INSTITUTIONAL CHANGE IN REGIONAL ORGANIZATIONS: THE EMERGENCE AND EVOLUTION OF ASEAN NORMS by Avery Dorothy Howard Poole M.A., The University of British Columbia (2005) B.A.(Hons), The University of Melbourne (2004) B.Comm, The University of Melbourne (2000) A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in The Faculty of Graduate Studies (Political Science) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) May 2013 © Avery Dorothy Howard Poole, 2013 Abstract In November 2007, the member states of the Association of Southeast Asian Nations (ASEAN) signed their first Charter, and hailed it as a ‘milestone’ for regional cooperation. The Charter was designed to provide the ‘legal and institutional framework’ for ASEAN, and to give it a ‘legal personality’. It refers to ‘strengthening’ the principle of democracy and to ‘promoting and protecting’ human rights. It also states that ASEAN ‘shall establish an ASEAN human rights body’. The Charter raises an empirical puzzle given the ASEAN norms of sovereignty and ‘noninterference in the internal affairs of one another’, which are reiterated in ASEAN declarations and agreements (including the Charter). Moreover, the significant political, ethnic and cultural diversity among member states traditionally underpins the understanding that regime type and human rights are ‘off the table’ in (official) ASEAN dialogue. Thus, why did ASEAN member states adopt text in the Charter referring to democracy and human rights? Further, why was the debate about the references to human rights far more contentious than that about the references to democracy? This dissertation traces the negotiations leading to the ASEAN Charter, and explores the processes through which member states accepted the references to democracy and human rights, and agreed to establish an ASEAN human rights body. I argue that perceptions of legitimacy influence states’ positions on regional ‘normative statements’. The emergence and evolution of regional norms are shaped by political elites’ perceptions of how members of a regional organization view the legitimacy of the organization and its norms (which I call ‘internal regional legitimacy’). These are in turn shaped by elites’ perceptions of how their societies regard the legitimacy of their national governments (‘domestic political legitimacy’). Regional norms are also shaped by elites’ perceptions of how those outside the region view the legitimacy of the regional organization and its norms (‘external regional legitimacy’). The dissertation’s exploration of various actors’ perceptions of legitimacy in the adoption of the Charter helps to explain the diverse understandings of norms by member states. Moreover, it contributes to theoretical understandings of the emergence and evolution of norms in an environment of ‘normative contestation’. ii Preface The research conducted for this dissertation was undertaken with the approval of the UBC Behavioural Research Ethics Board (BREB). The UBC BREB number on the Certificate of Approval is H08-01877. All of the research and writing was conducted by Avery Poole, under the supervision of the Principal Investigator, Brian Job. iii Table of contents Abstract .......................................................................................................................................... ii Preface ........................................................................................................................................... iii Table of contents .......................................................................................................................... iv List of tables................................................................................................................................. vii List of figures .............................................................................................................................. viii List of acronyms ........................................................................................................................... ix Acknowledgements .................................................................................................................... xiii Chapter 1 Introduction................................................................................................................. 1 Key questions .................................................................................................................................. 3 ASEAN as a case study of the emergence and evolution of norms ................................................ 4 Research methodology: a case study approach ............................................................................... 8 Structure of the dissertation .......................................................................................................... 12 Chapter 2 Analytical framework: regional norms and legitimacy ........................................ 14 Studying the processes of norm evolution .................................................................................... 14 The study of international organizations....................................................................................... 16 The study of norms ....................................................................................................................... 22 The study of regional organizations and regional norms .............................................................. 27 Existing approaches to normative change in a regional institutional context ............................... 30 Legitimacy .................................................................................................................................... 34 ASEAN and legitimacy................................................................................................................. 45 Conclusion .................................................................................................................................... 55 Chapter 3 Case study: ASEAN .................................................................................................. 56 Introduction: the ASEAN Charter ................................................................................................ 56 The emergence and evolution of ASEAN norms ......................................................................... 59 Institutional form .......................................................................................................................... 62 Constitutive norms ........................................................................................................................ 65 Procedural norms .......................................................................................................................... 72 Whither ASEAN norms? .............................................................................................................. 75 Challenges to ASEAN norms ....................................................................................................... 76 Conclusion .................................................................................................................................... 92 iv Chapter 4 The ASEAN Charter ................................................................................................ 94 Origins of the ASEAN Charter ..................................................................................................... 94 The Eminent Persons Group and high expectations ................................................................... 103 The High Level Task Force and drafting the ASEAN Charter ................................................... 114 The final text of the Charter ........................................................................................................ 121 Reactions to the Charter .............................................................................................................. 129 Conclusion .................................................................................................................................. 137 Chapter 5 Regional norms and legitimacy: democracy in ASEAN ..................................... 139 Political systems of ASEAN member states ............................................................................... 141 ASEAN and ‘democracy’ after enlargement .............................................................................. 152 ‘Democracy’ and the ASEAN Community ................................................................................ 155 References to democracy and the ASEAN Charter .................................................................... 161 The meanings of ‘democracy’ in the ASEAN context ............................................................... 168 ‘Democracy’ in the Charter and domestic political legitimacy .................................................. 173 Democracy in the Charter and external regional legitimacy ...................................................... 190 Conclusion .................................................................................................................................. 193 Chapter 6 Regional norms and legitimacy: human rights in ASEAN ................................. 195 The meaning of ‘human rights’ in the ASEAN context ............................................................. 197 References to human rights in ASEAN ...................................................................................... 202 The Eminent Persons Group and human rights .......................................................................... 205 The High Level Task Force and human rights............................................................................ 206 Member states and ‘human rights’ in the Charter ....................................................................... 214 ‘Human rights’ in the Charter and external regional legitimacy ................................................ 228 Conclusion .................................................................................................................................. 237 Chapter 7 Conclusions: findings, contributions and future research .................................. 239 Norms and normative contestation ............................................................................................. 240 Legitimacy .................................................................................................................................. 243 The importance of domestic context ........................................................................................... 247 Implications for the future of ASEAN norms ............................................................................. 250 The role of Secretariat officials................................................................................................... 254 The ASEAN Intergovernmental Commission on Human Rights ............................................... 258 Events in Myanmar ..................................................................................................................... 262 Broader implications and future research ................................................................................... 264 Conclusion: contributions ........................................................................................................... 268 v Bibliography .............................................................................................................................. 272 Appendices ................................................................................................................................. 304 Appendix A Chronology of the ASEAN Charter ....................................................................... 304 Appendix B Members of the Eminent Persons Group on the ASEAN Charter ......................... 309 Appendix C Members of the High Level Task Force on the ASEAN Charter........................... 310 Appendix D Interviews ............................................................................................................... 312 Appendix E Charter of the Association of Southeast Asian Nations.......................................... 314 vi List of tables Table 1 Political systems of ASEAN member states .................................................................. 114 vii List of figures Figure 1 Excerpts from the ASEAN Charter: democracy .......................................................... 163 Figure 2 Excerpts from the ASEAN Charter: human rights ....................................................... 213 viii List of acronyms AEC ASEAN Economic Community AFTA ASEAN Free Trade Area AHRB ASEAN human rights body AICHR ASEAN Intergovernmental Commission on Human Rights AMM ASEAN Ministerial Meeting APEC Asia Pacific Economic Cooperation APR Asia Pacific Roundtable APSC ASEAN Political-Security Community APT ASEAN Plus Three ARF ASEAN Regional Forum ASC ASEAN Security Community ASCC ASEAN Socio-Cultural Community ASEAN Association of Southeast Asian Nations ASEAN-ISIS ASEAN Institutes of Strategic and International Studies ASEAN SOM ASEAN Senior Officials Meeting ASPCA ASEAN Security Community Plan of Action AU African Union CLMV Cambodia, Laos, Myanmar and Vietnam CMI Chiang Mai Initiative CPP Cambodian People’s Party CPV Communist Party of Viet Nam CSIS Centre for Strategic and International Studies (Jakarta) CSO Civil society organization ix DPL Domestic regional legitimacy EAS East Asia Summit EC European Community EPG Eminent Persons Group ERL External regional legitimacy EU European Union EUSA-AP European Union Studies Association of Asia Pacific FDI Foreign direct investment FTA Free Trade Agreement GDP Gross Domestic Product HLP High Level Panel on an ASEAN Human Rights Body HLTF High Level Task Force (on the ASEAN Charter) HPA Hanoi Plan of Action ICCPR International Covenant on Civil and Political Rights ICESCPR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice IISS International Institute for Strategic Studies INTERFET International Force for East Timor IO International organization IR International relations IRL Internal regional legitimacy ISA Internal Security Act ISEAS Institute of Southeast Asian Studies (Singapore) ISIS Institute of Strategic and International Studies (Malaysia) x JCIE Japan Centre for International Exchange KOMNAS HAM Komisi Nasional Hak Asasi Manusia (Indonesia’s human rights body) LPRP Lao People’s Revolutionary Party MAPHILINDO Malaysia, the Philippines and Indonesia group NAFTA North American Free Trade Area NGO Nongovernment organization NLA National Legislative Assembly (Thailand) NLD National League for Democracy (Myanmar) OAS Organization of American States OCIS Oceanic Conference on International Studies ORL Outsider regional legitimacy OSCE Organization for Security and Co-operation in Europe PAP People’s Action Party (Singapore) PMC Post-Ministerial Conference RO Regional organization ROK Republic of Korea RSIS S. Rajaratnam School of International Studies (Singapore) SAPA Solidarity for Asian People’s Advocacy SARS Severe Acute Respiratory Syndrome SIIA Singapore Institute of International Affairs SPDC State Peace and Development Council (Myanmar) TAC Treaty of Amity and Cooperation TNI Tentara Nasional Indonesia (Indonesian army) TOR Terms of Reference xi UMNO United Malays Nationalist Organisation (Malaysia) UN United Nations UNGA United Nations General Assembly UNTAC United Nations Transitional Authority in Cambodia US United States of America VAP Vientiane Action Programme WHO World Health Organization ZOPFAN Zone of Peace, Freedom and Neutrality xii Acknowledgements First and foremost I would like to thank my dissertation supervisor, Professor Brian Job. Brian also supervised my MA thesis and was extremely influential on my decision to undertake a PhD and indeed, to become an academic. His infinite guidance, encouragement, wisdom and enthusiasm has profoundly influenced my development as an academic and as a person. I extend heartfelt thanks to Professor Diane Mauzy, who was also heavily involved in both my MA and PhD theses. Professor Mauzy’s extensive knowledge of Southeast Asia, and her experience, advice and guidance have been tremendously helpful. Thank you also to Professor Katia Coleman, whose role on my dissertation committee has been profoundly valuable. Her theoretical rigour and research experience have contributed much to my dissertation. Other UBC faculty have been insightful, supportive and encouraging. In particular I would like to thank Lisa Sundstrom, Fred Cutler, Alan Jacobs, Ben Nyblade, and Angela O’Mahony. Josephine Calazan has provided much support and good cheer. A number of individuals and institutions supported my fieldwork in Southeast Asia. In particular, the S. Rajaratnam School of International Studies (RSIS) in Singapore provided me with a visiting fellowship and thus an institutional base in the region. See Seng Tan, Mely Caballero-Anthony, and Chris Roberts welcomed me to the RSIS and helped me to utilize my time there effectively. Chris and Thu: thank you so much for introducing me to Singapore, and for welcoming me into your home! The Institute of Southeast Asian Studies, also in Singapore, provided me with access to its very useful library. The Centre for Strategic and International Studies in Jakarta and the Institute for Strategic and International Studies in Kuala Lumpur helped me to obtain interviews in those cities. Thank you to all those who agreed to be interviewed (listed in Appendix D). Several colleagues and friends at UBC, the University of Melbourne and elsewhere have provided encouragement and advice, and some read parts of the dissertation and provided useful feedback. In particular, thank you to Nevin Aiken, Katie Boothe, Scott Brenton, Robyn Eckersley, Adrian Little, Tim Lynch, Kate Macdonald, Terry Macdonald, Clare McGovern, Laura Montanaro, Sana Nakata, Janine O’Flynn, Siobhan O’Sullivan, Hilary Pearse, Chris Roberts, Helen Sullivan, Pradeep Taneja, Alana Tiemessen, Nicholas Thomas, George Vasilev and Erin Williams. I sincerely thank my family. My mother, Pamela, has been a constant source of encouragement and strength. John, Hilary and Diana have been so supportive and always help me not to take myself too seriously. A huge thank you to my extended family and friends, both in Australia and Canada. Finally, I thank Riley for his love and support. xiii Chapter 1 Introduction As the fortieth anniversary year of the Association of Southeast Asian Nations (ASEAN) 1 drew to a close, its leaders signed their first Charter, and hailed it as a ‘milestone’ for regional cooperation. It was intended to reinvigorate ASEAN, and make it more relevant and cohesive. The Charter, signed at the Thirteenth ASEAN Summit in Singapore on November 20, 2007, was designed to provide the ‘legal and institutional framework’ for ASEAN, and to give it a ‘legal personality’. Among the ‘purposes’ of ASEAN set out in the Charter is to ‘strengthen democracy’ and to ‘promote and protect human rights and fundamental freedoms’ (ASEAN, 2007a, Article 1). Similarly, the Charter sets out the ‘principles’ of ASEAN, including ‘adherence to…the principles of democracy and constitutional government’ and ‘respect for…the promotion and protection of human rights’ (Article 2). The Charter also provides for the establishment of an ASEAN human rights body (Article 14). This raises an empirical puzzle given the prominence in, and reiteration of, the norms of sovereignty and ‘non-interference in the internal affairs of one another’ in ASEAN declarations and agreements (including the Charter). Moreover, the significant political, ethnic, cultural and religious diversity among member states raises questions about the Charter’s references to democracy and human rights; this diversity has traditionally been used to explain the absence of a role for ASEAN in promoting the convergence of values or particular political ideals or regime types (in contrast with, say, the European Union (EU)). Indeed, ‘unity in diversity’ has been a 1 ASEAN was established in 1967 by Indonesia, Malaysia, the Philippines, Singapore and Thailand, and has since expanded to include ten member states. Brunei Darussalam was admitted in 1984, followed by Vietnam (1995), Myanmar (1997), Laos (1997) and Cambodia (1999). Timor-Leste (which gained independence in 2001) is due to become a member at some stage, upon further economic and political development. 1 common theme of ASEAN dialogue. Given this diversity and the predominance of the norms of sovereignty and non-interference, why did ASEAN member states adopt text in the 2007 Charter referring to democracy and human rights? Further, why was the debate about the references to human rights more heated and extensive than that about the references to democracy? In this dissertation, I trace the negotiations leading to the ASEAN Charter, concentrating on the period 1993 to 2007. I focus on the processes through which ten member states with significantly diverse identities, interests and practices accepted references to democracy and human rights as among the purposes and principles of ASEAN, as well as a provision in the Charter to establish an ASEAN human rights body. I argue that perceptions of legitimacy influence states’ positions on regional ‘normative statements’ (statements about norms made in official text, such as regional declarations). As we will see, the adoption of the Charter highlights the diverse understandings of norms by ASEAN member states. An exploration of the various actors’ perceptions of legitimacy will help us to understand this environment of ‘normative contestation’. I argue that regional norms are shaped by competing perceptions of legitimacy. More specifically, the emergence and evolution of regional norms are shaped by political elites’ perceptions of how members of a regional organization (RO) view the legitimacy of the RO and its norms (which I call ‘internal regional legitimacy’), which are in turn shaped by elites’ perceptions of how their societies regard the legitimacy of their national governments (‘domestic political legitimacy’). Regional norms are also shaped by members’ beliefs about, or 2 interpretations of, the legitimacy of the RO and its norms as perceived by those outside the region (‘external regional legitimacy’). Key questions This dissertation explores the following key questions: First, why and how do norms emerge and evolve among states in a regional institutional context? Second, which norms of a regional organization (RO) are regarded by member states and other actors (such as other states, other organizations, non-government groups and individuals) as ‘legitimate’, and why? Finally, does the adoption of normative statements by members of a RO represent normative change (i.e. change in normative standards)? What can the case study of ASEAN’s formation of its Charter tell us about this? In this study I refer to the norms of a RO as ‘regional norms’. The terms ‘region’ and ‘RO’ are not necessarily synonymous. However, in my case study, ASEAN is the primary intergovernmental entity of the Southeast Asian region, and its membership comprises all Southeast Asian states except for Timor-Leste. Thus, ‘region’ and ‘RO’ are effectively synonymous for the purposes of discussing ASEAN. (This will be discussed in greater detail in Chapter 2.) A further distinction to note here is that statements by ROs, such as declarations, communiqués and charters, are recognised as statements of norms. Thus, I am exploring the perceived legitimacy of the norms to which such statements refer. 3 ASEAN as a case study of the emergence and evolution of norms The dissertation explores the emergence and evolution of ASEAN norms. The adoption in the 2007 Charter of references to democracy and human rights involved distinct sets of debates and negotiations. Further, there was significantly more debate about the provision to establish an ASEAN human rights body (AHRB) than about the references to democracy. I explore the context of these negotiations, and compare and contrast notions of democracy and human rights as they are variously interpreted by relevant actors in the context of Southeast Asian regional institutions. This comparison allows me to explore the ways in which various (often competing) perceptions of legitimacy shape regional norms. This case study provides an interesting theoretical puzzle which allows us to consider how the interaction of member states with each other and with other actors, including non-state actors and actors outside the region, affects regional institutional developments such as the adoption of text through declarations by member states. ASEAN member states agreed to make normative statements about democracy and human rights, after a period of debate, negotiation and drafting. To the extent that evidence of these processes are available, they can be examined with a view to exploring the motivations, priorities, and beliefs of representatives of particular member states. These differed significantly, despite the fact that decisions regarding the text of their normative statements were ultimately made by consensus (reflecting the ‘ASEAN Way’). It follows that some states were more supportive than others of the normative statements made in the ASEAN Charter. As such, I explore any possible links between states’ positions and their 4 domestic political circumstances. For example, Indonesia has emerged as a vocal supporter of a role for ASEAN in promoting democracy and human rights (Kraft, 2005: 4). The Indonesian Foreign Ministry wanted the ASEAN Charter to reflect the values which have become important in Indonesia. Officials from Thailand and the Philippines were active in pushing for change on the issue of human rights in ASEAN, which is ‘generally explained in terms of these officials’ adherence to liberal democratic values’ (Kraft, 2005: 4). On the other hand, other states were more resistant to the inclusion of normative statements about democracy and human rights in the Charter, and again, I explore whether their positions can be understood with reference to their domestic political circumstances. Upon the signing of the Charter, ASEAN Member States declared that they had ‘codified organic Southeast Asian diplomacy’ (ASEAN, 2007b). However, such a statement must be interpreted in the context of the importance of consensus and presenting a united front; it should not be taken as prima facie evidence that all member states support a shift towards a more institutionalized or ‘rules-based’ organization. Indeed, there is evidence that certain elements of the Charter are viewed by some member states as challenges to the norms of non-interference and the ASEAN Way. There is resistance from some states and state agents keen to preserve the traditional understandings of ASEAN norms. The potential challenges to the norms of sovereignty and non-interference – particularly those posed by the suggestion of an ASEAN human rights body – were bound to provoke contention and debate. Thus, the drafting and adoption of the Charter have reinvigorated ongoing debates about ASEAN, particularly the relevance and effectiveness of its traditional normative underpinnings. 