The European Doctrine of Margin of Appreciation: What Asean Can Learn from its Concept and Application in Universalizing “Controversial” Asean Declaration of Human Rights?

Abstract

The European Court of Human Rights has developed the doctrine of Margin of Appreciation in supervising when member states of the Council of Europe breach the European Convention of Human Rights (ECHR). This paper argues that the margin of appreciation is not a particularity in the traditional sense; it is a moderate way to bridge the unresolved issue between universality and particularity of human rights. In the ASEAN context, particularity and universality of human rights has been an everlasting debate among the scholars and human rights activists. Most of them have argued that ASEAN promotes the particularity of human rights by inserting “Asean values” to its human rights concept as stated in the “controversial” ASEAN Declaration of Human Rights. According to European experience in implementing the doctrine of Margin of Appreciation, Asian Values today enshrined in the ADHR will not erode the universality of human rights; instead, it is a new form of universalism of human rights. It is of no doubt that ASEAN countries intend to adopt the universal point of view in light of human rights; however, its increment must be gradual in understanding and peace. Accordingly, the most important things for ASEAN is the need to build the strong human rights mechanism through the establishment of ASEAN Court of Human Rights.



Author Information
Rachminawati, Universitas Padjadjaran, Indonesia

Paper Information
Conference: ECPEL2014
Stream: Law of Human Rights and Social Justice

This paper is part of the ECPEL2014 Conference Proceedings (View)
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