This book explores the possibility of an Asian legal sphere based on the model of Europe. It features articles written by leading experts from Europe and Asia. After centuries of violent conflicts, Europe began a process of integration which leads to 75 years of peace and a community with the common values of freedom, fundamental rights, and the rule of law. But the circumstances that lead to the unification of Europe differ from current-day Asia: Besides the huge economic gaps between neighboring countries and a wide variety of political forms of government, Asia also does not share the unifying narrative of post-WWII Europe.
From an economic point of view, Asia is a highly developed region; despite the differences between the political systems, the region has grown together―economically and in recent times also politically. However, the legal systems of the respective countries have not created the necessary conditions for a peaceful coexistence. Can Europe be a model for Asia? Based on the history and development of the European unification process, this book asks the question to what extent Asia can look to Europe as a model and what lessons can be learned.
Author(s): Masahisa Deguchi, Kimio Yakushiji
Publisher: Springer
Year: 2023
Language: English
Pages: 190
City: Singapore
Preface
Contents
The European Union and the Council of Europe as Legal Area of Freedom, Fundamental Rights and Rule of Law
1 Legal Concepts in Their Cultural and Historical Embedding
1.1 Value-Oriented Approach in Europe
1.2 Lessons Learnt After Two World Wars
1.3 Different Heritage in Asia
2 Human Rights and Rule of Law—A Success Story for Europe?
2.1 Bridging the Differences Between East and West
2.2 Institutionalization and Judicialisation
2.3 “Acquis” in Human Rights and Rule of Law
3 Spreading Rule of Law in Europe—A Story of Lost Illusions?
3.1 Discrepancies Between Legal Obligations and Reality
3.2 Controversies About the Core Meaning of the Principle of Rule of Law
3.3 Reforms Challenging the Common Heritage
4 Response to the Challenges
5 Europe as a Model?
Protection of Human Rights in East and Southeast Asian Countries After World War II: A Short Comment on the Keynote Speech of Vice-President Judge Nußberger
1 The General Circumstances of the Countries in East and Southeast Asia After World War II: Contrast with Europe
2 Two Trends Which May Improve the Human Rights Situation in East and Southeast Asian Countries
2.1 The Progress in ASEAN’s Human Rights Promotion Mechanism and Its Challenges
2.2 Progress of Ratification of and Accession to Core UN Human Rights Conventions by East and Southeast Asian Countries and Stagnancy of Acceptance of Individual Communications Procedure
3 Heterogeneity of Contemporary East and Southeast Asian Countries: The Backgrounds of Their Contextual Approaches
3.1 Different Circumstances Surrounding Human Rights and Rule of Law Between Europe and East and Southeast Asia
3.2 National Particularities or Historical, Cultural, and Religious Backgrounds Invoked by East and Southeast Asian Countries and Their Alleged Effects
4 Potential of East and Southeast Asian Countries to Institutionalize a Legal Area of Freedom, Fundamental Rights, and Rule of Law: Tentative Concluding Remarks
Peacekeeping, Protection of Human Rights, Democracy and the Rule of Law in Europe—Problems, Future Prospects and an International Role Model
1 Presentation Kyoto, February 2019
2 Comment on the Speech of Prof. Scholz
BREXIT and the European Convention on Human Rights
1 Introduction
2 Defining Brexit
3 The ECHR and the EU
4 The UK Position—Referendum and Beyond
5 Why the Question About the Relationship Between the ECHR and Brexit
6 Conclusion
The EU as a Defender of the Liberal International Order and the Rule of Law
1 Introduction
2 Rule of Law Is No Longer Limited to States
3 The EU Promotes Rule of Law from the Outset
4 LIO and Its Values Under Duress
5 The Changing Nature of LIO
6 The EU on the International Scene—Leave the Chorus Line
7 Epilog (April 2022)
The Primacy of EU Law Over National Law: Rule of Law Contested—Reflections on the Case of the Polish Constitutional Court