5 In particular, observers have raised the possibility of the Charter providing a legal basis for ASEAN’s increased involvement in the internal affairs of its member states, challenging the norm of non-interference. This has implications for the dynamics of relations among member states, particularly given that some are more likely than others to be subject to scrutiny of their human rights records and political circumstances. The case of ASEAN provides an example of normative contestation; there are explore tensions between and among established ‘constitutive’ and ‘procedural’ norms among members. Several scholars are skeptical about prospects for meaningful regional cooperation in Southeast Asia, given what they regard as an inherent tension between state sovereignty and the building of strong regional institutions (for example, Narine, 2004: 437; Jones, 2008a: 744-5; Jetschke & Rüland, 2009). While ASEAN has consistently reiterated the importance of sovereignty and non-interference (and thus explicitly distinguished its style of regionalism from, say, the EU), many observers are doubtful that this ‘experiment in regional cooperation’ (Acharya, 2009: 6) will ever be given ‘teeth’ by its member states. My exploration of the dialogue and negotiations leading to the signing of ASEAN’s first Charter will provide insights about the evolution of the Association and highlight implications for its future. This study focuses on the negotiations, dialogue and drafting processes in the lead-up to the Charter’s adoption in November 2007. Shortly thereafter, a High Level Panel on an ASEAN Human Rights Body (HLP) was convened, and the ASEAN Intergovernmental Commission on Human Rights (AICHR) – not a ‘body’, in the end – was launched on October 24, 2009 6 (ASEAN, 2009a). The AICHR will be discussed further in Chapter 7; however, my study does not examine in detail the interactions and negotiations after the Charter that led to its creation. In this dissertation, I will examine the adoption of the ASEAN Charter to yield insights into the abovementioned key questions. In doing so, I draw upon other regional contexts for insights and to advance the study of comparative regionalism. Only relatively recently have some scholars begun to suggest that regional comparative analysis is a useful endeavour (e.g. De Lombaerde et al, 2010; Jetschke & Murray, 2009; Acharya & Johnston, 2007; and Beeson, 2005).2 They recognize the value of comparing and contrasting regions, and the possibility of marking generalizations across ROs. Traditionally, scholars have tended to focus on a particular region, treating it as idiosyncratic – an approach which Acharya & Johnston (2007) call ‘regional exceptionalism’ (3). ASEAN scholars, for example, have typically regarded the Association’s eschewing of the formal rules, decision-making processes and enforcement mechanisms observed in other ROs as justifying its treatment as unique. While this approach has its merits, the institutional design of ROs should not be interpreted as entrenched or static; we should remain attuned to change over time. For example, the ASEAN Charter is purportedly intended to move ASEAN from a ‘loosely organised regional body to a rules-based international organisation’ (ASEAN, 2008a). This suggests, prima facie, that we should treat ROs as dynamic and able to evolve over time, and thus that research into particular 2 Johnston (2005) has noted the ‘almost nonexistent’ work on comparative regional institutional studies (1036). Acharya’s & Johnston’s (2008) volume responds to this gap, undertaking a systematic comparative regional analysis, with a focus on institutional design and its relationship to regional cooperation. The volume compares and contrasts the features of various regional institutional institutions, including membership; scope; formal rules; norms and ideology; and mandate. The contributors’ case studies are the EU, ASEAN, League of Arab States, OAS and the AU. The volume thus provides a useful typology of regional institutional design. 7 ROs may be compared. This does not mean ‘assuming away’ the inevitable differences in historical, cultural, political and economic contexts amongst the member states of different ROs. Indeed, it is only through comparative analysis that claims of uniqueness can be ‘disaggregated’: in which respects may a particular RO be regarded as unique? While I recognize that in some respects the context of ASEAN and the Southeast Asian region is unique, I am looking to contribute to regional comparative analysis as well. Such scholarship is not likely to seek to form strong causal statements that are ‘generalizable’ across regions; rather, it should (at least in its early stages) remain driven by empirical puzzles arising in various regional contexts. As George & Bennett (2005) note, the combination of ‘within-case analysis’ and ‘cross-case comparisons’ can be useful in developing ‘middle-range typological theories’, which propose contingent and specific generalizations (rather than general and abstract general theories or ‘covering laws’) (7-8). Research methodology: a case study approach The dissertation utilizes a case study approach. This involves ‘the detailed examination of an aspect of a historical episode to develop or test historical explanations that may be generalizable to other events’ (George & Bennett, 2005: 5). As such, it is useful for conducting research in an area which is theoretically underdeveloped. The dissertation will use explore or ‘map’ the negotiations leading to the adoption of the ASEAN Charter in 2007. The period of observation in this research is approximately fourteen years (1993-2007), although it concentrates in particular on the latter four years (2003-07). As will be discussed in more detail in Chapter 4, 8 references to human rights first appeared in (official) ASEAN discourse in 1993, shortly after the World Conference on Human Rights in Vienna. The references to democracy came later, in the 2003 Bali Concord II signed at the Ninth ASEAN Summit. The last four years (2003-07) of the period under investigation provide specific opportunities to investigate the evolution of norms and considerations of legitimacy within the ASEAN context. The dissertation engages in ‘process tracing’, a method that is useful for theory-oriented explanation (Hall, 2006: 24). Process tracing is used to ‘trace the links between possible causes and observed outcomes’ (George & Bennett, 2005: 6). It is a useful approach to identify the intervening causal process through which these outcomes arise. The focus is on ‘elucidating the process whereby the relevant variables have effects’ (Hall: 25). The method involves formulating theories about the process by which an outcome is caused; deriving predictions about the patterns that will appear if the theories are valid (and if they are false); making observations3; and drawing conclusions (Hall: 27-8).4 However, I am cautious about making causal claims. First, process tracing often reveals a complex, multifaceted array of factors rather than a clear causal chain, which is unsurprising in a complex empirical puzzle. Second, this dissertation privileges agency. Rather than making grand statements about structural conditions (for example, ‘democratic rule in a member state 3 According to Hall, observations may include ‘ones about the events that can be expected to occur if a theory is valid, the sequence of those events, the specific actions taken by various types of actors, public and private statements by those actors about why they took those actions, as well as other observations designed to establish whether the causal chain that each theory anticipates is present in the cases’ (28). 4 This is clearly an ‘interpretive’ analytical approach. Interpretivist approaches ‘derive meaning by looking at the context of an action or event and its connection to a surrounding set of actions, events, and interpretations’ (Gerring, 2003: 2). 9 leads to that state’s promotion of democracy as a regional norm’), it highlights that key individuals, decisions and events are crucial in the shaping of regional norms. Thus, I seek to identify and understand the array of causal factors interacting over time, given the complex nature of the empirical case. The relevant observable ‘outcomes’ in the primary case study are the ‘steps’ – decisions and statements regarding norms and norm change as observed at particular time points – in the period leading up to the adoption of the ASEAN Charter, as well as the content of the Charter itself. To the extent that the Charter includes the proposed provisions regarding democracy, unconstitutional or undemocratic changes of government, and human rights, the project will proceed by asking: how and why did the observable outcome arise? The dissertation will trace the processes through which ideas (new norms, changes in norm statements) are initially proposed and advanced, and eventually emerge (or do not emerge) in some possibly different form in agreed-upon text (such as declarations or constitutive instruments). The dissertation examines the arguments and positions of various member state representatives, as well as those of researchers, analysts and interested observers, during the period under examination. The evidence used in the dissertation comes from various sources, including interviews conducted in 2008-9; ASEAN documents including Joint Communiqués, reports, declarations, and press releases, available on the ASEAN website; news articles both within Southeast Asia and elsewhere; analysis by research institutes in Southeast Asia; academic journal articles and books; and email correspondence. These materials were collected over the period 2005 to 2012, in library-based research conducted primarily in Vancouver, Canada, and during 10 research trips to Singapore, Malaysia and Indonesia. I spent four months in Singapore in late 2008 as a base from which to conduct interviews in Southeast Asia. During this time, I also utilized the library resources of the S. Rajaratnam School of International Studies (RSIS), and the Institute for Southeast Asian Studies (ISEAS, which is the primary depository for research on ASEAN). I made several other short trips to Singapore and Malaysia to attend conferences and the Asia Pacific Roundtable (APR), held annually in Kuala Lumpur. I conducted face-to-face interviews with nineteen individuals, and consulted four others via email. Interviewees (listed in Appendix D) included officials of foreign ministries in ASEAN member states; current and former ASEAN Secretariat officials; several individuals from the various ASEAN Institutes of Strategic and International Studies (ASEAN-ISIS); researchers from other regional institutes, such as the RSIS, ISEAS and the Asia office of the International Institute for Strategic Studies (IISS); academics at universities in Southeast Asia; and members of other research groups and nongovernmental bodies. Thus, all interviewees were interviewed in their professional capacities. Interviewees were selected on the basis of their direct or indirect involvement with official ASEAN dialogue, especially the drafting of the ASEAN Charter; their knowledge of the subject matter; and/or their own research activities on the subject matter (refer to Appendix D for further discussion). I have also had useful discussions with government officials, ASEAN Secretariat officials, researchers and academics at various meetings and conferences, including the aforementioned APR; the European Union Studies Association – Asia Pacific (EUSA-AP); the Oceanic Conference on International Studies (OCIS); and the International Studies Association (ISA). 11 These included discussions with Surin Pitsuwan, the (at the time of writing) current ASEAN Secretary-General, and foreign and defence ministry staff from various ASEAN states and states in the broader Asia-Pacific region. I have received insightful feedback while presenting excerpts of this dissertation as conference papers at the EUSA-AP, OCIS, ISA and other conferences, held in Canada, the United States, Singapore, Australia, New Zealand and the United Kingdom. My work has also benefited from discussions with colleagues at The University of Melbourne, particularly at a public lecture I delivered for the University’s Centre for Public Policy in September 2012. Structure of the dissertation Chapter 2 establishes the analytical framework for the study, defining key concepts and situating the dissertation in the existing literature. Chapter 3 then reviews the history of ASEAN and traditional understandings of ASEAN norms, and the challenges to those norms as the Association has expanded and faced various crises. Chapter 4 explores the decision to create an ASEAN Charter, in the context of the discussions about an ‘ASEAN Community’, and the need for ASEAN to become more relevant, cohesive and competitive. It then examines the role of the Eminent Persons Group (EPG) in making recommendations for the Charter (in December 2006), and acting as a ‘norm entrepreneur’ in the process. It goes on to consider the work of the High Level Task Force (HLTF) in drafting the Charter (during 2007), and in particular, the heated debate about the ASEAN human rights body. The Charter itself (signed in November 2007) is examined, with particular attention to the references to democracy and human rights, but also to the organizational and structural changes and continuities within ASEAN. 12 Chapters 5 and 6 analyze in more depth the references to democracy and human rights respectively. Both chapters examine the arguments and positions of various member state representatives, and the ways in which they influenced the shaping of the text of the Charter. The domestic political context of each member state is considered in Chapter 5, and inferences are made about the relationship between and among domestic, internal and external legitimacy. Chapter 6 extends this analysis to consider the positions of each member state in regard to the preferred role of ASEAN vis-à-vis human rights in the region. Chapter 7 draws conclusions from the study, sets out the contributions of the dissertation, and suggests directions for future research. 13 Chapter 2 Analytical framework: regional norms and legitimacy This chapter will outline the analytical framework for the dissertation. It begins by introducing this framework, and situating my approach in the literatures of international organizations, regional organizations and norms. I then consider the meaning of ‘regional norms’, and questions regarding the interpretation of regional declarations. The chapter then explains the concept of ‘legitimacy’ as I have conceptualized it in this dissertation, and the ways in which understanding member states’ interests and concerns in regard to legitimacy helps us to explore some important questions in the study of regional organizations. In particular, the concept of legitimacy can be used to explore the extent to which the adoption of ‘normative statements’ in official text (such as regional declarations) represents changes in norms. The ASEAN Charter – a purported effort to enhance multilateral cooperation and regionalism – provides a useful case study, which will be explored in the subsequent chapters. Studying the processes of norm evolution In this dissertation, I envisage processes of the emergence and evolution of norms in a regional institutional context. I am particularly interested in the processes through which regional organizations (ROs) make ‘normative statements’. We will consider how these processes begin and develop. For example, ‘norm entrepreneurs’ may propose and advance an idea, to which member states eventually refer in a normative statement. This may be motivated by changes in the domestic political context of a member state or states which lead its representatives to advance certain ideas in official RO dialogue, and (possibly) to the formulation of a new 14 normative statement by the RO. Another possibility is that external criticism and/or pressure in regard to a particular issue (such as human rights) provides the impetus for the RO to make a normative statement. We will examine empirical evidence to test these hypotheses. One may expect a normative statement to be followed by a change in behaviour. However, this cannot be assumed. There are various possibilities in regard to what follows a normative statement made by a RO. One scenario may be that a normative statement is followed by a change in behaviour which indicates that the idea has become a normative ‘standard’. This does not necessarily mean that there was no normative contestation during this process; there may well be tension among norms, as new ideas are introduced, advanced and debated. Given the empirical evidence in regard to the case study of ASEAN, we would expect to see normative contestation in response to the introduction of references to democracy and human rights in the Charter. The challenges to several traditional interpretations of ASEAN norms point to an environment of normative contestation which was evolving before the Charter was drafted. Moreover, the empirical puzzle outlined in Chapter 1 points to diverse understandings of norms by ASEAN member states. The introduction of new ideas – such as the notion that ASEAN should pay increased attention to the domestic affairs of its member states, and that there should be an ASEAN human rights body – precipitates a further set of challenges to ASEAN norms. I will argue that the formulation by ASEAN of a normative statement in the Charter is best understood with reference to perceptions of ‘legitimacy’ – particularly what I have termed 15 domestic political legitimacy (DPL), internal regional legitimacy (IRL), and external regional legitimacy (ERL). These perceptions of different types of legitimacy explain the positions that various member state representatives took on the references to democracy and human rights in the Charter, and have implications for how we interpret the significance of the Charter generally. We will explore how member states’ various perceptions of DPL, IRL and ERL shape their positions on the negotiations leading to normative statements. The study of international organizations Definitions This dissertation takes an approach to international organizations (IOs) that recognizes ideational factors and sociological dynamics in international relations (IR). It defines IOs as formal structures created by multilateral agreements among states, in order to pursue cooperation in some areas (such as security, trade, economic integration, international law or diplomacy). IOs have a permanent secretariat and regular meetings, and hence have a ‘physical presence’. While the purpose, structure, capacity and resources vary, all IOs are ‘fundamentally formal arenas of regular state interaction created by interstate agreements and sustained by at least a minimal organisational structure’ (Coleman, 2007: 7). However, this interaction gives rise to sociological dynamics which may transcend the formal institutions of the IO. Accordingly, the literature on IOs extends beyond formal organizations, to include ‘international institutions’ more generally (Martin and Simmons, 1998: 729). This broader approach goes beyond formal arrangements and rules; it allows for sociological perspectives that recognize, for 16 example, that state interests may be shaped by interaction, rather than simply reflecting the rational and utility-maximizing nature of the state. Koremenous, Lipson and Snidal (2001) define ‘international institutions’ as ‘explicit arrangements, negotiated among international actors, that prescribe, proscribe, and/or authorize behavior’ (762). Keohane (1988) defines institutions as ‘persistent and connected sets of rules that prescribe behavioural roles, constrain activity, and shape expectations’ (386). The terms ‘institution’ and ‘organization’ are often used interchangeably in IR scholarship, but the former does not necessarily have a physical presence. This dissertation will use the term IO, with the understanding that the term ‘international institutions’ may be used to describe organizations as viewed from a sociological perspective. It is also useful to define ‘institutionalization’ and ‘legalization’ (given that ASEAN is an organization characterized by low levels of institutionalization and legalization, and also given that ASEAN refers to its Charter as providing a ‘legal and institutional framework’). ‘Institutionalization’ refers to the degree to which rules regulate (or attempt to regulate) the behaviour of actors. Goldstein et al (2000) state that greater institutionalization implies that institutional rules govern more of the behavior of important actors – more in the sense that behavior previously outside the scope of particular rules is now within that scope or that behavior that was previously unregulated is now more deeply regulated (387). A more ‘thickly’ institutionalized environment has rules with a broader scope, i.e. that regulate behaviour to a greater degree. This notion that institutionalization has degrees (i.e. it can be ‘thicker’ or ‘thinner’) is useful for the analysis of ASEAN’s history and norms. 17 Goldstein et al (2000) define ‘legalization’ as ‘a set of dimensions along which institutions vary’, with three criteria: ‘the degree to which rules are obligatory, the precision of those rules, and the delegation of some functions of interpretation, monitoring, and implementation to a third party’ (387). As such, ‘fully legalized institutions bind states through law’, and their rules ‘unambiguously define the conduct they require, authorize, or prescribe’ (387). In contrast to the more highly institutionalized and legalized European region, ASEAN has traditionally eschewed formal rules and practices, and the ‘legalistic’ style of Western institutional structures more generally. Kahler (2000) perceives this as reflected in the Asia-Pacific region generally: If Europe and North America provide an implicit benchmark for high legalization, the Asia-Pacific region offers an important example of low legalization and possibly an explicit aversion to legalization…More important, those regional institutions constructed with significant Asian participation remained highly informal and explicitly rejected legalization in their design (549). Legalization is thus a useful concept for considering ‘binding-ness’ – the extent to which rules are considered binding or otherwise. This brings us to the definition of ‘rules’, upon which several of the aforementioned concepts rely. In IR, the term ‘rules’ is often used but seldom defined. In his seminal study of regimes, Krasner (1983) defines rules as ‘specific prescriptions and proscriptions for action’ (2). At face value, this implies that rules set out permissible and non-permissible action. In the context of IOs, rules are generally taken to mean the regulations governing conduct (or action) within a 18 particular IO. These rules are assumed to be agreed upon by members of the IO, which are then expected to abide by them. It is important to note, however, that all rules are not necessarily always binding and enforceable – in other words, they are not necessarily ‘hard law’. Rather, as Davidson (2009) points out, ‘Rules may vary from non-binding commitments to binding obligations, from vague to precise’ (232). Thus, they exist on a broader spectrum than laws. Although this approach to rules implies that we may regard ASEAN as having rules despite its low level of institutionalization and legalization, most studies of ASEAN regard it as based on norms rather than rules. ASEAN itself traditionally avoids employing the term ‘rules’ and emphasizes instead the ‘norms’ that are agreed upon by consensus and recognize sovereignty and equality of member states (in other words, they do not imply the ‘imposition’ of ‘specific prescriptions and proscriptions for action’). We must also define ‘norms’. I use the common definition of norms as shared expectations of behaviour, or ‘standard[s] of appropriate behaviour for actors with a given identity’ (Katzenstein, 1996: 5; Finnemore & Sikkink, 1998: 891). I focus on norms in a regional institutional context. In other words, the actors that share these expectations are actors in a particular regional organization (RO), and the ‘given identity’ is as a member state in that RO (this will be discussed further below). Some norms are articulated formally, in written and/or verbal form, while others are not explicitly ‘declared’. The sociological approach to the study of IOs lends itself to the exploration of ‘norms’ in IOs. IOs are, after all, essentially collections of actors with ‘shared expectations of behaviour’ (Finnemore, 1996a: 22). In other words, expectations of behaviour can exist in the absence of formal rules. A central premise of this dissertation is that norms, 19 whether formally articulated or not, ‘matter’ in the study of state interaction in a multilateral setting. My approach My exploration of the processes of social construction of norms is most closely identified with constructivist approaches. However, my approach is somewhat ‘analytically eclectic’, to paraphrase Katzenstein & Okawara (2001/02); it recognizes the relevance of both neoliberal institutionalist and English School insights for this (broadly constructivist) project. For constructivists, taking a more sociological perspective, IOs may represent the convergence of ‘norms’ and values through interaction among states and other actors over time (e.g. Wendt, 1999; Finnemore & Sikkink, 1998). I focus on the norms forming a code of conduct for interstate relations within the IO, as well as the norms of the IO itself (its capacity, functions and procedures). Thus, my approach in this dissertation recognizes the importance of the interaction of member states in an IO. Undertaking a study of the interaction of states in a regional institutional context presupposes that IOs ‘matter’. From this perspective, rather than existing solely to address cooperation problems, or to fulfill a particular function, IOs can ‘create senses of community and belonging beyond the nation state’ (Checkel, 2007: vii). My approach contrasts most sharply with the views of realists, who tend to be skeptical that IOs are anything more than arenas in which states pursue their own interests, and believe that the condition of anarchy – the absence of any political authority above the sovereign state – cannot be overcome (e.g. Mearsheimer, 1994; Grieco, 1988). My perspective is closer to those of the neoliberal institutionalists, for whom IOs can reduce transaction costs and uncertainty, and 20 enable the pursuit of mutual interests and positive-sum gains for states (e.g. Keohane, 1988; Martin & Simmons, 1998; Martin, 1992). They tend to emphasize rules that regulate the behaviour of states.5 I do not, however, necessarily agree with Coicaud (2001) that IOs have the obligation to go beyond the limitations of each member state…to bring about a culture of mutually recognized values and rules, of common appeal and welfare, [and] to rise above states’ narrow and self-interested outlook (523). From this perspective, IOs enable sovereign states to cooperate, by establishing rules and facilitating agreements, and providing an environment for interaction. I disagree that IOs are necessarily ‘bigger than the sum of their parts’, or that they inevitably become more significant as actors in their own right over time. In some IOs, including ASEAN, the ‘obligation’ mentioned by Coicaud does not exist; rather, the locus of decision-making remains with the member states. As such, it cannot be assumed that the ‘culture’ mentioned by Coicaud will indeed be realized. Thus, I do not assume convergence of norms and values in IOs.6 There may be instrumental benefits to cooperation in multilateral organizations that do not precipitate a convergence of norms and values in IOs. As Keohane (2006) notes, 5 For example, Keohane (1988) defines IOs as ‘purposive institutions with explicit rules, specific assignment of roles to individuals and groups, and the capacity for action’ (384). 