¹ Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85 (entered into force 26 June 1987) [UNCAT].

² Rules that prohibit torture could be found in various universal human rights instruments, such as the Universal Declaration of Human Rights, GA Res. 217 (III), UN Doc. A/810 (1948) [UDHR], art. 5; the International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976) [ICCPR], art. 7; the United Nations Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3 (entered into force 2 September 1990) [CRC], art. 37; the Convention on the Rights of Persons with Disabilities, 30 March 2007, 2515 U.N.T.S. 3 (entered into force 3 May 2008) [CRPD], art. 15; Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S 90 (entered into force 1 July 2002) [ICC Statute], arts. 7 and 8. Torture also constitutes a grave breach under Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31 (entered into force 21 October 1950), art. 50, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 U.N.T.S. 85 (entered into force 21 October 1950), art. 51, Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135 (entered into force 21 October 1950), art. 130, Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287 (entered into force 21 October 1950), art. 147 [Geneva Conventions].

³ See NOWAK, Manfred, BIRK, Moritz, and MONINA, Giuliana, eds., The United Nations Convention Against Torture and its Optional Protocol: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2019) at 91Google Scholar; HARPER, Julianne, “Defining Torture: Bridging the Gap between Rhetoric and Reality” (2009) 49 Santa Clara Law Review 893 at 894–895Google Scholar. See also Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980) [VCLT], art. 53.

⁴ Study on the phenomena of torture, cruel, inhuman or degrading treatment or punishment in the world, including an assessment of conditions of detention, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, by Manfred NOWAK, UN Doc. A/HRC/13/39/Add.5 (2010) at para. 250.

⁵ Torture and other cruel, inhuman or degrading treatment or punishment, Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, by Juan E. MÉNDEZ, UN Doc. A/71/298 (2016).

⁶ Torture and other cruel, inhuman or degrading treatment or punishment, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, by Nils MELZER, UN Doc. A/HRC/46/26 (2021) at para. 10.

⁷ Ibid. See also “Governments’ commitment to torture ban lacks credibility worldwide: UN expert” United Nations (8 March 2021), online: United Nations <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26859&LangID=E>.

⁸ Nowak, supra note 4 at paras. 73, 154, and 255.

⁹ Lutz OETTE, “Implementing the prohibition of torture: the contribution and limits of national legislation and jurisprudence” (2012) 16 The International Journal of Human Rights 717 at 717.

¹⁰ Ratification of the Convention is today a matter of priority. See e.g., Torture and other cruel, inhuman or degrading treatment or punishment: mandate of the Special Rapporteur, HRC Res 25/13, UN Doc. A/HRC/RES/25/13 (2014); Torture and other cruel, inhuman or degrading treatment or punishment, GA Revised Draft Res, UN Doc. A/C.3/70/L.27/Rev.1 (2015) at para. 32; The negative impact of corruption on the right to be free from torture and other cruel, inhuman or degrading treatment or punishment, HRC Draft Res, UN Doc. A/HRC/37/L.32 (2018) at para. 1 [Torture Conventions]. The United Nations Special Rapporteur on Torture has further emphasized that “… the decision to do so is not entirely at the discretion of individual States.” See Seventieth anniversary of the Universal Declaration of Human Rights: reaffirming and strengthening the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, by Nils MELZER, UN Doc. A/73/207 (2018) at para. 19.

¹¹ HAFNER-BURTON, Emilie and TSUTSUI, Kiyoteru, “Human Rights in a Globalizing World: The Paradox of Empty Promises” (2005) 110 American Journal of Sociology 1373 at 1383CrossRefGoogle Scholar.

¹² BURNS, Peter T. and OKAFOR, Obiora C., “The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or How It Is Still Better to Light a Candle than to Curse the Darkness” (1998) 9 Otago Law Review 399 at 432Google Scholar.

¹³ Hafner-Burton and Tsutsui, supra note 11 at 1378.

¹⁴ TALLBERG, Jonas, “Paths to Compliance: Enforcement, Management, and the European Union” (2002) 56 International Organization 609 at 609CrossRefGoogle Scholar; COLE, Wade M., “Mind the Gap: State Capacity and the Implementation of Human Rights Treaties” (2015) 69 International Organization 405 at 405CrossRefGoogle Scholar; Hafner-Burton and Tsutsui, supra note 11.

¹⁵ Melzer, supra note 6 at para. 74.

¹⁶ Hafner-Burton and Tsutsui, supra note 11 at 1378.

¹⁷ See BANK, Ronald, “Country-Oriented Procedures under the Convention against Torture: Towards a new dynamism” in ALSTON, Philip and CRAWFORD, James, eds., The Future of UN Human Rights Treaty Monitoring (Cambridge: Cambridge University Press, 2000), 145 at 145Google Scholar; MCQUIGG, Ronagh, “How Effective is the United Nations Committee against Torture” (2011) 22 European Journal of International Law 813 at 813CrossRefGoogle Scholar; KELLY, Tobias, “The UN Committee Against Torture: Human Rights Monitoring and the Legal Recognition of Cruelty” (2009) 31 Human Rights Quarterly 777 at 777CrossRefGoogle Scholar; Harper, supra note 3 at 913.

¹⁸ HEYNS, Christof and VILJOEN, Frans, The Impact of the United Nations Human Rights Treaties on the Domestic Level (Hague, London, New York: Kluwer Law International, 2002) at 6CrossRefGoogle Scholar; TATE, Katharine E., “Does the Convention against Torture work to actually prevent torture in practice by State party to the Convention?” (2013) 21 Willamette Journal of International Law and Dispute Resolution 194 at 194Google Scholar.

