Revival of Legal Positivism in an Oriental Context and ASEAN Values: A Decelerating Factor of the Functioning of Human Rights Norms
Proceedings of the Asian Law & Society Association Conference, 22 & 23 September 2016
15 Pages Posted: 8 Dec 2016
Date Written: September 22, 2016
In the past, the theory of legal positivism played a dominant role in justifying the exercise of sovereignty in the context of international law. This led to state-centricity, and sovereignty gradually became balanced with legal historicism and naturalism, among others. States no longer held absolute power and other actors played a more intensive role parallel to that of the state in the process of international law-making. Although this decline of sovereignty also occurred in Southeast Asian countries, it was at a critically decelerated speed, and it is proposed in this paper that extreme resistance, albeit concealed, attributed to this deceleration of international and regional law-making in ASEAN countries. The focus of the study is limited to the reception of international human rights norms at regional and national levels.
Much of the discourse related to the establishment of regional human rights systems is based on the common values of the ASEAN Community, namely, the ASEAN way, non-confrontation and non-interference, among other factors, whereas few studies have been devoted to the antecedents of the emergence of those values and principles. The findings of this paper indicate that a model comparable to the past European legal positivism has been embedded in most parts of the ASEAN region and the would-be enforceability of various international and regional instruments is forcefully sanctioned to a large extent. As denoted in this article, legal positivism in this oriental context has been developed by the high authorities of member states since their full acquisition of sovereignty, as of the modern states, following the decolonisation of the C20, and it now operates beneath the cloak and beautiful veil of ASEAN values. Piercing the veil of the ASEAN Community has helped to elucidate the obstacles and defects of the legal methodology employed within the region. This has led to a number of consequences, particularly the prevalent role of infra-community networks (infrapartes) in creating and enforcing regional norms and the existence of bilateralism and extraregionalism in the ASEAN Community.
The domestic legal context will also be discussed in this paper for a deeper analysis. The constitution of the community, the ASEAN Charter, to which all member states are bound, contains various provisions that clearly uphold human rights, the rule of law and a democratic regime, but most of the region’s legal systems remain unchanged in these aspects almost a decade after its enforcement. However, there appears to be a lack of cooperation by the highest domestic authorities at the national level, who, in line with oriental positivism, maintain their supreme hierarchy and refuse to relinquish their hyper-protectionist and - positivist position on the application of international and regional rules.
The analysis contained in this paper is a socio-legal one related to regional and domestic legal phenomena with the aim of presenting a holistic picture of the crisis involved in the process of developing regional human rights systems and the provision of feasible proposals at both regional and national levels.
Keywords: ASEAN Court of Human Rights, ASEAN Identities, ASEAN Values, ASEAN Way, Asian Court of Human Rights, Legal Naturalism, Legal Positivism, Legal Semiology, Legal Semiotics, Human Rights, Infra-Partes, Neocolonialism, Neofunctionalism, Oriental Positivism, Open Regionalism, Postcolonialism
JEL Classification: K33
Suggested Citation: Suggested Citation