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The Evolution of Environmental Rights in Taiwan

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Taiwan and International Human Rights

Part of the book series: Economics, Law, and Institutions in Asia Pacific ((ELIAP))

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Abstract

Without constitutional provisions on environmental rights, democratization and globalization have significantly promoted human rights related to environmental issues. In the last two decades, democratization has raised the rights consciousness of Taiwanese society and mobilized massive environmental movements and legislation. In addition, the process of globalization has not only drawn Taiwan’s attention to international environmental issues but also pushed Taiwan to comply with international human rights standards. Taiwan enacted the Act to Implement the ICCPR and ICESCR in 2009, attempting to provide more comprehensive protection of human rights in Taiwan. Yet, in spite of this growth in human rights consciousness, people in Taiwan have little, and very differentiated, understanding of “environmental rights.” The question of how to understand and conceptualize environmental rights within Taiwan’s development is crucial for future generations. This chapter defines environmental rights as a collection of rights that provide legal protection against environmental problems. By analyzing environmental rights within the dynamics of environmental threats, the social/political context, and laws, it is argued in this chapter that the substance of environmental rights is evolving within these contexts and the times. In Taiwan, environmental rights have evolved alongside political, social and economic development. From personal injury to legal rights and human rights, the evolution of environmental rights in Taiwan can be divided into three distinct periods that coincide with the country’s democratization. In the pre-democratic period, environmental harm remained a personal grievance and did not generate legal claims. During the process of democratization, massive enactment of, and progress on, environmental law provided a legal basis for environmental claims and transformed them into legal rights. Following democratic consolidation, however, privatization and climate change have brought new challenges to environmental rights in Taiwan. Yet, this period has seen the introduction of international human rights jurisprudence and an increasing emphasis on procedural rights in Taiwan that may provide opportunities to further enrich environmental rights in Taiwan.

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Notes

  1. 1.

    See Hsiao (1987). According to Hsiao, some local scientists and scholars tried to warn the public about the danger of environmental pollution, yet their voices went largely unheard. See Hsiao (1990), pp. 163–179.

  2. 2.

    G.A. Res. 2758 (1971).

  3. 3.

    On 31 July 2014, a series of gas explosions occurred in Kaohsiung, the second largest city in Taiwan. At least thirty-three people were killed, and 321 others were injured. The accident is attributed to the petrochemical factory, LCY Chemical Corp, which was founded in 1965 as part of the planned economy policy.

  4. 4.

    For details on the indigenous lands claim movement, see Lo (2013a).

  5. 5.

    Grano (2015), p. 40.

  6. 6.

    Id., at pp. 46–47.

  7. 7.

    According to Articles 44 and 45 of the Mining Act (礦業法), a mineral rights-holder can legally rent or buy private land for mining purposes, and the landowners cannot refuse.

  8. 8.

    For details on the case of Asia Cement Company, see Lo (2013b), pp. 7–8.

  9. 9.

    See Hsiao (1982).

  10. 10.

    The DPP is the current ruling party in Taiwan. Before 2000, the DPP was the major opposition party that regarded environmental protection as one of its main tenets.

  11. 11.

    Ho (2011), pp. 283–314.

  12. 12.

    During the Martial Law period, the government suspended the election of national representatives. The Constitutional Court J.Y Interpretation No. 31 confirmed the constitutionality of the decision. The Wild Lily Student Movement urged the restoration of national elections and created significant pressure on the government. The Constitutional Court then made J.Y. Interpretation No. 261, holding the practice unconstitutional, and mandated that the government hold a nationwide second-term election of national representatives. See Dafaguan Shizi Di 31 Hao [大法官釋字第 31 號] (J.Y. Interpretation No. 31) (29 Jan 1954), Dafaguan Shizi Di 261 Hao [大法官釋字第 261 號] (J.Y. Interpretation No. 261) (21 June 1990).

  13. 13.

    Yeh (1994), pp. 73–132, 119 (Chapter 3: “Massive Legislation on Environmental Law: Taiwan’s Model, Issues and Solutions”) (confirmed).