¹⁹ Nowak, Birk, and Monina, supra note 3 at vii.

²⁰ See Strengthening and enhancing the effective functioning of the human rights treaty body system, UNGA Resolution 68/268, UN Doc. A/RES/68/268 (9 April 2014); Human rights treaty body system, UNGA Resolution 71/185, UN Doc. A/RES/71/185 (19 December 2016); Human rights treaty body system, UNGA Resolution 73/162, UN Doc. A/RES/73/162 (17 December 2018); Human rights treaty body system, UNGA Resolution 75/174, UN Doc. A/RES/75/174 (16 December 2020). See also Status of the human rights treaty body system: Report of the Secretary-General, UN Doc. A/74/643 (2020).

²¹ Nils Melzer, the UN Special Rapporteur on torture, has suggested that the widespread use of torture around the world can be traced primarily to shortcomings in national implementation, challenges to the prohibition of torture and ill-treatment, impunity and discrimination. See Melzer, supra note 10 at para. 18.

²² McQuigg, supra note 17 at 813.

²³ Andrew BYRNES, “Uses and abuses of the treaty reporting procedure: Hong Kong between two systems” in Alston and Crawford, supra note 17, 287 at 287.

²⁴ Heyns and Viljoen, supra note 18 at 6.

²⁵ CHEN, Yu-Jie, “Localizing Human Rights Treaty Monitoring: Case Study of Taiwan as a Non-UN Member State” (2018) 35 Wisconsin International Law Journal 277 at 277Google Scholar.

²⁶ The Bill of the Implementation Act was passed by the Taiwan Government (Executive Yuan) on 10 December 2020. To date (May 2022), the act has not been passed by the legislature.

²⁷ A torture monitoring body established under the OPCAT shall conduct regular visits to places of detention with the aim of protecting detainees against torture and ill-treatment. Regarding challenges for the Taiwanese NPM, see Pavel DOUBEK, “National Human Rights Institution and National Preventive Mechanism “within” the Control Yuan” (2021) 6 Taiwan Human Rights Journal 3.

²⁸ HSIEH, Pasha L., “An Unrecognized State in Foreign and International Courts: The Case of the Republic of China on Taiwan” (2007) 28 Michigan Journal of International Law 765 at 765Google Scholar.

²⁹ The United Nations Secretariat refused to deposit the instruments of ratification by referring to the UN General Assembly Resolution 2758 of 1971, which states that mainland China is the sole legitimate representative of China at the United Nations. See Republic of China (Taiwan), “Core Document Forming Part of the Reports – Republic of China (Taiwan)” (September 2012), online: Ministry of Justice (Taiwan) <https://www.humanrights.moj.gov.tw/media/14392/541517195727.pdf?mediaDL=true> at 1; Restoration of the lawful rights of the People's Republic of China in the United Nations, UNGA Resolution 2758(XXVI), UN Doc. A/RES/2758(XXVI) (1971) [UNRPRC].

³⁰ Hafner-Burton and Tsutsui, supra note 11 at 1402.

³¹ Although Taiwan's ratification has no international effect, the term “ratification” is officially used by the Taiwan government as well as by Taiwan scholars. See e.g., Chen, supra note 25 at footnote 33.

³² Treaties that protect a certain catalogue of human rights, such as the ICCPR, the International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3 (entered into force 3 January 1976) [ICESCR]; the European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 222 (entered into force 3 September 1953) [ECHR].

³³ For example, the CRC, the CRPD, or the Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 U.N.T.S. 3 (entered into force 3 September 1981) [CEDAW].

³⁴ LeBLANC, Lawrence J., HUIBREGTSE, Ada, and MEISTER, Timothy, “Compliance with the reporting requirements of human rights conventions” (2010) 14 The International Journal of Human Rights 789 at 790CrossRefGoogle Scholar.

³⁵ BURGERS, Herman J. and DANELIUS, Hans, The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Dordrecht: Martinus Nijhoff Publishers, 1988) at 1Google Scholar.

³⁶ Torture Conventions, supra note 10.

³⁷ Geneva Conventions, supra note 2; ECHR, art. 3; American Convention on Human Rights, 22 November 1969, 1144 U.N.T.S. 123 (entered into force 18 July 1978), art. 5(2); African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 U.N.T.S. 217 (entered into force 21 October 1986), art. 5; Universal Islamic Declaration on Human Rights, art. 7; See also Burgers and Danelius, supra note 35 at 1.

³⁸ See UNCAT, preamble.

³⁹ Malcom D. EVANS, “Getting to Grips with Torture” (2002) 51 International and Comparative Law Quarterly 365 at 376.

⁴⁰ CARVER, Richard and HANDLEY, Lisa, Does Torture Prevention Work? (Liverpool: Liverpool University Press, 2017) at 13Google Scholar.

⁴¹ Burgers and Danelius, supra note 35 at 130.

⁴² Evans, supra note 39 at 369.

⁴³ For the full definition of torture, see UNCAT, art. 1.

⁴⁴ DEWULF, Steven, The Signature of Evil: (Re)Defining Torture in International Law (Cambridge: Intersentia, 2011) AT 551Google Scholar; Paul D. KENNY, “The Meaning of Torture” (2010) 42 The Journal of the Northeastern Political Science Association 131; RODLEY, Nigel S., The Treatment of Prisoners Under International Law (Oxford: Oxford University Press, 2002)Google Scholar; DELAPLACE, Edouard and POLLARD, Marie, “Torture Prevention in Practice” (2006) 16 Association for the Prevention of Torture 220Google ScholarPubMed.

