Pub Date : 2022-08-23DOI: 10.1163/15718158-23020004
Katrin Nyman Metcalf, Ioannis Papageorgiou
Our daily lives get increasingly more digitalised, with cyberspace taking a central role in many different contexts in the public and private sectors. The nature of digital tools is such that they challenge the traditional notion of national borders and jurisdictions of nation states. The discussion about how the protection of rights is affected by modern technologies is ongoing globally, including new ways to make rules – in multistakeholder fora, as a mixture of soft and hard law, etc. In an increasingly globalised world, the notion of universal rights should provide a useful instrument with which to mitigate any negative effects of the challenges to traditional jurisdiction that the borderless cyber environment poses. Regional rulemaking can serve as a stepping-stone on the way to global rules. Although Europe is the most advanced continent generally when it comes to regional integration and regional protection of rights, various initiatives exist also elsewhere. Asia has traditionally not had strong regional integration systems or regional protection of rights. A specific ‘Asian view’ that is not open to regional initiatives has been mentioned, but this is challenged as digitalisation raises similar issues in all countries and a lack of harmonisation of rights protection can hinder trade. The nature of rights in the digital environment, with standards and less ‘political’ rights may speak in favour of greater possibilities for a regional approach in Asia.
{"title":"Increasing Trust in the Digital Market Through Regional Rules: the Case of Asia","authors":"Katrin Nyman Metcalf, Ioannis Papageorgiou","doi":"10.1163/15718158-23020004","DOIUrl":"https://doi.org/10.1163/15718158-23020004","url":null,"abstract":"\u0000Our daily lives get increasingly more digitalised, with cyberspace taking a central role in many different contexts in the public and private sectors. The nature of digital tools is such that they challenge the traditional notion of national borders and jurisdictions of nation states. The discussion about how the protection of rights is affected by modern technologies is ongoing globally, including new ways to make rules – in multistakeholder fora, as a mixture of soft and hard law, etc. In an increasingly globalised world, the notion of universal rights should provide a useful instrument with which to mitigate any negative effects of the challenges to traditional jurisdiction that the borderless cyber environment poses. Regional rulemaking can serve as a stepping-stone on the way to global rules. Although Europe is the most advanced continent generally when it comes to regional integration and regional protection of rights, various initiatives exist also elsewhere. Asia has traditionally not had strong regional integration systems or regional protection of rights. A specific ‘Asian view’ that is not open to regional initiatives has been mentioned, but this is challenged as digitalisation raises similar issues in all countries and a lack of harmonisation of rights protection can hinder trade. The nature of rights in the digital environment, with standards and less ‘political’ rights may speak in favour of greater possibilities for a regional approach in Asia.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49403963","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-08-23DOI: 10.1163/15718158-23020003
Dinushika Dissanayake
The formal justice sector in Sri Lanka is almost entirely reliant on physical interactions within the courtroom. Sri Lanka has committed to providing access to justice for all under both domestic and international law. Unfortunately, substantive access to justice for all continues to elude the marginalised. The global pandemic which emerged in January 2020 has thrown a further challenge on this already burdened system. The litigants, lawyers and judges who had relied on an already flawed system are now further physically distanced from the formal justice system. This means that these actors must now seek to ensure that access to justice is restored, albeit without full physical access to courtrooms. This article examines how Covid-19 challenged the dispensation of substantive justice in the formal justice system in order to suggest ways to mitigate these challenges. It discusses the challenges faced by lawyers and litigants during the period 14 March to 15 November 2020. This includes how the physical aspects of dispensation of the day-to-day caseload were resolved, and the strategies that were practised by lawyers, judges and litigants to circumvent these obstacles and challenges. Drawing on postcolonial feminist critique, information gathered through both primary data (gathering of qualitative and quantitative primary data) and secondary data (desk review of laws, regulations and rules), this article attempts to obtain insights into what challenges were experienced by marginalised communities and how these challenges were mitigated by the justice sector. The author applies the strategies used by persons who engaged with courtrooms in the midst of Covid-19 to the theoretical definitions of what justice should look like in an equal society. The article arrives at an understanding of the dispensation of justice during the Covid-19 pandemic.