6 This is based on empirical observations, but is also motivated by the belief that it is important to explore empirical evidence with a consciously non-teleological outlook – one that does not make assumptions about how IOs work or should work. 21 …defining multilateralism in strictly institutional rather than normative terms, makes it possible meaningfully to ask causal questions about whether multilateral institutions promote norms such as those of diffuse reciprocity. Such a definition also facilitates inquiry into whether strictly institutional forms are normatively legitimate (56). Similarly, the pluralist interpretation of the English School is useful here in its ‘thin’ conception of international society. For English School scholars, IOs embody the rules commonly understood by members of international society. They hold that a ‘deep normative consensus is extremely unlikely among the diverse and often deeply divided states of contemporary international society’ (Coleman, 2007: 33). While Coleman refers here to a broader ‘international society’, the point captures a central problématique in studies of institutionalism in Southeast Asia, an incredibly diverse region. Thus, such an approach to IOs allows one to seek to avoid making assumptions about normative convergence that do not represent empirical reality. The study of norms Norms are complex objects of study. Scholars note that, while many empirical studies have been undertaken with a focus on norms, several fundamental questions remain difficult to answer: how does one identify norms, how do they evolve, and which norms ‘matter’? (Acharya, 2004; Finnemore & Sikkink, 1998; Legro, 1997). This dissertation explores these questions in relation to a particular institutional context, ASEAN. 22 The aforementioned definition of norms – as shared expectations of behaviour – may imply that they are ‘static’, and/or synonymous with ‘standards’ or ‘rules’. However, norms evolve over time – they are dynamic – and as such we should remain cognizant of the ‘gradation’ of norms. As Acharya (2006) notes, normative change is likely to be ‘an incremental, evolutionary dynamic’ rather than a ‘dramatic, revolutionary transformation’ (99). There is not necessarily a linearity or unidirectional norm evolution, and indeed, some ideas will never become norms, and some apparent norms may ‘backslide’. As Legro (1997) notes, ‘why norms did not emerge or were not consequential is as important as why they did or were’ (34). Acharya (2004) makes a similar point but draws attention to more outcomes which are more nuanced than a norm either ‘emerging’ or ‘not emerging’; he argues that ‘studies of norm dynamics should account for a range of responses to new norms, from constitutive compliance to outright rejection, and evolutionary and path-dependent forms of acceptance that fall in between’ (242). I agree with Acharya that scholars should not focus only on cases of ‘fundamental normative change’, but explore this ‘range of responses’ (241-2); these cases may provide important explanations for empirical puzzles. Moreover, there can be tensions between and among norms, even within the same ‘community’ or ‘society’. This ‘normative contestation’ is perhaps particularly likely in a situation of political, cultural and historical diversity. As such, as Finnemore & Sikkink point out, ‘new norms never enter a normative vacuum but instead emerge in a highly contested normative space where they must compete with other norms and perceptions of interest’ (897). Thomas (2001) notes that this contestation can exist because ‘every state…has multiple identities, and is beholden to multiple standards of appropriate behavior…[And] there is often extensive overlap 23 and profound contradictions between domestic and international-level logics of appropriateness’ (14-15). Some constructivist scholars have sought to explain when international norms will be more ‘effective’ in this contested normative space (e.g. Legro, 1997; Acharya, 2004).7 Scholars also distinguish between different categories of norms; Finnemore & Sikkink (1998) note that the most common distinction is between ‘constitutive’ norms (which ‘create new actors, interests, or categories of action’) and ‘regulative’ norms (which ‘order and constrain behavior’) (891). Finnemore (1996a) notes that normative effects of the former ‘go deeper’ than the latter; constitutive norms are ‘affirmations of value about the kind of world people wanted and the kind of behavior that was acceptable’ (129). They may also be described as ‘substantive’ or ‘legalrational’ norms (for example, the norm of state sovereignty). In contrast, ‘regulative’ norms are procedural; they regulate decision-making (for example, the norm of decision-making by consensus). We will see in Chapters 3 that the categories of ‘constitutive’ and ‘procedural’ norms help us to identify and distinguish among the various core ASEAN norms. Of course, some norms may not fit neatly into a particular category, and preoccupation with a semantic debate may be of limited analytic utility. It is more productive to ‘unpack’ norms to consider their ‘content’ and implications for the behaviour of actors. We should also distinguish between norms as ‘standard[s] of appropriate behaviour for actors with a given identity’, and norms expressed as formal instruments adopted in official regional declarations (‘normative statements’). The latter may articulate a norm, or it may not amount to 7 Of course, domestic and international norms do not necessarily conflict. As Acharya (2006) notes, the relationship between local and global norms is interactive, and ‘the normative role of institutions may include giving global legitimacy to local norms as well as local legitimacy to global norms’ (96). 24 more than rhetoric. As Chayes and Chayes (1995) note, the term ‘norm’ ‘includes statements that are reduced to writing or some other authoritative formulation as well as informal, tacit, or background norms’ (113). The ‘identification’ of norms (as standards) needs to be treated as an empirical question, rather than something that can be assumed from normative statements (such as declarations by a RO). In other words, we must ask whether a statement represents actors’ views of their expectations of behaviour. It is difficult to gauge at face value whether changes in institutional form, such as the adoption of the Charter, indicates ‘normative change’ (i.e. a change in expectations of behaviour), or something less significant. Thus we should explore the processes through which norms are initially proposed and advanced, and eventually emerge (or do not emerge) in some possibly different form in agreed-upon text (such as declarations or constitutive instruments). How do we begin to explore the emergence and evolution of regional norms? Finnemore and Sikkink (1998) argue that norms evolve in a three-stage ‘life cycle’: ‘norm emergence’, ‘norm cascade’, and ‘internalization’.8 While this is a useful model in regard to conceptualizing the evolution of norms, it focuses on identifying normative standards. This study takes a more nuanced approach by exploring the progression towards adoption of particular text (a normative statement); we can then consider whether, and in what ways, this text represents normative 8 The first stage is characterized by persuasion by ‘norm entrepreneurs’; through socialization, they attempt to persuade others to ‘adhere’ to a new norm (Finnemore & Sikkink, 1998: 895). If they succeed in doing so, a ‘tipping point’ then occurs between the first and second stages if a critical mass of actors ‘accepts’ the norm. Finnemore and Sikkink claim that ‘empirical studies suggest that norm tipping rarely occurs before one-third of the total states in the system adopt the norm’ (901). In the second stage, a ‘norm cascade’ occurs in which ‘more countries begin to adopt new norms more rapidly’, because of active socialization (902). In the third stage, norms are ‘internalized’ by actors and achieve a ‘taken-for-granted’ quality (904). 25 change (i.e. change in normative standards). The meaning and implications of a ‘norm’ declared in text may be interpreted in various ways by different actors. Member states in a RO which operates by consensus must ultimately agree on the wording of the text of a particular declaration or statement, but a common interpretation is not necessary to make this normative statement. For example, the adoption by member states of a normative statement referring to democracy does not necessarily imply that the member states share a common definition of democracy. My approach is suitable for the study of the specific institutional context in ASEAN. In exploring the emergence and evolution of norms, we should consider the agent(s) involved in advancing new norms, or ‘norm entrepreneurs’. Finnemore and Sikkink (1998) note that norm entrepreneurs attempt to convince a critical mass of states (norm leaders) to embrace new norms…Norms do not appear out of thin air. They are actively built by agents having strong notions about appropriate or desirable behavior in their community (895-6). These agents may be states or individuals. Thus, in the context of regional norms, they may be (for example) member states or representatives of those states, and/or individual representatives of the RO. Norm entrepreneurs are, Finnemore and Sikkink argue, crucial to norm emergence because they draw attention to issues or ‘create’ issues by using language that names and interprets them – a process which some scholars call ‘framing’ (e.g. Barnett, 1999; Payne, 2001).9 9 Payne (2001) argues that ‘For the purpose of norm-building, frames provide a singular interpretation of a particular situation and then indicate appropriate behavior for that context... Frames are basic building blocks for the construction of broadly resonant norms and they thereby serve to legitimate normative orders.’ (39). 26 An interesting conundrum arises in the actions of norm entrepreneurs in a context of normative contestation. As Finnemore and Sikkink (1998) note, Efforts to promote a new norm take place within the standards of “appropriateness” defined by prior norms. To challenge existing logics of appropriateness, activists may need to be explicitly “inappropriate”… Thus, at this emergent stage of a norm's life cycle, invoking a logic of appropriateness to explain behavior is complicated by the fact that standards of appropriateness are precisely what is being contested (897-8). In part this is reconciled by acknowledging that logics of appropriateness are dynamic and evolve over time. This may be particularly relevant for this study, given that one could argue that normative contestation, or ‘competing normative terrains’ (Ba, 2009), can be expected in a regional context with diverse members. The study of regional organizations and regional norms Regional organizations (ROs) are created by multilateral agreement among states to provide a formal institutional structure in a regional setting. The term ‘regional organization’ often refers to the primary intergovernmental entity in a region, such as ASEAN, the European Union (EU), the Organization of American States (OAS), the African Union (AU), and the League of Arab States. These ROs each have at least a small permanent staff and a physical office. Thus, a RO 27 can be regarded as an IO composed of members – a group of states – in a particular geographic region.10 The terms ‘region’ and ‘regional organization’ are not necessarily synonymous, particularly because the term ‘region’ is contested. As Pempel (2005) notes, while regions are often treated as clearly defined and easily distinguishable from each other, ‘the world for the most part is not, in fact, composed of “natural regions”’. Rather, regions are socially constructed. They are ‘fluid and complex mixtures of physical, psychological, and behavioral traits that are continually in the process of being re-created and redefined’ (4). While I agree with this perspective, this dissertation focuses on a particular RO, and as such, tends to interpret ‘region’ as a particular geographic area, represented by that RO. More specifically, as noted in Chapter 1, ‘region’ and ‘RO’ are effectively synonymous for the purposes of discussing ASEAN. This debate regarding the meaning of ‘region’ also shapes the definition of ‘regional norms’. In this dissertation, a particular RO articulates and/or represents certain ‘norms’, through the fact of its establishment, as well as its statement of principles, and the decisions and actions taken by the RO and members on its behalf. Thus, ‘regional norms’ may refer to normative statements, as well as identified normative standards of behaviour.11 10 This definition distinguishes a RO from a regional institution, which (in accordance with the aforementioned definition) may be an ‘arrangement’ among actors in a region, but not necessarily with a ‘physical presence’. For example, there are many regional economic arrangements that may be regarded as ‘regional institutions’, such as the North American Free Trade Agreement (NAFTA) and the Southern Common Market (Mercosur). 11 Of course, if a ‘region’ is perceived as a geographic area (rather than as synonymous with a RO), there may not be an ‘agreed upon’ set of regional norms. For example, the geographic area of Southeast Asia exhibits contestation among norms (such as norms of governance). In this dissertation, however, we focus on normative standards and normative statements of the RO, referred to as ‘regional’ norms. 28 Moreover, while ‘regional norms’ may be regarded by definition as ‘standards of appropriate behaviour’ for states in this regional institutional context, this description does not capture the complexity of the emergence and evolution of regional norms. Norms emerge and evolve across national, regional, and global levels; ‘regional norms’ may be seen as emerging at the ‘intersection’ of these. There are, therefore, ‘competing normative terrains’ in a regional institutional context (Ba, 2009). This has, however, been generally under-appreciated in the literature, and forms one of the key aspects of my investigation. Again, since this dissertation focuses on a particular RO, it approaches ‘regional norms’ as those connected to that RO. Given my exploration of ‘regional norms’, I take the perspective that ROs are likely to have an ideational as well as functional basis. Thus, they have both constitutive and procedural norms. 12 The inclusion of new principles and/or objectives in a RO’s official declarations and charter suggests, prima facie, that new understandings of ‘standards of appropriate behaviour’ have emerged. However, the particular meaning, content, and the behavioural and procedural implications of such standards remain a set of empirical questions to be explored, rather than assumed. Further, and importantly, these tend to change over time. This dissertation is focused on the period leading up to a normative statement in the form of a particular RO’s constitutive instrument. We can see empirical evidence of regional institutional developments in the form of the adoption of text (normative statements) through declarations by member states, and the 12 ASEAN is an example; its founding member states had practical and self-interested reasons for formation, but also foresaw a Southeast Asian regional identity which ‘they clearly hoped to develop…through regional cooperation’ (Acharya, 2001: 28). In other words, ASEAN members had expectations (thus developing ‘norms’) about practical functional behaviour, but also had aspirations (rather than immediate expectations) of future behaviour. The latter may be interpreted as a constitutive norm of working towards building a ‘community’ (to be further discussed in Chapter 3). 29 question arises: how do we explain this? Do these adoptions of text represent change in ‘regional norms’ (i.e. norms of the RO, as normative standards)?13 Existing approaches to normative change in a regional institutional context To return to the core empirical question explored in this dissertation: why would a RO make declarations about the importance of democratic rule and human rights in its member states – particularly if it had previously explicitly avoided involvement or ‘interference’ in its member states’ internal affairs? Scholars have approached this problem in different ways, by focusing on varying dimensions of norms. Some focus on what we might characterize as ‘local’ norms; others emphasize ‘global’ norms; and a smaller subset of scholars provide a more nuanced exploration of how the ‘local’ and ‘global’ interact, through ‘norm localization’. I will consider each of these in turn. One approach focuses on the influence of ‘local’ or ‘domestic’ norms on the emergence of ‘international’ norms. Finnemore and Sikkink (1998) note that ‘many international norms began as domestic norms and become international through the efforts of entrepreneurs of various kinds’ (893).14 In the context of a RO, we may perceive this as the ‘diffusion’ of norms from member states to the RO (what we might call a ‘bottom-up’ explanation). For example, according to Dosch (2008b), democratically elected governments may lobby for liberal values at 13 A further question is: do regional norms shape decisions and/or behaviour? In Chapter 3, I consider how existing norms – in particular, ASEAN procedural norms – shape decisions and behaviour. However, the question of whether emerging norms of democracy and human rights shape decisions and behaviour is beyond the scope of this dissertation, which focuses on the period of negotiations leading to the adoption of the ASEAN Charter in 2007. 14 They use the example of women’s suffrage, which ‘began as a demand for domestic change within a handful of countries and eventually became an international norm’ (Finnemore & Sikkink, 1998: 893). 30 the regional level.15 This is an empirical question that will be explored in the dissertation, in relation to democracy and human rights norms. Alternatively, some focus more on the ‘top-down’ influence of international on local or domestic norms. From this perspective, ‘global’ democracy and human rights norms explain the emergence of similar local or domestic norms (e.g. Franck (1992) in regard to the ‘democratic entitlement’16; or Risse et al (1999) in regard to the influence of international human rights norms on ‘domestic change’). One process through which this may occur is when ‘domestic “norm entrepreneurs” advocating a minority position use international norms to strengthen their position in domestic debates’ (Finnemore & Sikkink, 1998: 893).17 We might apply this approach to the study of ROs by hypothesizing that such global norms may shape the emergence and evolution of regional norms, i.e. the norms of a RO. In other words – referring to our empirical puzzle – a RO’s declarations may reflect the influence of global norms. Some scholars identify a third, ‘horizontal’ set of approaches. Katsumata (2009) and Jetschke and Rüland (2009) argue that a RO may emulate the democratic and human rights norms of other ROs. Acharya (2004) and Capie (2008) suggest that global norms are ‘recalibrated’ to fit the 15 This occurs, according to Dosch (2008b), primarily because these states ‘cannot ignore the voices of their constituencies’ who lobby for the promotion of democracy. Thus, Dosch explores the ‘diffusion of democratic values from domestic to regional levels’ (536). (Thus, democratizing states may act as norm entrepreneurs in the RO). I will explore this further – including the question of whether member states must undergo democratization as a precondition for democratic norms to ‘emerge’ in a RO – in Chapter 4. 16 Franck (1992) claims that democracy is becoming a ‘global entitlement, one that increasingly will be promoted and protected by collective international processes’. Moreover, he argues that the international community’s position is that ‘only democracy validates governance’ (47, emphasis in original). 17 Thus, Finnemore and Sikkink (1998) consider various ways that norms emerge and/or are diffused. They recognize that ‘there is a two-level game occurring in which the domestic and the international norm tables are increasingly linked’ (893). 31 regional context – a process they call ‘norm localization’.18 These approaches contribute to our consideration of how regional norms emerge and evolve, but are incomplete. The ‘emulation’ approach risks neglecting the significance of existing regional norms (embodied by the RO). The ‘localization’ approach risks neglecting other ‘global’ norms that have already been ‘localized’ to fit the RO’s norms. In other words, these approaches are at risk of underestimating the ‘normative contestation’, or ‘competing normative terrains’, in a regional institutional context.19 As such, focusing only on the apparent ‘direction’ of normative change leads to an incomplete and unsatisfying explanation. We need to know more about the perceptions and intentions of relevant actors who drafted, negotiated or otherwise influenced a regional declaration, in order to understand its significance20 – for example, whether the adoption of references to democracy and human rights signals a change in regional norms, or merely the adoption of formal instruments with little impact on regional norms. Thus, it is necessary to engage in an empirical exploration of perceptions of legitimacy. This will help us to understand how various actors at local/national, regional and global/systemic levels shape the declarations and decisions of a RO. More specifically, I will explore the notion that (competing) perceptions of (different types of) legitimacy may shape perceptions of the RO’s role (for example, the appropriateness of the RO’s 18 Acharya (2004) defines ‘localization’ as ‘the active construction (through discourse, framing, grafting and cultural selection) of foreign ideas by local actors, which results in the former developing significant congruence with local beliefs and practices’ (245). 19 This is not to imply that other scholars do not recognize normative contestation. For example, Acharya (2006) recognizes that ‘global’ norms may compete with ‘local’ norms, and ‘in a contest between new global norms and pre-existing local norms, localization rather than displacement, is more likely to occur’ (98). In other words, global norms are likely to be ‘recalibrated’ to suit the local context. Moreover, ‘norms which may be discredited in one part of the world may retain a robust appeal in another’ (98). 20 In other words, a focus on norms themselves rather than the actors involved risks neglecting agency. 32 involvement in member states’ internal affairs, such as regime type), and thus its norms. Thus we must look at legitimacy to understand how norms emerge and evolve. It is important not to assume ‘normative convergence’ in international society (however defined), and this seems particularly important in the issue-areas such as democracy and human rights. I am conscious of avoiding a teleological approach that assumes convergence over time around these ‘good’ norms. Relatedly, I do not assume that these norms are inevitably ‘spreading’ to all regions of the world, as some scholars imply (e.g. Huntington, 1991; Franck, 1992). Thus, we should not simply look for evidence of ‘good norms’ reproducing themselves and explaining behaviour, but be attuned to the contested understandings and evolution of norms over time in different parts of the world. As Finnemore (1996a) points out, ‘tensions and contradictions among normative principles in international life mean that there is no set of ideal political and economic arrangements toward which we are all converging…Normative contestation is in large part what politics is all about’ (135). We also cannot assume that norms can be easily identified as ‘good’ or ‘bad’ in the first place. In fact, as Acharya notes, some norms are rather ‘morally ambiguous’; for example, nonintervention can be regarded as ‘good’ in that it protects weaker states from external interference, but ‘bad’ in that it hinders the protection of people from human rights abuses by their own governments (Acharya, 2006: 98). The concept of legitimacy helps us to sort through these different approaches and consider why norms might evolve the way they do. We can ask the question: do various actors perceive the RO and its norms as ‘legitimate’? Examining legitimacy, and changes in efforts or strategies to 33 achieve legitimacy over time, can help us to explain puzzles that may be relevant in the study of ROs generally. Legitimacy Legitimacy and the study of international organizations Legitimacy is an important concept in the study of multilateral organizations because it relates to a central issue in IR: the condition of anarchy in the international system of states. The creation of an IO can be regarded as an attempt to mitigate the effects of anarchy – the absence of any political authority higher than the sovereign state. Thus, an IO ‘must rely on perceptions of its legitimacy to accomplish its goals’ (Hurd, 2007: 55). However, IR scholarship has only relatively recently begun explore the concept of legitimacy (e.g. Coleman, 2007; Hurd, 2007 & 1999). The term ‘legitimacy’ is usually employed in the context of the study of state or sub-state phenomena (most prominently, in the study of the political legitimacy of governments). As Coleman notes, where IR scholars have addressed legitimacy, they have predominantly employed a narrow interpretation of legitimacy as the perception of a ‘right to govern’ (21). Hurd (2007), for example, defines legitimacy as ‘the belief by an actor that a rule or institution ought to be obeyed’ (30). However, this narrow interpretation denies the relevance of ‘legitimacy’ to bodies that are not ‘governing entities’ or ‘rules-based’21 institutional environments. It does not allow for the possibility that legitimacy 21 As discussed, ASEAN is generally not considered to be a ‘rules-based’ organization. As will be discussed in Chapter 3, ASEAN officials have at times referred to the Charter as facilitating ASEAN’s movement to being a 34 remains important in multilateral settings characterized by low levels of institutionalization and legalization – for example in ASEAN, in which interstate relations are guided by norms rather than enforceable ‘rules’ (as will be discussed in depth in Chapter 3). In contrast, I approach legitimacy as the expression of social judgments of particular entities as appropriate or proper. Coleman describes legitimacy as ‘a social status that can adhere to an actor or an action: it involves being recognised as good, proper, or commendable by a group of others’ (21). Similarly, Suchman (1995) defines legitimacy as ‘a generalized perception or assumption that the actions of an entity are desirable, proper, or appropriate within some socially constructed system of norms, values, beliefs, and definitions’ (574). This approach enables us to explore the nuances of different institutional environments. Moreover, it conceptualizes legitimacy as a perception or belief, rather than a fact. As Hurd (2007) notes, we must call [an institution] legitimate if its audience has internalized its authority and accepts it as right, regardless of whether the institution’s values conform to those of the outside observer (34, emphasis in original). Legitimacy is thus a relevant concept even in relation to the study of institutions that are not readily comparable to more ‘clear-cut’ cases of governing entities in ‘thick’ institutional environments (e.g. the EU). ‘rules-based’ organization, but the evidence surrounding the drafting and signing of the Charter casts doubt on claims that this is what ASEAN member states desire. 