Promoting International Human Rights Standards*
Jefferson R. PlantillaD

iverse human rights education initiatives in Asia and thePacific indicate continuing promotion of human rights at various
levels and for different groups of people in the region. These initiatives maintain the hope of a better understanding and realization of humanrights for most societies in the Asia-Pacific. And yet, there is an equal presence of anxiety about the sustainability of these initiatives, or the capacity ofthese initiatives to maintain their impact as their respective political, socialand economic environments change over time.
Another area of concern is the content of human rights education. To
what extent are the international human rights standards being conveyed tothe people? And how are they represented—global ideas, commitments ofgovernments, values that people already have, or local ideas?
To be able to answer these questions, one needs to reflect again andagain on the human rights education experiences.
Domestic laws have in one way or the other been amended or enacted
to reflect changing local needs and challenges. In some cases, the change
in laws occurred due to the recognition of the need to adopt new ideas including the international human rights standards. In some cases, specificmovements of people (lawyers, academics, workers of non-governmentalorganizations, or members of affected groups or communities) led to suchchanges in laws.
Similarly, jurisprudence changes over time particularly when the courts
are presented with new issues that require different perspectives. Once ina while the highest courts of the countries adopt new ideas that have probably been influenced by the international human rights standards or ideas
similar to what these standards stand for.
The following sections highlight some court decisions that apply international human rights standards, particularly those statements that exemplify human rights restatements in national or local contexts. The follow*Sections of this article are from the paper of the author entitled Human Rights Education:
Some Notes prepared for the Propagation and Implementation of Human Rights Conference
held in Taipei, Taiwan on 3-5 December 2010.

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ing sections also discuss how these court decisions support human rights
education.
Importance of Court Decisions
The citation of international human rights standards by the courts in various countries in Asia and the Pacific lends great weight to the argumentthat human rights are not “alien” concepts in the domestic legal system. The
courts, in adjudicating cases presented before them, restate human rights
principles as they apply to specific issues and contexts. Some courts haveclarified the meaning of particular human rights drawing from recommendations or observations of human rights treaty monitoring bodies, whose
competence in interpreting the appropriate meaning of human rights underparticular human rights treaties is hardly assailable.
The courts therefore are authoritative promoters of the international
human rights standards by finding their relevance and applicability in specific situations at the national level. Their decisions constitute important
local resources that explain the practical and appropriate meaning of theinternational human rights standards. As such, they are important materials
for human rights education.
Consequently, courts have the influence in defining legislative and executive agendas that implement their decisions. Thus, court decisions areimportant content of human rights education programs that support policyor law reform.
There should, however, be serious consideration of the fact that somecourt decisions are not supportive of the application of international humanrights standards for a variety of reasons. Such stance covers the dismissal of
the udhr as a valid reference to international law that should bind countries,
the strict application of the rule that ratified international human rights instruments do not bind the courts without domestic enabling legislation.
Some court decisions are criticized for going beyond the pale of judicial
function. As declared by a law professor in relation to progressive IndianSupreme Court decisions,1
The role of judiciary in the protection of human rights is certainly commendable. However, in the quest for socio-economic
justice the judiciary seems to overstep the limits of its judicial
function and trespass into the areas assigned to the executive

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and the legislature. The need of the hour is to properly balance
the judicial activism with judicial restraint!
But these views should be seen as challenges to be overcome by presenting better arguments for the application of international human rights
standards as they relate to particular cases. Persistent use of international
human rights standards in court cases has the possibility of getting court
attention, as much as strengthening of existing judicial support for them.
In the same vein, the international human rights standards should betaught as compulsory subject in law schools and judicial training institutions. Lawyers and judges should have enough familiarity with the international human rights standards to be able to apply them in their respective
work.
Legal Education and Human Rights
There has been a long-standing observation that international human rights
law has hardly been given space in law education curriculums. This results inlawyers failing to argue cases based on international human rights standards
and judges seeing human rights as irrelevant unless contained in domestic
laws. In other words, there is no room for human rights unless couched as
domestic legal provisions.
Thus the initiatives on incorporating human rights education in the curriculums of law schools and judicial training academies are most welcomed.
The Manila Declaration for a 21st Century Independent Judiciary2 of the
Judicial Reform Network in the 21st Century (JRN21)3 states as its principles the reaffirmation of the “core judicial independence and accountability
principles enshrined in the [U]niversal [D]eclaration of [H]uman [R]ights,
the United Nations Basic Principles on the Independence of the Judiciary,
the International Covenant on Civil and Political Rights and the Beijing
Declaration on Independence of the Judiciary, and recommit ourselves totheir speedy and effective implementation.” This statement mainstreams
human rights into the functioning of the judiciary. But does human-rightsbased judicial independence extend to the application of the international
human rights standards in the decisions of the courts? If so, are the members of the judiciary ready to do so?
The Beijing Statement of Principles of the Independence of the Judiciaryin the lawasia Region adopted by a significant number of Chief Justices of242

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Asia-Pacific in Beijing in 1995 and then amended in Manila in 1997 provides
a view on what judicial independence means in the context of the region.
As a component of judicial independence, its provision on objectives of the
judiciary is an important guide on the relationship of the judiciary and theinternational human rights standards. It states:
OBJECTIVES OF THE JUDICIARY
10. The objectives and functions of the judiciary include thefollowing:a) To ensure that all persons are able to live securely under
the rule of law;b) To promote, within the proper limits of the judicial function, the observance and the attainment of human rights; andc) To administer the law impartially among person[s] andbetween persons and the State.
Subject to appropriate consideration of the different systems and views
among the judiciaries in Asia and the Pacific about the application of theinternational human rights standards on cases before them, jrn21 is in aproper position to translate its human-rights-laden principles (and guided
by other human-rights-related declarations of the chief justices in the region) into concrete activities that support the incorporation of the international human rights standards in court decisions. This can be done in thecontext of jrn21’s promotion of judicial reform and its aim at making
links to existing constitutional and legal databases, ongoing andplanned judicial reform projects and resource and key contact
information for reformers and organizations worldwide. In addition, it will include resource links to other relevant regionaland global electronic networks, databases, electronic training
programs and websites, as well as key [non-governmental organizations] ngos, regional and global organizations, donors andprofessional associations.4
Jrn21 can very well facilitate the compilation and analysis of court decisions that discuss human rights. Many court decisions that applied theinternational human rights standards have already been summarized andpublished. Some of these court decisions are available online.5 They constitute appropriate materials in understanding the views of the judiciaries inPromoting International Human Rights Standards

