Human Rights In Asia Research Articles

Corporate (Non-)Accountability and Human Rights

Abstract The role of business in violations of human rights has been at the heart of international debates for decades. As early as the 1970s attempts were made at the UN by Global South nations (known as the G-77) to establish internationally-binding mechanisms to address corporate violations of human rights. Ultimately, those attempts were watered down into “codes of conduct”. In the early 1990s, the “Washington Consensus” was used to steer states to deregulate and restructure their economies in a race-to-the-bottom that placed emphasis upon integrating the global economy over human rights and environmental protections. Although corporate violations existed before, it was only at this juncture that many human rights cases were brought into public view. Some litigation was pursued, but it was most often in tort, and sometimes in criminal courts. This article argues that the existing regional human rights courts have bolstered corporate human rights, while at the same time have remained on the sidelines of addressing corporate accountability. The emergent ASEAN human rights system has not yet developed a human rights court. The article suggests that there are key grassroots movements shaping human rights discourses around corporate accountability through the region and that these offer exciting prospects for an alternative approach to addressing corporate accountability through a prospective supervisory mechanism.

Deadlock and Denial: Domestic Challenges and the Institutionalization Human Rights in ASEAN

Abstract In the last decade, ASEAN has made substantial steps towards adopting human rights, by creating the ASEAN Intergovernmental Commission on Human Rights (AICHR) in 2009 and adopting the ASEAN Human Rights Declaration in 2012. However, these developments do not lead to the establishment of an ASEAN Human Rights Mechanism. The article aims to investigate the deadlock in ASEAN by examining to what extent that relates to institutional challenges i. e. legal and political structures consist of existing norms, persistent discourses pertaining to human rights, at regional and national levels.

Mainstreaming Human Rights in the Asian Judiciary

Human rights protection in Asia is hindered by the absence of binding human rights instruments and enforcement mechanisms, including the lack of human rights mainstreaming into the works of relevant stakeholders, notably the judiciary. Judiciary plays key roles in the realization and protection of human rights. As the guardian of the Constitution, the Indonesian Constitutional Court (‘the Court’) is mandated to protect the human rights of the citizens. This paper argues that the Court, which previously served as the President of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC), has the potential to play a leading role in mainstreaming human rights in the region. Using normative and comparative legal research methodologies, the paper identified the Court’s mandates on human rights at the national, regional and international levels; assessed the need for human rights mainstreaming in the Asian judiciary; and examined the significant potential of the AACC to house the mainstreaming project. Finally, it proposes several recommendations for the Court’s consideration, namely to encourage judicial independence, recommend human rights incorporation into judicial discussions and decisions, suggest the establishment of a platform to enhance human rights expertise of the judiciary, as well as facilitate a platform for the development of binding human rights instruments and the establishment of an Asian Human Rights Court.

Normative power Japan: settling for ‘Chinese democracy’

ABSTRACT Tokyo has recently decided to utilize foreign aid more strategically so as to make ‘Proactive Contributions to Peace and Security’ and align aid with what is identified as Japanese national interests: to protect an international order governed by rules and based on democracy, human rights and rule of law. Some scholars have even started to talk about Japan as a ‘Normative Power’—an actor with the ability to set what is considered ‘normal’in international affairs. In an attempt to ‘measure’ any potential Japanese normative power, it is being argued that Japan can be identified as a normative power when it comes to setting the ‘rule of law’ (at sea) as legitimate and normal behavior, which has been facilitated by utilizing foreign aid strategically to claimants in the South China Sea dispute. However, said normative power does not seem to be applicable to other non-security related realms of Japanese national interests—protecting democracy and human rights in Asia. It is suggested that actual implementation of aid geared towards protection of such values are only as important to Tokyo as the extent to which it creates leverage against its main competitor in the region, China.

The Regional and National Contextt Under the ASEAN Human Rights Declaration and Its Implications for Minority Rights

The notion that human rights are universal, i.e., to be applied in the same way everywhere regardless of regional or national particularities, has in recent decades been called into question by gov ...

