Pub Date : 2021-11-29DOI: 10.1163/15718158-22020002
J. P. Bohoslavsky
This article studies the Mongolian economic and development policies implemented in recent years until March 2020, including its revenue matrix sustainability, from an international human rights law perspective. Policy and legal recommendations for discussion are also presented. Based on a United Nations mission the author conducted to Mongolia in 2019, this country study examines the macroeconomic policies, including debt issues, from a human rights perspective; the extent to which mineral rents are translated into inclusive and comprehensive social and environmental policies, focusing on the mining project Oyu Tolgoi; the impact of illicit financial flows on human rights; and the effects of lending for infrastructure and mining projects and other foreign direct investments. The study concludes that economic diversification and conducting effective gender-sensitive, participatory human rights and environmental impact assessments of economic reforms and mining and infrastructure projects are the main challenges Mongolia faces.
{"title":"Development and Economy in Mongolia through a Human Rights Law Lens","authors":"J. P. Bohoslavsky","doi":"10.1163/15718158-22020002","DOIUrl":"https://doi.org/10.1163/15718158-22020002","url":null,"abstract":"\u0000This article studies the Mongolian economic and development policies implemented in recent years until March 2020, including its revenue matrix sustainability, from an international human rights law perspective. Policy and legal recommendations for discussion are also presented. Based on a United Nations mission the author conducted to Mongolia in 2019, this country study examines the macroeconomic policies, including debt issues, from a human rights perspective; the extent to which mineral rents are translated into inclusive and comprehensive social and environmental policies, focusing on the mining project Oyu Tolgoi; the impact of illicit financial flows on human rights; and the effects of lending for infrastructure and mining projects and other foreign direct investments. The study concludes that economic diversification and conducting effective gender-sensitive, participatory human rights and environmental impact assessments of economic reforms and mining and infrastructure projects are the main challenges Mongolia faces.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43718899","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: 10.1163/15718158-22020005
N. Yến, Nguyen Phuong Dung
Climate change is becoming the largest crisis that humans have ever faced and a major challenge to the socio-economic and prosperous development of almost every country in the world, especially developing countries. According to the Report of the 2019 Long-Term Climate Risk Index of Germanwatch, Vietnam is rated as one of the most vulnerable countries in the world to the impacts of climate change due to factors such as its geographic location, economic development model and population density. The negative impacts of climate change have become barriers for Vietnam in implementing socio-economic development policies, sustainable development goals and human rights, including the right to a healthy environment. This article will focus on clarifying the legal basis as well as the direct challenges of climate change in ensuring the right to a healthy environment in Vietnam and will recommend appropriate solutions to improve the law and capacity to enforce this right in Vietnam.
{"title":"Climate Change and the Challenges for Developing Countries in the Implementation of the Human Right to a Healthy Environment: Case of Vietnam","authors":"N. Yến, Nguyen Phuong Dung","doi":"10.1163/15718158-22020005","DOIUrl":"https://doi.org/10.1163/15718158-22020005","url":null,"abstract":"\u0000Climate change is becoming the largest crisis that humans have ever faced and a major challenge to the socio-economic and prosperous development of almost every country in the world, especially developing countries. According to the Report of the 2019 Long-Term Climate Risk Index of Germanwatch, Vietnam is rated as one of the most vulnerable countries in the world to the impacts of climate change due to factors such as its geographic location, economic development model and population density. The negative impacts of climate change have become barriers for Vietnam in implementing socio-economic development policies, sustainable development goals and human rights, including the right to a healthy environment. This article will focus on clarifying the legal basis as well as the direct challenges of climate change in ensuring the right to a healthy environment in Vietnam and will recommend appropriate solutions to improve the law and capacity to enforce this right in Vietnam.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47948427","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 : 2021-06-02DOI: 10.1163/15718158-22010001
M. Gleeson, K. Loper
{"title":"Introduction","authors":"M. Gleeson, K. Loper","doi":"10.1163/15718158-22010001","DOIUrl":"https://doi.org/10.1163/15718158-22010001","url":null,"abstract":"","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45210483","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 : 2021-06-02DOI: 10.1163/15718158-22010002
Yunizar Adiputera, Antje Missbach