⁴⁵ Dewulf supra note 44 at 551. Based on the analysis and synthesis of these varieties, Dewulf challenges the existing definition of torture and introduces his own definition. See also Evans, supra note 39 at 376 and footnote 48. See also discussion in Harper, supra note 3.

⁴⁶ Harper, supra note 3.

⁴⁷ Dewulf supra note 44.

⁴⁸ For further discussion on global acceptance of this definition, see Evans, supra note 39 at 376 and footnote 48.

⁴⁹ Taiwan is not included in this list as it is not considered a de iure State.

⁵⁰ Bhutan, Democratic People's Republic of Korea, Iran, Malaysia, Myanmar, Singapore, Cook Islands, Micronesia, Niue, Papua New Guinea, Solomon Islands, Tonga and Tuvalu.

⁵¹ Brunei Darussalam, India and Palau. For more details, see United Nations High Commissioner for Human Rights, “Status of Ratifications – Interactive Dashboard”, online: UNHCR <https://indicators.ohchr.org/>.

⁵² GOODLIFFE, Jay and HAWKINS, Darren G., “Explaining Commitment: States and the Convention against Torture” (2005) 68 The Journal of Politics, 358 at 365Google Scholar.

⁵³ See e.g., Sarah Fulton's comments on a long tradition of prohibition of torture in the British common-law system. FULTON, Sarah, “Cooperating with the enemy of mankind: can States simply turn a blind eye to torture?” (2012) 16(5) The International Journal of Human Rights 773 at 774CrossRefGoogle Scholar.

⁵⁴ Organic Act of the Control Yuan National Human Rights Commission (Jiānchá yuàn guójiā rénquán wěiyuánhuì zŭzhī fǎ, 監察院國家人權委員會組織法), art. 2. This provision stipulates the NHRC's power to investigate incidents involving torture. Furthermore, Art. 11 of the Detention Act (Jīyā fǎ, 羈押法) concerning the duty to report an incident of torture inflicted on a defendant upon arrival at a detention centre.

⁵⁵ Based on an online legislative database, the incidence of the terms referring to some other forms of ill-treatment is as follows: “cruel” (0), “cruelty” (1), “inhuman” (1), “inhumane” (1), “degrading” (0), “ill-treatment” (0), “maltreatment” (3). Criminal Code (Art. 10) uses the term “abuse” which is defined as “any act of abuse or maltreatment of another person in a violent, coercive or inhumane way”. See Ministry of Justice, “Laws & Regulations Database of The Republic of China”, online: MOJ <https://law.moj.gov.tw/Eng/index.aspx>.

⁵⁶ Regarding the plenty of cases of torture and wrongful convictions, see e.g., the case of Cheng Hsing-tse (鄭性澤); Hsu Tzu-chiang (徐自強); Su Ping-kun (蘇炳坤) and Hsichih Trio - Su Chien-ho (蘇建和), Chuang Lin-hsun (莊林勳), and Liu Bin-lang (劉秉郎).

⁵⁷ Personal communication with Yung-Lien (Edward) Lai (賴擁連) on 16 April 2021. Professor Lai has a 10-year-long professional experience with the prison system under the Agency of Corrections of the Ministry of Justice in Taiwan and he is the one of leading scholars in Taiwan concerning correctional justice, inmate misconduct, correctional officer's legitimacy and related issues. He is currently a professor at the Department of Crime Prevention and Corrections at Central Police University in Taiwan.

⁵⁸ Edward Lai provides an example of inhumane practice of the use of means of restraints known as “body strengths” on prisoners in correctional institutions (which occurred about 20 years ago). This torture technique was composed of tethering prisoners in standing positions to a wall, where they had to wear a helmet on their head, had a piece of cloth in their mouths as a gag, stretched their hands and had to stay in such positions for several hours. Professor Lai believes that given the legal regulation of correctional measures in Article 23 of the Prison Act (Jiānyù xíng xíngfǎ, 監獄行刑法) and broadly understood concept of human rights, these cases of ill-treatment no longer appear in Taiwan.

⁵⁹ Ibid.

⁶⁰ Regarding “a house of torture prevention” illustration created by the Association for the Prevention of Torture [APT], Asia Pacific Forum of National Human Rights Institutions [APF] and the Office of the High Commissioner for Human Rights [OHCHR] see <https://www.ohchr.org/sites/default/files/Documents/Countries/NHRI/Torture_Prevention_Guide.pdf> at 5.

⁶¹ The martial law era refers to the period from 20 May 1949 to 14 July 1987 (for the island of Taiwan) and to the period from 10 December 1948 to 6 November 1992 (for Kinmen, Matsu, Dongsha and Nansha).

⁶² It was, nevertheless, able to ratify in 1951 the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 U.N.T.S. 277 (entered into force 12 January 1951).

⁶³ International Bill of Human Rights, A/RES/217(III)A-E (10 December 1948); LIAO, Ford Fu-Te, “From seventy-eight to zero: Why executions declined after Taiwan's democratization” (2008) 10 Punishment and Society 153 at 155CrossRefGoogle Scholar.

⁶⁴ See the amendment of the Code of Criminal Procedure in 2003 that adhered to the requirement of cross-examination in criminal procedure (new Articles 287(1) and 287(2)). See further the case of Cheng Hsing-tse (鄭性澤) that was the driving force behind these legislative changes. See also Judicial Yuan Interpretation No. 582 (23 July 2004), which provided an interpretation of the constitutional requirement on cross-examination.

