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

摘要

This paper responds to the defences of "culture" and "development" rights as justifications for exceptionalism in human rights obligations in SoutheastAsia, particularly against the context of the passage of the Association of Southeast Asian Nations (ASEAN) Charter. Under the new ASEANCharter, Member States have the general obligation to abide by the Organizational Principles of "adherence to the rule of law, goodgovernance, the principles of democracy and constitutional government", as well as "respect for fundamental freedoms, the promotion and protection ofhuman rights, and the promotion of social justice". More importantly, it is now the specific obligation of ASEAN Member States to "take all necessarymeasures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of the Charter and to comply with allobligations of membership", including the above-stated Organizational Principles.The paper shows the normative, conceptual, and empirical weaknesses ofthe "culture" and "development" justifications for creating exceptions to theobservance and protection of core human rights norms. Assessing the rightto culture as an exception to human rights observance, the paper asserts theideological imprecision of the "right to culture" as an exception to humanrights observance, noting that the porous definition of "culture" should notbe equally valued in its assertion against core human rights norms whichform part of general international law (e.g. jus cogens prohibitions, crimesagainst humanity, war crimes, egregious violations of human rights,obligations erga omnes) and which can be modified only by a subsequentnorm of the same character. The cultural exception also suffers fromteleological incoherence, since the protection of core human rights normsbears a greater immediacy and proximity to human dignity and personhood- a fundamental value that should be more conceptually valuable than theporous construct of culture. Turning to the "right to development" as anexception to human rights observance, the paper contends that there isempirical uncertainty and/or indeterminacy in the concept of "development"that undermines its legal-philosophical value as an exception to humanrights observance. Moreover, contrary to the assertions of developmentexceptionalism to human rights observance, there is no linearity in the claimthat human rights protection "impedes" development. Rather, as shown inrecent economic analysis, there is a stronger claim for human rightsprotection as a necessary precondition for development.Further reinforcing these refutations of "culture" and "development"justifications for human rights exceptionalism is, however, the emergence ofa customary international law norm rejecting impunity for serious violationsof human rights (specifically, civil and political rights), which has gainedrecognition from the forty-year independent practice (primarily seen intreaty ratifications and implementation) of Southeast Asian states. Despitevariances in the degree of ASEAN Member States' practices, there is atleast consistent opinio juris that redress for serious human rights violationsshould not be met with non liquet in remedial processes, whether domesticor international. The passage of the ASEAN Charter therefore marks aconvergence of ASEAN towards "universalizing" core human rights normsas now seen in its Organizational Principles and the new requirements ofASEAN membership obligations.