{"title":"Justice After Covid 19: an Analysis of the Challenges Faced by the Formal Justice Sector in Sri Lanka During a Global Pandemic","authors":"Dinushika Dissanayake","doi":"10.1163/15718158-23020003","DOIUrl":"https://doi.org/10.1163/15718158-23020003","url":null,"abstract":"\u0000The formal justice sector in Sri Lanka is almost entirely reliant on physical interactions within the courtroom. Sri Lanka has committed to providing access to justice for all under both domestic and international law. Unfortunately, substantive access to justice for all continues to elude the marginalised. The global pandemic which emerged in January 2020 has thrown a further challenge on this already burdened system. The litigants, lawyers and judges who had relied on an already flawed system are now further physically distanced from the formal justice system. This means that these actors must now seek to ensure that access to justice is restored, albeit without full physical access to courtrooms. This article examines how Covid-19 challenged the dispensation of substantive justice in the formal justice system in order to suggest ways to mitigate these challenges. It discusses the challenges faced by lawyers and litigants during the period 14 March to 15 November 2020. This includes how the physical aspects of dispensation of the day-to-day caseload were resolved, and the strategies that were practised by lawyers, judges and litigants to circumvent these obstacles and challenges. Drawing on postcolonial feminist critique, information gathered through both primary data (gathering of qualitative and quantitative primary data) and secondary data (desk review of laws, regulations and rules), this article attempts to obtain insights into what challenges were experienced by marginalised communities and how these challenges were mitigated by the justice sector. The author applies the strategies used by persons who engaged with courtrooms in the midst of Covid-19 to the theoretical definitions of what justice should look like in an equal society. The article arrives at an understanding of the dispensation of justice during the Covid-19 pandemic.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42274518","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-10DOI: 10.1163/15718158-23020001
Hikmatul Ula, Kevin Sobel-Read, Cahyani Aisyiah
In the changing dynamics of today’s world, globalisation and sovereignty remain centrally important. Simultaneously, international commerce in the form of global value chains is playing an increasingly significant role in linking and mediating the overlap of globalisation and sovereignty. Nation-state governments use law to manage this overlap. This article takes the example of Indonesia to explain and analyse this phenomenon. By examining the intersection of laws regarding foreign investment and human rights, it becomes possible to gain insight into the constraints that national governments face in regard to protecting local interests while catering to the demands of global commerce. Human rights protections, after all, benefit local welfare but inhibit investment because they impose costs on companies. In the Indonesian case, the government has been successful in implementing local human rights protections in its fishing industry but has largely failed in its mining industry. The reason is quite simple: given their power and the economic value of their investment, international mining companies are able to influence the government, whereas fishing firms, which are primarily smaller and domestic, lack comparable power. As a result, the power of global mining value chains is having a direct effect on decisions that a national government is making, and at the same time, the government’s decisions are reflections of compromises that it itself is willing to make (here, regulating fishing firms) and compromises that it is not willing to make (here, regulating mining companies). These decisions and relationships provide important lessons regarding the role of law in managing the tensions that global value chains pose on globalisation and sovereignty.