⁶⁵ See the Taiwan Innocence Project, an organization pursuing for exoneration of victims of wrongful convictions, believes that since 1997 (a year when mandatory recording in criminal procedure was established), no torture has been committed in Taiwan (personal communication on 27 April 2021). In a similar way, the Transitional Justice Commission, an organization dealing with victims of the Martial Law era, insists that torture no longer occurs (personal communication on 31 March 2021). See further Tseng-chang SU, “The Executive Yuan, Cabinet approves draft bill on implementation of UN convention against torture” (10 December 2020), online: Executive Yuan <https://english.ey.gov.tw/Page/61BF20C3E89B856/fc3e03ba-06d2-4484-b641-4ba44926d28a>.

⁶⁶ See notorious cases of death of soldiers Zhong-qiu Hong (洪仲丘) and Chien Chih-lung (簡志龍). See also other cases of deaths, abuses and human rights violations that occurred over years in military settings: Bi'e CHEN and Rulin LI, 21 phone calls: Bingge's late night call for help (21 通電話：阿兵哥的深夜求救) (Taipei: Yushan Society, 2018).

⁶⁷ See United States Department of Labour, “2020 List of goods produced by child labour or forced labour” (2020), online: DOL <https://www.dol.gov/sites/dolgov/files/ILAB/child_labor_reports/tda2019/2020_TVPRA_List_Online_Final.pdf> at 32–34 and 74–75; Bonny LING, “A Watershed for Human Rights in Taiwan's Fishery Sector” The News Lens (11 May 2021), online: The News Lens <https://international.thenewslens.com/article/150838>.

⁶⁸ The average overcrowding rate concerning the whole prison system was 9.6% (2017), 10% (2018) and 5.9% (2019). The rate is significantly higher concerning particular correctional institutions (2020): Taoyuan Prison (64.8%), Hsinchu Detention Center (42.5%), Yilan Prison (22.6%). For more details, see Covenants Watch, “Third Parallel Report on the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights” (2020) online: Covenants Watch <https://covenantswatch.org.tw/wp-content/uploads/2015/12/CW_2020-parellel-report-on-ICCPR-and-ICESCR_online_EN_REV.1.pdf> at paras. 373-374.

⁶⁹ See the illustrative case of Taipei Prison inmate Chen Chin-yi, who suffered from diabetes and due to the mandatory use of shackles got an infection of an open wound and had to undergo a leg amputation. See for more details in Covenants Watch, “Initial Parallel Report on the Implementation of the International Covenant on Civil and Political Rights” (2012) online: Covenants Watch <https://covenantswatch.org.tw/wp-content/uploads/2018/12/2013-ICCPR-State-Reports-Shadow-Report_EN.pdf> at 49.

⁷⁰ International Review Committee, “Concluding Observations and Recommendations on the Initial State Report on the Implementation of the International Human Rights Covenants” (1 March 2013), online: International Review Committee <https://www.humanrights.moj.gov.tw/media/14391/5415171652675.pdf?mediaDL=true> [International Review Committee 2013 Observations] at para. 59; International Review Committee, “Concluding Observations and Recommendations on the Second State Report on the Implementation of the ICCPR” (20 January 2017), online: International Review Committee <https://en.covenantswatch.org.tw/wp-content/uploads/2018/12/2017-ICCPR-ICESCR-CORs_EN.pdf> [International Review Committee 2017 Observations] at paras. 55–56.

⁷¹ Torture and other cruel, inhuman or degrading treatment or punishment, Report of the Special Rapporteur, by Nils MELZER, UN Doc. A/HRC/43/49 (2020) at paras. 68–70.

⁷² Lo Ping-cheng (羅秉成), Minister without Portfolio and Spokesperson of the Executive Yuan (personal interview on 7 June 2021).

⁷³ The UN Secretariat rejected the deposition of the ratification instruments by referring to UNGA Resolution 1971. See UNRPRC, supra note 29 and Republic of China (Taiwan), supra note 29 at 1.

⁷⁴ English versions also use terms “Act to Implement”, “Enforcement Act”, “Implementation Act”. The Chinese version uses the uniform term “Shīxíng fǎ (施行法)”.

⁷⁵ See UNCAT, art. 2; OPCAT Implementation Act. See also ICCPR Implementation Act, art. 2; CEDAW Implementation Act, art. 2; CRC Implementation Act, art. 2; CRPD Implementation Act, art. 2. All Implementation Acts are available in both English and Chinese in the Ministry of Justice, “Laws & Regulations Database of The Republic of China”, online: Ministry of Justice <https://law.moj.gov.tw/Eng/index.aspx>.

⁷⁶ The legislative procedure on concluding treaties is regulated by the three legislative acts: The Conclusion of Treaties Act, art. 11; The Enforcement Rules of the Conclusion of Treaties Act; and Regulations Governing the Processing of Treaties and Agreements.

⁷⁷ It is generally believed that the relationship between domestic and international law is based on monism. See e.g., Yean-Sen TENG, “The Problems with the Incorporation of International Human Rights Law in Taiwan” in Jerome COHEN, William P. ALFORD, Chang-fa LO, Taiwan and International Human Rights (Singapore: Springer, 2019), 249 at 251; Chen Longzhi (陳隆志), Ford Fu-Te Liao (廖福特) and Zhang Yuanzhen (張元貞) in Bingkuan LU, “Analysis of policies promoting the Convention against Torture: Centering on the interpretation of the chief justice and the judgment of the administrative court” (2020) online: <http://lawdata.com.tw/File/PDF/J1395/E00009_078.pdf> (“推動禁止酷刑公約政策之分析：以大法官解釋與行政法院判決為中心”) 78, at 86–7.