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the region about human rights, and in finding ways of further promoting,“within the proper limits of the judicial function, the observance and theattainment of human rights.”
Some law schools in South Asia (Bangladesh, India, Nepal, Pakistan
and Sri Lanka) established the South Asian Law Schools Forum for Human
Rights (sals Forum) in 20046 because of their desire to bringqualitative changes in our legal education systems throughpromoting and strengthening the understanding of the humanrights education, and developing a congenial environment fora progressive outlook for mainstreaming of the human rights
education at all levels with special emphasis on university legal
education.
The Charter of the sals Forum states the following objectives of the
network:
1) To strengthen the quality of legal education and promote exchange of ideas and experiences among South Asian law
schools and similar institutions in matters of legal education in
general and human rights studies in particular;2) To promote consistent development of regional humanrights jurisprudence through active participation of faculties
by developing common understanding on human rights issues,
curriculum of the universities and teaching methodologies;3) To ensure that legal education’s vision is socially responsive to the needs of the community;j) To promote a pro-active attitude towards the development and implementation of the international and regional human rights instruments;
4) To develop and promote human rights education for theempowerment of marginalized and vulnerable sections of thesociety;5) To strengthen social commitment and develop the standard of legal professionals in matters of human rights violation.7
The rationale for the establishment of sals Forum is very clearly embodied in these objectives that emphasize the role of the academe in addressing issues affecting the community/country. These objectives recognize the244

H u m a n R i g h t s E d u c at i o n i n A s i a - Pa c i f i cteaching of human rights (in various forms and comprehensiveness) in atleast some South Asian law schools and state the need to learn from andimprove on these experiences. Sals Forum is an appropriate response to
the need for more effective incorporation of human rights education into
formal legal education.
In Southeast Asia, a similar initiative was established in 2009 though
not exclusively for law schools. The Southeast Asian Human Rights Studies
Network (seahrn) is a “consortium of academic institutions which provide
human rights education through study programs, research and outreach activities within the Southeast Asian region.”8 Its members include faculties
and schools of law in several Southeast Asian universities.
This network has the following main objectives:• To strengthen higher education devoted to the study of humanrights in Southeast Asia through faculty and course development• To develop deeper understanding and enhancement of humanrights knowledge through collaborative research• To achieve excellent regional academic and civil society cooperation in realizing human rights in Southeast Asia
• To conduct public advocacy through critical engagement with civilsociety actors, including inter-governmental bodies, in Southeast
Asia.
For 2011, seahrn focuses on capacity-building training for emerging
scholars, academics and network members through the following activities:• Human Rights Textbooks and Teaching Guides: development by
experts from different fields of human rights, development of educational materials that facilitate a more holistic learning and understanding of human rights in colleges and universities.
• Human Rights Training Workshop for Emerging Scholars: a seriesof capacity-building seminars for a selected number of students,
educators, civil society workers, and activists from Southeast Asia
to help them improve their skills and knowledge in human rights
research.
• Human Rights Training for Academics and Network Members:
aimed at increasing the capacities of network members and academics in doing research on human rights in Southeast Asia.

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For East Asia (covering Northeast and Southeast Asia), a network oflegal scholars has the potential of providing studies that relate to humanrights. This network considers that the law and society in “East Asia are
currently in the midst of rapid and fundamental changes... [and thus provide] fertile grounds for socio-legal research.”9 The Collaborative Research
Network East Asian Law and Society (crn-eals) was formed in 2010 “within the Law and Society Association (lsa)10 to provide a forum for promoting
research on East Asian law and society, and disseminating its findings to awider community of socio-legal scholarship.”
Another initiative with a much broader legal education agenda provides
an important opportunity in the development of law curriculums with human rights content. The Asian Law Institute (asli), established in 2003 byseveral leading law schools in Asia, aims to foster Asian legal scholarshipand facilitate greater interaction among legal scholars in Asia and thoseworking on Asian law-related issues.11
A new Asian network that has a role in the human rights educationof members of the judiciary is the Asian Consortium for Human RightsBased Access to Justice (hrba2aj). It was established in 2010 as a networkof national judicial and human rights institutions, civil society organizations
and academic institutions in Asia. Its members include judicial academies.
And it has project on capacity-building on application of the human-rightsbased approach to access to justice.12
Despite these existing initiatives, formal education on the application of human rights to specific issues remains underserved. Kelley Loper,
Caroline Fleay and Linda Briskman report in their respective articles in thispublication on the need for universities to offer human rights programs at
both undergraduate and graduate levels. For the non-formal education programs, Kathryn Choules and the Asia Pacific Forum on Women, Law andDevelopment provide examples of training initiatives for ngo workers andeven members of the judiciary on how they can apply international humanrights standards in their respective fields and contexts.
The Pacific experience on legal education with human rights content
provides concrete proof of the importance of education in ensuring application of international human rights standards.13
One report states that human rights training for judges, magistrates andlawyers have contributed to the use of international human rights standards
in court decisions. The report explains that14

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H u m a n R i g h t s E d u c at i o n i n A s i a - Pa c i f i c[T]hese cases have resulted in numerous court decisions
in which judicial officials have shown intolerance to domestic
violence, greater willingness to order more realistic financial
settlements to deserted women and children and to apply human rights conventions to decision making. Judgments in Fiji,
Vanuatu, Samoa, Solomon Islands and Kiribati indicate thatlawyers, magistrates and judges use human rights language
more often and as guidance in decision making or as the basisof arguments.
The courts in these Pacific countries have cited a number of humanrights instruments such as the Convention on the Elimination of All Formsof Discrimination Against Women (cedaw), Convention on the Rightsof the Child (cdc), International Covenant on Civil and Political Rights(iccpr), and the International Covenant on Economic, Social and Cultural
Rights (icescr).
While courts in Asia and the Pacific exist within different legal systems
and socio-cultural and political contexts, upholding human rights constitutes by and large a developing common field. A few of these court decisions
are presented below to illustrate their support for human rights, and show
their importance as content of human rights education.
Some Court Decisions
A limited review of decisions of the highest courts in a number of countries
in Asia and the Pacific shows the application of the international humanrights standards at the national level. One study of northeast Asian courts
asserts diverse coverage of human rights, not preferring one set of rights(such as economic, social and cultural rights) to another set of rights (suchas civil and political rights):
There has never been any particular judicial agenda or preference of some rights over the other in adjudication of rights
in the three countries (Japan, South Korea and Taiwan). Rather,human rights cases in these courts spanned from rights to vote,religious freedoms, freedom of speech, freedom of association,
gender equality, to economic freedom, right of property, laborrights and right to education.”15

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A number of court decisions in the Asia-Pacific region have either explicitly upheld the application of international human rights standards orruled in favor of protecting human rights by referring to corresponding
constitutional rights and freedoms. It is also true, however, that there arecourt decisions that favor a less welcoming view of human rights and theirinternational instruments.16
A report from the Philippines explains the support that the Philippine
Supreme Court has extended to the application of the international humanrights standards in the country. It explains:17
As early as 1951, three years after its inception, the udhr
[Universal Declaration of Human Rights] was invoked in analien deportation case18 by the Supreme Court as an essential
component of the “constitutional structure of world community” to characterize the freedom from arbitrary and unnecessarily
prolonged detention as a customary norm. Quite radically, inanother case half a century later the Supreme Court recognized
the latent superiority of the udhr over the Constitution, and its
active role as a limit on the exercise of governmental authority“during the interregnum when no Bill of Rights or Constitution
existed.”19 In that case of Republic v. Sandiganbayan the Court
held that even though the Constitutional proscription was unavailing during the period that the 1973 Constitution had been
abrogated on February 25, 1986 up to the promulgation of theFreedom Constitution weeks later, the udhr obligated the government to respect this right of individuals, among others foundin the udhr, as subjects of international law.
In the words of the Philippine Supreme Court:20
The [udhr] … provides in its Article 17(2) that “[n]o one
shall be arbitrarily deprived of his property.” Although the[udhr was not intended] as a legally binding document, being
only a declaration, the Court has interpreted the [udhr] as partof the generally accepted principles of international law andbinding on the State. Thus, the revolutionary government wasalso obligated under international law to observe the rights ofindividuals under the [udhr].