35 Thus, ‘legitimacy’ is a contested concept and can be defined in various ways. In identifying evidence of legitimacy, scholars tend to focus on an actor’s observation of, or compliance with, a rule given the belief in a relevant entity’s right to govern. For example, for Thomas Franck (2006), ‘legitimacy is the capacity of a rule to pull those to whom it is addressed toward consensual compliance’ (93). However, perceptions of legitimacy may also explain an actor’s compliance with a norm because doing so is regarded as proper or appropriate. In other words, legitimacy – conceptualized as social judgments or perceptions of an entity as proper and appropriate – remains a key concept in the study of entities which are characterized by norms rather than rules (i.e. in what we may describe as a ‘thinner’ institutional context). The complexity of the concept of legitimacy heightens when used in the study of IOs, because as Junne (2001) notes, ‘it is not immediately clear who forms the constituency that could regard international organizations as legitimate or illegitimate. Would this constituency consist of governments or individual citizens?’.22 He goes on to argue that IOs deal with a ‘multi-level audience. Governments create them, so their legitimacy depends to a large extent on how they perform in the eyes of those governments’ (191-2). However, their legitimacy depends also ‘on the views and visions of the many other actors in global society’, including ‘multinational corporations, all types of non-government organizations, social movements, [and] influential individuals’ (192). Similarly, as Keohane (2006) points out, while the legitimacy of multilateral organizations is traditionally conceived in statist terms, IOs generally are under pressure to become more accountable to actors other than the member states, such as NGOs and 22 This raises complications for Hurd’s (2007) point that an institution is legitimate if its ‘audience’ has accepted it as such; how are we to gauge whether an IO is legitimate if the ‘audience’ is unclear? 36 transnational civil society networks (58). I argue that other states (i.e. states that are not members of the IO) should also be added to this list of types of actors whose views shape the perceived legitimacy of IOs. These so-called ‘audiences’ will be further discussed below. Legitimacy and the study of regional organizations This study will contribute to the emerging literature on comparative regional institutions (e.g. Acharya & Johnston, 2008), which has not yet directly addressed the role of legitimacy in a regional institutional context. Several scholars have explored the legitimacy of IOs with ‘global’ memberships, including the United Nations (UN) (e.g. Hurd, 2007; Keohane, 2006; Claude, 1966), the World Trade Organization (Howse, 2001) and the World Bank (Rittich, 2001). The legitimacy of IOs is, unsurprisingly, of particular interest in studies of collective security and peacekeeping operations - most commonly, under the auspices of the UN (e.g. Coleman, 2007; Sato, 2001; Coicaud, 2001), but also in a regional context (e.g. Coleman, 2007). However, little attention has been paid to the legitimacy of the primary intergovernmental ROs outside the European context. This is unsurprising given that the EU is the most institutionalized RO and generally considered to be the only one in which member states have foregone a degree of sovereignty. As such, legitimacy in the EU context is of considerable interest to scholars (e.g. Eriksen & Fossum, 2004; Beetham & Lord, 1998; Scharpf, 1999; and Mather, 2006). There is little recent literature on legitimacy in the OAS (one exception being Shamsie, 2003), AU or League of Arab States; rather, ‘legitimacy’ is generally invoked only in relation to individual states within these regions. 37 Legitimacy is an important concept in the study of ROs more generally, because it addresses directly questions regarding the relationship between the RO and its member states, and also enables us to consider the role of other actors both within and outside the region. It also enables us to address questions regarding ‘regional norms’: how important are they, i.e. do they ‘matter’? Do changes in text (normative statements) signify changes in norms as standards? Legitimacy provides a starting point for addressing these questions. We can ask: How do possibly competing perceptions of legitimacy of the RO shape regional norms (as standards)? Moreover, legitimacy allows us to explore the role of various actors at different ‘levels’ (national, regional, ‘global’) with possibly competing perceptions of legitimacy, that all may be interested in, and/or seek to influence, the RO. Like other IOs, ROs experience pressure from actors other than member states to be accountable. These groups, such as NGOs and civil society groups, lobby for accountability and transparency of ROs, and play a role in generating ideas (i.e. seek to influence regional norms).23 There may be tensions between and among perceptions of legitimacy by these various actors. The perceptions of legitimacy held by those outside the region (e.g. other states and state representatives, transnational NGOs) as understood by members of the RO may also be important and/or influential vis-à-vis regional norms. Thus, it should not be assumed that agreements or declarations by member states indicate uniform perceptions of legitimacy. As Hurd (2007) notes, it is difficult to study legitimacy, because 23 For example, in the ASEAN context, research institutes operating in so-called ‘Track Two’ dialogues have established channels of communication with ASEAN elites (i.e. representatives of member states and at the Secretariat) and seek to advance ideas and shape regional norms. Thus, differing priorities and understandings of legitimacy affect the dynamics of negotiation and compromise in regional dialogue and agreements. 38 it is both internal to actors and intersubjective…It can also be contradictory in that it is entirely possible for an actor to feel a “compliance pull” of several competing and irreconcilable legitimate rules or institutions all at once (8). And, as Mather (2006) notes, legitimacy is not an absolute – an entity is not simply ‘legitimate’ or ‘illegitimate’, but exists on a spectrum (13; refer also to Alagappa, 1995: 25). Thus, perceptions of legitimacy may vary quite significantly among actors, both within and outside the region. Studies of ROs must consider who is the ‘audience’ or ‘constituency’, and whose perceptions of legitimacy matter. Domestic political legitimacy In this dissertation, I refer to four types of legitimacy. I use the term ‘domestic political legitimacy’ (DPL) to refer to political elites’ perceptions of how their societies regard the legitimacy of their national governments. As outlined above, the perceived legitimacy of a government goes beyond its ‘right to rule’; it encompasses social judgments of that government as good, proper or appropriate. DPL may be perceived as partly based on performance-based legitimacy, i.e. the legitimacy accorded to a government because of its performance. This performance is often measured in economic terms, i.e. a government’s ability to bring about economic growth, high employment rates, and so on (to be further discussed in Chapter 4). A RO may be considered a source of DPL for its member states. Governments may seek to use membership of a RO to legitimate their rule. Indeed, this is generally taken to be a central motivation for states to join ROs (e.g. the Eastern European members admitted to the EU since the end of the Cold War, or the less-developed Southeast Asian states that joined ASEAN in the 39 late 1990s). For a government (as an agent of the state), membership of the primary intergovernmental entity in a region bestows recognition and status – a ‘seat at the table’ in regional dialogue, and the opportunity to have a ‘voice’ internationally. A member state’s position in regard to a regional declaration may thus be contrived to support or boost the legitimacy of the government in power. Claude (1966) describes the ‘collective legitimation’ function of the UN: new members are recognized as sovereign states, part of an international states system. Similarly, membership in a RO – particularly the primary intergovernmental entity in a region – is an important indicator of collective legitimation. Membership of ASEAN has certainly been regarded by its newer members as providing legitimation for the member state and its government. Internal regional legitimacy ‘Internal regional legitimacy’ (IRL) refers to elites’ perceptions of how members of a RO view the legitimacy of the RO and its norms. The way in which the RO is established and operates contribute to these perceptions of IRL, but it is also shaped by the arguments and actions of member states and their representatives, Secretariat staff, and influential non-state actors such as individuals and NGOs with a ‘voice’ in regional dialogue. Legitimacy in this context can be conceptualized in several ways. First, we may consider the legitimacy of the RO itself: the degree to which it is considered the ‘proper’ or ‘appropriate’ entity to represent its member states, and facilitate dialogue and cooperation among them.24 Indeed, the legitimacy of ROs 24 These roles, of course, vary depending on the particular RO. In the case of the EU, they extend into member states’ domestic affairs, by establishing and exercising supranational institutions and laws. In contrast, ASEAN has traditionally stayed out of the internal affairs of its members, but the Charter (and particularly the human rights 40 derives originally from states: states create ROs and at least some states must want to be members (Coicaud, 2001: 523). But this legitimacy that is assumed at creation can be strengthened or eroded over time; as such, it is an empirical question. Second, we can consider the legitimacy of the RO’s norms, as perceived by members of the RO. It might seem that norms are ‘legitimate’ by definition, given that they are ‘standards of appropriate behaviour’; the norms literature often refers to the ‘logic of appropriateness’ underpinning compliance with norms, which are ‘taken for granted’. However, norms are not ‘absolute’; they can exist without being adopted and/or acted upon by all relevant actors. This is true at various ‘stages’. In terms of Finnemore’s and Sikkink’s (1998) ‘life cycle’ model, before the ‘tipping point’ and subsequent ‘norm cascade’, only a minority of ‘relevant state actors’ have adopted the norm (895). In Coleman’s (2007) words, ‘only a select group of state and non-state norm entrepreneurs need to exhibit ideational commitment for a new norm to develop’ (33). But even later, once a norm is articulated in a statement (in Finnemore and Sikkink’s terms, a ‘cascade’ takes place), the members have effectively ‘adopted’ the norm whether or not they individually change – or intend to change – their behaviour. In other words, if something is declared in a statement, we assume the member states have come to a consensus regarding a public statement of a RO norm, even if they do not intend to change their behavior. Thus, while it may seem counterintuitive, at any particular point in time, a certain normative statement by the RO may not necessarily reflect the dominant ideas or values held by body) raises interesting questions about whether this is changing to any degree. The legitimacy of ASEAN and its norms, and the role of ASEAN as a source of legitimation for states, are the central concern for this dissertation. 41 particular member states. While Finnemore and Sikkink would see a norm as only having been truly established or ‘internalized’ once the majority has accepted it as a normative standard, in this dissertation I focus on normative statements, which reflect rhetorical adoption of a norm even where it has not, and perhaps will not, been ‘internalized’ or ‘taken-for-granted’. Why do states agree to such normative statements (i.e. to ‘regional norms’ as ‘declared’ or written in the text of a RO)? We might consider Finnemore’s and Sikkink’s (1998) argument that states comply with norms in the ‘norm cascade’ phase ‘for reasons that relate to their identities as members of an international society’ (902).25 The adoption of new norms by many countries in a region may have the effect of ‘peer pressure’ (903). Thus, writes Coleman (2007), ‘states accept the norm not because they are convinced of its intrinsic moral value, but because they wish to appear legitimate to other states’ (33). Thus – as noted above – peer pressure rather than ideational commitment might be a key factor in the acceptance of new norms by states. 26 This suggests that acceptance of normative statements may reflect a state’s desire to appear legitimate, as well as (or perhaps, as connected to) a belief in the legitimacy of the RO. Finnemore and Sikkink argue that states ‘care about international legitimation because it has become an essential contributor to perceptions of domestic legitimacy held by a state’s own citizens…international legitimation is important insofar as it reflects back on a government’s 25 Of course, as discussed, some member states may accept and/or comply with a new norm at an earlier stage – in the ‘norm emergence’ stage, in Finnemore’s and Sikkink’s (1998) model. The majority of states, however, adopt new norms in the ‘norm cascade’ stage. In terms of the present study, the signing of the ASEAN Charter could be regarded occurring immediately after the ‘tipping point’; member states agreed to sign the draft and thus to articulate new norms. The tipping point, Finnemore and Sikkink explain, is created when ‘agreement among a critical mass of actors on some emergent norm…after which agreement becomes widespread’ (892-3). 26 An alternative process that may occur at this stage is ‘socialization’, in which processes of persuasion and social influence work to ‘socialize’ new members of a group to accept its norms (e.g. Johnston, 2001; Checkel, 2005b). 42 domestic basis of legitimation and consent and thus ultimately its ability to stay in power’ (903). This suggests that there is a link between IRL and DPL.27 While the legitimacy of a RO and its norms are, of course, related, they are distinct conceptual considerations and may engender different perceptions of legitimacy to different actors. Thus, while the legitimacy of the RO in terms of what it ‘is’ (i.e. the appropriateness of its existence) is related to legitimacy of what it ‘does’, these two forms of legitimacy may be distinct. Thus, for example, even though member states remain generally in agreement that a RO is itself legitimate, some members may not see the introduction of a new role for the RO in monitoring internal affairs as legitimate. Members’ perceptions of IRL are shaped in various ways. 28 External regional legitimacy ‘External regional legitimacy’ (ERL) refers to political elites’ perceptions of how others view the legitimacy of the RO from outside the region. It is the degree to which member state representatives believe the RO is seen by outsiders as the ‘proper’ or ‘appropriate’ representative of its member states. This is shaped by, for example, perceptions of the RO’s international image and reputation. Members of a RO generally want it to appear ‘legitimate’ to the outside 27 Note that Finnemore and Sikkink are not referring specifically to the regional context in this argument; I am drawing on their insights in my investigation into norms in ROs. As such, I note that their discussion about ‘international legitimation’ may be seen as referring to perceptions held outside the region about the legitimacy of states, and thus be better applied to what I call ‘outsider regional legitimacy’ (discussed below). However, I feel that their notion of ‘international legitimation’ could also be considered in the context of perceptions of the legitimacy of the RO and its norms, held by members of the RO (i.e. what I have called IRL). Thus, from this perspective, a member state may accept a normative statement in the interests of appearing legitimate to other states within the RO. I would argue that the perceived legitimacy of a state is intertwined with perceived legitimacy of a RO of which it is a member – hence the link between DPL and IRL. 28 These contrasting perceptions of IRL are one way to conceptualize the virulent debate about the references to democracy and human rights in the lead-up to the signing of the Charter (to be discussed further in subsequent chapters). 43 world, and perceived challenges to this perception may shape the motivations for changes to the RO’s institutions.29 Again, perceptions of external legitimacy matter because ROs usually want to engage external actors and wield some degree of influence beyond the regional context.30 Perceptions of ERL may be influenced by the emergence of particular international or ‘global’ issues, such as human rights, and its associated symbols and declarations (e.g. the UN Declaration of Human Rights, or the 1993 Vienna Declaration). Members of a RO may believe that international focus on such an issue creates or raises expectations that the RO also pay attention to the issue. This may include the focus of other ROs on the issue, for example other ROs forming human rights bodies, or forming provisions for sanctions in response to unconstitutional changes of government. Outsider regional legitimacy Finally, ‘outsider regional legitimacy’ (ORL) refers to outsiders’ views of legitimacy of a particular RO in meeting its stated purposes or fulfilling larger regional purposes. ‘Outsiders’ in this context are removed from the official workings of the particular RO. For example, they may be other ROs and IOs, states outside the region, and scholars and analysts who develop perceptions of the legitimacy of the RO, but are not directly involved in its operation. ORL is not a major focus of the dissertation; rather, it is occasionally invoked, particularly as it becomes 29 In regard to the case study, perceptions of ERL have been shaped by criticism of ASEAN’s response to regional problems, particularly since the regional financial crisis of 1997-98, and Burma’s admission as a member in 1998. As will be discussed in the Chapter 3, significant concerns about perceived ERL were an important motivation for the adoption of the ASEAN Charter. 30 For example, ASEAN’s desire to be the so-called ‘driving force’ in wider Asia-Pacific security architecture. 44 relevant to the shaping of members’ own perceptions of legitimacy (which is the focus of this study). ERL is, in effect, members’ perceptions of ORL. ASEAN and legitimacy As we shall see, legitimacy is an important concept in the study of ASEAN, as a means to compare and contrast different visions of ASEAN’s significance and role, or different attitudes towards the Association and its norms. Indeed, exploring perceptions of legitimacy is particularly useful in the context of a ‘thinly institutionalized’ RO such as ASEAN, where perceptions and beliefs about the ‘proper’ or ‘appropriate’ role of a RO (and ‘shared expectations of behaviour’ in relations among member states within that RO) matter more than formal rules and enforcement mechanisms. The emphasis on increased institutionalization through the Charter was, at least in part, designed to enhance ASEAN’s standing amongst its own members (or its IRL), albeit within the limits of the ‘ASEAN Way’. There is a complex relationship between the role of the state (as shaped by DPL) and the role of the RO, as perceived by the various members of ASEAN. Moreover, ERL, or member states’ perceptions of outsiders’ judgments of ASEAN, both shaped and has been shaped by the creation of the Charter. Thus we will consider the ‘interaction’ of legitimacy at different levels. DPL and IRL There are tensions between DPL and IRL. For example, governments and/or elites preoccupied 45 with achieving legitimacy in often unstable political and security conditions may see IRL as less important or relevant. On the other hand, they may seek to utilize the state’s membership in the organization to enhance DPL. Thus, there is not necessarily a clear relationship between DPL and IRL. Exploring this relationship with reference to empirical evidence will help us to understand the evolution of norms. To further ‘unpack’ this, we will consider different types or bases of legitimacy. ‘Performancebased legitimacy’ is, as discussed, a component of DPL. Narine (2004) argues that ‘to differing degrees, the governments of ASEAN countries are accorded a performance-based legitimacy from their citizens’, which relies on the ability of state policies to create economic prosperity (434, emphasis in original).31 Thus, for example, the Singaporean government enjoys a high level of support from its citizens, who have among the highest average levels of wealth and most favourable demographic indicators (such as literacy levels, life expectancy, infant mortality rates and so on) in the region (WHO, 2010). In contrast, Indonesia’s large size and ethnic and religious tensions contribute to institutional weakness, and thus the Indonesian government could be expected to acquire a lower level of performance-based legitimacy (Narine, 2004: 434-5). However, this does not necessarily mean that the Indonesian government has less DPL than the Singaporean government. While Narine is correct that DPL in ASEAN states has been largely that of performance legitimacy, DPL is not exclusively based on performance legitimacy.32 For 31 Khong and Nesadurai (2007) also note that ‘Economic growth was and remains a central basis of political legitimacy in Southeast Asia and acts as a guarantor of domestic regime security, particularly in the semi-democratic or soft authoritarian political systems found in much of Southeast Asia’ (36). 32 This also highlights the notion that DPL is not necessarily related to regime type; indeed, the archetypal Southeast Asian ‘developmental state’ has long defied what we might assume is a positive relationship between legitimacy and 46 example, in Brunei, DPL is in part based on the legitimacy of the Sultan as a hereditary ruler, and the leader of Islam (Kershaw, 2001: 30-31). (It must be noted, however, that Brunei enjoys a relatively high Gross Domestic Product (GDP) per capita, suggesting that performance legitimacy is also important).33 In Laos – a relatively poor country and the smallest economy in ASEAN – legitimacy is based in part on a stronger sense of Lao nationhood being crafted by the dominant Lao People’s Revolutionary Party, which is the ‘only vehicle permitted to organize politically’ (Case, 2011: 202). Thus, DPL has various bases. Thus, unsurprisingly, we will find that perceptions of DPL and IRL interact in complex ways. The rhetoric of the Charter suggests that ASEAN leaders consider the prosperity of their respective states as increasingly intertwined, and view ASEAN as the most appropriate forum in which to coordinate economic activities.34 They also agree that ASEAN can foster a security community and economic community, in order to enhance regional cooperation and integration. Citizens and mass publics of ASEAN states are perhaps less likely to draw this link, given research suggesting a widespread lack of awareness that ASEAN even exists, let alone its role quality of democracy. The Singaporean government discourages political opposition and has effectively created a one-party state, while Indonesia is lately considered the most advanced democracy in the region. Thus, in Singapore, legitimacy has thus been based on performance rather than, say, adherence to democratic procedure. In Indonesia, however, the government is democratically elected and thus enjoys a degree of legitimacy that is not based on (economic) performance or outcomes. Legitimacy in Indonesia is, in the post-Soeharto era, ‘linked to reformasi, a touchstone word to mean greater political and economic reform, including democratization’ (Smith, 2001: 113). Smith notes, however, that the legitimacy of the democratic process is largely a ‘reaction to Soeharto’s autocratic rule’, and its growth depends on whether it proves ‘capable of delivering results in terms of leadership’ (114). Thus, performance-based legitimacy may become more important in this transitional polity. 33 In 2010, Brunei’s GDP per capita was US$48,714; this was reportedly the fifth highest in the world (Goh De No & Bandar Seri Bagawan, 2010). The only ASEAN state with a higher GDP per capita is Singapore (US$56,532 in 2010: Asia One, 2012). 34 For example, the preamble to the Charter states that the peoples of the member states of ASEAN, as represented by the Heads of State or Government, are ‘United by a common desire and collective will to live in a region of lasting peace, security and stability, sustained economic growth, shared prosperity and social progress, and to promote our vital interests, ideals and aspirations’ (ASEAN, 2007a: 2). 