This article analyses Indonesia’s foreign policy with respect to Myanmar and the forced displacement of more than 1 million Rohingya refugees from Rakhine State, Myanmar. Its main concern is to evaluate the effectiveness of Indonesia’s policies, including diplomatic efforts and humanitarian aid contributions, in regard to finding a solution to the ongoing disaster that affects both Rohingya remaining in Myanmar and those who have found temporary sanctuary in Bangladesh. For its diplomatic and humanitarian engagement, the Indonesian government has explored various avenues and utilised a range of instruments, including the purposeful engagement of non-state actors and faith-based humanitarian organisations. Our inquiry predominantly focuses on the time between the first Andaman Sea crisis (May 2015) and the second Andaman Sea crisis (mid-2020), not least because this is when Indonesia saw the arrival of Rohingya boats at its shores, which in turn fuelled local public interest in this matter. Our analysis pays special attention to domestic appeals from large Muslim organisations that sought to pressure the Indonesian government to become more proactive on behalf of the displaced and discriminated Rohingya. Yet, while a variety of Muslim organisations have at times demanded a more interventionist stance by the Indonesian government, their pressure has not been consistent or particularly successful. Therefore, it is likely the Indonesian government will continue to pursue its ‘quiet diplomacy’ efforts in order to balance the regional non-intervention paradigm and humanitarian imperatives caused by the forced displacement.
{"title":"Indonesia’s Foreign Policy Regarding the Forced Displacement of Rohingya Refugees","authors":"Yunizar Adiputera, Antje Missbach","doi":"10.1163/15718158-22010002","DOIUrl":"https://doi.org/10.1163/15718158-22010002","url":null,"abstract":"\u0000This article analyses Indonesia’s foreign policy with respect to Myanmar and the forced displacement of more than 1 million Rohingya refugees from Rakhine State, Myanmar. Its main concern is to evaluate the effectiveness of Indonesia’s policies, including diplomatic efforts and humanitarian aid contributions, in regard to finding a solution to the ongoing disaster that affects both Rohingya remaining in Myanmar and those who have found temporary sanctuary in Bangladesh. For its diplomatic and humanitarian engagement, the Indonesian government has explored various avenues and utilised a range of instruments, including the purposeful engagement of non-state actors and faith-based humanitarian organisations. Our inquiry predominantly focuses on the time between the first Andaman Sea crisis (May 2015) and the second Andaman Sea crisis (mid-2020), not least because this is when Indonesia saw the arrival of Rohingya boats at its shores, which in turn fuelled local public interest in this matter. Our analysis pays special attention to domestic appeals from large Muslim organisations that sought to pressure the Indonesian government to become more proactive on behalf of the displaced and discriminated Rohingya. Yet, while a variety of Muslim organisations have at times demanded a more interventionist stance by the Indonesian government, their pressure has not been consistent or particularly successful. Therefore, it is likely the Indonesian government will continue to pursue its ‘quiet diplomacy’ efforts in order to balance the regional non-intervention paradigm and humanitarian imperatives caused by the forced displacement.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":"942 1","pages":"69-95"},"PeriodicalIF":0.0,"publicationDate":"2021-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85564518","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 : 2021-06-02DOI: 10.1163/15718158-22010005
K. McMillan, S. Petcharamesree
The Andaman Sea crisis of 2015 focused global attention on asean’s response to mass refugee flows and generated calls for greater regional cooperation to protect the rights and safety of forced migrants. Such calls draw from the concept of ‘responsibility-sharing’; a concept that has long underpinned the international refugee regime. Scholars have responded to this challenge by identifying a range of ways in which asean countries might benefit from sharing responsibility for the refugees and asylum-seekers in their region. Based on interviews with 40 key asean-based actors working on migration and refugee issues across the governmental and non-governmental sectors, this article seeks to understand how the concept of responsibility-sharing for refugee protection is understood in four Southeast Asian countries: Thailand, Malaysia, Indonesia and Singapore. While it finds common agreement among the interviewees that the Andaman Sea crisis was a humanitarian disaster and that existing approaches to refugee issues in the region are ineffective, it also finds little to suggest that a regional approach to refugee issues is likely to develop in the short-to-medium term. On the other hand, interviewees identified a wide range of mechanisms through which bilateral, multilateral and global initiatives might assist the region to deal with refugee and asylum issues. Linking refugee issues with other issues that concern asean Member States and incremental progress towards embedding regional human rights norms via asean human rights institutions are identified as the most fruitful pathways towards regional cooperation to protect refugee rights and safety.