⁷⁸ ICCPR and ICESCR Implementation Act (2009); CEDAW Implementation Act (2011); CRC Implementation Act (2014); and CRPD Implementation Act (2014).

⁷⁹ See e.g., Chen, supra note 25.

⁸⁰ Read more about the reporting process in Covenants Watch, “Treaty Reviews”, online: Covenants Watch <https://en.covenantswatch.org.tw/treaty-reviews/>.

⁸¹ International Review Committee 2017 Observations, supra note 71 at para. 5.

⁸² International Review Committee 2013 Observations, supra note 71 at para. 11.

⁸³ International Review Committee 2017 Observations, supra note 71 at para. 11.

⁸⁴ Personal interview with Lo Ping-cheng (羅秉成), Minister without Portfolio and Spokesperson of the Executive Yuan (7 June 2021).

⁸⁵ The Soochow University and the Central Police University.

⁸⁶ See the studies and seminars commissioned by the Criminal Investigative Bureau (“CIB”) of the Ministry of Interior published on the website specifically created for the purpose of the UNCAT and OPCAT implementation (https://cat.cib.gov.tw/).

⁸⁷ Jiafa LIU, “Research Report on the Review of Regulations on the Convention against Torture and its Optional Protocol” (“針對禁止酷刑公約及其任擇議定書檢視法規之研究”) (11 May 2019) online: <https://cib.npa.gov.tw/ch/app/data/view?module=wg128&id=2009&serno=230fa275-5502-4378-a4a4-0efd9234901d>.

⁸⁸ Civil society groups have always played a leading role in promoting human rights in Taiwan and were closely engaged in the ratification process of the ICCPR, ICESCR, CRC, CEDAW, CPRPD, and in the establishment of the National Human Rights Commission.

⁸⁹ It is plausible to believe that the prohibition of torture is not regarded as a specific human rights issue by the non-governmental organizations (“NGO”) in Taiwan and is rather addressed as part of other human rights topics. See various reports by Taiwanese NGOs that deal with the rights of prisoners (Prison Watch), persons with disabilities (Taiwan Association for Disability Rights), children (Taiwan Alliance for Advancement of Youth Rights and Welfare), refugees (Taiwan Association for Human Rights), workers’ rights (Taiwan Labour Front), and persons convicted to death penalty (Taiwan Alliance to End the Death Penalty) amongst others.

⁹⁰ Su, supra note 65.

⁹¹ Su, supra note 65. For an opening speech of Deputy Minister of Interior Chen Zongyan (陳宗彥) who has expressed a desire to align with the international community, see Zongyan CHEN, “Opening speech presented at The 2020 Convention against Torture Conference (“2020 年禁止酷刑公約研討會實錄論文集”)” (2020) online: <http://lawdata.com.tw/File/PDF/J1395/E00009_002.pdf> at 7 (translated by author): “[T]he Legislative Yuan will complete the review of the implementation law as soon as possible so that we can integrate with the international community as soon as possible. Although we are not a member of the United Nations, we are willing to work with the international community on the entire human rights value. We also hope to become a pioneer in the human rights value in Asia.”

⁹² The following provisions of the Implementation Act have been translated from Mandarin Chinese by the author. See “禁止酷刑公約施行草案” online: Executive Yuan, <https://www.ey.gov.tw/Page/9277F759E41CCD91/56e601fa-8a7f-46af-803f-b870830b845d>. Abbreviation “UNCAT and OPCAT Implementation Act” or “Implementation Act” is used throughout this article.

⁹³ See Explanatory Report of the UNCAT and OPCAT Implementation Act, online: Executive Yuan Taiwan <https://www.ey.gov.tw/File/EB8267D9569100CE?A=C> at 9.

⁹⁴ The ECHR does not distinguish between torture and other forms of ill-treatment (see Article 3).

⁹⁵ See e.g., the non-refoulement principle. While the UNCAT limits the non-refoulement principle strictly to the risk of torture, the European Court of Human Rights (“ECtHR”) protects foreigners from refoulement also on the basis of the risk of inhuman and degrading treatment or punishment.

⁹⁶ The term “gradual adaptation model” (“漸進調適的模式”) has been developed by Bingkuan Lu. See Lu, supra note 77 at 89.

⁹⁷ UNCAT and OPCAT Implementation Act, art. 8.

⁹⁸ Wen-Chen CHANG, “Taiwan's Human Rights Implementation Acts: A Model for Successful Incorporation?” in Cohen, Alford, and Lo, supra note 77, 227 at 231.

⁹⁹ Personal communication with Ford Fu-te Liao on 9 March 2021.

¹⁰⁰ This has been reiterated by members of the Criminal Investigative Bureau of the Ministry of Interior on several occasions (in-person communication, electronic correspondence).

¹⁰¹ It is worth noting that all attempts to interview respective ministries on the prospect of the legislative reform (formal questionnaires and informal talks) failed due to the fact that the Implementation Act has not yet been passed.

¹⁰² Teng, supra note 77 at 268.

¹⁰³ Regarding some debate on retrospective application of the Implementation Act of the UNCAT, see WET, Erika, “The Prohibition of Torture as an International Norm of jus cogens and Its Implications for National and Customary Law” (2004) 15 European Journal of International Law 97 at 116–117Google Scholar.

¹⁰⁴ Human Rights Committee, General comment No. 20, Art. 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment), UN Doc. A/44/40 (1992).

¹⁰⁵ BACCINI, Leonardo and URPELAINEN, Johannes, “Before Ratification: Understanding the Timing of International Treaty Effects on Domestic Policies” (2014) 58 International Studies Quarterly 29 at 29CrossRefGoogle Scholar.