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On a specific right to travel and movement, the Philippine Supreme
Court stated that21
The right to travel and to freedom of movement is a fundamental right guaranteed by the 1987 Constitution and the
Universal Declaration of Human Rights … That right extends
to all residents regardless of nationality. And “everyone has theright to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by theConstitution or by law.”
The right to return to one’s country was also discussed in another case:22
The right to return to one’s country is not among the rights
specifically guaranteed in the Bill of Rights [in the Philippine
Constitution], which treats only the liberty of abode and theright to travel, but it is our well-considered view that the rightto return may be considered, as a generally accepted principle
of international law and, under our Constitution, is part of thelaw of the land [Art. II, Sec. 2 of the Constitution.] However, it
is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of Civil andPolitical Rights, i.e., against being “arbitrarily deprived” thereof[Art. 12(4).]The Indian Supreme Court has likewise provided rules in applying international human rights standards domestically.23 In one case,24[T]he Supreme Court rejected the argument that the woman, as a foreigner, was not afforded certain constitutional protections. Some provisions of the Indian Constitution refer to ‘’citizens’’ while others refer to ‘’persons’’. Regardless, the Court heldthat ‘’life’’ as used in Article 21 must be interpreted consistently
with the Universal Declaration of Human Rights. Thus, Article
21 protections protect both citizens and non-citizens. Since
rape is a violation of Article 21’s fundamental right to life, thevictim was entitled to compensation.
In a class action by Indian social activists and ngos regarding the gangrape of a social worker, the Indian Supreme Court “looked to internationallaw and designed rules to combat sexual harassment.” A report further statesthat the court stated that ‘’[A]ny International Convention not inconsistentPromoting International Human Rights Standards249with the fundamental right and in harmony with its spirit must be read into
these provisions to enlarge the meaning and content thereof, to promote theobject of the constitutional guarantee.’’ The report concluded:
Thus, in India, in the absence of domestic law, gender equality should be interpreted in light of international conventions
and norms. The Court looked to cedaw when it said that ‘’[g]ender equality includes protection from sexual harassment andthe right to work with dignity.’’ The Court then drafted a detailed
sexual harassment code and imposed a duty on employers (ostensibly both public and private) to prevent sexual harassment in
the workplace and to provide a grievance option for employees.
The Indian Supreme Court grounded its decision on the basis of standards set in unincorporated international agreements, as these conventions‘’elucidate and go to effectuate the fundamental rights guaranteed by our
Constitution [and therefore] can be relied upon by Courts as facets of thosefundamental rights and hence enforceable as such.’’The Commonwealth Human Rights Initiative reported25 a case of amother who
wrote a letter to the Supreme Court of India, requesting monetary compensation for the death of her 22-year-old son, whodied in police custody. She claimed that her son was beaten to
death. The Supreme Court took up her case.
The Indian Supreme Court was quoted to have ruled:“Article 9 (5) of the International Covenant on Civil andPolitical Rights, 1966, lays down that anyone who has been thevictim of unlawful arrest or detention shall have an enforceable
right to compensation. This Covenant has been ratified by India,
which means that the State has undertaken to abide by its terms. . . The State has a “duty of care” to ensure that the guarantee ofArticle 21 is not denied to anyone. This ”duty of care” is strict
and admits no exceptions the Court said. The State must takeresponsibility by paying compensation to the near and dearones of a person, who has been deprived of her/ his life by thewrongful acts of its agents. However, the Court affirmed that the250

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State has a right to recover the compensation amount from thewrongdoers.”
One should also note in this case the exercise of the so-called “epistolary jurisdiction” that allows people to file a petition to the Indian Supreme
Court by simply sending a letter of request, which is then treated as writ
petition. Justice P.N. Bhagwati of the Indian Supreme Court explained thisnovel judicial procedure:26
The Supreme Court of India also felt that when any member of the public or social action group espouses the cause of
the poor and the underprivileged he should be able to move the
Court even by just writing a letter. It would not be right or fair
to expect a person acting pro bono publico to incur expenses
from his own pocket in order to go to a lawyer and prepare aregular writ petition to be filed in Court for enforcement of thefundamental rights of the poor and deprived sections of thecommunity. In such a case then, a letter addressed by him to the
Court can legitimately be regarded as an appropriate proceeding
within the meaning of Articles 32 and 226 of the Constitution[of India]. The Supreme Court thus evolved what has come to be
known as epistolary jurisdiction where the Court can be movedby just addressing a letter on behalf of the disadvantaged classof persons. This new strategy which we evolved was a major
breakthrough achieved by the Supreme Court in bringing justicecloser to the large masses of the people.
The Indian Supreme Court has acted on a number of cases under its“epistolary jurisdiction.” It also stated that a strict application of the rule that
only affected person can seek judicial recourse would not serve justice since
this rule27
breaks down in the case of a person or class of persons whose
fundamental right is violated but who cannot have resort to thecourt on account of their poverty or disability or socially or economically disadvantaged position and in such a case, therefore,
the court can and must allow any member of the public acting
bona fide to espouse the cause of such person or class of persons.
xxx		
xxx		
xxx
This provision conferring on the Supreme Court power
to enforce the fundamental rights in the widest possible terms
shows the anxiety of the Constitution makers not to allow any

