Universalizing Core Human Rights in the "New" ASEAN: A Reassessment of Culture and Development Justifications Against the Global Rejection of Impunity

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2009
Authors
Desierto, Diane A.
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Abstract
This paper responds to the defences of "culture" and "development" rights as justifications for exceptionalism in human rights obligations in Southeast Asia, particularly against the context of the passage of the Association of Southeast Asian Nations (ASEAN) Charter. Under the new ASEAN Charter, Member States have the general obligation to abide by the Organizational Principles of "adherence to the rule of law, good governance, the principles of democracy and constitutional government", as well as "respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice". More importantly, it is now the specific obligation of ASEAN Member States to "take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of the Charter and to comply with all obligations of membership", including the above-stated Organizational Principles. The paper shows the normative, conceptual, and empirical weaknesses of the "culture" and "development" justifications for creating exceptions to the observance and protection of core human rights norms. Assessing the right to culture as an exception to human rights observance, the paper asserts the ideological imprecision of the "right to culture" as an exception to human rights observance, noting that the porous definition of "culture" should not be equally valued in its assertion against core human rights norms which form part of general international law (e.g. jus cogens prohibitions, crimes against humanity, war crimes, egregious violations of human rights, obligations erga omnes) and which can be modified only by a subsequent norm of the same character. The cultural exception also suffers from teleological incoherence, since the protection of core human rights norms bears a greater immediacy and proximity to human dignity and personhood - a fundamental value that should be more conceptually valuable than the porous construct of culture. Turning to the "right to development" as an exception to human rights observance, the paper contends that there is empirical uncertainty and/or indeterminacy in the concept of "development" that undermines its legal-philosophical value as an exception to human rights observance. Moreover, contrary to the assertions of development exceptionalism to human rights observance, there is no linearity in the claim that human rights protection "impedes" development. Rather, as shown in recent economic analysis, there is a stronger claim for human rights protection as a necessary precondition for development. Further reinforcing these refutations of "culture" and "development" justifications for human rights exceptionalism is, however, the emergence of a customary international law norm rejecting impunity for serious violations of human rights (specifically, civil and political rights), which has gained recognition from the forty-year independent practice (primarily seen in treaty ratifications and implementation) of Southeast Asian states. Despite variances in the degree of ASEAN Member States' practices, there is at least consistent opinio juris that redress for serious human rights violations should not be met with non liquet in remedial processes, whether domestic or international. The passage of the ASEAN Charter therefore marks a convergence of ASEAN towards "universalizing" core human rights norms as now seen in its Organizational Principles and the new requirements of ASEAN membership obligations.
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1 Goettingen J. Int'l L. 77 2009
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