The Human Rights Declaration of the Association of Southeast Asian Nations: A Principle of Subsidiarity to the Rescue?
Constitutional Jurisprudence – Function, Impact, and Challenges (Baden Baden: Nomos 2014), Forthcoming
25 Pages Posted: 27 Nov 2013 Last revised: 2 Feb 2015
Date Written: 2013
This paper examines some of the criticism against the 2012 Human Rights Declaration of the Association of Southeast Asian Nations (ASEAN), by the UN Commissioner for Human Rights, UN experts, and several civil society groups. The main concern is whether a principle of Subsidiarity can defend the controversial 'state centric' elements of the Declaration, since some authors have appealed to a principle of subsidiarity in order to defend similar features of international law generally. Different interpretations of subsidiarity have strikingly different institutional implications regarding the objectives of the polity, the domain and role of subunits, and the allocation of authority to apply the principle of subsidiarity itself. Five different interpretations are explored, drawn from Althusius, the US Federalists, Pope Leo XIII, and others. One conclusion is that the Principle of Subsidiarity cannot provide normative legitimacy to the state centric aspects of current international law, including the ASEAN Declaration of Human Rights.
Keywords: ASEAN, Subsidiarity, Lisbon Treaty, Sovereignty, constitutionalism, Human Rights
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