{"title":"Towards an asean Model of ‘Responsibility-Sharing’ for Refugees and Asylum-Seekers","authors":"K. McMillan, S. Petcharamesree","doi":"10.1163/15718158-22010005","DOIUrl":"https://doi.org/10.1163/15718158-22010005","url":null,"abstract":"\u0000The Andaman Sea crisis of 2015 focused global attention on asean’s response to mass refugee flows and generated calls for greater regional cooperation to protect the rights and safety of forced migrants. Such calls draw from the concept of ‘responsibility-sharing’; a concept that has long underpinned the international refugee regime. Scholars have responded to this challenge by identifying a range of ways in which asean countries might benefit from sharing responsibility for the refugees and asylum-seekers in their region. Based on interviews with 40 key asean-based actors working on migration and refugee issues across the governmental and non-governmental sectors, this article seeks to understand how the concept of responsibility-sharing for refugee protection is understood in four Southeast Asian countries: Thailand, Malaysia, Indonesia and Singapore. While it finds common agreement among the interviewees that the Andaman Sea crisis was a humanitarian disaster and that existing approaches to refugee issues in the region are ineffective, it also finds little to suggest that a regional approach to refugee issues is likely to develop in the short-to-medium term. On the other hand, interviewees identified a wide range of mechanisms through which bilateral, multilateral and global initiatives might assist the region to deal with refugee and asylum issues. Linking refugee issues with other issues that concern asean Member States and incremental progress towards embedding regional human rights norms via asean human rights institutions are identified as the most fruitful pathways towards regional cooperation to protect refugee rights and safety.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":"51 1","pages":"49-68"},"PeriodicalIF":0.0,"publicationDate":"2021-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75538460","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 : 2021-06-02DOI: 10.1163/15718158-22010006
Natasha Yacoub, N. Errington, Wai Wai Nu, Alexandra Robinson
Women fleeing Myanmar in 2015 were trapped on the Andaman Sea for months when States in the region closed off places of disembarkation. Among the horrors of starvation and unsanitary conditions experienced on the boats, they faced additional risks of sexual violence. These women fled from a situation in Myanmar that severely curtailed their rights, including gender violence, which is being tried as genocide at the International Court of Justice, and were exposed to further violations while fleeing. Through interviews with survivors of the journey and those who assisted them, this article describes the experiences of these women at sea. It outlines the failure of States to apply customary principles of international law and related regional standards to protect these women. From a feminist legal theory perspective, it explores the reasons for these failures and recommends reforms to guarantee better protection at sea for women in the future.