47 (e.g. Roberts, 2007). Rather, the Charter represents the beliefs of political elites in some member states that publics’ perceptions of the legitimacy of their governments (DPL) will increasingly depend on the perceived legitimacy of ASEAN itself (IRL). For example, DPL may be enhanced by initiatives such as the formation of an ASEAN Free Trade Area (AFTA), which seeks to compete with trading blocs such as the North American Free Trade Agreement (NAFTA) and the EU. To the extent that ASEAN member states benefit economically from the AFTA (or are perceived as benefiting from it), there may be a positive relationship between perceptions of DPL and IRL. There is evidence to suggest that some ASEAN leaders and political elites perceive a link between DPL and IRL. For example, Surin’s ‘flexible engagement’ proposal was particularly motivated by a desire to more effectively manage the problems associated with Myanmar’s membership, which was a particular concern to Thailand given the security threats on the ThaiBurmese border (to be discussed further in Chapter 3). More recently, Indonesia’s support for ASEAN’s promotion of democracy and human rights, and the role of officials from Thailand and the Philippines in also pushing for change on the issue of human rights in ASEAN, is ‘generally explained in terms of these officials’ adherence to liberal democratic values’ (Kraft, 2005: 4). They draw a link between domestic political circumstances and the role of ASEAN vis-à-vis its member states. (This will be discussed in depth in Chapters 5 and 6). This raises the possibility that member states are motivated to enhance ASEAN’s IRL in order to facilitate DPL. This challenges Narine’s (2004) argument that East Asian states are focused primarily on domestic political concerns rather than building ‘effective multilateral institutions’ 48 (423). Narine does note that ‘we must consider the possibility that Asia-Pacific states may create strong regional institutions in order to assist the state-building process’ (430). However, he expresses doubt about this possibility, noting that while the European Community (EC) could be used as a historical example, European states were much more advanced when they established the EC (431). This is certainly true, but the Charter process suggests that member states want ASEAN to become more important and relevant to them. Thus, this dissertation will examine empirical evidence in regard to the drafting and negotiations surrounding the Charter, as well as the changing domestic political environments of ASEAN member states. Of course, perceptions of a link between DPL and IRL may in some cases work against the evolution of ASEAN norms; as we shall see in Chapters 5 and 6, some member states may resist new norms, or the recalibration of traditional norms, because they perceive that this will be detrimental to DPL. For example, they may believe that enhanced IRL will lead to increased scrutiny of their internal affairs by other members and the Secretariat, in official regional dialogue; this in turn will increase the likelihood that external actors will criticize their regime or domestic political system. Such member states prefer to reinforce traditional understandings of ASEAN norms. IRL in ASEAN tends to be based on process or procedural legitimacy35 (rather than performance legitimacy). ASEAN’s procedural norms – often collectively referred to as the ‘ASEAN Way’ – have traditionally been upheld as crucial for maintaining the order and cordiality of intra35 This is akin to what Keohane (2006) calls ‘input’ legitimacy, referring to the ‘processes by which decisions are reached – whether they have certain attributes regarded as important by the audience’. In contrast, ‘output legitimacy’ stems from ‘the achievement of the substantive purposes of the organization, such as security and welfare’; it is thus similar to what I have termed ‘performance legitimacy’ (58). 49 ASEAN dialogue. Proper procedures have historically formed the basis of arguments extolling ASEAN’s virtues, rather than substantive outcomes (although one could argue that order and stability are regarded as outcomes in themselves).36 However, the challenges to ASEAN norms such as non-interference (discussed in Chapter 3), and the prospect of a new role for ASEAN vis-à-vis democracy and human rights, raise the question of whether the basis of IRL might be evolving over time.37 In exploring IRL, we will also consider the role of other relevant actors, such as the ASEAN Secretariat; the Eminent Persons Group (EPG), which made recommendations for the Charter; and the High Level Task Force (HLTF), which drafted it. The EPG and HLTF each comprised one representative from each member state, although only representatives from the latter group were primarily sitting officials. The positions and arguments of HLTF representatives were thus more closely tied to (and/or constrained by) the official positions of their respective member states. Thus, we can gauge from their statements any links between perceptions of DPL and IPL, from the perspective of particular member states. In contrast, the EPG representatives were freer to ‘speak their minds’, and some ASEAN leaders and HLTF representatives were careful to point out that the EPG’s role was limited to providing recommendations or guidance. It thus may seem less useful to explore EPG proceedings as indicative of perceptions of legitimacy of 36 Jones and Smith (2007) are more critical; they regard the reiteration of ASEAN Way as evidence of the Association ‘making process, not progress’. 37 Note also that, as discussed earlier, perceiving ASEAN as ‘legitimate’ in the sense of being the ‘appropriate’ or ‘proper’ primary intergovernmental entity in Southeast Asia does not necessarily mean perceiving particular ASEAN actions as ‘proper’ or ‘appropriate’. An example is ASEAN’s refusal to place sanctions on Myanmar, which is seen as legitimate by members as it is in accordance with the norms of ASEAN. In contrast, ‘outsiders’ such as the EU and US are unlikely to perceive ASEAN’s lack of action as legitimate, because they observe different norms in regard to human rights, democracy and so on. 50 ASEAN (i.e. IRL), and its links to DPL. However, as we shall see, the EPG was relevant in terms of shaping expectations of many observers; it acted as a norm entrepreneur in its suggestions and recommendations. Thus, both the EPG and HLTF will provide us with some evidence regarding perceptions of legitimacy in the region. ERL Perceptions of ERL are also important in shaping regional norms. We will find that perceptions held by member states of how ASEAN is viewed outside the region – its international image and reputation – influenced their decisions in regard to the text of the ASEAN Charter. Indeed, the decision to create a Charter in the first place appears to have been motivated in part by perceptions of ERL, and a desire to enhance ASEAN’s international standing. As Katsumata notes, Nowadays, reputation and legitimacy are a very important element of international cooperation and ASEAN is very weak in this area. Many regard ASEAN as an ineffective organisation, for not doing anything to face the challenges in the region, for example, the human rights issue in Myanmar (quoted in Goh, 2007). Thus, the ‘legal personality’ conferred by the Charter was designed to enhance ERL. As we shall see, the 2005 Kuala Lumpur Declaration on the Establishment of the ASEAN Charter stated that the Charter would ‘confer a legal personality to ASEAN’ (ASEAN, 2005a), and this imperative remained a feature of subsequent plans and declarations, and of course of the Charter itself (ASEAN, 2007a: Article 3). While the Charter does not explain in detail the implications 51 of its conferring ‘legal personality’ on ASEAN, this is assumed to have implications for member states’ perceptions of ASEAN’s international standing. ASEAN leaders’ desires to sustain ERL also motivates their efforts to have ASEAN in the socalled ‘driver’s seat’ of regional cooperation – not just in Southeast Asia, but in the wider AsiaPacific region. ASEAN has been central in recent years to the development of regional architecture, forming bodies such as the ASEAN Regional Forum (ARF) and ASEAN Plus Three (APT). However, as the EPG report points out, ‘there is no guarantee that it will continue to be relevant in the coming decades and remain the driving force in regional cooperation’ (ASEAN, 2006a: 2). Thus, at least some ASEAN insiders were concerned that the ‘driver’s seat’ notion was under challenge. As such, there were perceived benefits in terms of ERL of adopting a Charter, even if it was somewhat ‘watered down’. These concerns, as well as the imperative of ensuring that the Charter was accepted by all member states in its fortieth anniversary year had implications for its substantive content. Some individuals saw the timely adoption of a Charter as, in itself, more important than the changes (to institutions, organizational structure, and/or norms) that it instigated. As we shall see, others – particularly in Indonesia and the Philippines – were less amenable to the notion of ‘watering down’ the Charter for the sake of getting it signed by all member states. When it was ‘diluted’, domestic debates in these two states delayed their ratifications. This may seem to suggest that DPL and IRL were more important to these states than ERL; they wanted the Charter to be more meaningful, and enhance ASEAN’s credibility and legitimacy within its own region. Ultimately, 52 however, Indonesia and the Philippines did agree to ratify the Charter – they accepted that it should come into force. This brings us to the ‘interaction’ of perceptions of DPL and ERL. States may wish to improve the international image and standing of ASEAN (and hence their perceptions of ERL) because it may enhance DPL. ASEAN’s improved international standing may also help to mitigate external (i.e. extra-regional) criticism of states’ domestic practices and the impact of this criticism on, say, trade relations. For example, an increased perception from states outside the region that ASEAN is able to effectively carry out ‘regional solutions for regional problems’ may be in the interests of the Burmese junta, given that ASEAN has been somewhat hamstrung in its ability to pressure the junta to ease its repressive tactics.38 In another example, ASEAN’s credibility may help the Indonesian government’s plan to reinvigorate a leading role in the Association for Indonesia. More generally, an enhanced perception of ASEAN as representing a growing regional economy may help secure trade deals which benefit (at least in theory) all member states (for example, the ASEAN-EU Free Trade Agreement (FTA) which is under negotiation at the time of writing39). There are thus various reasons why enhanced ERL is in the interests of those seeking to gain or solidify DPL. 38 However, ASEAN does appear to be taking a more forthright stand on Myanmar in recent years – for example, ASEAN leaders released a statement expressing their ‘revulsion’ following the crackdown on Buddhist monks and other protesters in September 2007. This will be further discussed in later chapters. 39 I note, however, that in the absence of a conclusion to these negotiations (which began in 2007), the EU announced in 2009 that it would launch talks with some ASEAN countries regarding individual FTAs, including Singapore, Malaysia, the Philippines and Vietnam. The European Commission stated in a 2009 press release that ‘the ultimate objective, however, remains to reach an agreement with the ASEAN region. The bilateral agreements could become valuable building blocks towards that objective’ (European Commission, 2009). Another press release in 2012 confirmed that FTA negotiations with Singapore and Malaysia had begun in 2010, and that the EU ‘remains open to start negotiating similar comprehensive free trade agreements with other partners in the region.’ 53 ORL Perceptions of ORL are less relevant to the evolution of ASEAN norms, because they are perceptions held by ‘outsiders’ – individuals, states, IOs and/or ROs which are not directly involved in the discussions and negotiations about drafting and signing normative statements. For the purposes of the study of ASEAN, relevant ‘outsiders’ may include states and ROs outside Southeast Asia (some of whom are ‘Dialogue Partners’ of ASEAN), whose perceptions of ASEAN’s legitimacy are often relevant to the debate about ASEAN’s role and indeed, may shape the views of ‘insiders’. For example, the US and the EU have been quite vocal on issues such as Myanmar’s membership of ASEAN and the damage to ASEAN’s external relations caused by its failure to ‘reign in’ the military regime. Such sources of declining ORL shaped perceptions of declining ERL, as we will see in Chapters 5 and 6. We will also consider some prominent scholars and analysts outside the region; some have lauded ASEAN’s achievements, but others have been quite critical of ASEAN, particularly in the wake of the regional financial crisis (e.g. Jones & Smith, 2007 & 2002; Khoo, 2004a & 2004b). To the extent that outsiders’ perceptions of ASEAN’s legitimacy (ORL) are expressed publicly or communicated directly to ASEAN officials, perceptions held by officials themselves of how ASEAN is seen from outside (ERL) will be affected. While it is not central to the study, we will see that particular actions taken by outsiders (such as the aforementioned statements about Myanmar made by the US and the EU) shape the context in which perceptions of ERL are formed. Again, the EU asserted that ‘These bilateral agreements are considered building blocks for a future free trade agreement with the whole region’ of Southeast Asia (European Commission, 2012). 54 Conclusion This chapter has set out the analytical framework for the dissertation. Clearly, there are differing theoretical perspectives in IR scholarship on the significance and role of IOs. The approach employed in this dissertation begins with an understanding of the relevant literature, but is driven by empirical evidence. The literature on institutions and organizations has been largely developed with regard to European institutions, but as discussed, ASEAN has consciously sought to develop a different style of regional cooperation. As such, in this thesis I remain cognizant of evidence that challenges common understandings in the literature – for example, the definitions of ‘rules’ and ‘norms’. Chapter 3 begins to explore this evidence, by introducing the case study of ASEAN. 55 Chapter 3 Case study: ASEAN This chapter explores the context in which plans for an ASEAN Charter were formulated, and the empirical puzzles that are addressed in this dissertation. In a sense, it outlines a justification for the project, in the light of skepticism about the significance of ASEAN and its declarations. First, the chapter reviews the history of ASEAN, including the reasons for its establishment and its initial goals and purposes. It then explores the traditional understandings of ASEAN norms, which can be largely distinguished as ‘constitutive’ or ‘procedural’. The chapter goes on to outline the challenges to interpretations of ASEAN norms as the Association has expanded its membership and faced crises such as the regional financial collapse of 1997-98. I argue that ASEAN norms are dynamic – they evolve over time. Moreover, there are tensions between and among various interpretations of ASEAN norms, and among perceptions of ASEAN’s desired or appropriate role. Introduction: the ASEAN Charter ASEAN adopted its first Charter on November 20, 2007,40 in ASEAN’s fortieth anniversary year. The Charter is designed to provide the ‘legal and institutional framework’ for ASEAN, and to give it a ‘legal personality’. It was intended to herald a ‘new era’ for the Association. The Charter includes references to democracy and the importance of democratic values; the ‘promotion and protection’ of human rights; and plans to establish an ASEAN human rights 40 The ASEAN Charter came into force on December 15, 2008, and is ASEAN’s first ‘constitutive instrument’ (a term is commonly used by international law scholars to refer to the charter or constitution of a RO; for example, Magliveras & Naldi, 2002: 417 & 423; Rich, 2001: 21-22). 56 body (AHRB). These provisions pertain directly to issues that have been traditionally considered too ‘sensitive’ for official dialogue in ASEAN. They imply that ASEAN will henceforth pay closer attention to member states’ domestic affairs. As such, these elements of the Charter seem incongruent with ‘traditional’ understandings of ASEAN norms, particularly sovereignty and non-interference (which were reaffirmed in the Charter: ASEAN, 2007a: Article 2a). The puzzle is deepened by the political heterogeneity among ASEAN members. Democratization in the region is, as Acharya (2003a) points out, ‘incomplete and uneven’ (387), and of course, some member states are decidedly non-democratic.41 Tan Sri Jawhar Hassan of the Institute of Strategic and International Studies in Malaysia agrees that ‘ASEAN is very uneven – half the states are not democratic’ (interview, 2009). Thus, ‘the prospects for ASEAN as a democratic community remain a far off possibility’ (Acharya, 2003a: 387). Slater (2008) agrees that democratization in Southeast Asia ‘has been more than a mere ripple, but less than a full-fledged wave’ (56). Moreover, the Charter’s references to human rights and an ASEAN human rights body raise questions given the poor human rights records of some member states, and the fact that only four of the ten member states have national human rights bodies.42 Why did the ASEAN member states adopt text in the Charter with references to democracy and human rights? 41 Southeast Asia comprises a diverse array of political systems. Emmerson (2008a) notes that ‘In mid-2008 in Southeast Asia one could find a military junta (Myanmar), an absolute monarchy (Brunei), two ostensibly communist one-party states (Laos, Vietnam), a dominant-party parliamentary monarchy (Cambodia), a dominantparty parliamentary republic (Singapore), a restored (post-coup) multiparty parliamentary monarchy (Thailand), a dominant-party parliamentary federation with a rotating king (Malaysia), a presidential republic of multiple but weak parties (the Philippines), a multiparty presidential republic (Indonesia), and a nascent and mainly parliamentary but also presidential multiparty republic (Timor-Leste)’ (20). This political diversity seems, prima facie, to make ‘democracy promotion’ an unlikely agenda for ASEAN (a firmly intergovernmental organization). 42 At the time of writing, there are national human rights bodies in the Philippines (founded 1987), Indonesia (1993), Thailand (1997) and Malaysia (1999). As will be further discussed in Chapter 5, these entities have been involved 57 Plans to develop a Charter emerged as part of efforts to ‘reinvigorate’ ASEAN and make it more relevant and cohesive. Early discussions about the Charter raised expectations that it would make ASEAN more institutionalized, ‘people-centred’, and more attuned to the importance of democratic principles and human rights. However, optimism waned following the dilution of these recommendations in the final text of the Charter, and criticism emerged by some analysts that the Charter is ‘toothless’ and a ‘letdown’ (for example, Abdul Khalik, 2008; SIIA, 2007; Jusuf Wanandi, 2007). This ‘watering down’ was not entirely surprising, considering that ASEAN has traditionally tended towards gradual change, through longer-term evolution of norms. Some of these norms are unwritten, and others are formalized in agreements (Ong Keng Yong, interview, 2008). This reflects a persistent concern that ASEAN move along at a pace ‘comfortable to all’, given the imperative of ensuring ‘unity’ among member states in an incredibly diverse region. I will argue, however, that the Charter should not be dismissed as insignificant. It represents a statement of norms (or a set of normative statements), and as such is indicative of a discourse regarding institutional and normative change. Indeed, the virulent debate among member state representatives about the human rights body suggests that certain actors seek to advance new norms, despite the challenge to ASEAN’s traditional normative underpinnings. The Charter indicates that certain principles, including democracy and human rights, are ‘on the agenda’ for dialogue and debate. Certain security and humanitarian challenges – particularly those arising in in regional discussions regarding human rights and the possibility of a regional human rights mechanism (for example, the Workshop on the ASEAN Regional Mechanism on Human Rights, held annually since 2001). 58 the then recalcitrant state of Myanmar – are part of the motivation for this push for change. Thus, rather than being preoccupied with the Charter’s perceived shortcomings, a more nuanced perspective analyzes it in the context of the longer-term evolution of norms. In the process of discussing and drafting the Charter, some normative standards were reaffirmed – perhaps even reinforced – while others changed and evolved. Chapters 5 and 6 will examine in more detail the negotiations regarding the adoption of references to democracy and human rights, respectively, which help us to understand why and how norms emerge and evolve in regional institutional contexts. The emergence and evolution of ASEAN norms ASEAN was established in 1967 by five states (Singapore, Malaysia, Indonesia, the Philippines and Thailand) keen to protect sovereignty and support mutual state-building efforts; these states signed the 1967 Bangkok Declaration (ASEAN, 1967). They wanted to pursue regional stability following several bilateral disagreements, most notably Konfrontasi (Confrontation), a coercive strategy adopted by Indonesia’s President Sukarno against the newly independent Malaysian state between 1963 and 1966. The subsequent Suharto regime’s termination of Konfrontasi served as a model for a regional order based on the principle of non-use of force (Acharya, 2009: 58).43 43 Other bilateral tensions which threatened to escalate into war during the 1960s existed between Malaysia and the Philippines, Singapore and Malaysia, and Singapore and Indonesia. 59 The founding members were also concerned about internal stability, given that they were all relatively new independent states (with the exception of Thailand, which was never colonized)44. They faced ethnic secessionist demands and communist insurgencies, threatening territorial integrity and regime security (Collins, 2003: 128). As such, they recognized their mutual interests in nation-building, and agreed to respect each other’s independence and sovereignty, and to refrain from ‘interfering’ in each other’s internal affairs. Further, ASEAN was intended to facilitate trade between member states, in recognition of the potential economic growth in the region. The founding states had begun to shift from importsubstitution to export-led development during the 1960s, and this convergence of economic policy contributed to visions of intra-regional economic cooperation through ASEAN (Acharya, 2000: 88-89). The Bangkok Declaration refers to ASEAN’s aim to promote ‘active collaboration on matters of mutual interest’ such as the expansion of trade and acceleration of regional economic growth (ASEAN, 1967). Member states hoped to gain stability through prosperity. ASEAN was also motivated by a common concern about the role of external powers in the region. Member states were uneasy about ‘Great Power’ influence (particularly from China, the US and the Soviet Union), but also wanted to ensure protection of their security interests. Regionalism was thus seen as a useful way to ‘enhance the bargaining power of small and weak states in their dealings with Great Powers’ (Acharya, 2009: 64). Member states had different positions on this matter. Singapore has traditionally preferred an active US military presence in 44 The Philippines gained independence in 1946, Indonesia in 1949, Malaysia in 1957 and Singapore in 1963. 60 the region, while Indonesia’s and Malaysia’s greater concerns about Great Power influence underpinned their efforts to establish the Zone of Peace, Freedom and Neutrality (ZOPFAN) in 1971, which asserted ASEAN’s self-reliance in an emerging regional order. ZOPFAN effectively amounted only to a declaration (and ASEAN has certainly since relied on a US military presence, particularly to assuage fears in regard to a rising China). However, according to Haacke (2003), it did contribute to the establishment of a ‘normative framework that was to guide future interstate interaction’ (54). The founding member states began to emphasize ‘the need for greater self-reliance in managing the region’s security problems’ (Acharya, 2009: 62). The founding member states were, however, more focused during the 1960s and 1970s on internal concerns: consolidating independence, developing economically and managing internal security. They formed bilateral security arrangements designed to combat communist insurgency.45 Member states also agreed not to provide refuge to rebel groups threatening to overthrow neighbouring regimes (Acharya, 2009: 72-3). Such bilateral border security and intelligence sharing arrangements were preferred to multilateral security cooperation, which was decidedly not part of ASEAN’s mandate. That said, the withdrawal of British forces from ‘east of Suez’ and the subsequent withdrawal of the US from Vietnam influenced an emerging sense of the need for regional autonomy (Acharya, 2009: 65). 45 For example, Malaysia and Thailand made an agreement in 1970 to cooperate in the pursuit of insurgents across mutual borders. Similar arrangements had been made before ASEAN’s founding – between Malaysia and Thailand in 1959, and between Indonesia and the Philippines in 1964 (Acharya, 2009: 77). 61 Institutional form The 1967 Bangkok Declaration established an annual meeting of foreign ministers, to be known as the ASEAN Ministerial Meeting and held by rotation.46 A Standing Committee was also established ‘to carry on the work of the Association in between Meetings of Foreign Ministers’, as well as other Ad-Hoc Committees and Permanent Committees on specific subjects (ASEAN, 1976). The Declaration also states that a National Secretariat would be established in each of the (then five) member countries to carry out the work of the Association and ‘service’ the various committees. Thus, until 1976, the primary meeting of ASEAN member states was the annual meeting of foreign ministers.47 One could presume the years between ASEAN’s founding (1967) and the First ASEAN Summit (1976) (which, as discussed, included the signing of ZOPFAN in 1971) as a period of emerging norms, such as sovereignty and non-interference. These were then articulated in the 1976 Treaty of Amity and Cooperation (TAC). ASEAN’s institutional form was augmented at the First ASEAN Summit in Bali, Indonesia in 1976. The member states agreed to the ‘meeting of the Heads of Government of the member states as and when necessary’ (1976b). Summits were held irregularly in the next few years (the Second Summit was held in 1977 in Malaysia, and the Third in 1987 in the Philippines). In 1992, members states agreed in the Singapore Declaration (signed at the Fourth Summit) that ‘ASEAN Heads of Government shall meet formally every three years with informal meetings in 46 This was the precursor to the rotating Chair of ASEAN, which today means chairing all ASEAN meetings, and which rotates in alphabetical order among the member states. 