Legal Pluralism, Human Rights and the Right to Vote: The Case of the Noken System in Papua

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.

Development and Economy in Mongolia through a Human Rights Law Lens

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.

Climate Change and the Challenges for Developing Countries in the Implementation of the Human Right to a Healthy Environment: Case of Vietnam

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.

Procedural Rights Supporting Expeditious Trials for Juveniles

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.

Rights Adrift: Sexual Violence Against Rohingya Women on the Andaman Sea

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.

A Whole-of-Society Approach to the Rohingya Refugee Crisis: Strengthening Local Protection Capacity in South and South-East Asia

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.

Towards an asean Model of ‘Responsibility-Sharing’ for Refugees and Asylum-Seekers

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.

The Peril and Potential of Ambiguity: How National Laws and Policies Can Strengthen and Protect the Rights of Rohingya Refugees

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.