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procedural technicalities to stand in the way of enforcement offundamental rights.
xxx		
xxx		
xxx
It is not at all obligatory that an adversarial procedure,
where each party produces his own evidence tested by cross examination by the other side and the judge sits like an umpire
and decides the case only on the basis of such material as may
be produced before him by both parties, must be followed in aproceeding under Article 32 for enforcement of a fundamental
right. (emphasis mine)
The Nepali Supreme Court has likewise in recent years been issuing
judgments that support human rights. In a case filed by an association called
Friends of Needy Children (fnc) in 2004, the Nepali Supreme Court clarified the obligation of a state regarding fulfillment of child rights. The Nepali
Supreme Court ruled that28
42. It is a legal and constitutional obligation and duty of the
Respondents to protect the rights of the child in line with theprovisions of the Bonded Labor (Prohibition) Act, 2002 A.D.
(2058 B.S.) and the crc [Convention on the Rights of the Child].
It is also an international commitment of Nepal pursuant to
Nepal Treaty Act, 1990 A.D. (2047 B.S.) and Article 26 of theConstitution of the Kingdom of Nepal, 1990 A.D. (2047 B.S.).
The court also saw the importance empowering the children througheducation in order to help realize their rights, as the following paragraphexplains:
44. Mere formulation of an Act and provisions of the Act
cannot provide facility of education in a country like ours where
poverty, illiteracy and ignorance [are] rooted with traditionaland conservative ideas. Hence the provisions of the Act and the
CRC alone cannot eradicate child labor. As the stakeholders andtarget groups of the Children Act, Bonded Labor (Prohibition)
Act and the CRC are the children themselves, it is essential for
the Government to facilitate them from higher level, and thestakeholders themselves should be aware towards their rightsfrom the grassroots level. Only then, the Conventions including
the CRC protecting the rights of the child and the Child Labor

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H u m a n R i g h t s E d u c at i o n i n A s i a - Pa c i f i c(Prohibition and Regulation) Act, 2000 A.D. (2056 B.S.) could be
implemented effectively.
The Bangladeshi Supreme Court has ruled that it is now “an accepted
rule of judicial construction to interpret municipal law in conformity withinternational law and conventions when there is no inconsistency between
them or there is a void in the domestic law.”29 But it also clarified this rule:
Our courts will not enforce those Covenants as treaties andconventions, even if ratified by the State, are not part of the corpus
juris of the State unless those are incorporated in the municipal
legislation. However, the court can look into these conventions
and covenants as an aid to interpretation of the provisions ofPart III, particularly to determine the rights implicit in the rights
like the right to life and the right to liberty, but not enumerated
in the Constitution. In the case of H.M. Ershad v. Bangladesh,2001 bld (AD) 69, it is held: “The national courts should not ...
straightway ignore the international obligations which a country
undertakes. If the domestic laws are not clear enough or there
is nothing therein the national courts should draw upon theprinciples incorporated in the international instruments.” In
the case of Apparel Export Promotion Council v. Chopra, air1999 SC 625 it is held, “In cases involving violation of humanrights, the courts must for ever remain alive to the international
instruments and conventions and apply the same to a given casewhen there is no inconsistency between the international norms
and the domestic law occupying the field.” (emphasis mine)
A report from Hong Kong states that its courts cite “extensively andregularly from other common law jurisdictions, including the European
Court of Human Rights as well as the jurisprudence of the United Nations
treaty bodies (in particular the Human Rights Committee) authorities.”30
From the Pacific, several court decisions show a variety of applicationof international human rights instruments. Several volumes of the Pacific
Human Rights Law Digest31 provide a review of court decisions in a number
of Pacific countries that uphold human rights or restrict them.
In relation to the application of international human rights standards,
one case that provides an important ruling is presented as follows:32

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Life/International standards
The Tongan case of R v Vola was the first verdict in a murdercase in Tongatapu in over 20 years. The court did not hesitatein applying international cases and the International Covenant
on Civil and Political Rights, notwithstanding that they did not
apply directly to Tonga or that Tonga had yet to ratify the covenant. It was recognised that the principles set out in the covenant and in the numerous authorities cited were reflective of
the circumstances exercised in relation to the death penalty.
The court was not hindered by the kingdom’s non-ratification.
The case illustrates the philosophical concerns of the judiciaryin particular, and the wider community in general, in relation
to the irreversible nature of the death penalty. Like Solomon
Islands in the Kelly cases in this digest, this case marks the firstclear departure from traditional non-enforceability approaches
to international law in Tonga, and the growing influence of international human rights law on domestic courts.
The Kelly case in Solomon Islands involved the prosecution of a childsoldier for murder in the context of the inter-ethnic fighting between thepeople of Malaita and Guadalcanal in 2000 that followed a coup d’etat by acivilian militia against a democratically elected government of Bartholomew
Ulufa’alu. The parents of the child contested the decision to prosecute thechild on ground that it was unfair and in violation of crc. The court ruled
against the appeal of the parents. While the court ruled that crc applied
only in cases of child soldiers of the “the armed forces of a country andnot into an illegal paramilitary group,” it emphasized the constitutional responsibility of ensuring fair trial for the child accused at every stage of theproceedings:33
While Article 37 of the crc provided safeguards for thechildren, it was for the court to ensure the procedure and process conformed to the provisions of the crc. The Solomon
Islands Government had the responsibility to enact legislationthat would give effect to relevant international conventions. In
the absence of legislation, the court would do all within its powers to protect juveniles under the csi [Constitution of Solomon
Islands] and the joa [Juvenile Offenders Act].

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Some court decisions have significance beyond the country concernedsuch as the so-called Mabo case in Australia34 that settled the issue of native
title in 1992. The High Court of Australia discussed the limit of the doctrine of exclusive Crown ownership of all lands in the Australian colonies.
It did not support the claim that the “interests of indigenous inhabitantsin colonial land were extinguished so soon as British subjects settled in acolony, though the indigenous inhabitants had neither ceded their lands to
the Crown nor suffered them to be taken as the spoils of conquest.” Thecourt explained:
Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The
expectations of the international community accord in this respect with the contemporary values of the Australian people.
The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to theInternational Covenant on Civil and Political Rights (68) See
Communication 78/1980 in Selected Decisions of the Human
Rights Committee under the Optional Protocol, vol.2, p 23
brings to bear on the common law the powerful influence of theCovenant and the international standards it imports. The common law does not necessarily conform with international law,
but international law is a legitimate and important influence on
the development of the common law, especially when international law declares the existence of universal human rights. A
common law doctrine founded on unjust discrimination in theenjoyment of civil and political rights demands reconsideration.
It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory
rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.
In sum, the court ruled that[N]ative title to land survived the Crown’s acquisition of sovereignty and radical title. The rights and privileges conferred bynative title were unaffected by the Crown’s acquisition of radical
title but the acquisition of sovereignty exposed native title to ex-Promoting International Human Rights Standards