A Comparative Analysis for the Institutional Development of ASEAN Human Rights Mechanism

A Comparative Analysis for the Institutional Development of ASEAN Human Rights Mechanism

Realizing the Right to Freedom of Thought, Conscience and Religion: The Limited Normative Force of the ASEAN Human Rights Declaration

Realizing the Right to Freedom of Thought, Conscience and Religion: The Limited Normative Force of the ASEAN Human Rights Declaration

The “ASEAN Way”. A decolonial path beyond “Asian values”?

Abstract The difference between ASEAN and EU in the political and economic realm has an interesting parallel in the system of values and “rights” that are sustained by the two organisations. In effect if we look to ASEAN Human Rights Declaration (2012) or general political principles adopted inside ASEAN we will find several value-oriented peculiarities that distinguish it from EU political and juridical fundamental principles. At the same time such a system of values does not fit with the “Asian Values approach”. Thus the ASEAN Sonderweg results as an original hybrid of western and local values that goes beyond the “Orientalist” mask of Asia, defining an identity that assumes a singular inclination that could be defined as a difficult and problematic effort towards a “decolonial” option.

National Wisdoms and the ASEAN Human Rights Legal Regime

Recently, the discourse on the relation between local wisdom and human rights shows its relevance. This article describes and critically examines the human rights norms and procedures with regards to common local wisdoms to remedy and redress human rights problems in South East Asian countries. It takes an example of redressing problem in rights to development and also focuses on the application of the ASEAN agreement on Disaster Management Response to contextualize role and influence of local wisdoms to manage and to mitigate disaster response within the ASEAN human rights protection. This writing also highlights that human rights based approach is needed in the implementation of the ASEAN human rights norms and mechanisms in accordance to local wisdoms of respective countries where disaster occurs.

Regional Human Rights Mechanism And Civil Society Advocacies: A Transformation Of Regional And Civil Society

This paper focuses on the dynamics of civil society that the Association of Southeast Asian Nations (ASEAN) recently has activated at regional level by examining regional-level civil society organisations and networks non-governmental organisations (NGOs), looking at the Law Association for Asia and the Pacific (LAWASIA) and the Asian Forum for Human Rights and Development (FORUM-ASIA). The paper also uncovers how ASEAN has established, maintained, and changed the concept of civil society and human rights. In addition, the paper investigates the relationship between regionalism and the institutionalisation of human rights mechanisms. Discourses on civil society and human rights in ASEAN have been associated closely with political discourses, including regionalism and communitarianism; and the normative discourses in Asian civil society have unfolded, more or less, with the acceptance of these developments. While examining the human rights discourses in Southeast Asia, the paper explores the dynamics of Asian civil society and human rights that might differ from western NGO's practices.

Important but De-centred: ASEAN's Role in the Southeast Asian Human Rights Space

AbstractIn this article, I argue that to capture ASEAN's importance in the promotion and protection of human rights requires embedding the analysis of what ASEAN says and does into an awareness of the broader human rights space of which it is a part. The Southeast Asian human rights space has four dimensions: ASEAN, domestic institutions, civil society, and the global United Nations system, all of which are increasingly linked together in a complex whole. Revealing this human rights space suggests three conclusions. First, ASEAN is important as an educator, enabler, standard setter, and mobiliser of human rights, often despite its flawed institutional design. This importance is the product of its own activities and how it is used by other actors. Second, ASEAN member states engage with each other on questions of human rights broadly, and not only through ASEAN, which illustrates the limits and resilience of the ‘ASEAN Way’ as a set of procedural norms. Third, ASEAN, despite its growing importance to human rights promotion, has become increasingly de-centred in that field, with serious consequences for its own security agenda.

