The association of Southeast Asian nations and its member states: Universality of human rights and the room for particularities

Byung Sook Pattinaja-de Vries

    Research output: ThesisDoctoral Thesis

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    Abstract

    The present research investigates how the Association of Southeast Asian Nations (ASEAN) and its Member States contribute to and undermine the claim to the universality of human rights.

    This research contributes to the theoretical discussion on the universality of human rights. ASEAN and its Member States acknowledge that human rights are universal, indivisible, interdependent and interrelated while developing an ASEAN human rights system. At the same time, reference is also made to national and regional particularities and various cultural and historical backgrounds. Due to the previous experience with the Asian values argument in the early 1990s, whereby its proponents argued that values that were upposedly
    commonly shared in Asia would lead to an ‘Asian view’ of human rights, these particularities have often been presumed to be detrimental to universal human rights standards. The present research provides a more nuanced and up-to-date picture of particular attitudes that exist within the ASEAN region and investigates
    whether these attitudes contribute to and undermine the claim to the universality of human rights. In this way, an understanding of the existing instruments and mechanisms, including their limitations, is attained, which
    is essential when addressing human rights violations in the ASEAN region.

    In this research, a legal analysis is made of human rights in the ASEAN context at a conceptual level and of the mechanisms installed to protect and promote these rights. The point of substance concerns the room for developing human rights standards based on the context of ASEAN and its Member States. Specifically, the
    ASEAN Human Rights Declaration, the declarations and reservations to the core human rights instruments of the United Nations to which the ASEAN Member States are party and the fundamental rights in the national constitutions are scrutinised. The procedural part of the research question focuses on ASEAN’s
    regionalism and human rights engagement by also conducting literature research on the ‘ASEAN Way’, ASEAN’s mode of operating, ASEAN’s existing mechanisms and the initiatives taken by the National Human Rights Institutions in the region. Field research was scheduled in the early stages of the research in
    order to gain insight on where ASEAN and its Member States stood with respect to their human rights engagement. In later years, the reports of the organisations the interviewees work for were used to track possible changes in their thinking.

    The universality of human rights is analysed at three levels: concepts, conceptions and implementation. At the level of concepts, the research analyses which human rights are included in ASEAN’s human rights system. The conclusion is drawn that the ASEAN region overall detracts from the universality of human rights at this level while the added value remains limited. Specifically, the ASEAN Human Rights Declaration and the national constitutions of the Member States omit certain human rights standards, including ius cogens norms, that are set in core human rights conventions of the United Nations.

    The level of conceptions deals with interpretations and restrictions of human rights in the ASEAN region and their conformity to international human rights law. With respect to the ASEAN Human Rights Declaration, the research concludes that the restrictions formulated as general principles and the inclusion of a general limitation clause overall cause a detraction from the universality of human rights at the level of conceptions. In addition, a number of the provisions are subjected to national law. This corresponds to a practice of ASEAN States to subject provisions of core human rights conventions of the United Nations to national law when formulating reservations, which is also contravening international human rights law.

    The level of implementation focuses on the way in which human rights are legally protected and promoted in ASEAN’s human rights system. It is concluded that ASEAN’s mechanisms overall lead to a denial of the right to invoke one’s human rights and to a detraction of the universality of human rights. This is due to the lack of procedural aspects in human rights standards and the restricted mandate of ASEAN’s human rights mechanisms. Together with the ‘ASEAN Way’ the development of a higher level of human rights protection is hampered. Consequently, ASEAN needs to rely on national legislatures and courts with respect to the implementation and compliance with norms, whereby the mandate of the National Human Rights Institutions that are present in the region could contribute to ASEAN’s human rights mechanisms.
    Original languageEnglish
    Awarding Institution
    • Tilburg University
    Supervisors/Advisors
    • van Genugten, W.J.M., Promotor
    • Jägers, Nicola, Promotor
    Award date19 Dec 2018
    Place of PublicationTilburg
    Publisher
    Publication statusPublished - 2018

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