{"title":"Indonesia at the Intersection of Human Rights and International Investment: the Overlap of Law, Sovereignty and Global Value Chains","authors":"Hikmatul Ula, Kevin Sobel-Read, Cahyani Aisyiah","doi":"10.1163/15718158-23020001","DOIUrl":"https://doi.org/10.1163/15718158-23020001","url":null,"abstract":"\u0000In the changing dynamics of today’s world, globalisation and sovereignty remain centrally important. Simultaneously, international commerce in the form of global value chains is playing an increasingly significant role in linking and mediating the overlap of globalisation and sovereignty. Nation-state governments use law to manage this overlap. This article takes the example of Indonesia to explain and analyse this phenomenon. By examining the intersection of laws regarding foreign investment and human rights, it becomes possible to gain insight into the constraints that national governments face in regard to protecting local interests while catering to the demands of global commerce. Human rights protections, after all, benefit local welfare but inhibit investment because they impose costs on companies. In the Indonesian case, the government has been successful in implementing local human rights protections in its fishing industry but has largely failed in its mining industry. The reason is quite simple: given their power and the economic value of their investment, international mining companies are able to influence the government, whereas fishing firms, which are primarily smaller and domestic, lack comparable power. As a result, the power of global mining value chains is having a direct effect on decisions that a national government is making, and at the same time, the government’s decisions are reflections of compromises that it itself is willing to make (here, regulating fishing firms) and compromises that it is not willing to make (here, regulating mining companies). These decisions and relationships provide important lessons regarding the role of law in managing the tensions that global value chains pose on globalisation and sovereignty.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42295511","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-02-16DOI: 10.1163/15718158-23010003
N. Mohammad, Sayed MM Hasan
The implementation of economic, social and cultural rights (esc rights) continues to pose uncertainties in the modern world. Given that many states constitutionally treat such rights as aspirational and not justiciable, it is difficult to enforce them judicially at the domestic level. Bangladesh has embodied these rights in Part ii of its Constitution as a social welfare goal of the State. This article takes Bangladesh as a case study and examines the international legal framework for the implementation of esc rights at the domestic level. Making a comparison with other jurisdictions, such as India and South Africa, the article examines the approach of the judiciary of Bangladesh (the Supreme Court) in giving effect to these rights. Lastly, the article argues that the court should devise appropriate and effective enforcement mechanisms for these rights.
{"title":"Judicial Enforceability of Economic, Social and Cultural Rights in Bangladesh: A Critical Evaluation","authors":"N. Mohammad, Sayed MM Hasan","doi":"10.1163/15718158-23010003","DOIUrl":"https://doi.org/10.1163/15718158-23010003","url":null,"abstract":"\u0000The implementation of economic, social and cultural rights (esc rights) continues to pose uncertainties in the modern world. Given that many states constitutionally treat such rights as aspirational and not justiciable, it is difficult to enforce them judicially at the domestic level. Bangladesh has embodied these rights in Part ii of its Constitution as a social welfare goal of the State. This article takes Bangladesh as a case study and examines the international legal framework for the implementation of esc rights at the domestic level. Making a comparison with other jurisdictions, such as India and South Africa, the article examines the approach of the judiciary of Bangladesh (the Supreme Court) in giving effect to these rights. Lastly, the article argues that the court should devise appropriate and effective enforcement mechanisms for these rights.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49037175","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-02-16DOI: 10.1163/15718158-23010005
{"title":"Asia-Pacific Journal on Human Rights and the Law","authors":"","doi":"10.1163/15718158-23010005","DOIUrl":"https://doi.org/10.1163/15718158-23010005","url":null,"abstract":"","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43808404","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-02-16DOI: 10.1163/15718158-23010002
Amiel Ian Valdez
There is a dynamic interplay between the State’s assertion of sovereignty over its territory, and the indigenous peoples’ claim over their traditionally owned seas. As experienced by the indigenous peoples in the Philippines and Australia, this dynamism is about lobbying for the recognition of their native title over ancestral seas, which includes their traditional fishing rights, and facing State interference with their affairs in managing these so-called sea countries. In this context, this article argues that there is sufficient basis for the recognition of an ancestral sea under the core human rights instruments, particularly through the lens of the indigenous peoples’ right to self-determination, right to enjoy or manifest culture, and right to protect their means of subsistence. It further argues that the State has a positive obligation to promote the realisation of ancestral rights, despite the Law of the Sea regime’s strong position on State sovereignty and sovereign rights, as well as a State duty in protecting and preserving the marine environment condition. Hence, there should be greater recognition of the role of indigenous peoples in managing the marine ecosystem of their ancestral seas.