The Breakdown of the Rule of Law in Sri Lanka: An Overview

This brief report, prepared for the Sri Lanka Campaign for Peace and Justice and dated September 22, 2010, analyzes the state and the underlying causes of the current breakdown of the rule of law in Sri Lanka. The information herein is drawn primarily, while not exclusively, from three sources: Basil Fernando, Sri Lanka: Impunity, Criminal Justice & Human Rights (Asian Human Rights Commission: Hong Kong, 2010); Justice in retreat: A report on the independence of the legal profession and the rule of law in Sri Lanka (International Bar Association Human Rights Institute [IBAHRI]: London May 2009); Kishali Pinto-Jayawardena, The Rule of Law in Decline in Sri Lanka- Study on the Prevalence, Determinants and Causes of Torture and Other Forms of Cruel, Inhuman and Degrading Treatment (Rehabilitation and Research Centre for Torture Victims: Copenhagen, 2009). The Pinto-Jayawardena report provides a detailed analysis of the causes behind the breakdown of the rule of law in Sri Lanka, while Fernando’s work provides a conceptual and critical analysis of overarching themes that is extremely useful for understanding the situation in Sri Lanka. Facts and figures are also drawn from a wealth of other reports and analyses published by a range of actors, including Amnesty International, Human Rights Watch, the International Commission of Jurists, Reporters Without Borders, the International Crisis Group, United Nations Human Rights Council Special Rapporteurs, the European Union, and the Office of War Crimes Issues of the United States Department of State.

The ASEAN Human Rights System: A Critical Analysis

AbstractThis article offers a critical analysis of the human rights system established by ASEAN. It first investigates concrete evidence of the system’s ineffectiveness by comparing the cases of Myanmar and Thailand, which illustrate ASEAN’s failure to address human rights violations both before and after the creation of the ASEAN system. It then examines the substantive and procedural limitations of the ASEAN human rights instruments and mechanisms. Specifically, while restrictions on rights and freedoms contained in the instruments undermine the universality of human rights, ASEAN’s mechanisms lack independence and offer only weak protection mandates to address rights violations. In addition, the absence of a judicial body to hear complaints and issue binding remedies makes the system incomplete. The article recommends the creation of an ASEAN court of human rights and suggests changes to the existing instruments and mechanisms that might accommodate the new court.

Paradoxical Normativities in Brunei Darussalam and Malaysia

Brunei and Malaysia are promoting the ASEAN Human Rights Declaration but enforce a brand of Islamic law that systematically violates it. The paradoxical ways in which policymakers are navigating between the two, and the empirical realities of Islamic governance, impede the project of a transdoctrinal justification of human rights.

Asean Human Rights Regime and Mainstreaming the Responsibility to Protect: Challenges and Prospects

This article explores the challenges and prospects of mainstreaming RtoP in the Association of Southeast Asian Nations (asean) through the analysis of the roles and performance of the asean human rights bodies, in particular the asean Intergovernmental Commission on Human Rights (aichr). The author argues that although asean has made some progress in institutionalizing the promotion and protection of human rights and fundamental freedoms, it will take more time for asean to mark substantial shift in intra-asean relations and suggests that, in Southeast Asia where sovereignty is still jealously guarded, norms and ideas such as RtoP cannot yet have a decisive impact in practice. Specifically, mainstreaming RtoP in asean is constrained by the principles of non-interference and consensus decision-making, which unfortunately remains the norm. In order for asean to effectively care for people, a paradigm shift is necessary. Such shift can be anchored in the asean Human Rights Declaration (ahdr) as well as employing the ‘asean minus X’ decision-making formula, activating the Troika, and dispatching of special envoys. These options, which are not new to asean and have historically helped in its engagement with human rights, could also enable asean to prevent and respond to systematic human rights violations and other issues which may amount to war crimes. As well, promoting national and regional dialogues on RtoP could influence asean member states, especially those who are not yet comfortable with the principle. Different workshops and seminars that the aichr has been organizing already provide the body opportunities for sharing and learning from other regions.

