Memo: A Suggestion of HRJ Typology

Based on our review of Taiwan’s state reports under the six UN human rights conventions it has ratified or domesticated (ICCPR, ICESCR, ICERD, CEDAW, CRPD, CRC), we identify three distinct patterns of human rights justification (HRJ) in the State’s responses to allegations of rights violations, grounded in the dichotomy between State action and inaction (Types A, B, and C). Based on this typology, we suggest the following: (1) Types A and B HRJs represent conflicts between the State’s negative and positive obligations, which may lead to confusion about the appropriate standard of judicial scrutiny. (2) Type C HRJs stem from uncertainty surrounding the content and scope of positive obligations. (3) Paternalistic and neo-liberal uses of HRJs are problematic because they (a) blur the distinction between those who benefit and those who are harmed, and (b) may conceal discriminatory intent and/or effects. (4) Such uses of HRJs frequently raise equal protection concerns, making their identification especially urgent in the context of migration, where confronting discrimination is critical. (5) Collectively, these phenomena can undermine State accountability and weaken the human rights system as a whole. In this regard, HRJs, simply put, constitute a pressing accountability challenge.

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