{"title":"Balancing the Indigenous Peoples’ Ancestral Sea Rights, and the State’s Obligation to Protect and Preserve the Marine Environment","authors":"Amiel Ian Valdez","doi":"10.1163/15718158-23010002","DOIUrl":"https://doi.org/10.1163/15718158-23010002","url":null,"abstract":"\u0000There is a dynamic interplay between the State’s assertion of sovereignty over its territory, and the indigenous peoples’ claim over their traditionally owned seas. As experienced by the indigenous peoples in the Philippines and Australia, this dynamism is about lobbying for the recognition of their native title over ancestral seas, which includes their traditional fishing rights, and facing State interference with their affairs in managing these so-called sea countries. In this context, this article argues that there is sufficient basis for the recognition of an ancestral sea under the core human rights instruments, particularly through the lens of the indigenous peoples’ right to self-determination, right to enjoy or manifest culture, and right to protect their means of subsistence. It further argues that the State has a positive obligation to promote the realisation of ancestral rights, despite the Law of the Sea regime’s strong position on State sovereignty and sovereign rights, as well as a State duty in protecting and preserving the marine environment condition. Hence, there should be greater recognition of the role of indigenous peoples in managing the marine ecosystem of their ancestral seas.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43662298","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-02-16DOI: 10.1163/15718158-23010004
Banuar Reuben A. Falcon
The Philippines had been a State party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment for over two decades before implementing legislation was passed. This note reviews the substantive provisions of the implementing legislation and assesses whether they comply with the Philippines’ international treaty obligations.
{"title":"A Note on the Philippine Anti-Torture Act’s Compliance with the Convention against Torture","authors":"Banuar Reuben A. Falcon","doi":"10.1163/15718158-23010004","DOIUrl":"https://doi.org/10.1163/15718158-23010004","url":null,"abstract":"\u0000The Philippines had been a State party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment for over two decades before implementing legislation was passed. This note reviews the substantive provisions of the implementing legislation and assesses whether they comply with the Philippines’ international treaty obligations.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43154047","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-02-16DOI: 10.1163/15718158-23010001
Fatima Mehmood
This article proposes remedial secession as an international legal solution conducive to the protection of the rights of the Kashmiri people. The triggering event for such a proposal is the unilateral abrogation of Article 370 of the Indian Constitution (which guaranteed Kashmir its semi-autonomous status within India) by the Government of India together with the subsequent human rights abuses in the region. External self-determination and remedial secession are not clearly recognised in the existing corpus of international law. This article aims to demystify external self-determination in international law and presents a normative argument in favour of recognising remedial secession in international law, albeit as a remedy of last resort, using Kashmir as a case study for its application. It is proposed that international law borrow from conflict-oriented approaches in political philosophy to garner adequate criteria in order to foreground, legitimise and properly delineate the contours of the proposed right to remedial secession. This article thus also presents possible means of effecting the proposed right to remedial secession, analyses their theoretical justifications and, through application in the context of Kashmir, discusses their practical value.
