Taiwan at the Crossroads: To Breathe in the Air of Global Sky, or the Air of Her Independence?

By Huan-Ting Wu, J.S.D. candidate, University of California, Berkeley

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Photo Credit: Huan-Ting Wu of Taipei 101

 

Once every three years the International Civil Aviation Organization (ICAO), a UN specialized agency, meets. The Assembly just finished having its 39th Session in Montreal with Taiwan knocking on the door outside for months but not getting any answer back nor permission to enter. It is a sharp contrast compared with the situation in 2013, when Taiwan participated as an invited guest of the then-ICAO Council President, to attend the 38th Session of the ICAO Assembly.

Although excluded from ICAO since 1971 when they lost their seat in the UN, Taiwan still voluntarily follows the Convention on International Civil Aviation (the Convention), which has been one of the significant pivots of air traffic in East Asia, as well as the world:

The Taipei Flight Information Region (FIR) covers 180,000 square nautical miles and borders four other FIRs. In 2015, Taiwan’s Civil Aeronautics Administration handled fifty-eight million incoming and outgoing passengers. In addition, Taiwan’s Taoyuan International Airport in 2015 ranked eleventh in the world in passenger volume and sixth for cargo. Seventy-four airlines operate passenger and cargo flights in and out of Taiwan following 301 scheduled routes that connect the country to 135 cities globally.

However, constrained by the fact that Article 1 of the Convention defines contracting States as those that have “complete and exclusive sovereignty over the airspace above its territory,” Taiwan’s international status after 1971 makes it hard for them to take part in this UN-colored organization as a contracting State.

Given these legal hurdles, what made Taiwan’s presence in the 38th Session of the ICAO Assembly in 2013 workable? First, the U.S. government played an important role in the process. A Taiwanese researcher describes the U.S. as a “facilitator” of Taiwan’s international participation. Following the U.S. Department of State’s policy of “encouraging Taiwan’s meaningful participation in international organizations where its membership is not possible,” U.S. President Barack Obama in July, 2013 signed into law H.R. 1151 to (1) develop a strategy to obtain observer status for Taiwan at the next ICAO Assembly in 2013; and (2) instruct the U.S. Mission to the ICAO to officially request observer status for Taiwan and urge ICAO member states to support Taiwan observer status and participation in the ICAO.

On the other hand, fearing that the island’s increasing global participation independent from the Mainland will be used to reinforce Taiwan’s push for de jure independence, China’s government complained in a statement that the Act has intervened with China’s “internal affairs” and seriously violated the one-China policy. This Chinese policy defines Taiwan as “part of [China’s] territory,” and that “The joining of international organizations like ICAO by Taiwan compatriots is a matter for the Chinese people.” However, this position did not preclude China’s support for Taiwan to take part in the Assembly in 2013. In fact, from China’s perspective, Taiwan’s success in the participation was solely because of China’s mediation (ICAO Council President González said he invited Taiwan because of China’s suggestion). China’s position is clear: Taiwan is allowed to join international events, but only after having consulted with China, and used China as the window representative to contact the world, thereby following the one-China frame work. Several Taiwanese international law scholars criticized the practice, arguing that Taiwan was invited as merely an auditing “guest” under the identification of “Chinese Taipei,” not as an “observer” who has permission to speak.

That brings us to 2016. Taiwanese officials, with U.S. Department of State’s support, bypassed “the window” and applied for attendance at the Assembly in early August. But this attempt was in vain. In fact, the surrounding circumstances have been different.

The political climate in Taiwan has had a landslide toward the Democratic Progressive Party (DPP), which calls for independence from China, in the 2016 Presidential Election in January. The leader of DPP, Tsai Ing-wen, was elected as Taiwan’s first female president, with DPP winning absolute majority in Taiwan’s Congress. The election shows the Taiwanese people’s doubts about predecessor Ma Ying-jeou’s pro-China policies, especially the inclination to the one-China framework. In fact, in Tsai’s inauguration speech, she reflected the people’s will by not mentioning the so-called “1992 consensus,” that is, the one-China principle. In response, China suspended diplomatic contact with Taiwan. As a result, the fundamental basis of Taiwan’s participation in ICAO was undermined. In addition, it is also worth noting that on August 1, 2015, Dr. Fang Liu of China was appointed as the new head of the Secretariat of ICAO, which is the office processing the application. Consequently, we can expect that the influence China can possibly exert is at least no less than it was in 2013.