¹⁰⁶ Cole, supra note 14 at 410.

¹⁰⁷ See OPCAT, preamble. See also STEINERTE, Elina and MURRAY, Rachel, The Optional Protocol to the UN Convention against Torture (Oxford: Oxford University Press, 2011) at 139Google Scholar.

¹⁰⁸ Of thirty-six State Parties that have ratified the Convention after 18 December 2002 (the year when the OPCAT was signed), only eleven proceeded to ratify OPCAT. Of those, only three countries have ratified both treaties at the same time, while others took the period from several months to several years: Less one year (1), two years (1), three years (3), four years (1), eight years (1) and twelve years (1).

¹⁰⁹ Nowak, Birk, and Monina, supra note 3 at 98598-6; Burgers and Danelius, supra note 35 at 26–9.

¹¹⁰ Burgers and Danelius, supra note 35 at 28.

¹¹¹ UN Subcommittee for the Prevention of Torture, Guidelines on National Preventive Mechanisms, UN Doc. CAT/OP/12/5 (2010); DOUBEK, Pavel, “The National Preventive Mechanism: A Key Human Rights Component of Well-Functioning Democracy” (2019) 15 Taiwan Journal of Democracy 165Google Scholar.

¹¹² Doubek, supra note 27.

¹¹³ Personal communications with the NHRC commissioners (April-May 2021).

¹¹⁴ Criminal Code of the Armed Forces (Lùhǎikōng jūn xíngfǎ, 陸海空軍刑法).

¹¹⁵ See application of this provision in Zhong-qiu Hong Case, Judgment of 28 June 2017 [2017] Taiwan High Court.

¹¹⁶ See e.g., CAT's criticism of Criminal Procedure Law and the Criminal Law of the People's Republic of China (Committee against Torture, Concluding observations on the fifth periodic report of China with respect to Hong Kong, China, UN Doc. CAT/C/CHN/CO/5 (2016)) or Criminal Act of the Republic of Korea (Committee against Torture, Concluding observations on the combined third to fifth periodic reports of the Republic of Korea, UN Doc. CAT/C/KOR/CO/3-5 (2017)). See also CAT Concluding Observations on Japan (Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention: Conclusions and recommendations of the Committee against Torture, UN Doc. CAT/C/JPN/CO/1 (2007), para. 10; Committee against Torture, Concluding observations on the second periodic report of Japan, adopted by the Committee at its fiftieth session (6–31 May 2013), UN Doc. CAT/C/JPN/CO/2 (2013), para. 7); USA (Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention: Conclusions and recommendations of the Committee against Torture, CAT/C/USA/CO/2 (2006), paras. 13 and 19); South Africa (Committee against Torture, Conclusions and recommendations of the Committee against Torture, UN Doc. CAT/C/ZAF/CO/1 (2006), para. 13), Norway (Committee against Torture, Concluding observations on the eighth periodic report of Norway, UN Doc. CAT/C/NOR/CO/8 (2018)), Czech Republic (Committee against Torture, Consideration of reports submitted by States parties under Article 19 of the Convention, UN Doc. CAT/C/CZE/CO/4-5 (2012), para. 7; Committee against Torture, Concluding observations on the sixth periodic report of Czechia, CAT/C/CZE/CO/6 (2018), para. 9); Sweden (Committee against Torture, Concluding observations on the sixth and seventh periodic reports of Sweden, UN Doc. CAT/C/SWE/CO/6-7 (2014), para. 6 [CAT Recommendations]. See further Harper, supra note 3 at 914.

¹¹⁷ International Review Committee 2013 Observations, supra note 71 at para. 58; International Review Committee 2017 Observations, supra note 71 at para. 53.

¹¹⁸ Republic of China (Taiwan), “Response to the Concluding Observations and Recommendations adopted by the International Review Committee on January 20, 2017” (June 2020), online: Ministry of Justice <https://www.humanrights.moj.gov.tw/media/14807/04%E8%8B%B1%E6%96%87%E7%89%88-response-to-the-concluding-observaions-and-recommendations-adopted-by-the-international-review-committee-on-january-202017.pdf?mediaDL=true> at para. 163.

¹¹⁹ Republic of China (Taiwan), supra note 118 at para. 164.

¹²⁰ Criminal Code (Zhōnghuá mínguó xíngfǎ, 中華民國刑法), art. 80(2); Criminal Code of the Armed Forces (Zhōnghuá mínguó xíngfǎ, 中華民國刑法), art. 13.

¹²¹ Pardon Law (Shèmiǎn fǎ, 赦免法).

¹²² Republic of China (Taiwan) Constitution (Zhonghuá mínghuó xianfa, 中華民國憲法), art. 40; Pardon Law.

¹²³ Interpretation of Public Official, Decision of 21 February 1941 [1941] Taiwan Supreme Court (30 年上字第 511 號).

¹²⁴ Jianrong QIAN, “Qian Jianrong's column: Taiwan has also a crime of torture” Up Media (31 July 2019), online: Up Media <https://www.upmedia.mg/news_info.php?SerialNo=68214>.

¹²⁵ Crimes prescribed the Criminal Code, Arts. 125, 126, 134, and 277

¹²⁶ One in 2009 (art. 125), one in 2005 (art. 126), one in 2002 (art. 134) and two in 2003 (art. 277). Republic of China (Taiwan), “Initial report submitted under Article 40 of the Covenant” (September 2012), online: Ministry of Justice <https://www.humanrights.moj.gov.tw/media/14393/541517201510.pdf?mediaDL=true> at para. 104.

¹²⁷ Carver and Handley, supra note 40 at 83.