{"title":"Demystifying External Self-Determination and Remedial Secession in International Law","authors":"Fatima Mehmood","doi":"10.1163/15718158-23010001","DOIUrl":"https://doi.org/10.1163/15718158-23010001","url":null,"abstract":"\u0000This article proposes remedial secession as an international legal solution conducive to the protection of the rights of the Kashmiri people. The triggering event for such a proposal is the unilateral abrogation of Article 370 of the Indian Constitution (which guaranteed Kashmir its semi-autonomous status within India) by the Government of India together with the subsequent human rights abuses in the region. External self-determination and remedial secession are not clearly recognised in the existing corpus of international law. This article aims to demystify external self-determination in international law and presents a normative argument in favour of recognising remedial secession in international law, albeit as a remedy of last resort, using Kashmir as a case study for its application. It is proposed that international law borrow from conflict-oriented approaches in political philosophy to garner adequate criteria in order to foreground, legitimise and properly delineate the contours of the proposed right to remedial secession. This article thus also presents possible means of effecting the proposed right to remedial secession, analyses their theoretical justifications and, through application in the context of Kashmir, discusses their practical value.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42520417","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-29DOI: 10.1163/15718158-22020004
A. Teeuwen
Delays pending trials can negatively impact juveniles. Encouragingly, the right of juvenile defendants to be tried within a reasonable time has been enshrined in international and regional human rights instruments. To support and strengthen the realisation of this specific right, several additional procedural entitlements, to which existing scholarship has paid limited attention, are of importance. This article focuses on how the rights to an effective remedy and legal representation can support the fulfilment of expeditious trials for juveniles. Furthermore, it analyses to what extent these two identified rights have been incorporated into significant international human rights standards and, specifically, in the Cambodian, Philippine and Vietnamese legislative frameworks. It identifies lessons Cambodia can draw from the latter two countries.
{"title":"Procedural Rights Supporting Expeditious Trials for Juveniles","authors":"A. Teeuwen","doi":"10.1163/15718158-22020004","DOIUrl":"https://doi.org/10.1163/15718158-22020004","url":null,"abstract":"\u0000Delays pending trials can negatively impact juveniles. Encouragingly, the right of juvenile defendants to be tried within a reasonable time has been enshrined in international and regional human rights instruments. To support and strengthen the realisation of this specific right, several additional procedural entitlements, to which existing scholarship has paid limited attention, are of importance. This article focuses on how the rights to an effective remedy and legal representation can support the fulfilment of expeditious trials for juveniles. Furthermore, it analyses to what extent these two identified rights have been incorporated into significant international human rights standards and, specifically, in the Cambodian, Philippine and Vietnamese legislative frameworks. It identifies lessons Cambodia can draw from the latter two countries.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43127698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-29DOI: 10.1163/15718158-22020003
Ignatius Yordan Nugraha
The goal of this article is to explore the clash between international human rights law and a legal pluralist framework in the case of the noken system and also to investigate potential solutions to the clash. Elections in Indonesia are generally founded on the principle of direct, universal, free, secret, honest and fair voting. There is a notable exception in the Province of Papua, where tribes in the Central Mountains area are following the noken system. Under this system, votes are allocated to the candidate(s) based on the decision of the big man or the consensus of the tribe. The Indonesian Constitutional Court has accepted this practice as reflecting the customs of the local population. However, this form of voting seems to be contrary to the right to vote under international human rights law, since article 25(b) of the International Covenant on Civil and Political Rights stipulates that elections shall be held genuinely by universal suffrage and secret ballot to guarantee the free will of the electors. Consequently, the case of the noken system in Papua reflects an uneasy clash between a legal pluralist approach and universal human rights.
{"title":"Legal Pluralism, Human Rights and the Right to Vote: The Case of the Noken System in Papua","authors":"Ignatius Yordan Nugraha","doi":"10.1163/15718158-22020003","DOIUrl":"https://doi.org/10.1163/15718158-22020003","url":null,"abstract":"\u0000The goal of this article is to explore the clash between international human rights law and a legal pluralist framework in the case of the noken system and also to investigate potential solutions to the clash. Elections in Indonesia are generally founded on the principle of direct, universal, free, secret, honest and fair voting. There is a notable exception in the Province of Papua, where tribes in the Central Mountains area are following the noken system. Under this system, votes are allocated to the candidate(s) based on the decision of the big man or the consensus of the tribe. The Indonesian Constitutional Court has accepted this practice as reflecting the customs of the local population. However, this form of voting seems to be contrary to the right to vote under international human rights law, since article 25(b) of the International Covenant on Civil and Political Rights stipulates that elections shall be held genuinely by universal suffrage and secret ballot to guarantee the free will of the electors. Consequently, the case of the noken system in Papua reflects an uneasy clash between a legal pluralist approach and universal human rights.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43374757","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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