  14. 14.

    Section 8, Article 23 of the EIAA provides that, after paper notification, public interest groups may directly file a lawsuit against the government for its negligent behavior in fulfilling its implementation duties in order to seek a ruling ordering the competent authority to carry out implementation. As a result, the EIA and the courts have become the most important battlefield for environmental controversies in contemporary Taiwan.

  15. 15.

    Ho (2003).

  16. 16.

    Taiwan started its compulsory NHI in 1995 and reached population coverage of 99% in 2014.

  17. 17.

    Huntington (1993), p. 267.

  18. 18.

    Some politicians and scholars see government regulation as inefficient, costly and undemocratic, proposing to reduce government involvement in the market and civil society. Moreover, they also believe that private enterprise may provide better products and services than the government, suggesting more involvement of private entities in public services and construction.

  19. 19.

    According to the OECD, deregulation is a subset of regulatory reform and refers to complete or partial elimination of regulation in a sector to improve economic performance. Khemani and Shapiro (1993).

  20. 20.

    Privatization refers to the transfer of ownership and control of government or state assets, firms and operations to private investors. Organisation for Economic Co-operation and Development (OECD) (1997), p. 11.

  21. 21.

    Taidong Beautiful Bay Resort case was a BOT project involving the illegal operation of the Environmental Impact Assessment process since 1994. For details on the case, see Sect. 4.3.1 of this chapter.

  22. 22.

    Taoyuan Aerotropolis Project seeks to promote the Taoyuan Airport as a hub for East Asia and to enhance the competitive advantage of Taiwan. It will allegedly create NT$7 trillion in revenue. Phased commercial, industrial and residential development will expropriate an area totaling over 3700 ha, including specific high-quality farmland and 15,000 houses with 46,000 residents. This project invites serious resistance from residents and NGOs for its over-ambitious public interests and flawed procedures.

  23. 23.

    The Taipei Dome is also a BOT project for the establishment of a stadium in Taipei. It was originally scheduled to start construction in 2007. The project involves many controversies, including the improper inclusion of commercial facilities, the destruction of old trees and historical sites, and concerns about public safety and transportation.

  24. 24.

    From 2009 to 2016, there were at least 1,541 judicial rulings citing the ICCPR or ICESPR in their judgments. The Constitutional Court refers to the two Covenants in 21 Interpretations.

  25. 25.

    There are several court rulings on this case. The first one is TEPU v. Taitung County Government, 96 Nian Suzi Di 647 Hao Panjue [96 年訴字第 647 號判決] (Kao-Hsiung Admin. High Ct. [高雄高等行政法院] 23 Jan 2007) (Taiwan).

  26. 26.

    The court first confirmed the standing of the environmental group as a public interest group to file a citizen suit. The court emphasized the purpose of the EIA is to lessen and prevent possible adverse environmental impacts by major construction projects and then ruled that to merge-and-re-segment the land in order to avoid the EIA process violated the legal requirement of the EIA. TEPU v. Taitung County Government, 96 Nian Suzi Di 647 Hao Panjue [96 年訴字第 647 號判決] (Kao-Hsiung Admin. High Ct. [高雄高等行政法院] 23 Jan 2007) (Taiwan).

  27. 27.

    For an official introduction to the Taoyuan Aerotropolis Project, visit its official website. Taoyuan Aerotropolis http://taoyuan-aerotropolis.com/en_content/index.aspx (last visited 17 Nov 2017).

  28. 28.

    Human Rights Council Res. 7/23, UN Doc. A/HRC/7/78 (28 Mar 2008).

  29. 29.

    The 1998 National Energy Conference proposed implementation measures which were approved by the Executive Yuan on 11 June 1998. It emphasized energy conservation and called for an accelerated transformation of the energy structure. The goal was to reduce CO2 emissions from fuel combustion to 2000 levels before year 2020, and to increase renewable energy to 3% of the total energy supply by year 2020.

  30. 30.