It is not surprising that Taiwan’s direct application for participation as an observer, even with U.S. and other contracting States’ support, would fail. On the one hand, in 2013 Taiwan joined the Assembly as a guest of the President (if not China); therefore, without ex ante negotiation, there is no reason why China, now the window of both the “one-China frame” and the ICAO, would allow Taiwan to join the event, especially with an “upgrade” of status. China’s strategy to make Taiwan dependent and subordinate is clear: be ONLY China’s guest, or not invited at all. On the other hand, the ICAO is closely related to the UN, so China will not risk any possibility that Taiwan can stand in any international forum as an independent sovereign-like entity, and accordingly make accepted practice.

In response to China’s strong attitude and the failure to take part in the ICAO Assembly, Taiwanese President Tsai Ing-wen replied firmly by reiterating that “we will not succumb to pressure from China.” Given that President Tsai is willing to let the relationship between Taiwan and China chill, it may mean that Taiwan has chosen the air of independence, without the oxygen mask pressed on by China. This decision will either be beneficial to Taiwan’s future participation in global events, or hazardous to those practices Taiwan has established during President Ma’s incumbency. For instance, will this affect the practice of Taiwan joining the World Health Assembly (WHA), an annual event held by World Health Organization in May, as an observer since 2009? Maybe so, since China declared that the reason Taiwan was able to participate in the 2016 WHA was because of its goodwill.

The ICAO incident is just the prelude. We see Taiwanese people made their decision in the 2016 presidential election, and we also see how the Communist Party of China reacted. That being said, we can expect that in the future, it is highly possible that China will keep craning over its “window,” being nosy about Taiwan’s every attempt to cross the “Chinese wall” and expose herself to the air of the global sky. At the moment, we still hope that there could be more goodwill coming from both sides of the Taiwan Strait.

 

When Culture Overrides the Law: Challenges to Child Marriage Laws around the World

October 11th, is the International Day of the Girl Child. The BJIL Blog is grateful to have esteemed scholar Rangita de Silva de Alwis  contribute a piece to mark the occasion and highlight some of the important work she is doing to further women’s rights throughout the world. Rangita de Silva Alwis is currently Associate Dean for International Programs at the University of Pennsylvania Law School. Recently, her report to UNICEF on Child Marriage and the Law has helped spearhead law-reform initiatives.

Rangita de Silva de Alwis

On International Women’s Day last March, the United Nations announced an initiative to end child marriage by 2030. If nothing is done to accelerate change, UNICEF Executive Director Anthony Lake warned that “women married as children will reach one billion by 2030.” While child marriage is well-documented as a heinous crime against girls, from a development perspective, addressing the causes of child marriage should be more expedient than addressing the consequences of child marriage: vulnerability to violence, maternal mortality, HIV/AIDS, and the feminization of poverty among others. A year after nations have committed to a new development agenda, the Sustainable Development Goals, ending early child marriage must be defined as both a women’s rights issue and a development imperative.

An interlocking reading of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC) call for full and free consent in marriage. The CEDAW Committee in General Recommendation 21 (Article 16.2) states unequivocally that “the minimum age for marriage should be 18 years for both man and woman…marriage should not be permitted before they have attained full maturity and capacity to act.”

Many countries and localities, including several states in the United States have no minimum age of marriage. Saudi Arabia and Yemen too lack a minimum age of marriage.

Laws on the books reveal the legal loopholes that legally permit child marriage. Even in countries that seem to ban child marriage, culturally sanctioned underage marriage, and legal authorization of child marriage by a father or guardians contradict these anti-child marriage laws.  The consent of the guardian or the court to grant permission for child marriage provides a legal loophole that clearly undermines any good faith effort to harmonize national laws with international conventions.