{"title":"Rights Adrift: Sexual Violence Against Rohingya Women on the Andaman Sea","authors":"Natasha Yacoub, N. Errington, Wai Wai Nu, Alexandra Robinson","doi":"10.1163/15718158-22010006","DOIUrl":"https://doi.org/10.1163/15718158-22010006","url":null,"abstract":"\u0000Women fleeing Myanmar in 2015 were trapped on the Andaman Sea for months when States in the region closed off places of disembarkation. Among the horrors of starvation and unsanitary conditions experienced on the boats, they faced additional risks of sexual violence. These women fled from a situation in Myanmar that severely curtailed their rights, including gender violence, which is being tried as genocide at the International Court of Justice, and were exposed to further violations while fleeing. Through interviews with survivors of the journey and those who assisted them, this article describes the experiences of these women at sea. It outlines the failure of States to apply customary principles of international law and related regional standards to protect these women. From a feminist legal theory perspective, it explores the reasons for these failures and recommends reforms to guarantee better protection at sea for women in the future.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":"42 4","pages":"96-114"},"PeriodicalIF":0.0,"publicationDate":"2021-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72487114","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 : 2021-06-02DOI: 10.1163/15718158-22010003
Brian Barbour, Lilianne Fan, Chris Lewa
In 2020, Rohingya men, women, and children continue to embark across the Bay of Bengal and Andaman Sea, and States continue to lack safe and predictable disembarkation protocols and standards. From a protection perspective, the situation in 2020 has played out as it did in 2015 showing a lack of progress. After decades of discriminatory policies, denial of basic human rights, and targeted violence, at least 1.5 million stateless Rohingya refugees have fled Myanmar’s Rakhine State to seek refuge in the region and scattered locations around the globe, often surviving horrendous journeys by sea in the hope of disembarking with even marginally better prospects. The reception of the Rohingya in each of their places of refuge has been mixed, but it has rarely if ever been one of unqualified welcome. How do we engage with challenges that seem so intractable? The academic literature looking at refugee protection in the Asian region has largely dealt with its absence or inadequacy. Yet if we look more closely at any specific context in Asia, we can see that States may have laws, policies, or practices that can be utilised to recognise or respond to protection needs; international institutions like the United Nations High Commissioner for Refugees (unhcr) are often recognised and permitted to conduct protection activities; civil society actors in every jurisdiction have developed substantial capacity for operationalising protection in practice; and refugees themselves are coping and contributing to their own protection in every case. It is at the national and local levels where protection capacity must be built towards implementation of a ‘whole-of-society’ approach.
{"title":"A Whole-of-Society Approach to the Rohingya Refugee Crisis: Strengthening Local Protection Capacity in South and South-East Asia","authors":"Brian Barbour, Lilianne Fan, Chris Lewa","doi":"10.1163/15718158-22010003","DOIUrl":"https://doi.org/10.1163/15718158-22010003","url":null,"abstract":"\u0000In 2020, Rohingya men, women, and children continue to embark across the Bay of Bengal and Andaman Sea, and States continue to lack safe and predictable disembarkation protocols and standards. From a protection perspective, the situation in 2020 has played out as it did in 2015 showing a lack of progress. After decades of discriminatory policies, denial of basic human rights, and targeted violence, at least 1.5 million stateless Rohingya refugees have fled Myanmar’s Rakhine State to seek refuge in the region and scattered locations around the globe, often surviving horrendous journeys by sea in the hope of disembarking with even marginally better prospects. The reception of the Rohingya in each of their places of refuge has been mixed, but it has rarely if ever been one of unqualified welcome. How do we engage with challenges that seem so intractable? The academic literature looking at refugee protection in the Asian region has largely dealt with its absence or inadequacy. Yet if we look more closely at any specific context in Asia, we can see that States may have laws, policies, or practices that can be utilised to recognise or respond to protection needs; international institutions like the United Nations High Commissioner for Refugees (unhcr) are often recognised and permitted to conduct protection activities; civil society actors in every jurisdiction have developed substantial capacity for operationalising protection in practice; and refugees themselves are coping and contributing to their own protection in every case. It is at the national and local levels where protection capacity must be built towards implementation of a ‘whole-of-society’ approach.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":"12 1","pages":"28-48"},"PeriodicalIF":0.0,"publicationDate":"2021-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77150636","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 : 2021-06-02DOI: 10.1163/15718158-22010004
S. Islam, Coline Schupfer, Zaid Hydari, A. Zetes, Kevin R. Cole
Against a backdrop of toughening governmental stances towards refugees, migrants, and stateless persons in the Asia-Pacific region, there is a renewed urgency to consider possibilities for the expansion of protection and access to rights and services to those who normally face exclusion. Drawing on national case law, policy developments and other practices in six major host countries in the region, this article highlights instances in which, despite not being party to the 1951 Refugee Convention, states have extended rights to non-citizens and thereby signalled acceptance of key refugee rights norms. In examining these precedents, the article demonstrates the possibility of expanding protection outside of the international refugee law framework, and intends to provide inspiration for the progressive realisation of rights for displaced Rohingya communities across the region, as well as for other non-citizen communities facing similar challenges.