    According to official reports, Taiwan’s total carbon dioxide emissions nationwide are more than 277 million tons per year, with an average growth of 124% every year. The energy conversion industry contributed 7% of the emissions; heavy industry contributed 52%; the transportation sector contributed 14%; the commercial sector 6% and private households 12%.

  31. 31.

    Taiwan Environmental Protection Administration (2015).

  32. 32.

    Wenshi Qiti Jianliang ji Guanlifa [溫室氣體減量及管理法] (Greenhouse Gas Reduction and Management Act), arts. 5–6 (Taiwan).

  33. 33.

    Taiwan imports over 97% of its energy supply from foreign countries due to its limited energy resources. The effort to develop renewable energy started in 2003 when the government guaranteed the price of electricity generated from renewable energy. In 2009, the government passed the Renewable Energy Development Act (REDA), aiming to increase the installed renewable energy capacity in Taiwan to 9.95 GW by 2030. Yet the use of renewable energy has been lower than 5%; solar and wind are two major forms of renewable energy in Taiwan.

  34. 34.

    For an English introduction, see Kuo (2013). See also Council for Economic Planning and Development (2012).

  35. 35.

    Lin and Yeh (2016).

  36. 36.

    Principle 1 of the 1972 Stockholm Declaration on Environment and Development (New York, 1973) declares, “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.”

  37. 37.

    The ICESCR, Article 12(2)(b), for example, directs states to adopt measures as may be necessary for the “improvement of all aspects of environmental and industrial hygiene” in order to fully realize the right to health.

  38. 38.

    Final Rep. Prepared by Fatma Zohra Ksentini, Spec. Rapporteur, UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, UN Doc. E/CN.4/Sub.2/1994/9 (6 July 1994).

  39. 39.

    Gabc̆íkovo-Nagymaros Project (Hung. v. Slovk.), Judgement, 1997 I.C.J. Rep. 7, 88, 91 (25 Sept), http://www.icj-cij.org/docket/files/92/7383.pdf (separate opinion by J. Weeramantry).

  40. 40.

    UN Committee on Economic, Social, and Cultural Rights, General Comment No. 14: The right to the highest attainable standard of health, UN Doc. E/C.12/2000/4 (11 Aug 2000).

  41. 41.

    UN Committee on Economic, Social and Cultural Rights, General Comment No. 12: The right to adequate food (art. 11), UN Doc. E/C.12/1999/5 (12 May 1999).

  42. 42.

    Dafaguan Shizi Di 709 Hao [大法官釋字第 709 號] (J. Y. Interpretation 709) (26 Apr 2013) (R.O.C.). English translation is available at http://www.judicial.gov.tw/constitutionalcourt/en/p03_01.asp?expno=709.

  43. 43.

    Dafaguan Shizi Di 732 Hao [大法官釋字第 732 號] (J. Y. Interpretation 732) (25 Sept 2015) (R.O.C.). English translation is available at http://www.judicial.gov.tw/constitutionalcourt/en/p03_01.asp?expno=732.

  44. 44.

    Abraham (2017).

  45. 45.

    Operational directions for holding a hearing (2016).

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Authors and Affiliations

  1. Department of Financial and Economic Law, Chung-Yuan Christian University, Taoyuan City, Taiwan

    Chun-Yuan Lin

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Editors and Affiliations

  1. U.S.-Asia Law Institute, New York University, New York, NY, USA

    Jerome A. Cohen

  2. Harvard Law School, Cambridge, MA, USA

    William P. Alford

  3. Constitutional Court, Taipei, Taiwan, Taiwan

    Chang-fa Lo

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Lin, CY. (2019). The Evolution of Environmental Rights in Taiwan. In: Cohen, J., Alford, W., Lo, Cf. (eds) Taiwan and International Human Rights. Economics, Law, and Institutions in Asia Pacific. Springer, Singapore. https://doi.org/10.1007/978-981-13-0350-0_27

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  • DOI: https://doi.org/10.1007/978-981-13-0350-0_27

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