This paper offers an account of how we should understand the nature and role of regional human rights mechanisms in Asia. The core thought is that such mechanisms need to be conceived of and operate as enforcement gap-filling institutions, i.e., help fill enforcement gaps in human rights law within the region. At the level of institutional design, this purpose supports a robust commitment to complementarity. This paper argues that, understood this way, there is a strong case for indeed setting up a regional human rights mechanism in Asia. In particular, the commitment to complementarity
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To scholars and practitioners of international human rights law, the 1990s Asian Values Debate was irrefutably debunked by the Asian Financial Crisis and regional rights progress. Yet ASEAN states are stuck in a strange ‘time-warp’ and invariably resurrect the Asian values defence to ward off ‘intrusive’ human rights engagement, consequently preventing them attaining their ironically oft-professed UN human rights standards. This study situated in the universalism-cultural particularism debate calls their bluff – what exactly are these as-yet-undefined Asian values? It explores the historical, ideological, and philosophical roots of ASEAN’s guardedness towards human rights; whether it is truly and justifiably rooted in notions of ‘Asian values’ or is merely defence against ‘Western political/ideological imperialism’; what these cultural norms comprise; and how these norms – ostensibly rights-supportive – can be socialised into the ASEAN psyche.
In 2001, the Inter-American Court of Human Rights (IACtHR) was the first court at the international level that found national legislation, namely, self-amnesty laws on serious violations of human rights, to be null and void. This seminal development was lauded by human rights practitioners and scholars alike. However, subsequent national reactions to the decisions of the IACtHR have shown that such a supra-national control has faced a number of legitimacy and legal challenges across Latin-America. Against this background, the present study examines how the IACtHR has exercised and should exercise its authority over national legislation ((self-)amnesty laws) and/or executive power practices (presidential pardons) that blocked judicial cases of serious human rights violations (Peru, Chile, Brazil), including contexts of referendum (Uruguay) and transitional justice and/or peace-making efforts (Colombia, El Salvador).
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Why if at all should a perceived (emerging) regional consensus on human rights affect states’ margin of appreciation? The European Court of Human Rights’ practice in this regard may respond to a shared regional ‘identity’ and reduce the fear of supranational interference – but it also runs the risk of failing to uphold human rights.