{"title":"The Peril and Potential of Ambiguity: How National Laws and Policies Can Strengthen and Protect the Rights of Rohingya Refugees","authors":"S. Islam, Coline Schupfer, Zaid Hydari, A. Zetes, Kevin R. Cole","doi":"10.1163/15718158-22010004","DOIUrl":"https://doi.org/10.1163/15718158-22010004","url":null,"abstract":"\u0000Against a backdrop of toughening governmental stances towards refugees, migrants, and stateless persons in the Asia-Pacific region, there is a renewed urgency to consider possibilities for the expansion of protection and access to rights and services to those who normally face exclusion. Drawing on national case law, policy developments and other practices in six major host countries in the region, this article highlights instances in which, despite not being party to the 1951 Refugee Convention, states have extended rights to non-citizens and thereby signalled acceptance of key refugee rights norms. In examining these precedents, the article demonstrates the possibility of expanding protection outside of the international refugee law framework, and intends to provide inspiration for the progressive realisation of rights for displaced Rohingya communities across the region, as well as for other non-citizen communities facing similar challenges.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":"92 1","pages":"8-27"},"PeriodicalIF":0.0,"publicationDate":"2021-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83592066","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 : 2021-05-31DOI: 10.1163/15718158-22020001
L. Duy, M. McMahon
This article compares protections relating to the non-disclosure of the identity of juveniles involved in the criminal justice systems of Viet Nam and Victoria (Australia). Both jurisdictions are committed to the principle of having an open court for the trials of juveniles. Nevertheless, being mindful of recommendations made by human rights bodies such as the United Nations Committee on the Rights of the Child – which promotes a closed court for these cases – both jurisdictions also recognise the importance of protecting the identity of juveniles on trial for criminal offences. They seek to balance their competing commitments to open court hearings and the protection of privacy through severely restricting the publication of information that could identify juvenile defendants. However, a review of the law and practices in both jurisdictions identifies different impacts and a number of problems. While restrictions on the publication of identifying information works effectively in Victoria, relevant laws are regularly breached without prosecution in Viet Nam. Significantly, existing protections in both Viet Nam and Victoria are almost exclusively focused on the trial phase and very few effective protections exist at earlier points, such as arrest and interrogation. This was highlighted by a focused investigation of pre-trial detention (bail), which revealed that while the practical operation of bail processes in Victoria is relatively stronger than in Viet Nam, statutory reform is required in both jurisdictions to strengthen legal protections against disclosure. In summary, the analysis demonstrates that it is possible to effectively protect the identity of juvenile defendants at the trial phase in an open court system provided that laws prohibiting the publication of identifying information are enacted, observed and enforced. In Viet Nam, significant changes in attitudes and practices are required to achieve this. Moreover, reform is required in both jurisdictions if the identity of juveniles involved in criminal justice proceedings is to be protected at the pre-trial phase.