Despite the fact that international norms prohibiting child marriage are indigenized in regional treaties like the 2005 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which sets out the minimum age of marriage for women as 18 years of age, in several countries, customs and traditions can be interpreted to override the legal age of marriage. Below are several such laws:

Iran’s minimum age of marriage according to Section 1041 of the amended Civil Code is nine lunar years for girls and fifteen lunar years for boys. Further marriage below this age is also permissible by the permission of the Guardian and on condition of taking into consideration the ward’s interest is proper.

In the Ukraine, Article 23 of the Family Code specifies through the “application of a person that has attained 14 years, a court may grant him/her the right to marry if it is found that such a marriage satisfies his/her interests.”

Similarly, under Article 10 of the Family Code of the Republic of Azerbaijan, while the minimum age for men and women is now 18, this was only changed in November 2011. Prior to that time, women could be married as young as 17. However, the minimum marriage age can still be lowered by one year if granted permission by the local executive power.

Pakistan’s law too permits gender inequality in the age of marriage. The Child Marriage Restrain Act of 1929 defines a child as a male under the age of 18 and female as under the age of 16.

In Afghanistan, Article 70-71 of the Civil Code specifies that the legal age of marriage is 18 for males and 16 for females. However, an exception is allowed with the permission of the father or the court for females to marry as young as 15.

Although the Nigerian Child’s Right Act of 2003 prohibits child marriage, the CRC Committee has noted that contradictory laws set the age at 16 years and defines the child not by age but by “puberty.”

Similarly, Chad’s Article 144 of the Civil Code sets the minimum age of marriage as 15 years, while according to article 277 of the Criminal Code, customary law marriages of girls above 13 years are legal.

In Zambia, either party to a marriage, if below age 21, would need the written consent of the father, and at his death or if he is of unsound mind, the consent of the mother. However, the law allows for early marriage under customary law as “nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any African customary law, or in any manner apply to marriages so contracted.”

What is seen here is that traditional practices, patriarchal power, and economic need are some of the push and pull factors that drive families to sacrifice their daughters to early marriage and erode and dilute the laws on the books. An understanding of the underlying reasons for child marriage must complement the actual enforcement of laws. Several countries like Bangladesh have adopted mandatory educational policies which provide financial and in-kind incentives to families to keep their daughters in school and delay marriage. Increasing women’s economic participation also supports the independence of women and helps to delay marriage.  Finally, it takes strong political will to change deep-seated traditions and social mores that undermine the personal security of women and impede social and economic development.  When rights are seen to collide with traditional practices, governments must be on the side of rights.

The historic UN Resolution on Child, Early and Forced Marriage co-sponsored by 116 countries and adopted in 2014, marked the first time that UN member states recognized that child, early and forced marriage violates girls’ human rights and is a cause and a consequence of extreme poverty, gender inequalities, and harmful practices. The Resolution provides a road map to address harmful cultural practices through education. Under the Resolution, countries have agreed to not only enact, enforce, and uphold laws and policies to end the practice of child, early, and forced marriage, but recognize that education is one of the most powerful tools to prevent and end such practices.

The UN Sustainable Development Goals and Metropolitan-Level Collaboration

UN Sustainable Development Goals: SDG 11 Should Emphasize Metropolitan-Level Collaboration to Achieve Its Objectives

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By: Madeleine Wykstra

SDG 11 may foster a valuable opportunity through metropolitan collaboration and regulation at the subnational level to combat climate change, while avoiding political obstacles and bureaucracy at the national levels of government.

It’s Urban October, according to the United Nations Human Settlements Programme (UN–Habitat). The campaign is one of many promoted by various UN branches to encourage sustainable urban development and address uniquely urban challenges. Such emphasis on the role of the city in sustainable development is rightly placed. The new UN Sustainable Development Goals (SDGs), adopted at last month’s summit, recognize this important relationship between cities and sustainable development in its eleventh goal (SDG 11): to “[m]ake cities inclusive, safe, resilient and sustainable.”

The SDGs establish a new set of global objectives for member states over the next fifteen years. They succeed the organization’s eight Millennium Development Goals (MDGs), which launched in 2000 and aimed at combatting various dimensions of poverty. Salient criticisms of the MDGs were their “tensions with international human rights legal standards,” a lack of emphasis on regional and local level participation and difficulty in measuring their ultimate role in mitigating poverty—all of which remain ongoing debates, for another time.