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tinguishment by a valid exercise of sovereign power inconsistent
with the continued right to enjoy native title.
This decision echoes a 1909 decision of the United States Supreme
Court regarding the right of an indigenous person in the Philippines to his
land.35 It ruled that36[E]very presumption is and ought to be against the government in a case like the present. It might, perhaps, be proper andsufficient to say that when, as far back as testimony or memory
goes, the land has been held by individuals under a claim ofprivate ownership, it will be presumed to have been held in thesame way from before the Spanish conquest, and never to havebeen public land. Certainly in a case like this, if there is doubt or
ambiguity in the Spanish law, we ought to give the applicant thebenefit of the doubt.
This decision became the basis of the 1997 The Indigenous Peoples
Rights Act, which defines native title as follows:
Sec. 3 [l]. Native Title-- refers to pre- [Spanish] conquest
rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership by iccs/IPs[Indigenous Cultural Communities/Indigenous Peoples], havenever been public lands and are thus indisputably presumed tohave been held that way since before the Spanish Conquest.
Some court decisions, however, promote a limited application of theinternational human rights standards. The courts may not apply the international human rights standards to particular issues (such as issues on political structure and sovereignty,37 national security laws38) or limit the meaning of human rights (the rights under the Universal Declaration of Human
Rights are considered merely declaratory in nature and thus non-binding).39
Constitution as Basis of Human Rights
One author floated the idea of “human rights constitutionalism,” which is aset of normative standards by which to “assess the quality of a constitutional

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system and its day-to-day operations – the human rights of each individualin the community.”40 It is grounded on the “recognition of the equal inherent
dignity and nobility of each individual and a comprehensive notion of human rights.” According to this perspective, a “government of human rights
constitutionalism” would include the following:41(1) a constitutional division of governmental power among two or
more basic organs or “branches”;(2) some form of independent judicial system, with jurisdiction including cases on civil rights and liberties;(3) regularized limits on the amount of governmental power possessed by anyone and generally, on the length of time power may belegitimately possessed. (A few Asian constitutional monarchies present
partial exceptions.) Democratic elections using the secret ballot assure
peaceful, routine passage from one national leader or group of leaders to the next, and encourage public agreement on the legitimacy andcomposition of the leadership;(4) government authority and means of coercion under law sufficient to maintain public peace, security of person, and national security,
within limits defined by the human rights of citizens and those of othercountries. Rigorous restraints on military power and military involvement in government politics;(5) government involvement in socioeconomic problem-solving inorder to meet citizens’ subsistence needs (e.g., food, clothing, shelter)
and a life compatible with human dignity, insofar as the private sector
fails to meet these needs. Property rights and economic freedom areprotected insofar as they do not result in such inequitable distribution
as to deny the socioeconomic rights of other citizens, particularly theleast fortunate;(6) legally protected and encouraged freedom of peaceful expression of personal and group beliefs about the meaning of human life andthe universe, insofar as such expression is compatible with respectfultreatment of other people in the circumstances of the specific society;(7) a system of local autonomy showing the maximum respect
for regional desires for self-governance that is compatible with humanrights claims in other affected territories;(8) procedural rights in criminal and civil justice for each citizen
equal to those of all others within the national community; the stan-Promoting International Human Rights Standards

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dard for treatment of the most privileged members of society is applied
to the least fortunate;(9) acceptance of the constitution and human rights as the supremelaw of the land, by the government and by the general public.
Many constitutions in Asia would probably contain many of these characteristics. In the case of a few Constitutions, human rights have been explicitly provided. The 1947 Japanese Constitution can be considered to be
the first such document that uses the words “human rights” instead of theusual terminologies such as constitutional rights, fundamental rights, or basic rights which indicate their national (rather than international) character.
Because they are “human rights,” they are considered “pre-constitutional”
rights.42 This view, in effect, means that the Japanese Constitution protects
the existing and “inviolable” rights, and does not create them. This idea relates to a Philippine Supreme Court decision on the “right to a balanced
and healthful ecology” found in the 1987 Philippine Constitution. The court
declared that43
Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation andself-perpetuation—aptly and fittingly stressed by the petitioners—the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic
rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind.
In the case of Hong Kong, there was a deliberate act of making humanrights gain domestic law status through the enactment of the Bill of Rights
Ordinance (boro) in 1989. Boro incorporates most of the rights provided
in the iccpr. But more importantly the Constitution of Hong Kong (Basic
Law, 1990) incorporates international human rights instruments by providing that
The provisions of the International Covenant on Civil andPolitical Rights, the International Covenant on Economic,
Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shallbe implemented through the laws of the Hong Kong Special
Administrative Region.
The rights and freedoms enjoyed by Hong Kong residents
shall not be restricted unless as prescribed by law. Such restric-

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H u m a n R i g h t s E d u c at i o n i n A s i a - Pa c i f i ctions shall not contravene the provisions of the preceding paragraph of this Article. (Article 39)
It has been observed that while rights under iccpr have been incorporated into domestic law through boro, this is not so in the case of the rights
under icescr.44
However, there are practical problems that should be noted. People may
appreciate the Constitution as the only standard of rights and consequently
ignore the international human rights standards. One author argues that inJapan, the courts do not regard the international human rights standards
with appropriate respect. As he explains:45
Japanese courts assume that the meaning, scope and effectof human rights provided under international human rights
law are the same as those under the Japanese Constitution.
Accordingly, if a governmental action is found to be lawful under the Japanese Constitution, it is automatically regarded as
lawful under international human rights law as well.
Without proper examination of ratified international human rights instruments, the Japanese courts may virtually disregard their application or
their necessity at the domestic level.46
This somehow reflects the observation on the character of judicial review in Northeast Asia:47
The Constitutional Courts of South Korea and Taiwan
have both earned acclaim for their respective judicial activism
in steering democratic transitions and guarding human rights.
Both courts have on average denounced legislative enactments
or ruled against government actions in about one third of [their]decisions ever since democratization began in the late 1980s.
Thus, a common understanding of judicial review in East Asia isthat the Japanese Supreme Court is relatively conservative while
the Constitutional Courts of South Korea and Taiwan are very
active and even aggressive.

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But the authors do not see this situation as suggesting “judicial activism,” rather they see courts in Korea, Taiwan and Japan as merely reacting
to the “social and political circumstances and majority demands in a rather
cautious way.”48
It is also necessary to understand that not all human rights, as internationally defined, have their corresponding counterparts in the Constitutions.
A case in point is the right to education, which is not explicitly provided
in the Indian Constitution. And if not for the interpretation of the IndianSupreme Court, such right would not have been properly recognized. As areport explains49
The [Indian] Supreme Court held that although the rightto education as such has not been guaranteed as a fundamental right under the Constitution, it becomes clear from thePreamble of the Constitution and its Directive Principles, contained in section IV, that the framers of the Constitution intended the State to provide education for its citizens. The court thenrelates the Directive Principle of Article 14 which requires thatthe state attempt to implement the right to education within its
economic capacity. The court then reasons that this principle
creates a constitutional right to education because education isessential to the fulfillment of the fundamental rights of dignity
and life. The court links the right to education to the right tolife by reasoning that to sustain life a human being requires thefulfilment of all the enabling rights which create life of dignity.
In Kiribati, the Constitution of Kiribati “does not contain an equal rights
clause or a non-discrimination clause clearly making discrimination against
women illegal.”50 But the ratification of an international human rights instrument (cedaw) “may provide the only short term opportunity” to urge it(cedaw) as basis of argument in court cases. This then provides the Kiribati
courts the chance to support the non-discrimination principle that is absent
in the Constitution of Kiribati.
The concept of “human rights constitutionalism” provides a set of criteria for examining Constitutions and the extent of their subscription to theinternational human rights standards. Court decisions, on the other hand,
can provide the constitutional bases of human rights that have no explicit
constitutional counterpart.

