PhD candidate Melissa Loja presented the following paper at the 2018 American Society of International Law Research Forum, 8-10 November 2018, University of California, Los Angeles.
"Recent Engagement with International Human Rights Norms by Courts in Southeast Asia: New challenges to human rights theories"
Abstract: International human rights norms have had limited influence on the settlement of issues that defined the identities of nations in Southeast Asia, Yet, in recent cases involving arbitration and judicial immunity, Singapore courts cited European Convention on Human Rights (ECHR) norms; Malaysia’s Court of Appeal based two decisions on the ASEAN Human Rights Declaration (AHRD), despite lack of legislative incorporation; the Philippine Supreme Court applied the Convention for the Protection of all Persons from Enforced Disappearances (CPPED), which the government had repeatedly refused to ratify; and Indonesia’s Constitutional Court invoked UN human rights instruments to justify the ex post facto prosecution of the past regime for human rights violations. This recent engagement with international human rights norms by the courts in Southeast Asia has distinctive features, notably: 1) preference for ECHR and other regional norms rather than AHRD norms; 2) subversion of the ethos of the norms; and 3) lack of indication that the courts see themselves as agents of an exogenous regional or global normative order. These distinctive features are beyond the capacity of the descriptive and predictive tools of the main universalist, pluralist and institutionalist/neo-institutionalist paradigms about international human rights norms and their application by domestic courts. A re-examination of human rights theories would be enriched by this recent engagement with international human rights norms by the courts in Southeast Asia.
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