The new SDGs, seventeen in all, are set to be achieved by the year 2030. Some goals are reinvigorated versions of their MDG predecessors while others, like SDG 11, are novel additions. SDG 11 recognizes that half of the world’s population presently resides in cities, and acknowledges that the continued expansion of cities means metropolitan areas will play a central role in sustainable development efforts.

Climate change is the quintessential transnational challenge. To meet this challenge requires the cooperation of nearly two-hundred countries whose governments hold varying degrees of commitment on environmental efforts. SDG 11 presents an opportunity to combat climate change through metropolitan-level collaboration, while avoiding political and bureaucratic obstacles at the national levels of government. Every city faces unique sustainability challenges, but there are many shared challenges that are inherent to urban areas. A platform for cities to engage, collaborate, and self-regulate could produce tangible strides on issues of sustainability, and SDG 11 could provide that space.

The Value of a Transnational Municipal Network

A metropolitan-level approach to sustainable development recognizes that climate change, while international in scope, possesses “different histories and geographies, varying across time and space and in its implications for economies and societies” as noted by Professor Harriet Bulkeley. Moreover, the city is a center of innovation. It possesses the resources and diversity needed to develop creative, groundbreaking approaches to sustainable development. SDG 11 has the potential to harness the innovative capacity of major metropolitan areas and provide a platform for the exchange of solutions through a transnational municipal network. According to research published through the Brookings Institution’s Metropolitan Policy Program, cities would benefit from greater collaboration with one another to “spread best practices, embrace new technologies, and replicate other creative solutions adopted elsewhere.”

Under many circumstances, municipalities have authoritative capacity, through regulatory power, to implement their own sustainability initiatives. Utilizing this capacity, SDG 11 could encourage cities to sign on to environmental agreements, address common challenges to sustainability, and cooperate in finding solutions for a diverse spectrum of metropolitan spaces. A transnational municipal network would offer a platform for these activities. It is sensible that a group of entities, sharing similar goals and facing similar challenges, be provided with a space in which to confront these challenges in concert.

Current Trends in Metropolitan Sustainability Initiatives

City-to-city collaboration is not a novel idea, and there are many city partnerships working at local, national and international levels. Cities like New York utilize public-private partnerships to foster economic growth, sustainable development, and to achieve various other objectives. However, many of these partnerships involve collaboration between the city and private partners, as well as civil society organizations. City-to-city partnerships are less common, but do exist. There are regionally-based partnerships such as the European Innovation Partnership for Smart Cities and Communities, and globally-oriented initiatives such as the International Council for Local Environmental Initiatives (ICLEI), and C40 cities. Until 2011, the United Nations Environment Programme (UNEP) also operated a Climate Neutral Network, though membership was limited to ten countries.

Despite the presence of numerous nonprofits and partnerships aimed at sustainable urban development, participation in such entities is largely limited to those cities which already possess the means and willingness to self-regulate in order to meet sustainability goals. An analysis of different transnational city networks illustrated that such networks are largely “networks of pioneers, for pioneers.” Where SDG 11 could prove most valuable is if it is able to improve participation and self-regulation of cities less active in the sustainability movement. None of the aforementioned partnerships possess the global exposure of the new UN goals. Perhaps by leveraging the expertise and resources of partnerships already underway, a transnational municipal network under the direction of the UN may be able to entice action in cities of UN member states which are less active in the sustainable development movement. It could also encourage funding from private actors towards sustainability initiatives in cities that lack the necessary financial resources to undertake such projects.

Like their MDG counterparts, the viability of the Sustainable Development Goals has been met with some skepticism. Political leaders and scholars alike have voiced concern over the scope and structure of the SDGs. UK Prime Minister David Cameron suggested that there are simply too many goals, and this may muddle their overarching message. Yet a goal such as SDG 11 has greater capacity to include community initiatives, through emphasis on the metropolitan level, and thus develop more tangible results than the more abstract MDGs. A key determinant in achieving SDG 11, and the SDGs generally, will be whether the goals can in fact foster greater commitment and participation of local communities in the sustainable development movement.

Madeleine Wykstra is a J.D. candidate at Berkeley Law. She is a student contributor for Travaux.