¹²⁸ Mark S. BERLIN, “Does Criminalizing Torture Deter Police Torture?” (2021) 00 American Journal of Political Science 1.

¹²⁹ FERNANDEZ, Lovell and MUNTINGH, Lukas, “The criminalization of torture in South Africa” (2016) 60 Journal of African Law 83CrossRefGoogle Scholar.

¹³⁰ See CAT Recommendations, supra note 116.

¹³¹ Civil and Political Rights, including the Questions of: Torture and Detention, Report of the Special Rapporteur, Sir Nigel Rodley, submitted pursuant to Commission on Human Rights resolution 2001/62, by Sir Nigel Rodley, UN Doc. E/CN.4/2002/76 (2001) at Annex I (a); Civil and Political Rights, including the Questions of Torture and Detention: Torture and other cruel, inhuman or degrading treatment, Report of the Special Rapporteur on the question of torture submitted in accordance with Commission resolution 2002/38, by Theo Van Boven, UN Doc. E/CN.4/2003/68 (2002) at para. 26 (a); Nowak, supra note 4 at para. 143; Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, Report submitted by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, by Juan E. Méndez, UN Doc. A/HRC/16/52 (2011) at para. 45; Torture and other cruel, inhuman or degrading treatment or punishment, Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, by Nils Melzer, UN Doc. A/76/168 (2021) at para. 64.

¹³² Cestaro v. Italy, Judgment of 7 April 2015 (Application no. 6884/11), European Court of Human Rights at paras. 245–246.

¹³³ International Review Committee 2017 Observations, supra note 71 at para. 53.

¹³⁴ Similarly, Lu, supra note 77.

¹³⁵ For the research report by Cuiwen Huang (黃翠紋) and Weide Meng (孟維德) from the Central Police University, see 2020 Convention against Torture Seminar (“2020 年禁止酷刑公約研討會論文集與會議實錄目錄” online: <http://lawdata.com.tw/tw/journal.aspx?no=1395&pno=70337> at 156. See also comments of Teng Yen-Sen (鄧衍森) at 306.

¹³⁶ Obligation to start an effective investigation. See more in UNCAT, art. 12; Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol), United Nations High Commissioner for Human Rights, UN Doc. HR/P/PT/8/Rev.1 (2004); Nowak, Birk, and Monina, supra note 3 at 268.

¹³⁷ Association for the Prevention of Torture, Center for Human Rights and Humanitarian Law, and Norwegian Centre for Human Rights, “Principles on Effective Interviewing for Investigations and Information Gathering (Mendez Principles)”, online: APT, Center, and NCHR <https://interviewingprinciples.com>.

¹³⁸ Melzer, supra note 6 at para. 11.

¹³⁹ As scholars Wei Wei and Vander Beken have analyzed in the context of police torture in China, judicial reliance on confession and reluctance to probe torture claims belong to the main incentives for using torture against criminal suspects. See WU, Wei and VANDER, Beken T., “Police Torture in China and Its Causes: A Review of Literature” (2010) 43 Australian and New Zealand Journal of Criminology 557CrossRefGoogle Scholar.

¹⁴⁰ Oette, supra note 9 at 718.

¹⁴¹ Carver and Handley, supra note 40 at 52.

¹⁴² Ibid., at 2.

¹⁴³ Burgers and Danelius, supra note 35 at 131.

¹⁴⁴ Crime of torture has allegedly been committed on any territory under its jurisdiction, onboard a ship or aircraft registered in that State. UNCAT, art. 5(1)(a)

¹⁴⁵ The active nationality principle is established based on the offender of a crime, while the passive nationality principle refers to a victim of a crime (UNCAT, art. 5(1)(b)). The passive nationality principle in art. 5(1)(c) is optional as the UNCAT provides a State with the discretion to establish such jurisdiction if it considers appropriate.

¹⁴⁶ Nowak, Birk, and Monina, supra note 3 at 196.

¹⁴⁷ UNCAT, art. 5(2).

¹⁴⁸ Prosecutor v. Anto Furundžija, Judgement of 10 December 1998, Trial Chamber, Case No. IT-95-17/1-T.

¹⁴⁹ Ibid.; MATIAŠKO, Maroš, Zločin mučení a lidská práva (Praha: Wolters Kluwer, 2020) at 135Google Scholar.

¹⁵⁰ JANIS, Weson M. and NOYES, John E., and SADAT, Leila Nadya, International Law, Cases and Commentary (St. Paul: West Academic Publishing, 2020) at 177Google Scholar.

¹⁵¹ Committee against Torture, Concluding Observations on The United Kingdom of Great Britain and Northern Ireland, UN Doc. CAT/C/GBR/CO/5 (2013), para. 22; Committee against Torture, Concluding Observations on Canada, UN Doc. CAT/C/CAN/CO/6 (2012).

¹⁵² Prosecutor v. Furundžija, supra note 149 at para. 153; Janis, supra note 150 at 178; Wet, supra note 103 at 114.

¹⁵³ Leila N. SADAT, “Redefining Universal Jurisdiction” (2017) 35 New England Law Review 241 at 244.

¹⁵⁴ DAMROSCH, Lori F. and Murphy, Sean D., International Law, Cases and Materials (St. Paul: West Group, 2001) at 1141Google Scholar.

¹⁵⁵ UNCAT, arts. 5-9.

¹⁵⁶ Implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled “Huamn Rights Council”, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, by Manfred Nowak, UN Doc. A/HRC/4/33 (2007) at para. 42; Suleymane Guengueng et al. v. Senegal, Communication No. 181/2001 [2006] Committee against Torture, UN Doc. CAT/C/36/D/181/2001 (19 May 2006).