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Application of Court Decisions
In 2004, the Supreme Court of India51 declared that there is “no reason why
these international [human rights conventions] and norms cannot, therefore, be used for construing the fundamental rights expressly guaranteed in
the Constitution of India which embody the basic concept of gender equality in all spheres of human activity.” It went on to state that
16. In view of the above, and the absence of enacted law toprovide for the effective enforcement of the basic human rightof gender equality and guarantee against sexual harassment andabuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafterfor due observance at all work places or other institutions, untila legislation is enacted for the purpose. This is done in exerciseof the power available under Art. 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court
under Art. 141 of the Constitution.
And thus the Indian Supreme Court proceeded to state as part of its decision the guidelines more popularly known as “Vishaka Guidelines against
Sexual Harassment in the Workplace.”
The guidelines refer to the definition of human rights under theProtection of Human Rights Act, 1993 of India. The court declared that theguidelines “would be binding and enforceable in law until suitable legislation is enacted to occupy the field.”
Since then, non-governmental organizations have been lobbying thegovernment for the drafting of a law on sexual harassment.
The Vishaka Guidelines, aside from being a concrete basis for pressuring the government to enforce international standards on women’s rights,
is an example of a judicial “legislation” that should be complied with by thepeople.
In 2008, the Supreme Court of Bangladesh52 declared its own set of
guidelines on sexual harassment following this decision of the IndianSupreme Court. It ruled that[P]rotection from sexual harassment and right to education
and work with dignity [are] universally recognised as basic hu-

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man rights. The common minimum requirement of these rights
has received global acceptance. Therefore, the International
Conventions and norms are of great significance in the formulation of the guidelines to achieve this purpose.
This is one example of a court decision of a country being recognized
and adopted for its significance by the court in another country.
Court decisions are also important in questioning existing laws that run
counter to international human rights standards. As the cases earlier citedshow, laws are not only declared unconstitutional but also in violation of
ratified international human rights instruments.
The power of the courts to define how international human rights standards apply in concrete cases is helpful in addressing issues that have justrecently been given attention as human rights issues. The campaign for therecognition of the rights of people living with hiv/aids and those belonging to the gay, lesbian, bisexual, transgender and intersex communities is an
example.
Court decisions can pave the way for policy review or law reform. The
Commission on aids in the Pacific,53 the current negative public perceptionof people belonging to the gay, lesbian, bisexual, transgender and intersex
communities facilitate hiv transmission, and violate the rights of these people. Another study54 revealed the existence of repressive legal environments
in majority of the Asia-Pacific region that affect men-having-sex with men
and transgender people. One court decision in Fiji addressed this issue stating that55
In my view the Court should adopt a broad and purposive
construction of privacy that is consistent with the recognition
in international law that the right to privacy extends beyond thenegative conception of privacy as freedom from unwarrantedState intrusion into one’s private life to include the positive rightto establish and nurture human relationships free of criminal orindeed community sanction.
This decision subsequently led to the enactment in Fiji of a penal lawthat decriminalized sex between male adults.56 This is one example of how
court decisions lead to law reform particularly the enactment of laws that
uphold the international human rights standards.

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Implications for Human Rights Education
As earlier stated, court decisions have to be considered in promoting
human rights, particularly in explaining how the international human rights
standards and principles apply to concrete, local issues.
Though there is no agreement so far among the judiciaries in Asia andthe Pacific on how they should treat human rights, existing significant court
decisions or judicial principles that rightfully uphold human rights should
be given weight as examples of domestic application of the international human rights standards.
The following views on human rights, for example, from the court decisions cited earlier constitute important content for human rights education:a. The udhr should be treated as part of international customary
law and thus binding upon all members of the international communityof states;b. In cases of crisis situation, such as the lack of an operating
Constitution, the udhr is a basis for enforcement of human rights;
c. Human rights as declared in the udhr and provided for in ratified international human rights instruments and the Constitution are
for all persons, regardless of nationality;d. Human rights are state obligations under both Constitution andratified international agreements, and should be given practical support
for their effective implementation.
The Constitution and human rights are closely linked and should be
discussed together in human rights education:a. There are constitutional concepts that can enrich human rights
principles, giving human rights greater importance to the people whose
Constitutions have such provisions;b. While constitutional provisions may not cover some humanrights, judicial interpretation based on the international human rights
standards can provide support for the judicial declaration that suchrights exist;
c. Constitutional provisions should not be assumed as the same as
the international human rights standards, to the extent that the fulfillment of constitutional rights becomes automatic fulfillment of state obligations under international human rights treaties.

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Linking constitutional rights to the international human rights standards avoids the problem of a narrow view of legal education – that is, education on all existing laws and the duty to follow them without fail. Equating
legal education with human rights education requires the explicit inclusionof the international human rights standards as educational content. This, inturn, means a critical understanding of laws based on the international human rights standards should be part of the educational objectives.
This is the kind of legal education promoted by many Asian legal resources groups. They do not assume that laws are perfect. And when evaluated against human rights standards, some laws may turn out to be violating
human rights. In this regard, jurisprudence that supports the applicationof the international human rights standards at the domestic level would be
most useful in evaluating laws.
This approach likewise points to the necessity of reviewing jurisprudence, old and new, and promoting those that have establisheda. The principle that international human rights standards apply at
the domestic legal systems;b. That international human rights treaties should be faithfully andeffectively implemented through national programs of governments;c. That absence of laws should not prevent recognition of humanrights in order to address issues of injustice.
It is also important to note that international human rights standards
should not be seen only from the so-called legal positivist perspective inorder not to limit their domestic application. Some court decisions havereached out to the international human rights standards to be able to givejustice to victims of human rights violations, despite the absence of explicit
supporting legal provisions. One observation is worth mentioning in thisregard:57
we may think that if human rights laws are not codified into ournational laws, there will always be a problem to its implementation in our country. We may be led to think that human rights
need that element of legal enforceability; otherwise humanrights will remain pure fiction.
Added to this concern [would] be that inexorable challenge
from that school of lawyers inclined to adopt a legal-positivist
approach to say that the only rights are those that are legally