本文比较了越南和维多利亚州（澳大利亚）刑事司法系统中涉及未成年人身份不公开的保护措施。这两个司法管辖区都致力于建立一个审判青少年的公开法庭的原则。尽管如此，考虑到联合国儿童权利委员会（United Nations Committee on the Child rights of the Child）等人权机构提出的建议，这两个司法管辖区都认识到保护因刑事犯罪受审的青少年身份的重要性。他们试图通过严格限制公布可能识别青少年被告的信息，来平衡公开法庭听证会和保护隐私的相互竞争的承诺。然而，对这两个司法管辖区的法律和实践的审查发现了不同的影响和一些问题。虽然对公布身份信息的限制在维多利亚州有效，但在越南，经常违反相关法律而不起诉。值得注意的是，越南和维多利亚州的现有保护几乎完全集中在审判阶段，在逮捕和审讯等早期阶段几乎没有有效的保护。对审前拘留（保释）的重点调查突显了这一点，该调查显示，虽然维多利亚州保释程序的实际运作相对比越南更强，但这两个司法管辖区都需要进行法律改革，以加强防止披露的法律保护。总之，分析表明，只要颁布、遵守和执行禁止公布身份信息的法律，就有可能在公开法庭系统的审判阶段有效保护未成年被告的身份。在越南，要做到这一点，需要在态度和做法上作出重大改变。此外，如果要在预审阶段保护参与刑事司法程序的青少年的身份，这两个司法管辖区都需要进行改革。
{"title":"Protecting the Identity of Juveniles in Criminal Proceedings in Viet Nam and Victoria","authors":"L. Duy, M. McMahon","doi":"10.1163/15718158-22020001","DOIUrl":"https://doi.org/10.1163/15718158-22020001","url":null,"abstract":"\u0000This article compares protections relating to the non-disclosure of the identity of juveniles involved in the criminal justice systems of Viet Nam and Victoria (Australia). Both jurisdictions are committed to the principle of having an open court for the trials of juveniles. Nevertheless, being mindful of recommendations made by human rights bodies such as the United Nations Committee on the Rights of the Child – which promotes a closed court for these cases – both jurisdictions also recognise the importance of protecting the identity of juveniles on trial for criminal offences. They seek to balance their competing commitments to open court hearings and the protection of privacy through severely restricting the publication of information that could identify juvenile defendants. However, a review of the law and practices in both jurisdictions identifies different impacts and a number of problems. While restrictions on the publication of identifying information works effectively in Victoria, relevant laws are regularly breached without prosecution in Viet Nam. Significantly, existing protections in both Viet Nam and Victoria are almost exclusively focused on the trial phase and very few effective protections exist at earlier points, such as arrest and interrogation. This was highlighted by a focused investigation of pre-trial detention (bail), which revealed that while the practical operation of bail processes in Victoria is relatively stronger than in Viet Nam, statutory reform is required in both jurisdictions to strengthen legal protections against disclosure. In summary, the analysis demonstrates that it is possible to effectively protect the identity of juvenile defendants at the trial phase in an open court system provided that laws prohibiting the publication of identifying information are enacted, observed and enforced. In Viet Nam, significant changes in attitudes and practices are required to achieve this. Moreover, reform is required in both jurisdictions if the identity of juveniles involved in criminal justice proceedings is to be protected at the pre-trial phase.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46946396","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 : 2020-12-09DOI: 10.1163/15718158-21020001
Rhona K. M. Smith, Seán Molloy
International human rights law and mechanisms tasked with promoting state compliance with it are being increasingly challenged. Opposition is originating from, amongst others, countries that have historically supported the global human rights project. These new trends and sites of contestation bolster opposition from other countries and regions that have consistently diverged from international human rights norms. Examining the relationship between the United Nations human rights system and states of the Association of Southeast Asian Nations in this broader context of opposition to human rights, this article argues that existing theories on why states do, or ought to, comply with international human rights law are often inadequate to either explain or inspire state adherence to human rights norms. What is required, this article will argue, is not another theory but rather more targeted and incremental efforts to address the gap between rhetoric and compliance.
{"title":"Navigating Human Rights in a ‘Post-Human Rights’ Era","authors":"Rhona K. M. Smith, Seán Molloy","doi":"10.1163/15718158-21020001","DOIUrl":"https://doi.org/10.1163/15718158-21020001","url":null,"abstract":"\u0000International human rights law and mechanisms tasked with promoting state compliance with it are being increasingly challenged. Opposition is originating from, amongst others, countries that have historically supported the global human rights project. These new trends and sites of contestation bolster opposition from other countries and regions that have consistently diverged from international human rights norms. Examining the relationship between the United Nations human rights system and states of the Association of Southeast Asian Nations in this broader context of opposition to human rights, this article argues that existing theories on why states do, or ought to, comply with international human rights law are often inadequate to either explain or inspire state adherence to human rights norms. What is required, this article will argue, is not another theory but rather more targeted and incremental efforts to address the gap between rhetoric and compliance.","PeriodicalId":35216,"journal":{"name":"Asia-Pacific Journal on Human Rights and the Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46471200","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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