A Selective Approach to Establishing a Human Rights Mechanism in Southeast Asia

The Case for a Southeast Asian Court of Human Rights


This book proposes a selective approach for states with more advanced human rights protection to establish a human rights court for Southeast Asia. It argues the inclusive approach currently employed by ASEAN to set up a human rights body covering all member states cannot produce a strong regional human rights mechanism. The mosaic of Southeast Asia reveals great diversity and high complexity in political regimes, human rights practice and participation by regional states in the global legal human rights framework. Cooperation among ASEAN members to protect and promote human rights remains limited. The time-honored principle of non-interference and the “ASEAN Way” still predominate in relations within ASEAN. These factors combine to explain why the ASEAN Intergovernmental Commission on Human Rights is unlikely to be strong and effective in changing and promoting regional human rights protection.
This book suggests a selective approach to establish a human rights court for Southeast Asia. It posits that a group of nations within Southeast Asia may be more willing to consider the possibility of a stronger human rights mechanism. It investigates the challenges to and the feasibility of such a proposal. Furthermore, it examines the design of the three existing regional human rights courts in Europe, the Americas, and Africa, and compares the rationales for those institutional designs with the specific context of Southeast Asia. A human rights court for all ASEAN members may not be possible at this time, but a court for some nations in the region is feasible and worth exploring. The path towards this goal is never an easy one; however, the region possesses the necessary conditions to gradually translate that goal into reality.

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Biographical Note

Dr. Hao Duy Phan is a legal expert in international law. He has published in the Asian-Pacific Law & Policy Journal, East Asia Law Review, Asia-Pacific Journal on Human Rights and the Law, and Contemporary Southeast Asia, among others. He has been a fellow at the East-West Center in Washington D.C. and the Institute of Southeast Asian Studies in Singapore, and has worked for the Ministry of Foreign Affairs of Vietnam and the Office of the United Nations High Commissioner for Human Rights. He received a B.A. in International Law from the Institute for International Relations of Vietnam, an LL.M. in International Human Rights Law from Notre Dame Law School, and an S.J.D. in International Law from the American University Washington College of Law.

Table of contents

Abstract; Acknowledgements; Foreword; List of Tables; Table of Authorities; List of Abbreviations;
Chapter 1 – Introduction;
I. Statement of Problem and Objectives of the Study;
II. Plan of the Book and Statement of Methodology;
III. How This Book Contributes to the Existing Literature;
Chapter 2 - An Institutional Theory of Human Rights Protection;
I. International Institutionalism in International Relations;
II. The Influence of International Institutions on State Behavior;
III. International Institutions and the Protection of Human Rights;
IV. The Case for a Strong Regional Human Rights Mechanism;
Chapter 3 - The Legal Framework of Human Rights Protection in Southeast Asia;
I. Human Rights in Southeast Asia: Domestic Frameworks for Human Rights Protection
II. Participation in the Global Human Rights Framework: Attitude Towards the International Human Rights System;
III. Asean Human Rights Cooperation;
Chapter 4 - The Case for a Strong AICHR: Difficulties and Challenges;
I. The Evolution Towards the AICHR;
II. The Asean Charter and the AICHR Terms of Reference: “A Mirror to Their Domestic Selves”;
III. Non-Interference and the “Asean Way”: The Principles Maintained;
IV. Conclusions: States’ Positions on Norm Changes: Differences Remained;
Chapter 5 - A Selective Approach to Establishing a Strong Human Rights Mechanism in Southeast Asia: The Case for a Southeast Asian Court of Human Rights;
I. A Selective Approach to Establishing a Southeast Asian Court of Human Rights;
II. Existing Conditions to Translate the Idea of a Regional Human Rights Court into Reality;
III. A Selective Approach to Establishing a Regional Court: Lessons From Other Regions;
IV. Reactions From the Field: A Survey Report;
V. Conclusion: Challenges and Prospect;
Chapter 6 - Designing a Southeast Asian Court of Human Rights;
I. Founding Treaty: Substantive Law vs. Procedural Law;
II. Contentious Jurisdiction: The Issues of Accessibility and Admissibility;
III. Advisory Jurisdiction: A Prospect of the Court’s Influence on Non-Member States;
IV. Composition: Judges of the Court;
V. Structure and Procedure: Increasing the Court’s Effectiveness;
VI. Financial and Administrative Issues: Funding and Running the Court;
VII. Enforcement: Executing the Court’s Judgments;
VIII. Conclusion: The Seachr in a Broader Context;
Chapter 7 – Conclusion;
I. Summary: The Prospect of an Asean Human Rights Body and the Case for a Southeast Asian Court of Human Rights: Inclusive vs. Selective Approach;
II. Enhancing the Possibility of a Southeast Asian Court of Human Rights;
III. Directions for Further Research;

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