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H u m a n R i g h t s E d u c at i o n i n A s i a - Pa c i f i cenforceable. They urge the courts not to look at the declarations,
instruments, protocols, conventions, and treaties which havenot been ratified, acceded or introduced into our domestic laws
and harmonised with our legal system. It sounds desirable thathuman rights should be legally enforceable so as to ensure thatthey are clear and precise. However this view also misrepresents
the character and distorts the true picture of human rights andits advocacy. The very concept of human rights suggests thatthey should not assume a character of legal enforceability alone.
To do so could have dangerous implications to human rights.
If the entire corpus of human rights is legally enforceable
we would be appealing only to legal rights instead, and would
not need to appeal to human rights. If legal positivism were true
there is no way to criticise unjust legal systems and unjust laws.
It is vital that human rights have to stand outside that system oflegal enforceability (sle) to launch its barrage of criticism in order to be rights effective. To stand inside sle would be appealing
to legal rights instead and the consequences of doing that would
be some steps backward for human rights and its advocacy in amany instances.
The evolution of the international human rights standards is a fulfillment of the international community’s mandate of continuing search formeasures to protect people who suffer injustice. The failure of national laws
to immediately adapt to such development in the international community
is also a failure of the countries to give justice to their own people. Thus,
judicial power should be able to address injustice using the international
human rights standards as basis.
Conclusion
Human rights education aims to make human rights a reality in people’s
lives—to ensure their well-being as much as protect their freedom to dowhat they see fit with due regard for the rights of others or the community.
Court decisions, particularly those that support the application of theinternational human rights standards are important bases to claim humanrights regarding issues that affect ordinary people in both ordinary and extra-ordinary situations, concerning both basic individual needs as well as
pursuit of community or national interests.

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In many cases, courts are seen from a distance and their decisions
mainly known by lawyers and magistrates. This is even more so in the caseof human-rights-related court decisions.
In light of the diverse and numerous human rights education initiatives
in the Asia-Pacific, it is important that relevant court decisions take theirproper place in these educational activities. And one indispensable step
includes the incorporation of human rights education in the education ofwould-be and current officers of the court (lawyers, magistrates and judges).
Endnotes
1. This is the view of H.G. Kulkarni, Judicial Process: Development and Creativity,
in relation to the Supreme Court of India decisions that constitute “progressive judicial activism for the protection of human rights “ regarding issues affecting women(such as the Vishaka decision), workers and other marginalized sections, and theintroduction of novel procedures such as the epistolary jurisdiction.
2. Text of the declaration available at http://jrn21.judiciary.gov.ph/forum_icsjr.
html.
3. The new network was formed during the International Conference andShowcase on Judicial Reforms held in Manila in 2000 with the theme “Strengthening
the Judiciaries of the 21st Century,” see http://jrn21.judiciary.gov.ph/forum_icsjr/
ICSJR_Conference_Guide.pdf
4. JRN21 aims to facilitate networking and access to relevant judicial reform information, including treaties, laws, lessons learned and best practices reports, pilot
programs, case studies, and country, regional and global research papers. It will also
include links to existing constitutional and legal databases, ongoing and planned
judicial reform projects and resource and key contact information for reformers andorganizations worldwide. In addition, it will include resource links to other relevant
regional and global electronic networks, databases, electronic training programs
and websites, as well as key [non-governmental organizations] NGOs, regional andglobal organizations, donors and professional associations. These links and easy access to related web pages and regional and global networks will enable JRN21 participants to access a wide range of documents, organizations and individuals aroundthe world. (Source: http://jrn21.judiciary.gov.ph/jrn_about.html)
5. See for example HURIGHTS OSAKA’s Human Rights and Jurisprudence section in its website (www.hurights.or.jp/english/human_rights_and_jurisprudence/)that features some of the court decisions from a number of Asia-Pacific countries
that applied the international human rights standards. The website of the PacificRegional Rights Resource Team has downloadable publications on Pacific court decisions and human rights, see www.rrrt.org/page.asp?active_page_id=82. Full text ofcourt decisions in Pacific countries can be found in the website of the Pacific Islands
Legal Information Institute, www.paclii.org/. The websites of the highest courts inthe different countries also provide the full text of court decisions. The website of the266

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Asian Legal Information Institute (AsianLII) also provides information on databaseson Asian laws and court decisions, which include human rights issues among otherissues. Visit: www.asianlii.org.
6. “South Asian Law Schools’ Forum: An initiation for regional cooperation,”
Kathmandu School of Law website, www.ksl.edu.np/extra_curricular_activities.
asp#sal. The SALS Forum was established in June 2004 in Nepal.
7. Article 1, Charter of the South Asian Law Schools Forum for Human Rights,
in Yubaraj Sangroula, editor, Social Responsive Human Rights Legal Education
South Asian Law Schools Forum for Human Rights SALS Forum - A Compendiumof Conference Proceedings and Papers (Bhaktapur: Kathmandu School of Law, 2004),
page 5.
8. See the website of the Southeast Asian Human Rights Studies Network(SEAHRN) at www.seahrn.org/content/about.html.
9. For more information, visit the website of CRN-EALS at www.crn33-eals.
org/Main.htm.
10. The Law and Society Association (LSA) was founded in the United Statesover forty-five years ago as a group of scholars from many fields and countries, interested in the place of law in social, political, economic and cultural life. It has both
American and international members. For more information visit: www.lawandsociety.org/.
11. Visit the website of the Asian Law Institute (ASLI) at http://law.nus.edu.sg/
asli/about.html.
12. For the meantime, further information on the HRBA2J-Asia is available at:www.facebook.com/pages/Asian-Consortium-for-Human-Rights-Based-Accessto-Justice-HRBA2J-Asia/134340173310986?sk=wall.
13. See P. Imrana Jalal, UNDP/Regional Rights Resource Team (RRRT), The
Situation of Human Rights Defenders in the Pacific Islands (Suva: Pacific House,2005).
14. Ibid., page 26.
15. Jiunn-Rong Yeh and Wen-Chen Chang, “The Emergence of East Asia
Constitutionalism: Features in Comparison,” ASLI Working Paper Series, No. 006(Singapore: Asia Law Institute, August 2009), page 29.
16. See Jefferson R. Plantilla and Salbiah Ahmad, editors, Law, Jurisprudence
and Human Rights in Asia, (Kuala Lumpur: HURIGHTS OSAKA and SIRD, 2011)
for the different examples of court decisions that either favor or oppose the application of international human rights standards. This publication is the full reportof HURIGHTS OSAKA’s multi-country research project, with the support of theUnited Nations Office of the High Commissioner for Human Rights, on the application of the international human rights standards in several countries in Asia todetermine the extent of use of such standards in local laws and jurisprudence. The
research project covered eight countries: China, Indonesia, India, Japan, Nepal, thePhilippines, South Korea, and Thailand. The issues included child rights, right tohealth, criminal procedure, rights of indigenous peoples, women’s rights, and therights of (domestic and foreign) migrant workers. Each case study presented distinctsocial, political and economic contexts. Each country covered by the research project has its own legal and judicial systems that interact differently with the interna-