¹⁵⁷ See Committee's Concluding Observations addressed, for example, to Benin (Committee against Torture, Concluding observations on the third periodic report of Benin, UN Doc. CAT/C/BEN/CO/3 (2019), para. 12); Seychelles (Committee against Torture, Concluding observations on the initial report of Seychelles, UN Doc. CAT/C/SYC/CO/1 (2018), para. 32); Afghanistan (Committee against Torture, Concluding observations on Antigua and Barbuda in the absence of a report, UN Doc. CAT/C/ATG/CO/1 (2017), para. 31); Cabo Verde (Committee against Torture, Concluding observations on Cabo Verde in the absence of a report, UN Doc. CAT/C/CPV/CO/1 (2017), para. 30); Mexico (Committee against Torture, Concluding observations on the combined fifth and sixth periodic reports of Mexico as adopted by the Committee at its forty-ninth session (29 October–23 November 2012), UN Doc. CAT/C/MEX/CO/5-6 (2012), para. 23).

¹⁵⁸ Suleymane Guengueng et al. v. Senegal, supra note 157.

¹⁵⁹ See e.g., the Committee's concern about the Criminal Codes in Iraq and Qatar that have not included torture in the list of offences over which courts can exercise universal jurisdiction. See Committee against Torture, Concluding observations on the initial report of Iraq, UN Doc. CAT/C/IRQ/CO/1 (2015), para. 28; Committee against Torture, Concluding observations on the third periodic report of Qatar, UN Doc. CAT/C/QAT/CO/3 (2018), para. 27.

¹⁶⁰ This case refers to a Taiwanese fishing vessel called ‘Giant Ocean’ which was implicated in the trafficking of more than 1000 Cambodian fishermen. Although six Taiwanese were convicted of human trafficking in a criminal trial led by the Cambodian court, five of them remain at large and Taiwan authorities remain indifferent to their whereabouts.

¹⁶¹ Nowak et al., supra note 3 at 305.

¹⁶² Ibid., at 302.

¹⁶³ Burgers and Danelius, supra note 35 at 141.

¹⁶⁴ Nowak, supra note 156 at para. 48.

¹⁶⁵ Marshall Islands, Republic of Nauru, Palau, Tuvalu, Eswatini, Holy See, Belize, Republic of Guatemala, Haiti, Republic of Honduras, Republic of Paraguay, St. Kitts & Nevis, Saint Lucia and St. Vincent, and the Grenadines. Of these Palau, Tuvalu, Haiti and Saint Lucia have not yet ratified the Convention.

¹⁶⁶ The United States, China, Philippines, South Africa, Nauru, Belize, and Poland. To provide some concrete examples of cooperation see, for example, cooperation with the Philippines in the “Guang Da Xing No. 28 Incident”; cooperation with the United States concerning US designer Cody Wilson or cross-strait cooperation in “the Keyan case”.

¹⁶⁷ See the isolated case of cooperation between Taiwan and Switzerland in Andrew Wang and other cases. For further information about this case see HENZELIN, Marc, “Mutual Assistance in Criminal Matters between Switzerland and Taiwan: The Andrew Wang and Others Case” (2005) 3 Journal of International Criminal Justice 790CrossRefGoogle Scholar. A reference can be made also to extradition case of British businessman Lin Keying from the United Kingdom to criminal sentence to Taiwan or extradition of a lieutenant officer of the Taiwan Ministry of National Defense, Ye Mei, from the United Kingdom to Taiwan.

¹⁶⁸ Mutual Legal Assistance in Criminal Matters Act (Guójì xíngshì sīfǎ hùzhù fǎ yīng, 國際刑事司法互助法英).

¹⁶⁹ Henzelin, supra note 167.

¹⁷⁰ CHEN, Yu-Jie and Cohen, Jerome A, “China-Taiwan Repatriation of Criminal Suspects: Room for Human Rights?” (2018) 48 Hong Kong Law Journal 1029Google Scholar.

¹⁷¹ See some thoughts on the destabilizing effect in Wet, supra note 103 at 120.

¹⁷² Information provided by the Ministry of Justice (e-mail correspondence, 27 May 2021)

¹⁷³ Criminal Investigative Bureau noted vaguely that it there is a need to ensure full compliance with the Convention, including commitments under arts. 5–9 (electronic correspondence with the CIB personnel).

¹⁷⁴ Burgers and Danelius, supra note 35 at 173.

¹⁷⁵ See International Review Committee 2013 Observations, supra note 71; International Review Committee 2017 Observations, supra note 71.

¹⁷⁶ Burgers and Danelius, supra note 35 at 174.

¹⁷⁷ At least with respect to a non-refoulement principle in art. 3 and a principle of universal jurisdiction in art. 5(2). On this concept, see BAXTER, Richard R., “Multilateral Treaties as Evidence of Customary International Law” (1965–1966) 41 British Yearbook of International Law 275Google Scholar.

¹⁷⁸ Wet, supra note 103 at 118.

¹⁷⁹ See Universal Declaration of Human Rights, preamble.

¹⁸⁰ Kristina Kironska has identified two main groups of immigrants who require protection against refoulement and other guarantees of asylum law. See KIRONSKA, Kristina, “Taiwan's Road to an Asylum Law: Who, When, How, and Why Not Yet?” (2022) 23 Human Rights Review 241Google Scholar.

¹⁸¹ See also Pavel DOUBEK, “Torture law needs broad footing” Taipei Times (28 May 2021), online: Taipei Times <https://www.taipeitimes.com/News/editorials/archives/2021/05/28/2003758171>.