47 Thus, the foreign ministers addressed key early developments in ASEAN’s institutional form. For example, at the sixth meeting of foreign ministers in 1973 in Bataya, Thailand, the foreign ministers discussed five proposals, including a proposal to establish a central secretariat in Jakarta; to establish a special committee of central banks; and to develop close relations with the European Community countries (Hagiwara, 2003: 20). 62 between’ (ASEAN, 1992). This was part of a plan to ‘strengthen ASEAN’ in light of the ‘profound international political and economic changes’ since the end of the Cold War. Thus, the next three Summits were held in 1995, 1998 and 2001, 48 after which the Heads of Government began meeting annually. The ASEAN Secretariat has also evolved over time. At the first ASEAN Summit in 1976, the member states signed the Agreement on the Establishment of the ASEAN Secretariat, establishing a permanent Secretariat in Jakarta, with a Secretary-General and staff. This decision was made because the members were ‘mindful of the rapidly growing activities of ASEAN since its establishment’, and recognized that ‘the growth has increased the need in ASEAN for a central administrative organ to provide for greater efficiency’ (ASEAN, 1976c). The SecretaryGeneral of the ASEAN Secretariat was to be appointed for a term of two years by the ASEAN Foreign Ministers upon nomination by a member state, on a rotational basis in alphabetical order.49 The Agreement also stated that the Secretary-General was to ‘take charge of the Secretariat’, attend and ‘be responsible to’ the ASEAN Ministerial Meetings and Standing Committee meetings, and ‘act as the channel for formal communications’ between these and other committees, the Secretariat, other international organizations and governments (ASEAN, 1976c). Among other staff members, the Secretariat was to comprise three Bureau Directors, to head the Economic, Science and Technology, and Social and Cultural Bureaus (‘in that order of 48 Four ‘Informal’ Summits were held in 1996, 1997, 1999 and 2000. As at the time of writing, ASEAN has held 20 summits (the most recent was held in April 2012 in Phnom Penh, Cambodia). 49 The first Secretary-General of the ASEAN Secretariat was Hartono Rekso Dharsono, a General from Suharto’s New Order regime. 63 seniority’). The Annual Budget of the Secretariat was to be submitted to the ASEAN Ministerial Meeting for Approval. Capital outlay (such as acquisition of land and building construction) was to be borne by the host country, i.e. Indonesia, and ‘recurrent expenditure’ was to be ‘shared on a basis to be determined by the ASEAN Foreign Ministers’ (ASEAN, 1976c). Ultimately the Foreign Ministers decided that this expenditure would be shared equally by member states; as will be discussed, this implementation of the norm of equality has led to limitations on ASEAN’s institutional capacity. Since its establishment, the Secretariat has grown, both physically and in significance. From 1976 until 1981, it was housed in a building belonging to Indonesia’s Department of Foreign Affairs, after which it was moved into its own seven-storey building (Termsak, 2008c: 94).50 At the Fourth Summit in Singapore in 1992, as part of the aforementioned effort to ‘strengthen ASEAN’, the Singapore Declaration asserted that the Secretariat would be ‘streamlined and strengthened with more resources’ (but did not elaborate further). The Secretary-General would be renamed the ‘Secretary-General of ASEAN’ (rather than of the ASEAN Secretariat) and would be ‘appointed on merit and accorded ministerial status’ (ASEAN, 1992). This position would also attract an ‘enlarged mandate’ (and, although there is no reference to it in the Singapore Declaration, the Secretary-General’s term has lengthened since 1992 to five years). However, questions persisted about the capacity of the Secretariat to coordinate ASEAN activities given the persistent limits on its budget. 50 Indonesia’s then-President Soeharto (who had offered to host the Secretariat in Jakarta in 1976) led the ceremony to inaugurate the new building in 1981. Termsak (2008c) notes that ‘Indonesian officials like to cite this history as proof of their country’s strong commitment to ASEAN’ (94-95). 64 Constitutive norms ASEAN’s key norms can be classified as constitutive and procedural; they guide relations among member states. I identify six core constitutive norms: 51 respect for sovereignty and territorial integrity; equality; non-interference; peaceful settlement of disputes; the non-use of force; and the norm of inclusion. These norms are grounded in the TAC, which was signed at the First ASEAN Summit in 1976.52 They also reflect the Westphalian principles articulated by the UN Charter.53 These core constitutive norms have since been reiterated in various core ASEAN documents (including the Charter). The norm of respect for sovereignty and territorial integrity The emergence of the norm of respect for sovereignty and territorial integrity reflect the desires of the five founding states to protect their relatively recently gained independence (again, with the exception of Thailand) and to ensure regional order, in the wake of significant interstate tensions (such as Konfrontasi). The founding states agreed, in the TAC, to respect each other’s 51 Acharya (2001) refers to these as ASEAN’s ‘legal-rational’ norms (25-6). Some other scholars refer to these norms as ‘behavioural’, given that they form a code of conduct for the interaction of member states (Busse, 1999: 46; Collins, 2003: 131). 52 The TAC articulates the ‘principles’ governing relations between member states. It refers to mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations; the right of every State to lead its national existence free from external interference, subversion or coercion; non-interference in the internal affairs of one another; the settlement of differences or disputes by peaceful means; the renunciation of the threat or use of force; and effective cooperation (ASEAN, 1976a: Article 2). 53 Article 2 of the UN Charter states that the UN and its member states shall act in accordance with certain principles including sovereign equality, peaceful dispute settlement, and refraining from the threat or use of force against the territorial integrity or political independence of any state (while of course allowing for the Chapter VII enforcement measures to protect international peace and security) (UN, 1945). 65 borders and treat each other as sovereign states, with exclusive rule over a delimited territory. 54 They were (and are) self-governing political communities, and believe (or at least agree) that they should treat each other as such. The norm of equality The norm of equality is related to sovereignty in that ‘all states, as sovereign entities, are formally equal within the society of states’ (Lake, 2008: 54). As a regional norm, the norm of equality implies that all member states have equal status in the RO. In the ASEAN context, the norm of equality also entails that member states make equal contributions to the ASEAN Secretariat. These contributions are kept low enough for the less-developed states to manage. Ostensibly this maintenance of equal contributions underpins the principle of equal status of members – part of the ASEAN Way. This does not, of course, mean that all member states have equal influence in ASEAN. Some member states – particularly the founding member states of Indonesia, Singapore, Thailand, Malaysia and the Philippines – undoubtedly have more influence than others in regional dialogue and decision-making. Former Secretary-General Ong Keng Yong claims that we agreed we should try to treat member states as equal, but the reality is that in some sectors, some member states don’t have as much weight as others. But every country argues that it should be treated equally (interview, 2008). 54 As Lake (2008) notes, ‘As sovereign entities, states possess ultimate or final authority over delimited territories and their inhabitants’ (43). 66 Thus, member states have formal equality but naturally have varying degrees of clout in certain areas of ASEAN dialogue, such as trade. This is inevitable given the diverse degrees of economic development among member states. The norm of non-interference in the internal affairs of one another Like the norms of respect for sovereignty and territorial integrity, the norm of non-interference in internal affairs also reflects the norms of the broader international states system articulated in the UN Charter. However, the ASEAN norm of ‘non-interference’ differs from the UN Charter’s notion of non-intervention. For ASEAN, ‘non-interference’ entails that domestic governance is excluded as a criterion of membership of ASEAN, and as a topic for (official) dialogue. It also means that member states traditionally have refrained from publicly criticizing one another (Haacke, 2005: 189; Katsumata, 2004: 243). Acharya (2009) describes the non-interference principle as an agreement to refrain from criticising the actions of a member government towards its own people, including violation of human rights, and from making the domestic political system of states and the political styles of governments a basis for deciding their membership in ASEAN (72). This reflects the founding states’ prioritization of internal order and regime security.55 Moreover, it refers to efforts, or a desire, to ‘[limit] the drivers of domestic political change to events and actors inside state borders’ (Emmerson, 2008a: 24). 55 Moreover, the norm of ‘non-interference’ is clearly broader in scope than the UN’s ‘non-intervention’ and makes reference to the latter redundant, given that the avoidance of criticism of domestic governance of any member state would seem to preclude any consideration of ‘intervention’ against that state. 67 The norm of peaceful settlement of disputes While ASEAN emphasizes the importance of the peaceful settlement of disputes among members, it does not maintain formal dispute resolution mechanisms. The TAC does provide for a High Council (comprising a representative at ministerial level from each member state) to review bilateral disputes and recommend to the parties ‘appropriate means of settlement such as good offices, mediation, inquiry or conciliation’ (ASEAN, 1976a). However (at the time of writing), the High Council has never actually been convened or had disagreements referred to it (Termsak, 2008c: 124). Moreover, the High Council can only recommend ‘appropriate means of settlement’, not provide binding judgments. Neither the Secretary-General nor the member state acting as Chair of ASEAN in any particular year have formal roles accorded to them in regard to dispute resolution. Tensions among states regarding territory and transnational security threats thus contribute to the skepticism regarding ASEAN’s efficacy. At times ASEAN members have turned to extraregional bodies, such as the UN, the International Monetary Fund (IMF) and the International Court of Justice (ICJ) to settle disputes among them.56 This seems to complement the ASEAN Way of avoiding direct confrontation and public criticism, and minimizes the impact of disputes 56 The ICJ has been called upon to resolve territorial disputes such as the one between Malaysia and Indonesia over the Sipadan-Ligitan islands off the Malaysian province of Sabah in December 2002; the IMF provided assistance to some states during the Asian economic crisis in 1997; and the UN effectively governed and began the reconstruction of East Timor following Indonesia’s withdrawal in 1999. Termsak (2008c) notes that Indonesia wanted to submit the 2002 dispute to ASEAN’s High Council, ‘but in the end the two governments agreed to go instead to the International Court of Justice (ICJ) in The Hague, where Malaysia won in 2002’ (124). He argues, however, that such referrals to external bodies have not negatively affected cooperation within ASEAN. For example, he claims that in the case of the dispute between Singapore and Malaysia over an islet that Singapore calls Pedra Blanca and Malaysia calls Batu Puteh, which was resolved by the ICJ in 2008, ‘neither the dispute nor its outcome distracted the two governments from cooperation in ASEAN’ (124). 68 on other ASEAN matters. The Association itself avoids engaging in the dispute settlement process. One may also posit that the UN’s role in supervising the referendum in East Timor in August 1999, and establishing peacekeeping and peacebuilding missions after the post-referendum crackdown by Indonesian militias, highlights ASEAN’s reliance on external bodies in certain circumstances. Moreover, this example highlights the tensions between ASEAN norms; taking the lead in the response to the East Timor crisis would have challenged the norm of noninterference. As Acharya (2009) notes, ‘ASEAN was…unwilling to criticise Indonesia for the atrocities committed by Timorese militias organised and supported by the Indonesian military’, and was initially unwilling to contribute troops to the multinational forces engaged in stopping the violence and peacekeeping in East Timor (180). (Once Indonesia had dropped its objections to UN involvement, some ASEAN members – namely Thailand and the Philippines, and to a lesser extent Malaysia and Singapore – contributed personnel to the International Force for East Timor (INTERFET) mission. Myanmar did not approve of ASEAN involvement in INTERFET, and Vietnam showed ‘little enthusiasm’ (Dupont, 2000: 168).57 There are some instances in which ASEAN has become involved in dispute resolution despite the potential violation of the non-interference norm, such as the ‘ASEAN troika’ (comprising 57 Interestingly, once Indonesia had accepted (under considerable pressure, particularly from the US) the international involvement in East Timor, then-Indonesian President B.J. Habibie and then-Foreign Minister Ali Alatas indicated that they preferred ASEAN involvement to that of other states, ‘for reasons of face and to minimise Australia’s influence’ (Dupont, 2000: 166). Ultimately, if an international mission in East Timor was inevitable, Indonesia preferred that it involve its ASEAN neighbours. Of the 9,900 personnel in the INTERFET mission, approximately 2,500 were from ASEAN states: 1,580 from Thailand, 600 from the Philippines, 254 from Singapore and 30 from Malaysia (Dupont, 2000: 167). 69 Indonesia, the Philippines and Thailand) convened to help resolve the political crisis in Cambodia in 1997 (this will be further discussed). However, the prospect of ‘interfering’ in Indonesia’s internal affairs – ASEAN’s largest state and one of the founding members – in the case of East Timor was much more dangerous than in the Cambodian case (in terms of both the threat of physical violence and to ASEAN’s existence). Thus, the norm of ‘peaceful settlement of disputes’ does not necessarily imply the consistent direct involvement of ASEAN itself in dispute resolution. The norm of non-use of force The norm of non-use of force also reflects those of the UN state system. More importantly, in this context, it reflects the desire of ASEAN states to minimize disputes and prevent outright conflict between them. This was of particular importance given that earlier regional associations in Southeast Asia – the Association of Southeast Asia (ASA, formed in 1961) and MAPHILINDO, a confederation comprising Malaysia, the Philippines and Indonesia – both collapsed due to interstate tensions. As mentioned, Konfrontasi was particularly significant in this respect. Acharya (2009) notes that ‘In wrecking the prospects for MAPHILINDO, Konfrontasi had underscored the importance of regionalism by demonstrating the high costs of the use of force to settle intra-regional disputes’ (58). ASEAN was established in part to provide a framework to prevent a similar situation. Nevertheless, the principle of the non-use of force was tested quite early, for example in the dispute between Malaysia and the Philippines over Sabah, which flared up in 1968-9. However, it was at an ASEAN foreign ministers’ meeting in December 1969 that Malaysia and the Philippines agreed to resume diplomatic relations. The joint communiqué of the meeting 70 credited this positive development to ‘the great value Malaysia and the Philippines placed on ASEAN’. The Sabah issue was swept under the carpet (Acharya, 2009: 61). The norm of the non-use of force has since become a source of pride for ASEAN representatives; member states have not engaged in outright conflict since ASEAN’s formation in 1967 (e.g. Kivimäki, 2011). The norm of inclusion The final core constitutive norm is the norm of ‘inclusion’. ASEAN was conceived as a group that may grow to represent the region as a whole; the TAC states that ASEAN ‘shall be open for accession by other States in Southeast Asia’ (ASEAN, 1976a: Article 14). The founding states had envisioned an inclusive organization; the Bangkok Declaration states that ‘the Association is open for participation to all States in the South-East Asian Region’, providing they subscribe to its aims and principles (ASEAN, 1967). As such, upon the admissions of Laos and Myanmar in July 1997 (with Brunei and Vietnam having been admitted in 1984 and 1995 respectively), the Foreign Ministers asserted that they had ‘advanced the vision of the Founding Fathers to build a united community of the Southeast Asian Nations’ (ASEAN, 1997a). ASEAN’s expansion was influenced by a desire in the postCold War period to make the Association representative of Southeast Asia, in the light of opportunities for shared economic growth and concern about external powers. ASEAN’s ‘norms of inclusion’ are thus, at least in part, driven by instrumental motivations in regard to economic integration and balancing the influence of external powers, such as China, India and Japan (Narine, 2002: 113). 71 No provisions had been made in the TAC or other ASEAN documents for particular membership requirements; thus, the only clear criterion to become a member of ASEAN was geographical location in the recognized region of Southeast Asia.58 Thus, as Termsak (2008c) of the ASEAN Secretariat notes, ‘unlike the EU, ASEAN has never required a prospective member to possess a functioning pluralistic democracy with a good record on human rights’ (109).59 Procedural norms These constitutive norms are complemented by the procedural norms of the so-called ‘ASEAN Way’. I identify four core procedural norms: decision-making by consensus; informality and non-binding commitments; pragmatism; and moving at ‘a pace comfortable to all’. 60 These 58 Note that some states located outside the region have acceded to the TAC in recent years, following amendments to the TAC in 1987 and 1998; this has not, however, made them ‘Member Countries’, but external partners. At the time of writing, ten states have acceded to the TAC: China and India (both in 2003), Japan, Pakistan, Republic of Korea and Russia (all 2004), Australia and New Zealand (both 2005), the US (2009) and Canada (2010). Plans for the EU to accede are underway, but require the resolution of an amendment to the TAC so that ROs with sovereign state members can accede. These states are known as Dialogue Partners. The UN Development Programme is also a Dialogue Partner, and Pakistan is a Sectoral Dialogue Partner. The ASEAN website states that ‘ASEAN shall develop friendly relations and mutually beneficial dialogue, cooperation and partnerships with countries and subregional, regional and international organisations and institutions. In conducting ASEAN’s external relations, the ASEAN Foreign Ministers Meeting may confer on an external party the formal status of Dialogue Partner, Sectoral Dialogue Partner, Development Partner, Special Observer, Guest, or other status.’ (ASEAN, 2012a). These stipulations also appear in Articles 41-6 of the Charter (ASEAN, 2007a). ASEAN has had various ad hoc meetings and ongoing dialogues with groups and organizations including the Andean Community, the UN, the Asian Development Bank, the Gulf Cooperation Council, the International Labor Organization, the Shanghai Cooperation Organization, and the Southern African Development Organization. 59 As will be discussed below, however, the norm of inclusion was challenged by the delay to the admission of Cambodia as a member of ASEAN after the 1997 coup staged by Hun Sen. 60 Acharya calls these ‘socio-cultural’ norms (25-6). Like me, both Busse (1999: 46) and Collins (2003: 131) describe them as ‘procedural’, given that they pertain to the procedures and practices of ASEAN members. Note that the components of the ASEAN Way are not formally articulated by the Association. However, in 1992 the then 72 norms are interrelated and will be discussed together. Member states have traditionally rejected the ‘legalistic’, formal style of Western institutional structures, and instead favour a private and informal political culture embodied by small elite networks. Members are spared the embarrassment of dissent, through closed-door dialogue that precedes formal meetings (Acharya, 2009: 82-3). Final decisions are officially made by ‘consensus’. Member states prefer to move at ‘a pace comfortable to all’.61 Capie & Evans (2007) note that the ASEAN Way ‘stresses patience, evolution, informality, pragmatism, and consensus’ (9). It provides a code of conduct for member state relations; in their interactions, ASEAN members focus on accommodation and consultation. They prefer ‘non-binding commitments rather than legalistic formulae and codified rules’ (11). The Association is thus characterized by relatively low levels of institutionalization and legalization. While the founding states hoped that ASEAN would facilitate ‘regional peace and stability’ (ASEAN, 1967), the entity began as a grouping or association rather than a formal IO in the sense of Keohane’s (1988) definition (‘purposive institutions with explicit rules’ (384), mentioned in Chapter 2). This is not to suggest that ASEAN was without purpose; the original members did have common objectives in terms of regional stability and the mutual pursuit of economic growth without external interference.62 Rather, it is to note that ASEAN members Malaysian Prime Minister, Dr Mahathir bin Mohamad, described the ‘5Cs’ of the ASEAN spirit: consultation, consensus, caring, cornerstone, and consolidation (Mahathir, 1992: 1-4). 61 Former ASEAN Secretary-General Rodolfo Severino writes that ‘The relative rarity of legally binding agreements in ASEAN is a product of the member-states’ preference for caution and gradualism in developing regional institutions. “At a pace comfortable to all” is a favourite phrase in ASEAN documents, which means advancing as fast, or as slowly, as the most reluctant or least confident member allows’ (Severino, 2006: 18). 62 Thus, I do not entirely agree with Bellamy (2004), who describes ASEAN norms as ‘practical rules of association’ rather than ‘purposive rules’; he argues that unlike the EU, for example, ‘purposive rules’ do not apply to ASEAN because it was not established to achieve communal goals (99). 73 preferred an informal arrangement with less institutionalization. In 1987, Alagappa described this as a ‘loose framework [which] provides opportunities for ‘face saving’ which is considered vital for Asean solidarity and cohesion [sic]’. However, it also resulted in ‘ambiguity and inefficiency’. The member states’ preference for consensus decision-making reflected their cautious approach to regional cooperation (Alagappa, 1987: 183). It should be noted that ‘consensus’ in ASEAN decision-making is not the same as unanimity (Capie & Evans, 2007: 14). The late Ali Alatas, former Foreign Minister of Indonesia, described consensus as finding a way of ‘moving forward by establishing what seems to have been broad support’ (quoted in Acharya, 1997: 331). Not all member states may entirely agree with a particular measure, but they ‘agree to disagree’ with the other members and, importantly, keep their dissent private. This is sometimes referred to as the ‘Ten minus X’ (or ‘ASEAN minus X’) formula, or ‘flexible consensus’ (which is generally understood as only to be used in relation to economic matters, and not fundamental security or political decisions) (Capie & Evans, 2007: 132). The idea is that if a member state does not agree with a particular decision, but is not affected by it, the member should refrain from preventing it, but should instead abstain from the ASEAN process of adoption. These procedural norms of the ASEAN Way are geared towards ensuring a ‘united front’ in the face of considerable political, cultural and religious diversity. As Job (1999) notes, the ASEAN Way reflects ‘the practical requirements of holding together such a diverse group of states’ (10). Similarly, Solingen (2008) suggests that the significant political diversity in Southeast Asia may account for the design of institutions, as ‘informal, process-driven, [and] reliant on consensual 74 decision-making’ (268). The ASEAN Way norms of consensus, informality, non-binding commitments and pragmatism enable the member states to remain part of ASEAN despite their differences. They also, of course, underscore the ‘gradual and piecemeal development’ of ASEAN’s institutional framework (Alagappa, 1987: 183). Whither ASEAN norms? ASEAN’s approach to regional order is thus based on a combination of the procedural norms of the ASEAN Way, and the constitutive norms discussed above, rather than formal, explicit ‘rules’ (Acharya, 2001; Busse, 1999; Collins, 2003). It has sought to admit all Southeast Asian states as members, and to avoid confrontation through gradual institutional change using consensus decision-making. In this context, since the Association’s establishment, member states have managed to prevent intra-regional disputes from escalating into full-scale conflict; this led observers by the early 1990s to regard ASEAN as ‘one of the most successful experiments in regional cooperation in the developing world’ (Acharya, 2009: 6). ASEAN norms have generally been regarded as ensuring this relative stability. Some analysts regard ASEAN as playing an important role in facilitating interaction amongst Southeast Asian states, and possibly even the genesis of a ‘regional identity’ (e.g. Acharya, 2000; Jones, 2004). The latter claim seems dubious given the significant diversity amongst states, and research suggesting a lack of identification by mass publics with the peoples in other member states (e.g. Roberts, 2007). However, there is some credibility to arguments that at the elite level, interaction within ASEAN has over time facilitated ‘socialization’ amongst states (e.g. 75 Acharya, 2009: 23-32). While it is outside the scope of this dissertation to analyze such arguments in depth, I would argue that processes of elite socialization (defined in Chapter 2), as well as the continuity of elites in early decades, have reduced the chances of tensions among ASEAN members escalating into conflict. ASEAN’s constitutive and procedural norms do not, prima facie, lead one to expect an official ASEAN position on ‘appropriate governance’ (in regard to regime types or relationships between states and their citizens). However, ASEAN norms should not be regarded as necessarily static. Rather, they are dynamic, and evolve over time as the organization and its environment changes. We now explore challenges to these norms. These challenges have led to reinterpretation or recalibration of some norms, and to reaffirmation or even reinforcement of others. Challenges to ASEAN norms Challenges to the norm of non-interference Various developments in the late 1990s, most notably the complications of ASEAN’s membership expansion and the 1997-98 regional financial crisis, posed challenges to ASEAN’s traditional normative underpinnings, and provoked doubts and criticism regarding its continued viability. The expansion of ASEAN’s membership has challenged its norms and given rise to differences in interpretations of their meaning, in principle and in practice. In particular, it has provoked challenges to the norm of non-interference. 