These are classified in accordance with their relevance to the three types of government networks: information networks, harmonization networks, and enforcement networks.
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Author: Arianne Vanessa Tanopo Jimenez
The ten Member States of the Association of Southeast Asian Nations (ASEAN) are working towards integrating their economies. The general steps to achieve this goal are laid out in the ASEAN Economic Community Blueprint. The specific measures to be taken towards economic integration are prescribed and outlined in various Plans and Strategic Schedules. One particular measure to be undertaken is the promotion of information security and data protection in the region. In furtherance of this objective, ASEAN plans to work towards having all ten Member States implement up-to-date data protection laws and regulations. It also aspires to have a harmonized, comprehensive data protection legal framework for the region. Considering that ASEAN – an international organization that has a strong soft law tradition – is aiming for the implementation of data protection laws in all ten Member States, and intends to have a harmonized data protection legal framework for the region, the main question of this dissertation is: What are the ideal features and characteristics of a data protection soft law framework for the ASEAN region? To answer this question, the following sub-questions must first be answered: (a) What is a “data protection soft law framework” and why is it being considered as a way to promote data protection in the ASEAN? (b) What are the lessons to be learned from the use of soft law in the ASEAN region? More specifically, what types of measures, features, and characteristics are likely to help achieve policy goals, and what are the challenges to be expected when ASEAN resorts to the use of soft law instruments in order to achieve policy objectives? (c) What are the lessons to be learned from other international data protection soft law frameworks? More particularly, what are the advantages and disadvantages of certain features and characteristics of the OECD Privacy Guidelines and the APEC Privacy Framework? What are the successes of and challenges involved in the implementation of these features and characteristics? The answers to these questions will be distilled into a set of features and characteristics that are ideally suited to fulfill the purpose of an ASEAN data protection soft law framework. Chapter 1 of this dissertation provides a background and introduction and, among other things, presents the rationale and significance of this study. Chapter 2 acquaints the reader with the ASEAN as an organization, illustrates its plans for economic integration and data protection, and briefly describes the current state of data protection in the region. Chapter 2 also presents the data protection risks and challenges that will arise because of economic integration. It concludes with a discussion on soft law, in general, and soft law specifically within the context of ASEAN. The main objective of this chapter, apart from giving the reader some background and context, is to establish the timeliness and aptness of the examination of soft law as a possible tool to promote data protection in Southeast Asia. Chapter 3 reviews significant implemented ASEAN soft law instruments, their implementation, and their results, both positive and negative. The aim of this chapter is to help demonstrate the effectiveness of soft law in attaining various goals set by ASEAN. It will also present the challenges to be expected when ASEAN resorts to the use of soft law instruments in order to achieve policy objectives. In presenting both the successes and challenges, the author intends to show which types of soft law measures previously implemented by ASEAN could likely attain specified policy objectives, and the challenges that the Association will have to contend with, if it decides to use soft law to promote data protection in the region. Chapter 4 examines the current use of soft law in international data protection law and governance. It will look at the OECD Privacy Principles and the APEC Privacy Framework. The chapter draws out some of the features and characteristics of soft law in international data protection law, and presents the benefits and successes, and drawbacks and failures of these features and characteristics. In doing so, the author seeks to identify the distinct and prevailing elements that constitute an international data protection soft law framework. The author also shows which of these have proven beneficial and successful in attaining their purposes. Furthermore, it also aims to identify the likely challenges of using soft law to promote data protection within a region. In addition, this chapter gives a workable definition of “international data protection soft law framework” for purposes of this work, and to enhance further discussions and studies on data protection. Chapter 5 presents, as a result of the analysis of the findings in the previous chapters, the ideal features and characteristics of a data protection soft law framework for the ASEAN. It will begin with the possible foundation of such a framework – an ASEAN Data Protection Agreement. It proceeds to present a potential data protection standard for the ASEAN data protection soft law framework and Agreement, in the form of a set of privacy principles. The chapter will then go on to discuss additional measures, features, and characteristics that could help ensure the effectiveness of the Agreement. These are classified in accordance with their relevance to the three types of government networks: information networks, harmonization networks, and enforcement networks. Chapter 6 provides a summary and conclusion, and discusses the challenges that could be encountered in the implementation of an ASEAN data protection soft law.