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tional law system. The case studies present challenges to the domestic application of
the international human rights standards. They likewise help draw the opportunities
for human rights education.
17. Ibarra M. Gutierrez III and Marc Titus D. Cebreros, “Realizing the Right toHealth in the Philippines: A Review of Norms, Standards and Practice,” in Jefferson
R. Plantilla and Salbiah Ahmad, editors, Law, Jurisprudence and Human Rights in
Asia, page 235.
18. See Mejoff v. Director of Prisons, 90 Phil 70 (1951).
19. Republic of the Philippines v. SANDIGANBAYAN, Major General Josephus
Q. Ramas and Elizabeth Dimaano, GR 104768, July 21, 2003, available at http://
sc.judiciary.gov.ph/jurisprudence/2003/jul2003/104768.htm.
20. Republic of the Philippines v. SANDIGANBAYAN, et al., ibid., as cited by
Adolfo S. Azcuna, former Justice of the Supreme Court of the Philippines in his paper
entitled Constitutional Standards for Civil, Political & Socio-Economic Rights, presented at the Fifth Conference of Asian Constitutional Court Judges, 9-11 October
2007, Seoul, Republic of Korea.
21. Kant Kwong and Yim Kam Shing v. Presidential Commission on Good
Government, Secretary Ramon A. Diaz and Commissioner Mary Concepcion
Bautista, G.R. No. L-79484, December 7, 1987. Quoted from Azcuna, ibid., pages
5-6.
22. Ferdinand E. Marcos, et al. v. Raul Manlapus, et al., G.R. No. 88211,
September 15, 1989.
23. Cited by Eileen Kaufman, ‘’Women and Law: A Comparative Analysis of
the United States and Indian Supreme Courts’ Equality Jurisprudence’’ in Georgia
Journal of International and Comparative Law, Vol. 34, No. 3, pages 560, 609-613.
24. Chairman, Railway Board v. Das, A.I.R. 2000 S.C. 988, cited in Kaufman,ibid.
25. Mandeep Tiwana, Human Rights and Policing: Landmark Supreme
Court Directives & National Human Rights Commission Guidelines (New Delhi,
Commonwealth Human Rights Initiative, April 2005) page 34.
26. P.N. Bhagwati, “Judicial activism and social action in Asia,” in Jose Ventura
Aspiras, Law as Weapon – Alternate Approaches to Distributive Justice (Makati:
PROCESS, 1990), page 110.
27. Bandhua Mukti Morcha v. Union of India & Others, December 16, 1983,
page 71, available at www.indiankanoon.org/doc/595099/
28. Secretary Som Prasad Paneru, among others, authorized by, and on behalfof, the Friends of Needy Children (FNC), located at Ekantakuna, Ward No. 4, Lalitpur
Sub-municipal Corporation, Lalitpur District versus His Majesty’s Government,
Office of the Prime Minister and Council of Ministers, among others. Decision No.
7705, Nepal Law Reporter, 2006 A.D. The Law Book Management Board translated
the court decision into English.
29. Bangladesh National Women Lawyers Association (BNWLA) v. Governmentof Bangladesh and others, Writ Petition No: 5916 of 2008, available at www.law.
georgetown.edu/rossrights/chapters/BangladeshWomenLawyers.html.

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30. See Yiu Kwong Chong, “Implementation of International Human
Rights Conventions – the Hong Kong Experience,” in Plantilla and Ahmad, Law,
Jurisprudence and Human Rights in Asia, op. cit., page 46.
31. This publication is available at the website of the Pacific Regional Rights
Resource Team, www.rrrt.org/page.asp?active_page_id=82.
32. R v Vola, Supreme Court of Tonga, [2005] TOSC 31, in Pacific Human Rights
Law Digest, 2/2008, 68.
33. Pacific Human Rights Law Digest, 2/2008, 16.
34. Mabo v Queensland (No 2) (“Mabo case”) [1992] HCA 23; (1992) 175 CLR 1(3 June 1992), available at www.austlii.edu.au/au/cases/cth/HCA/1992/23.html
35. Cariño v. Insular Government, 41 Phil. 935 (1909), 212 U.S. 449, 53 L.Ed.
594
36. Ibid., page 941. This quotation is taken from the separate opinion of Justice
Ricardo Puno of the Philippine Supreme Court decision about a law on the rights ofindigenous Filipinos, Isagani Cruz and Cesar Europa v. Secretary of Environment
and Natural Resources, et alia, G.R. No. 135385, December 6, 2000, available at
http://sc.judiciary.gov.ph/jurisprudence/2000/dec2000/135385_puno.htm
37. Chong, op. cit., page 46.
38. Vipin Mathew Benjamin, “India: Anti-Terrorism Laws and Human Rights,”
in Plantilla and Ahmad, Law, Jurisprudence and Human Rights in Asia, op. cit., page80.
39. Roger Chan Weng Keng, Legal Positivism and the Nuances of Human Rights
Implementation in Malaysia, citing the Mohamad Ezam Mohd Noor v. Ketua Polis
Negara & other appeals (2002) 4 CLJ 309, in Kuala Lumpur Bar Blog, in http://klbar.
blogspot.com/2009_10_01_archive.html
40. Lawrence W. Beer, editor, Constitutional Systems in late Twentieth Century
Asia, University of Washington Press (Seattle: 1992), page 8.
41. Ibid., page 9.
42. Nobuyoshi Ashibe, “Human Rights and Judicial Power,” in Beer, page 225.
43. Juan Antonio, Anna Rosario and Jose Alfonso, All Surnamed Oposa, Minors,
et al., v. The Honorable Fulgencio S. Factoran, Jr., et al., G.R. No. 101083 July 30, 1993.
44. See Chong, “Implementation of International Human Rights Conventions –the Hong Kong Experience,” op. cit., page 42.
45. Yuji Iwasawa, International Law, Human Rights, and Japanese Law – The
Impact of International Law on Japanese Law (Oxford: Clarendon Press, 1998), pages 294-295.
46. Ibid., page 294.
47. Yeh and Chang, op., cit., page 21.
48. Ibid., page 21.
49. This is a discussion of the decision in Mohini Jain v. State of Karnataka (1992
AIR 1858) in www.escr-net.org/caselaw/caselaw_show.htm?doc_id=888109
50. See Jalal, op. cit. page 27.
51. Vishaka and others v. State of Rajasthan and others. (AIR 1997 SUPREME
COURT 3011).
52. Bangladesh National Women Lawyers Association (BNWLA) v. Governmentof Bangladesh and others, op. cit.

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53. Commission on AIDS in the Pacific, Turning the Tide: An open strategy fora response to AIDS in the Pacific (Suva: Commission on AIDS in the Pacific, 2009)
54. John Godwin, Legal environments, human rights and HIV responses among
men who have sex with men and transgender people in Asia and the Pacific: An agenda for action (Bangkok: United Nations Development Programme and Asia PacificCoalition on Male Sexual Health, July 2010).
55. McCoskar v. The State [2005] FJHC 500; HAA0085 & 86.2005 (26 August2005), available at www.paclii.org/fj/cases/FJHC/2005/500.html
56. Goodwin, op. cit., page 93.
57. Weng Keng, op. cit.