ADVANCING ASEAN HUMAN RIGHTS NORMS THROUGH EXTERNAL RELATIONS: CAPACITY, ADVANTAGES, AND THE POTENTIAL FOR EXTERNAL INTERFERENCE

The gradual development of human rights norms in ASEAN has been discussed until recently. As before the human rights provisions were formally enshrined in the ASEAN Charter, many experts have shared their views on how such norms should ideally be formulated and how to use the institutional approach in the promotion and protection of human rights in Southeast Asia region.This paper mainly discusses about the role of ASEAN’s external relations to advance the ASEAN human rights norms. On the more specific topic, this paper analyzes ASEAN’s capacity to bring human rights agenda in its external relations and also analyzes the advantages that can be gained from such activities. Based on the assumption that cooperation naturally opens the room for external influences, this paper also studies whether ASEAN’s external relations on human rights issues are potential for external interference.

ASEAN and its approach to forced migration issues

The issue of forced migration has been a difficult challenge for ASEAN to address. Despite the number of international, regional and national frameworks in place, it is clear that within the international community, emigration is regarded as a right but immigration is seen as a matter of national sovereignty and security. Irregular migrants, especially migrant workers, asylum seekers and refugees, are not only forced to leave their own state but they are vulnerable to the whims of their host state, because they are considered to be secondary to citizens and national interests. The purpose of this article is to examine forced migration in the ASEAN context and how ASEAN member states have perceived and dealt with the issues so far. It also looks critically at how ASEAN as a group has been approaching forced migration and whether the establishment of the ASEAN human rights regime has contributed to changing ASEAN's approach to forced migration. ASEAN has some policies and frameworks in place for the protection of immigrants, including for those who are forced, but are assumed to be voluntary. Although ASEAN has a number of regional frameworks which could be applied to protect the rights of those forced to migrate, it is regrettable that the overall policies and laws on migration are left to the will of national governments which, in many ways, may not comply with international human rights standards. Moreover, while the existence of the ASEAN human rights regime is significant, there are no guarantees that it will lead to the adoption of a common regional approach to forced migration. The fact that ASEAN has been upholding very strong working principles – respect of state sovereignty, non-interference in the international affairs of member states, consultation and consensus – weakens the existing ASEAN human rights system. In addition, although ASEAN is one organisation, it is made up of ten member states, each driven by their prevailing national approach to the issues. A regional approach like the one applied two decades ago, would be difficult to reach now, as the member states do not yet see forced movements and forced migration as a ‘crisis’. While ASEAN does react to issues, it is always reluctant to act before the issue becomes a ‘crisis’. However, even if ASEAN reacts, it might not be in support of the interests of those who are forced to leave their country.

Regional Model for the Protection of Human Rights in Asia

After considering all the regional model for the protection of human rights in the world, the researcher tried to gave the regional model in Asia. There is need to care of diversified socio, economic, political and cultures of India while forming regional model for protection of human rights in Asia.

RESISTANCY TO THE LAW ENFORCEMENT OF (ASEAN) REGIONAL HUMAN RIGHTS MECHANISM, WHAT NEXT?

Regional mechanism on the protection of human rights in ASEAN formally has been developed since 2007 through the adoption of the ASEAN Charter in 2007 and the establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR) in 2009. Nevertheless, efforts on the law enforcement for human rights violations committed by ASEAN citizens and/or within ASEAN territory by establishing ASEAN human rights court is hardly to achieve due to national interest of each member states. Accordingly, for the objective of achieving justice and certainty of law, cooperation among ASEAN member states should be developed through other mechanism. This article tries to identify existing situations with respect to the protection and fulfillment of human rights particularly in regards to criminal matters in the ASEAN countries. Accordingly, the article examines the responses of the Member States to the development of human rights mechanism in ASEAN. Finally, we try to propose other mechanism in regards to the protection of human rights by developing cooperation in the enforcement of international criminal law for cases related to criminal matters in particular among ASEAN countries.

Asian Data Privacy Laws, Trade and Human Rights Perspective, by Graham Greenleaf

Asian Data Privacy Laws, Trade and Human Rights Perspective, by Graham Greenleaf