76 For example, while ASEAN does not have specific criteria for membership beyond location in the region, issues of domestic governance have indeed become salient in its consideration of admission of members. In particular, Cambodia’s admission was delayed due to concerns regarding the violent coup staged by Hun Sen in 1997.63 At a Special Meeting of the ASEAN Foreign Ministers in July 1997, the foreign ministers stated that While reaffirming the commitment to the principle of non-interference in the internal affairs of other states…in the light of unfortunate circumstances which have resulted from the use of force, the wisest course of action is to delay the admission of Cambodia into ASEAN until a later date (ASEAN, 2007j). Cambodia was eventually admitted in 1999 after the aforementioned ‘ASEAN troika’ (comprising Indonesia, the Philippines and Thailand) effectively brokered a resolution to the crisis, involving elections and the installation of a coalition government led by Hun Sen. As Cambodia was not a member of ASEAN when this coup took place and the troika dispatched,64 this episode was not technically a violation of the non-interference norm, but it indicates that domestic governance issues have indeed been the subject of ASEAN dialogue. It also, as mentioned, represents a challenge to the norm of inclusion. This reflects the ‘ebb and flow’ of the interpretation of norms. 63 ASEAN initially intended to admit Cambodia at the same time as Laos and Myanmar (which were admitted in 1997). In the Press Statement of the First Informal ASEAN Heads of Government Meeting in Jakarta on 30 November 1996, the (then seven) member states declared that they had agreed that Cambodia, Laos and Myanmar ‘be admitted as ASEAN members simultaneously’ (ASEAN, 1996). However, at the Second Informal Meeting in Kuala Lumpur on 15 December 1997, they welcomed Laos and Myanmar as members, and ‘agreed that consultations should be intensified so as to enable Cambodia to join ASEAN as soon as possible, preferably before the next ASEAN Summit’ (ASEAN, 1997b). The latter Press Statement does not go into any more detail on the delay in Cambodia’s admission. 64 Cambodia was, however, an Observer to ASEAN, and the Association had expressed its intention to admit it as a member – refer to the previous footnote. 77 Nevertheless, Vatikiotis (2007) argues that this episode did constitute a violation of the noninterference norm – in fact, he argues that ‘ASEAN broke all of its rules’, and that from the 1980s, Cambodia was ‘subjected to more than a decade of interference and intervention’. This overlooks the complexity of the situation. It is not clear exactly what constitutes ‘interference’. Hun Sen had himself accused ASEAN of interfering in Cambodia’s internal affairs, at the troika’s first meeting on July 19, 1997. However, he ‘backed down after the Association made it clear that ASEAN had survived without Cambodian membership for thirty years’ (Ramcharan, 2000: 67). Nevertheless, Ramcharan argues, ‘ASEAN was politically damaged by the encounter. The immediate task for ASEAN was to reconcile its renewed overt involvement in Cambodia’s domestic political process with its principle of non-interference’ (68). (Cambodia’s admission will be further discussed in Chapter 4). In contrast to the case of Cambodia, Myanmar’s admission to ASEAN in 1997 was apparently not delayed, despite the internal illegitimacy of the ruling military junta. However, its membership has been consistently problematic, and provoked challenges to the non-interference norm. Myanmar was admitted to ASEAN on the grounds that so-called ‘constructive engagement’ was preferable to isolation, and that it furthered the vision of a truly representative, or regionally inclusive, RO.65 However, there was agreement among several observers and 65 It is also important to note that at the time of Myanmar’s admission, its domestic political situation was less scrutinized by the ‘international community’ than Cambodia’s had been. The latter had been under UN supervision in 1992-93 following years of violent conflict between Cambodian factions, including the Khmer Rouge. This may have influenced the delay in its admission to ASEAN. Moreover, Myanmar was more strategically significant to ASEAN than was Cambodia, given its relationship with China. As discussed, ASEAN member states were generally wary about ‘Great Power’ influence in the region, and thus they were keen to offset the friendly relations – and arms deals – offered by China to Myanmar. 78 ASEAN member representatives before the 2010-12 reforms in Myanmar (to be discussed in Chapter 5) that ‘constructive engagement’ had failed (e.g. former Malaysian Prime Minister Datuk Seri Abdullah Ahmad Badawi as cited in Foo Yee Ping, 2007; also see Khoo, 2004b: 40; Acharya, 2007; and Roberts, 2010: 217-22).66 Despite this, calls for a reinterpretation of the non-interference norm have not tended to garner support. A prominent early example in 1998 was the proposal from the then-Foreign Minister of Thailand, Dr Surin Pitsuwan, that ASEAN adopt a policy of ‘flexible engagement’ that permitted public criticism, in order that member states could play a ‘more proactive role’ (particularly in relation to managing the problems associated with Myanmar’s membership) (Surin Pitsuwan, 1998). Only one ASEAN foreign minister publicly supported Surin’s idea: Domingo Siazon of the Philippines. Other foreign ministers, particularly those from Brunei, Laos, Malaysia, 67 Myanmar and Singapore, rejected ‘flexible engagement’ and reaffirmed the non-interference norm (Emmerson, 2008b: 77). Surin’s proposal was rejected at the 31st ASEAN Ministerial Meeting (AMM) in 1998, in favour of a watered-down policy known as ‘enhanced interaction’. 66 Some now argue that the recent reforms in Myanmar demonstrate that ‘constructive engagement’ actually worked; for example, Singaporean diplomat and academic Kishore Mahbubani argued in May 2012 that ‘it is now clear that ASEAN’s decision to admit Myanmar in 1997 was a brilliant geopolitical decision...The Myanmar story provides an excellent example of how successful ASEAN pragmatism has been’ (Mahbubani, 2012). 67 This is not to suggest that Malaysia has consistently opposed reinterpretation of the non-interference norm; the positions of Malaysian officials have varied. In 1997 after the coup in Cambodia, the then Deputy Prime Minister Anwar Ibrahim suggested that ASEAN ‘consider undertaking “constructive interventions” to prevent future state failure in Southeast Asia, including helping countries at risk to include their election procedures and reform their administrations while strengthening civil society and the rule of law’ (Emmerson, 2008b: 77). However, the following year (1998), Malaysia’s then Foreign Minister, Abdullah Badawi, publicly opposed Surin’s proposal and reaffirmed non-interference (Emmerson, 2008b: 77). 79 In the period since, however, some ASEAN leaders are becoming more willing to be outspoken about domestic governance issues outside official dialogue. For example, Myanmar declined to take up the chairmanship of ASEAN, scheduled to begin in July 2006, under a certain degree of pressure from other states (Salim Osman, 2005; Baguioro, 2005). Parliamentarians from Malaysia, Singapore, Thailand, Indonesia and the Philippines had voiced concerns publicly about the prospect of Myanmar acting as ASEAN chair.68 Their references to Myanmar’s domestic political circumstances in this context suggest that ‘public criticism’ is becoming more palatable in certain circumstances. Indeed, ASEAN leaders became openly critical of the military junta’s repressive rule. In September 2007, the military junta cracked down on peaceful protesters led by Buddhist monks in Yangon; at least 15 people were killed, but probably far more (International Crisis Group, 2008).69 After this incident, certain member states became more willing to be outwardly critical of Myanmar. Singapore’s Foreign Minister George Yeo, in his capacity as ASEAN chair, expressed the ‘revulsion’ felt by his colleagues; they were ‘appalled’ at ‘reports of automatic weapons’ being used against demonstrators (ASEAN, 2007g). This was a significant statement, 68 For example, the Philippine Senate passed a motion calling on ASEAN to deny Myanmar the chairmanship, and the Indonesian parliament’s Commission on Defense and Foreign Affairs called on the government to boycott ASEAN if Myanmar was permitted to take up the role. Senators in Thailand and parliamentarians in Malaysia similarly petitioned their respective governments to toughen their positions on Myanmar; while the bill in Malaysia was eventually shelved, ‘the commotion over the bill allowed Malaysian parliamentarians to vent openly their dissatisfaction with the lack of political change in Myanmar’ (Kuhonta, 2008a: 303-4). 69 The protests began in August 2007 in response to increasing fuel prices. On 24-5 September, thousands of Buddhist monks marched in downtown Yangon followed by members of the public, in what the International Crisis Group called ‘the strongest show of opposition to the ruling State, Peace and Development Council (SPDC) in almost two decades’. On 26 September, the crackdown began, and ‘troops raided several monasteries, beat up monks and dragged several hundred off to special detention centres’. Riot police and soldiers ‘used tear gas, batons, rubber bullets and live ammunition to break up the crowds’. The official death toll was 15 but several estimates believe it was more than twice that number (International Crisis Group, 2008: 1-3). 80 in that it was openly critical of a member state. It suggests that as member states realized the transborder security implications (given the movement of refugees and rebels across the ThaiMyanmar border) of having Myanmar as a member of ASEAN, interpretations of the noninterference norm evolved. Mely Caballero-Anthony argued that, given these events in Myanmar and ASEAN’s responses, ‘a basis for interference now exists’ (interview, 2008) (see also Emmerson, 2008a: 29; and Kuhonta, 2008a: 304-13). The knowledge that it was in Myanmar’s interests to remain in ASEAN made other member states, or at least Singapore, more comfortable with the idea of pushing the boundaries of public criticism. Yeo told the Singaporean Parliament in October 2007 that Myanmar may well resent the fact that we have every intention in ASEAN to discuss their domestic affairs at our meeting, they too know it’s better for them to remain in ASEAN and face the family than to be left alone outside [sic]’ (quoted in Channel News Asia, 2007). Again, Yeo’s statement also would seem to portend a break with, or reinterpretation of, the norm of non-interference; perhaps it suggests that the norm can be acceptably violated in crisis situations. However, Yeo also said that, while it was ‘tempting and emotionally-justified’, ASEAN was not about to revoke Myanmar’s membership, because it was not in ASEAN’s ‘long-term strategic interest’ for Myanmar to be ‘Balkanized’ (quoted in Channel News Asia¸ 2007). 81 ASEAN leaders were partly motivated to make this statement by the criticism of Myanmar by states outside the region. ASEAN itself has also been criticized for its perceived reluctance to exert more pressure on its junta to ease its repressive tactics (and to ultimately call elections). 70 Kuhonta (2008a) argues that when ASEAN decided to ‘take a more critical stand toward Myanmar, significant pressure from the West was crucial’ (304). Some ASEAN leaders were reportedly also tired of the ‘Myanmar issue’ dominating ASEAN dialogue; The Straits Times reported in April 2006 that then-Malaysian Foreign Minister Datuk Seri Syed Hamid Albar (following a visit to Myanmar) stated that ‘the military junta in Yangon was holding ASEAN hostage, hampering progress and bringing the region into disrepute’ (Salim Osman, 2006a). He urged the junta to show ‘more credible, more visible action’ to prove its commitment to democracy, and stated that the issue had ‘inundated many of our meetings’ (quoted in Salim Osman, 2006b). Later, in January 2007, Syed Hamid Albar argued that We can work with Myanmar, but Myanmar has to help us have our credibility. We cannot be supporting something that is not seen as consistent with the current development toward democracy in the world (Quoted in Brinsley & Ghosh, 2007). However, ASEAN leaders were concerned that pressuring or isolating Myanmar would only push it closer to China, its ‘friend’ and arms supplier, and a rapidly growing economic and military power (Roberts, 2010: 93-6). Thus, given the uncertainty regarding China’s influence in Southeast Asia, ASEAN leaders continue to try to ‘engage’ Myanmar rather than threatening to 70 In April 2006, for example, then-Malaysian Foreign Minister Syed Hamid Albar expressed concern that the military junta in Yangon was hampering progress and harming ASEAN’s reputation. He claimed that ‘What is happening in Myanmar is affecting us. People are saying that ASEAN could not play a role of bringing Myanmar to move towards democracy’ (quoted in Salim Osman, 2006a). The effect of Myanmar on ASEAN’s reputation will be discussed further in Chapter 4, in regard to concerns about ASEAN’s ‘external legitimacy’. 82 suspend or expel it. This could also be seen as reflecting ASEAN’s historical tendency to resist the undue influence of ‘great powers’ outside the region. Tan Sri Ahmad Fuzi Haji Abdul Razak, diplomat and former Secretary General of Malaysia’s Ministry of Foreign Affairs, argues that ‘No members currently want to leave ASEAN, but if we press Myanmar too hard, it will. It is better to have an organization that is not perfect than to risk having members leave’ (interview, 2008). Thus, Myanmar’s membership illustrates the quandary which leads to this apparent ‘ebb and flow’. It also illustrates the tensions between the norm of inclusion and the (evolving) norm of non-interference. For example, the stalling of Cambodia’s membership suggested that some evolution of the non-interference norm must have occurred. However, Myanmar’s admission suggests otherwise; the norm of inclusion was given priority. While the security and humanitarian crises in Myanmar, to which the international community paid attention, provoked a clear change in the interpretation of the ‘public criticism’ aspect of the non-interference norm, one must also see the Charter as a victory for those seeking to reinforce this norm; it was reaffirmed in the Charter, and there were no provisions made for the imposition of sanctions on recalcitrant states. Challenges to the norm of peaceful settlement of disputes ASEAN representatives have often expressed their pride that any disputes between member states have been resolved ‘peacefully’ since ASEAN was established. Indeed, resolution of tensions among the founding member states was one of the reasons for the formation of ASEAN. However, the means by which disputes are ‘peacefully resolved’ has been the subject of 83 discussion and some criticism. The ASEAN Way enables members to avoid confronting their differences, by overlooking and deferring disputes. As Acharya (2009) notes, critics see it as ‘geared more towards conflict avoidance rather than conflict resolution and has led to conflicts being ‘swept under the carpet’’ (84). In addition, member states have at times turned to IOs outside the region to resolve disputes between them, or provide assistance in times of crisis. This suggests that the lack of outright conflict between member states cannot necessarily be attributed to ASEAN’s existence and/or norms of peaceful dispute resolution. Moreover, many bilateral disputes, particularly over territory, remain between ASEAN states. In particular, the Spratly Islands and other parts of the South China Sea have been contested at various times by Brunei Darussalam, China, Malaysia, the Philippines, Taiwan, and Vietnam. As such, the imperative has grown to develop a more formal dispute resolution mechanism. Challenges to the norm of inclusion The norm of inclusion became the subject of discussion during the drafting of the ASEAN Charter. At the 40th AMM in Manila in July 2007, the Foreign Ministers met to resolve six issues in regard to the Charter. The New Straits Times (Malaysia) reported that one issue was the criteria of ASEAN membership. Syed Hamid Albar argued that ‘This shouldn’t be a problem at all. It’s just about qualification of a member. We have had no problems so far. It’s just a semantic problem’ (quoted in Wan Hamidi Hamid, 2007). Article 6 of the Charter states that new members shall be admitted based on the criteria of location in the recognized geographical region of Southeast Asia; recognition by all member states; agreement to be bound by and to 84 abide by the Charter; and ability and willingness to carry out the obligations of membership. Further, ‘admission shall be decided by consensus by the ASEAN Summit’ (ASEAN, 2007a: 9). Thus, the norm of inclusion is apparently reaffirmed by the Charter. (At the time of writing, the only likely new member is Timor Leste, given that there are no other sovereign states in Southeast Asia which are not already members). Challenges to the norm of decision-making by consensus The expansion of ASEAN’s membership (to include all Southeast Asian states except TimorLeste) means that there is now significant diversity amongst the member states. However, the norm of equality means that decision-making is, as discussed, by consensus; member states also make equal financial contributions to ASEAN. Of course, this does not necessarily mean that each state’s influence ‘at the table’ in ASEAN dialogue is equal. The founding member states – Thailand, Indonesia, Singapore, Malaysia and the Philippines – remain the more influential in ASEAN. The so-called ‘CLMV’ (Cambodia, Laos, Myanmar and Vietnam) states, which are newer, less developed and less economically significant members, tend to have less clout.71 These states have generally opposed any movement towards greater emphasis on internal governance.72 However, the persistence of the use of consensus in decision-making (rather than 71 The CLMV states, all newer members of ASEAN (having joined between 1985 and 1999), are less developed than the founding members of Indonesia, Malaysia, the Philippines, Singapore and Thailand. The small state of Brunei Darussalam was admitted in 1984, but tends not to be grouped with the other newer members because it has the highest gross national income per capita of all member states and its demographic indicators (such as literacy, adult mortality rates and infant mortality rates) are among the most favourable (along with Singapore) (WHO, 2010). It is thus often grouped with the founding states in discussions about the ‘development gap’ in ASEAN (but given its small size and population, and shorter membership of ASEAN, does not have the influence on ASEAN dialogue and decisions enjoyed by the founding states). 72 For example, when the founding states pressured Myanmar in early 2005 to refrain from taking up the chairmanship of ASEAN, the other CLMV states (Cambodia, Laos and Vietnam) did not. Other examples will be discussed in relation to the ASEAN human rights body in Chapter 5. Brunei’s degree of influence is less clear – it is 85 an alternative method such as majority voting) means that differences among member states are either ‘negotiated away’ or serve to block the conclusion of agreements.73 Thus, ASEAN is able to maintain a façade of unity, and avoid (or privately resolve) tensions and disputes amongst members. This means, of course, that many sensitive issues have traditionally simply been avoided in official dialogue (such as human rights, to be discussed in Chapter 5). Moreover, the norm of decision-making by consensus is regarded by some as contributing to what many perceive as ASEAN’s ineffective response to regional crises, since states are able to block decisions they find unfavourable (for example, Jones & Smith, 2002; Khoo, 2004a: 53). Indeed, ASEAN’s responses to crises have been the targets of much criticism. For example, the regional economic crisis of 1997-98 provoked questions and criticism regarding ASEAN’s relevance, credibility and effectiveness in addressing regional issues (for example, Jones & Smith, 2002; Khoo, 2004a; Sharpe, 2003; and Leifer, 1999). Some observers regarded the IMF’s involvement in assisting regional economies as evidence of ASEAN’s ineffectiveness. The Association’s inaction highlighted its lack of concrete institutional mechanisms, but also an inability or unwillingness to cooperate (Job, 1999: 1). Even where the economic crisis stimulated political instability – such as in Indonesia – ASEAN did not become involved, beyond making broad statements. For example, the Hanoi Declaration made at the Sixth ASEAN Summit in December 1998 laments the regional financial crisis and mentions to the need to certainly more economically developed than the CLMV states, but its small population and small economy in aboslute terms makes it less visible in ASEAN dialogue, and indeed it seems to be often overlooked in analyses of ASEAN. 73 Jones and Smith (2002) go as far as suggesting that ASEAN’s ‘central purpose’ seems to consist of ‘concealing fundamental differences of view among its members under the guise of consensus and noninterference’ (103). This is, in my view, somewhat overstated. 86 introduce ‘economic and financial reforms…at the national level’, but not to specific plans (ASEAN, 1998b, emphasis added). The Declaration does note that these reforms ‘must be reinforced by corresponding reforms at the global level’, and states that the ‘international community also has a responsibility to continue to support out reform efforts through bilateral and multilateral assistance’ (ASEAN, 1998b, emphasis added). There is no ASEAN agreement to introduce specific regional mechanisms to address the financial crisis (beyond regional economic monitoring and surveillance).74 This is not to suggest that ASEAN dialogue generally does not have tangible outcomes; ASEAN leaders do sign agreements and make declarations on a myriad of issues. However, they are often ‘watered down’, with more sensitive or contentious provisions omitted.75 This is a pragmatic response to indications that a particular suggested provision will not be accepted (i.e. signed and/or ratified at the domestic level) by all member states.76 Consensus is thus described as decision-making by accommodation of the ‘lowest common denominator’. Critics perceive 74 There were some post-financial crisis initiatives designed to avoid a similar experience in East Asia; however, these were not formulated by ASEAN acting alone. Most notably, the Chiang Mai Initiative (CMI), a regional liquidity fund, was launched in May 2000 by APT (ASEAN member states plus Japan, China and the Republic of Korea). The CMI was designed as a series of bilateral swap arrangements in which governments facing a currency crisis could swap their local currency for international currencies (note that Brunei, Cambodia, Laos, Myanmar and Vietnam do not participate). Emergency funding is available, but is largely tied to IMF conditionalities (China and Japan had insisted upon IMF participation, to reduce the risk of misuse of funds, particularly given the CMI’s ‘rudimentary’ surveillance mechanism: Nesadurai, 2009: 15). In addition, the APT finance ministers’ forum initiated other projects such as the two regional bond funds (the Asian Bond Funds 1 and 2) launched in 2003 and 2004, and the Asian Bond Markets Initiative launched in 2002. Thus, there have been advances in East Asian financial cooperation (Nesadurai, 2009). However, I note that these have not been initiatives of ASEAN alone, and would have been much less likely without the involvement of ASEAN’s Northeast Asian neighbours. 75 This will be discussed further in relation to particular provisions of the Charter, in Chapters 4 and 5. 76 Of course, this is not a phenomenon particular to ASEAN. Agreements and declarations signed by multiple sovereign states are usually modified so as to make them more palatable to signatories, and thus end up less farreaching than some parties would like. In ASEAN, however, it often seems that the norms of non-interference and informal diplomacy made ‘watering down’ expected, and indeed necessary if any agreement at all is to be made on particular issues. 87 this as an undesirable state of affairs given the staunch adherence to sovereignty and noninterference of some states, and the resistance to change in some areas.77 Thus, the limitations of consensus decision-making are such that ASEAN member states often do not have the institutional basis on which to respond rapidly to regional crises, or take a firm stand on the behavior of a particular government. And of course, as Emmerson (2008a) notes, ‘consensus gave each member state the right to veto the regional promotion of any particular type of regime’ (24). As Ong Keng Yong notes, ‘we effectively have ten vetoes’ (interview, 2008). The ‘need to move at a pace comfortable to all’ is a source of frustration for many observers; for example, Dr Makmur Keliat of the University of Indonesia says This is a common problem for ASEAN – it has to go step-by-step. But why? Because we have different backgrounds and political systems. And also because ASEAN is a ‘playground for diplomats’. We have to adopt a step-by-step approach. People get frustrated – I get frustrated (interview, 2008). However, Makmur concedes, this is the reality of ASEAN. A more optimistic perspective is that the ASEAN Way is beneficial in that it enables ASEAN members to reach a position rather than being entirely hamstrung by ‘disunity and policy paralysis’ (Khong & Nesadurai, 2007: 35). This suggests that any position at all is preferable to achieving none – perhaps because it perpetuates the habit of dialogue, and creates a basis for possible future cooperation on an issue. For example, as Khong and Nesadurai (2007) point out, 77 In an influential account of the origins of ASEAN, the late Michael Leifer noted the significance of the ‘principle of consensus which…meant that policy initiatives can only arise on the basis of a common denominator’ (Leifer, 1989: 24). 