1 Introduction: The Law-Based Integration Model of the European Union
2 The Sovereignty Issue
3 Primacy of EU Law Contested
4 What Is at Stake?
5 The Jurisdiction of the EUIJ Is Not Unlimited
6 The Issue of Primary EU-Law
7 The Heart of the EU—Its Values and Principles
8 Conclusions
Human Rights Limitation in the Rule of Law from Vietnam’s Practice
1 The Legitimacy of Limiting Human Rights
2 The Principles on the Limitation of Human Rights
2.1 Principles on the Limitation of Human Rights Under International Human Rights Conventions
2.2 The Principles on Limitation of Human Rights in the Law of Many Countries in the World
3 The Practice of Limiting Human Rights in Vietnam
3.1 Limiting Human Rights as Prescribed by Law
3.2 Principles of “National Defense”, “National Security”, “Public Order, Safety”, “Public Morality”, “Public Health”
4 Conclusion
Protection of Personal Data as Property in the Chinese Constitutional Order
1 Question to Consider
2 Personal Data: Definition and Commercial Value
3 The Constitutional Classification of the Commercial Value of Personal Data
3.1 Justice Commandment of the Article on Socialism
3.2 The Principle of Equal Treatment
3.3 Institutionalized Prevention of Misuse of Personal Data
3.4 Favourable Framework Conditions for Sustainable Data Management
3.5 Personal Data as an Intangible Asset
3.6 Potential Impairment of Interpersonal Communication
3.7 Interim Conclusion: Recognition of Personal Data as Property Within the Meaning of Art. 13 CV
4 Simple Legal Implementation
4.1 Sufficient and Suitable Protection by Tort Law?
4.2 An Intellectual Property Right to Personal Data
The Collision of Values in Thai Constitutional Law
1 Introduction
2 Value, Legal Interpretation and Democracy
2.1 The Importance of Value
2.2 The Values and Democracy
3 The Collision of Values in Thai Constitutional Law
3.1 “The Values in the Thai Constitution” and “Thai Democracy as a Value-Bound Democracy”
3.2 The King as the Political Highest Value?
3.3 Freedom of Expression and the Monarchy as an Important Case of Collision in the Thai Legal System
3.4 Balancing and Harmonising Values: The Way Out of the Political Crisis in Thailand
4 Outlook
The European Convention on Human Rights: A Constitution for Europe?
1 Hope and disillusionment—The Drafting Process
2 Patience and Innovative Ideas—The Slow Maturation Process of the ECHR
2.1 The Early Years
2.2 1979 as the Turn of an Era?
3 Approaches to Constitutionalisation
3.1 From Piecemeal to Comprehensive Control
3.2 Turning Away from Historical Interpretation
3.3 Margin of Appreciation
4 Constitution or Aliud?
4.1 Community of Treaty Partners vs. State
4.2 Rules on State Organisation vs. Definition of a Role Model for Society
4.3 The Last vs. The Penultimate Word
5 The European Court of Human Rights as a Constitutional Court or “Contrat Social”-Court?
6 Crisis and Future
The European Fundamental Rightsʼ Protection System: The General Protection System—and the Specific Problem of the European Union Accession to the European Convention on Human Rights (The Lisbon Treaty and its Follow Up)
1 A Foreword
2 Introduction
3 The Global Protection of Fundamental Rights in Europe
4 The Problem of a Unique or at Least Unified European Protection of Fundamental Rights
4.1 The First Attempt of Having the European Communities Becoming a High Contracting Party to the Convention
4.2 The European Charter of Fundamental Rights (“the Charter”)
4.3 The Lisbon Treaty
5 The Possible Prospect
Protection of Human Rights by National and International Courts: A Comparison
1 Introduction
2 The National Tools of Protection
2.1 The Constitutions
2.2 The National Courts
3 The International Tools of Protection
3.1 The International Treaties
3.2 The International Courts
4 Comparison and Combination of National and International Protections
4.1 The Usual Process Before National Courts, Ordinary or Constitutional
4.2 The Process Before International Courts
4.3 The Effectiveness of the National Protection
4.4 The Effectiveness of the International Protection
4.5 The Combination Between National and International Protection
5 As a Conclusion
The European Court of Human Rights and the Courts of the High Contracting Parties—Specifically Regarding the Consequences of the Imminent Accession of the European Union to the European Convention on Human Rights
1 Introduction
2 From the ECHR to the Courts
3 From the Courts to the ECHR
4 Consequences of the Accession of the EU to the ECHR
Afterword
