2017, one of the editors of this book, Jerome A. Cohen, delivered a public speech at National Taiwan University College of Law after he had served as a member of the international group of experts invited by the government of Taiwan to review its implementation of international human rights covenants. In his speech, he mentioned that based on his personal experience and his participation in the review, Taiwan has much to share with people in other parts of the world about its experiences in transforming itself from historically having had an authoritarian legal and political structure into what is now a vibrantly democratic society. Spurred by this, we decided to put together a book to tell the story of Taiwan’s performance in various fields of human rights from various perspectives. We are pleased that local and international scholars and other experts, many with a long history of writing about human rights, readily accepted our invitation to participate in this volume. They were enthusiastic about the opportunity to elaborate from a theoretical and/or practical vantage point areas of human rights protection with which they are familiar. In addition to the introductory chapter coauthored by the editors of this book, we have collected 37 chapters from authors representing a broad range of perspectives and topics, with some authors finding many developments to laud, while others instead emphasize the need for improvement. Readers will find that there have been events, governmental decisions, and judicial decisions positively or adversely affecting human rights protection. Different views exist as to the proper way of achieving higher standards of pro- tection. But one thing that is shared by all of the authors is that human rights treaties have played a key role in the case of Taiwan. There is a broad consensus among the authors in this volume that in the case of Taiwan, these treaties have contributed importantly to facilitating the transition from an authoritarian regime to a real democracy, even as Taiwan remains outside the “jurisdiction” of these treaties. We hope that this book will provide a useful example for the discourse of human rights protection in developing countries, for the discussion of practical and legal issues raised by human rights treaties, and for demonstrating how such treaties can help States Parties as well as nonparties to promote human rights.

This brief memoir illustrates Taiwan's modern human rights history in broad strokes through my own experiences. It begins with a first visit in 1961, when the island was suffering under the harsh Chiang Kai-shek dictatorship. It ends with my participation in the unique recent reviews of Taiwan's immense human rights progress by leading international specialists. Along the way, I was privileged to witness and take part in a few depressing but exciting and ultimately hopeful events that marked the long transition from KMT repression to constitutional democracy.

In November 2001, member states of the World Trade Organization (WTO) approved the proposal to admit China to the international trading body. After fifteen years of exhaustive negotiations, China finally became the 143rd member of the WTO on December 11, 2001. To reflect on this event, this panel brings together six China experts to explore the ramifications of China's accession to the WTO. Among the issues addressed are whether China is making progress in its compliance with the WTO requirements, whether China is suffering setbacks in the socio-economic arena, whether there are any prospects for democratic reforms and stronger human rights and environmental protection in the country, and what the WTO accession means to China's neighbors and the global community.

By and large, for the past dozen years, China’s professed transition toward the rule of law has witnessed more setbacks than progress. The extent to which the exercise of governmental power should be subject to domestic and international legal restraints continues to be a matter of enormous importance. This is true in every country and in relations among countries in our increasingly interdependent world. The earthshaking impact of Donald Trump’s election to the American presidency has made the relationship of law to power as preached and practiced by the United States a virtually universal concern. Yet, as Americans and others strive to cope with this new challenge, the world is also increasingly anxious about how a rising China — with more than four times the population of the United States and almost as much economic strength — respects the “rule of law” at home and abroad.This essay, building on the excellent analysis by Jean-Philippe Béja (Social Research: An International Quarterly, this issue) updating his earlier overview of the political situation in the Central Realm, will focus on China’s domestic legal situation. In doing so, we must be fully aware that the People’s Republic of China (PRC) — an increasingly oppressive Marxist-Leninist dictatorship — denies foreign scholars, and even its own people, the opportunities for knowledge and analysis that American freedoms of expression and transparency offer domestic and foreign observers of the United States. I regret the limitations that these restrictions impose upon my comments.

Neither China nor Taiwan seeks to be a haven for the other's fugitives. And each jurisdiction wants its own fugitives back. The two governments have resorted to flexible and innovative cross-strait agreements and proxy organisations to cooperate in repatriating nationals of the other side whom the latter wishes to subject to criminal proceedings. This practice bears many similarities to extradition. Yet despite more than two decades' cooperation, the major problem still confronting the repatriation process - at least until the very recent increase in political tension across the Taiwan Strait - has been their failure to support the process by developing in their domestic legal systems a regulatory framework at least as satisfactory as the one each has already established to govern extradition. We identify this regulatory vacuum and critique existing criminal repatriation practice, which has been marked not only by practical difficulties but also, even more seriously, by a lack of adequate protection for the basic rights of the persons to be repatriated. We call attention to the need for some enhanced protections for human rights in this aspect and in cross-strait relations generally. This case study of criminal repatriation, originally one of the important aspects of cross-strait cooperation, suggests that, when China and Taiwan wished to form closer ties and to pursue a certain policy of law enforcement, they minimised human rights considerations in order to serve their immediate political project. It constitutes a warning against neglecting human rights in the service of extradition and smooth political relations.

The author is an American China scholar who spent 11 months in Hong Kong in 1963-1964 to study the Chinese law and government. This article portrays his adventures during his stay in Hong Kong, including his settling in the Colony, interviewing the refugees, establishing the Universities Service Centre, making a broad range of friends and learning some lessons on regionalism in China.

This article describes and analyses the problems of China's criminal defence lawyers in gaining access to and representing detained clients during the investigation, indictment and trial stages of the criminal process, with brief reference to problems at the appeal and post-conviction stages. The article also discusses the harassment and intimidation suffered by defence counsel who live under threat of prosecution for waging too vigorous defences and who are subject to other restraints and sanctions. It concludes with some suggestions for foreign co-operation with and support for these embattled but essential lawyers in China.

Professor Herbert Ma has always been the person to call on for Americans in Taiwan seeking to learn about China’s legal systems. His informal and low-key manner and his knowledge and zest for the study of comparative law and jurisprudence are widely admired. Herbert is unusually good at listening as well as speaking and is tolerant of various views. He is a wise person and is appreciated for his calm and open-minded perspective. When Taiwan was still in its authoritarian years in the 1960s and 1970s, Herbert played a prominent role on the NTU law faculty, trying in his patient way to inject democratic ideals into the gradually evolving local legal system through teaching comparative law and legal philosophy to the very able students who were destined to staff Taiwan’s legislature, courts, prosecutors’ offices, judicial bureaus, law firms, and law schools and to participate in its remarkable constitutional and legal transformation. Through his teaching, scholarship, and government service, Herbert has proved to be a very positive influence in the development of democracy, the rule of law, and human rights in post-World War II Taiwan.

A Generation Later— Substantial Progress, but . . . . . . . . . . . . . . . . . . 558 R I. Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 558 R II. Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561 R III. Adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 565 R Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 567 R

Increasingly intense ocean disputes between China and its neighbors have heightened interest in Beijing's theory and practice of international law. China actively participated in the negotiations that produced the 1982 UN Convention on the Law of the Sea (UNCLOS) and ratified it in 1996. A series of potentially serious recent incidents involving US air and naval reconnaissance in waters claimed by China as its exclusive economic zone (EEZ) has added another urgent problem to Beijing's ocean agenda. With its sovereignty, national security, transport routes and economic resources at stake, China's law of the sea experts and diplomats confront challenges equal to their considerable talents. Of the many signs of China's increasingly assertive foreign policy, none has troubled its neighbors and the United States more than its claim to some form of jurisdiction over much of the South China Sea. Keywords:exclusive economic zone (EEZ); international law; South China Sea; UNCLOS