88 Adhering to the norms of accommodative diplomacy helped ASEAN members develop a consensus position on what they regarded as the most serious challenge to regional security in the 1980s – Vietnam’s 1978 invasion and occupation of Cambodia – despite internal differences over the nature of the threat and how to address it (35). They explain ‘accommodative diplomacy’ as regular processes of consultation and searching for accommodation through forums, committees, and meetings among ministers, senior officials and diplomats from member states (35). Thus, in this particular crisis, the desire to reach consensus served ASEAN well – particularly given that ASEAN took a fairly hard line, condemning ‘foreign aggression’ in Cambodia and demanding that Vietnam retreat (Acharya, 2009: 99-120). However, we must remember that ASEAN had only five members until 1984, and neither Vietnam nor Cambodia were members until the late 1990s. Reaching an agreement by consensus to respond to crises is more difficult in the contemporary, expanded ASEAN. At times, the need for consensus hinders even the proposal to address certain issues (such as the illegitimacy of the ruling military junta in Myanmar). A norm of ‘non-implementation’? Another feature of ASEAN decision-making is that that many of its agreements are not actually put into effect. Indeed, a 2007 report by the Center for Strategic and International Studies in Washington DC suggests that ASEAN implements only 30% of its agreements (cited in The Economist, 2007). This raises the question of whether there is a norm of ‘non-implementation’ – perhaps unsurprising in a RO with low levels of institutionalization and legalization. Interestingly, Dominguez (2007) discusses a similar phenomenon in relation to the OAS – what 89 he calls a ‘rule of laxity’. While Dominguez notes that this term may seem oxymoronic, he calls it a ‘rule’ because it is so pervasive and long-lasting across issue areas and time periods, unpunished by co-signatories, and generally accepted even when its existence hampered the procedures or organizations that participating states sought to create (95).78 The ‘watering down’ of ASEAN agreements, and the poor record of subsequent implementation, have led some analysts to be explicitly critical about ASEAN’s very raison d’être. Several scholars have expressed skepticism that ASEAN is anything more than a ‘talk shop’ (for example, Khoo, 2004a; Sharpe, 2003). Jones and Smith (2002) go as far as dismissing ASEAN as an ‘imitation community’: a ‘rhetorical shell’ that gives ‘form but no substance to domestic and international arrangements’ (93). While it ‘possesses all the paraphernalia that regional organizations require…it makes no decisions and enforces no rules’ (108).79 Challenges to the norm of equality It must be noted, however, that the issue of implementation – and perhaps, the phenomenon of ‘watering down’ agreements – may also be one of ASEAN’s capacity. The arrangement of equal contributions (reflecting the norm of equality) means that ASEAN has limited financial resources. As a result, the ASEAN Secretariat has been constrained by a lack of resources.80 78 I would not necessarily regard the lack of implementation of agreements in ASEAN as a ‘rule’, per se (given my definition of rules in Chapter 2), but there is an apparent ‘laxity’ in regard to the implementation of ASEAN agreements. 79 Jones and Smith do not, however, adequately explain why ASEAN members would go to the lengths of constructing such a ‘community’. 80 The late Dr Hadi Soesastro reported in 2008 that contributions were $900,000 each, and had actually been reduced from $1 million each when Laos joined ASEAN (interview, 2008). According to ASEAN-ISIS (2006), member 90 Some analysts argue that sufficient funding for the Secretariat would necessitate a new formula, such as a proportion of GDP (e.g. Rizal Sukma in ASEAN Studies Centre, 2008a; ASEAN-ISIS, 2006).81 However, member states have not accepted such recommendation; Article 30 of the Charter reiterates that the Secretariat’s operating budget ‘shall be met by Member States through equal contributions’ (ASEAN, 2007a: 26). While insisting on equal contributions reinforces the norm of equality of members, the norm of equality suits members that do not want an Association with increased capacity. As a traditionally intergovernmental organization, with no aspirations to supranationalism, and an emphasis on sovereignty and non-interference, it seems that some member state representatives prefer to limit the capacity of ASEAN. The lack of resources historically devoted to the ASEAN Secretariat may be regarded as a deliberate (if implicit) strategy to limit its autonomy. Narine (2004) argues that ASEAN has kept the ASEAN Secretariat understaffed and overworked. ASEAN’s major initiatives are conceptualized within ASEAN secretariats based within the foreign ministries of each member state. The control of the ASEAN decision-making process is kept within the individual states (438). states’ total contribution in 2005 to ASEAN’s operating budget was $8 million, or $800,000 each; this amounted to 0.005% of the total members’ government revenue. In contrast to this arrangement of equal contributions, many other ROs receive member contributions that are based on formulae using GDP. 81 ASEAN-ISIS’s Memorandum submitted to ASEAN in 2006 argued that members’ contributions should be weighted according to a ratio of 6:4:2:1 (Brunei, Indonesia, Malaysia, Singapore and Thailand would be in the first group (6), followed by Philippines (4), then Vietnam (2), and finally Cambodia, Laos and Myanmar (1). ASEANISIS also argues that the total contribution should be 0.025% of total government revenues (ASEAN-ISIS, 2006). 91 This may explain why Singapore – which can certainly afford higher contributions – has tended to insist on the principle of equal contributions. As one of the more influential member states, it is perhaps not in Singapore’s interests for the Secretariat to gain too much capacity. Termsak states with reference to member states generally, ‘The members haven’t given the Secretariat any decision-making power…because [they] want ASEAN to remain an intergovernmental organization’ (interview, 2008). Nevertheless, some officials have expressed a preference for a greater capacity for the Secretariat. For example, Ahmad Fuzi Haji Abdul argues that We want there to be more meetings at the Secretariat, rather than in the member states. Therefore the Secretariat needs to be bigger. We want a Secretariat complex like they have at the EU. But we don’t have the budget at present (interview, 2008).82 Thus, there are clearly different views within ASEAN in regard to the desirable degree of Secretariat capacity – and relatedly, the degree of centralization in ASEAN. Conclusion This chapter has explored the origins and evolution of ASEAN norms. It highlights the tensions among various interpretations of ASEAN norms, as well as the notion that norms evolve – or are reinterpreted or recalibrated – over time. It also highlights tensions among perceptions of ASEAN’s desired or appropriate role. As Helen Nesadurai points out, ‘Some see ASEAN as moving closer to the Western model of democratic values and good governance; others continue to see ASEAN as unique and explicitly like the Western, legalized model’ (interview, 2008). 82 Ahmad Fuzi Haji Abdul was the Malaysian representative to the High Level Task Force (HLTF) which drafted the Charter (to be discussed in Chapter 4). 92 These different views tend to give ASEAN the appearance of inconsistency in regard to norms. For example, critics such as Khoo (2004b: 40) and Sharpe (2003: 248) point to what they see as ASEAN’s inconsistent adherence to the norm of non-interference. Such criticism tends to be based on a notion of ASEAN norms as static, rather than recognizing the evolutionary processes which oftentimes present a ‘messy’ normative environment. Khoo (2004a and 2004b) – whose work focuses more on China rather than Southeast Asia – asserts that a lack of compliance with ASEAN norms as traditionally interpreted demonstrates a deficiency of the Association.83 However, interpretations of norms can evolve over time, as an organization faces new structures (such as an expanded membership) and changing security, economic and political environments. These have been framed in this chapter as ‘challenges’ to traditional interpretations of norms. The relevant empirical evidence is comprehensive and complex, and it is often difficult to gauge the degree to which a norm has ‘evolved’. However, this review has explained the context in which ASEAN member states decided to develop their first Chapter. As we shall see in Chapter 4, the Charter is in part a response to the perceived need to adapt to change, but its content was at once advanced and constrained by members’ varying perceptions of legitimacy. 83 In fact, Khoo perceives a contrary norm of interference in other states’ affairs. He argues that ‘the prevalence of a contrary norm, namely interference in other states’ affairs, appears to be a regularized pattern of behavior in Southeast Asia. ASEAN members have regularly interference in the internal affairs of their fellow ASEAN states, and placed individual states’ national interests above concerns for regional autonomy’ (Khoo, 2004b: 40, emphasis in original). It is unclear, however, how his examples support this point; he refers to the ‘intrusive recriminations between Malaysia and Singapore over border-territorial issues, as well as the burning of the Thai embassy in Phnom Penh by rioting Cambodians in early 2003’ (40-1). The former is a rather vague reference, and the latter is an action by the mass public, rather than ‘regularized interference’ by state representatives. More importantly, Khoo does not explain which component of the norm of non-interference is violated in these examples, or address the issue of evolving interpretations of non-interference over time. 93 Chapter 4 The ASEAN Charter This chapter explores the origins, drafting and signing of the ASEAN Charter. First, it considers ASEAN’s motivations for creating a Charter. It then reviews the role of the Eminent Persons Group (EPG) in making recommendations for the Charter, and in so doing shaping expectations in regard to the final text. The chapter then explores the role of the High Level Task Force (HLTF) in drafting the Charter, and failing to fulfill some of those expectations. It goes on to analyze the final text of the Charter and its significance in regard to the evolution of ASEAN norms. Some ASEAN norms were discussed, debated and ultimately reaffirmed in the Charter. In particular, the procedural norms of consensus and consultation were reinforced. This hindered the evolution of constitutive norms, such as non-interference, and restricted the role for ASEAN in democracy and human rights. The sets of normative statements in the Charter are thus the result of debate and negotiation in a context of normative contestation. Origins of the ASEAN Charter As the twenty-first century began, the ASEAN states continued to recover from the regional economic crisis, and grew in prosperity and self-confidence. Several leaders and ASEAN officials were keen to ‘reinvigorate’ ASEAN and make it more relevant and cohesive. 84 Tun 84 For example, the late Ali Alatas (Indonesia’s foreign minister from 1988-99 and its representative to the Eminent Persons Group on the ASEAN Charter) argued in 2001 that ‘In this era of globalization, greater competition and rapid change, ASEAN’s relevance and effectiveness will continue to be put to the test. Hence, ASEAN should not be content with merely implementing reactive measures, such as in a crisis situation, but be proactive in stimulating 94 Musa Hitam (a former Malaysian deputy prime minister and Malaysia’s representative to, and the Chairman of, the EPG) argues that the ASEAN leaders’ desire for a Charter ‘demonstrated that they wanted to be much more cohesive against the earlier arrangement of a loose kind of club’ (quoted in Hong, 2007). The ASEAN Charter was intended to strengthen the Association; several political figures publicly noted its importance during the months before its adoption. 85 The Charter is seen by many as an opportunity to elevate both ASEAN’s international (extraregional) standing and its significance to its own members. This involves a reconsideration of its traditional normative underpinnings. Several individuals directly involved with the Charter process note that it was ‘not a new idea’ (Termsak Chalermpalanupap, 2008c: 101; Ong Keng Yong, 2009: 107; Dian Triansyah Djani, 2009: 137-8; Ahmad Fuzi Haji Abdul Razak, interview, 2008). According to Termsak (2008c), ‘as far back as the early 1970s ASEAN’s founding members considered underpinning their creation with a constitution’ (101). However, instead they signed the TAC and Declaration of ASEAN Concord at the First ASEAN Summit in 1976; in the latter document they agree to improve ‘ASEAN machinery’ by ‘studying the desirability of a new constitutional framework for ASEAN’ (1976b). Ong Keng Yong reports that subsequent efforts to create a constitution had cooperation and policy coordination between member countries’ (Ali Alatas, 2001: 2). While ASEAN faces ‘formidable challenges...there is no other alternative but to respond with enhanced unity and cohesion, strengthened competitiveness and even deeper integration’ (9). Later, in early 2007 as the Charter was starting to be drafted, ASEAN leaders ‘particularly from Malaysia, Indonesia, the Philippines and Singapore …expressed concerns that ASEAN must reinvent itself or risk becoming irrelevant’ (Zaid Ibrahim, 2007). 85 For example, Indonesia’s Foreign Minister, Hassan Wirayuda, argued that ‘there is just too much at stake for us to settle for anything less than a truly successful ASEAN Charter’ (quoted in Abdul Khalik, 2007a). The Philippines’ President Gloria Macapagal-Arroyo said that she is ‘proud that ASEAN is taking a bold step forward rather than a timid step forward by committing to establish an ASEAN Charter’ (quoted in Arceo-Dumlao, 2007). A few months after the Charter was signed, Singapore’s Foreign Minister, George Yeo, stated that the future of ASEAN depends on the Charter, and that it will ‘open a new chapter in our history’ (quoted in L. Koh, 2008). 95 ‘resulted in indecision. Mutual trust and confidence had not reached a level of comfort and common endeavour. The national ego was strong and regional institution-building failed to generate sufficient support and urgency’ (Ong, 2009: 108). In the late 1990s, the regional financial crisis then shook some members’ faith in the Association. Rizal Sukma (2008a) notes that in the aftermath of the crisis, ‘critiques intensified even within the Association. Participants and observers alike began calling for ASEAN to strengthen its relevance by revitalizing or even reinventing itself’ (135). As the member states began to recover, they sought reassurances that membership in ASEAN would serve their interests. Then-Secretary-General Ong (2009) claims that ‘Every member state harboured a wish to re-write some, if not all, of the rules of membership in ASEAN’ (109). Thus, in the early 2000s plans for an ASEAN Community were formulated, and the idea of a Charter re-emerged. The Charter would provide the Community with a ‘constitutional framework’ (Termsak Chalermpalanupap, 2008c: 101-2). Dian Triansyah Djani, the Indonesian representative on the HLTF, puts it thus: ‘In order to build an ASEAN Community, ASEAN needs to transform itself, and thus the need for a Charter’ (2009: 139). The ASEAN Community was motivated in part by the perceived need to reassert ASEAN’s place in the Asia-Pacific region, and particularly in East Asia. As East Asian regionalism expanded after the regional financial crisis, spawning initiatives such as the APT (in 1997) and the Chiang Mai Initiative (CMI, established in 2000), ASEAN sought to remain in the so-called 96 ‘driver’s seat’.86 ASEAN leaders sought to ensure that the Association would be central in the process of proliferating regional bodies. Moreover, they wanted to benefit from increased East Asian cooperation, particularly functional cooperation, in part as a means to reduce dependency on the US (and other Western states) as a driver of regional growth (Ba, 2007: 96). The ASEAN Community was also motivated by concerns about economic ‘blocism’ in other regions. While the AFTA agreement had been signed in 1992, at the turn of the century nontariff barriers to intra-ASEAN trade remained largely in place.87 Meanwhile, other regional arrangements such as the NAFTA and the EU were emerging and developing. Thus, particularly in the post-Cold War era, ASEAN states have been concerned about the possibility of regional economic blocs. Singapore’s Deputy Prime Minister, S. Jayakumar, told The Straits Times in April 2006 that ‘ASEAN has to deepen itself and integrate further to stay competitive’, or it would be ‘marginalised’ (quoted in Salim Osman, 2006a). At the World Economic Forum in Davos, Switzerland in January 2007, Philippines President Gloria Arroyo stated that in taking a ‘bold step forward’ by deciding to establish a Charter, ‘ASEAN has committed to establishing one of the world’s great trading blocs’ (quoted in Neo Hui Min, 2007). This refers to the long term goal of economic integration through the building of an ASEAN Economic Community. 86 The members of APT are ASEAN states plus China, Japan and the Republic of Korea (ROK). APT was established to facilitate cooperation among the ASEAN states and China, Japan and the ROK in economic and financial matters in particular. I note that the ARF had earlier been established in 1993, as a security dialogue among ASEAN and several other states in the Asia-Pacific region. 87 For example, reforms of customs procedures and harmonization of product standards have been slow and uneven. Other requirements of an integrated market, including ease of transportation, the development of infrastructure and widespread, efficient communications within and between ASEAN countries, have been (and in many ways, still are) slow and cumbersome (Severino, 2007: 22). 97 ASEAN members were increasingly aware of the competitive challenges from neighbouring countries, particularly China and India. Yoshimatsu (2007) notes that ‘ASEAN’s economic position vis-à-vis China has been gradually declining after the mid 1990s’ (42). 88 India was also becoming an economic rival to ASEAN states, and was attracting foreign direct investment (FDI), particularly in the information technology sector. ASEAN’s desire to accelerate its economic integration was motivated in part by the growing presence of these two economies, which offered inexpensive labour and potentially huge markets. The late Hadi Soesastro claimed that the ASEAN Community was designed to help ASEAN ‘go beyond the past and beyond the ASEAN Way’, and respond to new challenges such as the ‘emergence of new regional powers – big ones, like China and India’ (interview, 2008). Nesadurai agrees: ‘ASEAN members have the sense that “we have to compete”’ (interview, 2008). And Keliat claims that ‘ASEAN thinks that if it does not make positive, spectacular development, then China and India will take over its position’ (quoted in Goh, 2007). Relatedly, member states also wished to strengthen the perceptions of ASEAN held by outsiders, which had been damaged by the regional crisis (Rizal Sukma, 2008a: 135). Ong (2009) argues that by acting together and staying more cohesive, ASEAN member countries believe that they would be in a better position to influence other people’s policies towards ASEAN. 88 China has been attracting increased amounts of foreign direct investment (FDI); for example, it received FDI of US$54 billion in 2003, while ASEAN received only US$19 billion. This has led to ‘a perception that China’s rapidly growing economy would divert FDI inflows away from ASEAN towards China,’ and also that China would undermine the sale of Southeast Asian products in third markets (Yoshimatsu, 2007: 42-3). 98 To convince the external parties that the ten diverse countries of ASEAN are serious about exerting collective strength, a concrete new modus operandi is required (108). This reflects the impetus to keep ASEAN economies at the ‘competitive edge’, and enhance ASEAN’s ‘ability to remain on the centre-stage of regional affairs and development’ (108). Thus, changes in the external environment shaped ASEAN members’ perceptions of how the Association was viewed, and motivated the desire to create a ‘Community’, backed by a constitution (the Charter), which would strengthen ASEAN’s credibility and international standing. Member states foresaw benefits of being able to act as an entity, particularly in economic matters such as trade agreements. The plans to establish this ‘ASEAN Community’ were set out in the 2003 Bali Concord II, signed at the Ninth ASEAN Summit in Bali, Indonesia in October 2003. The Community was to comprise Security, Economic and Socio-Cultural ‘pillars’; these are referred to as the ASEAN Security (later renamed Political-Security) Community, ASEAN Economic Community and ASEAN Socio-Cultural Community (refer to the chronology in Appendix A). Member states envisaged that the Community would ‘bring ASEAN’s political and security cooperation to a higher plane’ (ASEAN, 2003a). In May 2004, Malaysia proposed that ASEAN create a Charter, in a concept paper entitled ‘Review of ASEAN Institutional Framework: Proposals for Change’. It argued that creating a Charter would help ASEAN to pursue its goal of becoming a ‘Community’, by making important changes to its institutional framework (Caballero-Anthony, 2008b: 71-2). 99 This idea was formalised in November 2004, at the next (Tenth) ASEAN Summit in Vientiane, Laos. Member states signed the Vientiane Action Programme (VAP), 89 which was the first ASEAN document to mention a Charter. They declared that ‘We recognise the need to strengthen ASEAN and shall work towards the development of an ASEAN Charter’ (ASEAN, 2004b: 4). The VAP sets out five ‘strategic thrusts’: Political Development, Shaping and Sharing of Norms, Conflict Prevention, Conflict Resolution and Post-Conflict Peace-Building. One of the ‘strategies’ for Shaping and Sharing of Norms was ‘Initiate the preparatory activities to develop an ASEAN Charter’ (7). As such, the VAP clearly set out ASEAN’s intention to create a Charter. This was reiterated at the next (Eleventh) Summit held in Kuala Lumpur, Malaysia, in December 2005. In the Kuala Lumpur Declaration on the Establishment of the ASEAN Charter, member states asserted that the Charter would form the foundation of the ASEAN Community, by serving as a legal and institutional framework. It was intended to ‘codify all ASEAN norms, rules and values’ and be ‘legally binding’ (ASEAN, 2005a; emphasis added). This suggests, prima facie, a move to a more institutionalized and legalized organization. There were also some references to ‘rules’ during the process of drafting and adopting the Charter; in another example, the Indonesian representative to the HLTF, Dian Triansyah Djani, 89 The VAP was designed to replace the Hanoi Plan of Action (HPA), ‘the first in a series of action plans or programmes leading to the end-goal of ASEAN Vision 2020’ (ASEAN, 2004b: 3). The HPA was a six-year plan (1998-2004) which had been signed at the Sixth ASEAN Summit in Hanoi, Vietnam, with a view to working towards the implementation of ASEAN’s Vision 2020. Thus, the VAP set out another six-year plan (2004-2010) with the same purpose. The Vision 2020 had been signed on 15 December 1997 in Kuala Lumpur, and seeks to ‘chart a vision for ASEAN on the basis of today's realities and prospects in the decades leading to the Year 2020’ (ASEAN, 1997k). 100 argues that ‘Without a single set of rules that represent ASEAN norms/values and principles within a legal framework acceptable to all, it would be hard to build an ASEAN community’ (Dian Triansyah Djani, 2009: 139). This reference to ‘rules’ is somewhat ambiguous (and is grouped – possibly conflated – with norms, values and principles), but the caveat of ‘within a legal framework acceptable to all’ reminds us that ‘rules’ are not conceptualized by ASEAN officials as formal, binding, enforceable and prescriptive. Moreover, while the Kuala Lumpur Declaration refers to the Charter as ‘legally binding’, it is unclear what this means in the ASEAN context. References by ASEAN to democracy became prominent during this period.90 The Bali Concord II envisioned an ASEAN Security Community (ASC) which would ensure that the member states live in a ‘just, democratic and harmonious environment’ (ASEAN, 2003a). References to democracy in the subsequent VAP and the Kuala Lumpur Declaration led Emmerson (2005) to claim that democracy had become a ‘standard reference in ASEAN rhetoric’ (180). Moreover, such references appeared to evolve from the ‘vision’ of the 2003 Bali Concord II to specific objectives or goals in the 2004 VAP and 2005 Kuala Lumpur Declaration. The VAP refers to ‘goals and strategies’ including ‘Enhancing peace, stability, democracy and prosperity in the region’ (ASEAN, 2004a: 6). The Kuala Lumpur Declaration refers to the ‘principles, goals and ideals’ including ‘Promotion of democracy, human rights and obligations, transparency and good 90 Democratic transitions had taken place in some ASEAN states during the 1980s and 1990s. Democratic transitions have taken place in the Philippines (in 1986), Thailand (1991-92, although a military coup took place in September 2006, ostensibly to ‘restore democracy’, and further changes of government and general political instability have since occurred), Cambodia (1993) and Indonesia (1998). Singapore and Malaysia have long retained ‘democratic institutions based on the British model’, and have avoided military takeovers, although they have evolved into ‘dominant-party systems’ (Acharya, 2003a: 378-9). 101 governance and strengthening democratic institutions’ and ‘Ensuring that countries in the region live at peace with one another and with the world at large in a just, democratic and harmonious environment’ (ASEAN, 2005a). References to human rights in ASEAN discourse have a longer history. Human rights were first discussed by the foreign ministers at their AMM in July 1993, where they agreed that ASEAN should ‘consider the establishment of an appropriate regional mechanism on human rights’ (ASEAN, 1993). This statement was provoked by the World Conference on Human Rights in Vienna held the previous month; the Vienna Declaration emphasized the need to consider ‘regional and sub-regional arrangements for the promotion and protection of human rights’ (UNGA, 1993). Human rights were not mentioned again until the 1998 Hanoi Plan of Action (HPA), and then again in the VAP (in which ‘promoting human rights’ was set out as a strategy for ‘political development), and the Kuala Lumpur Declaration (as mentioned above). These statements made it clear that human rights were expected to play some part in the Charter (ASEAN 2004a and 2005a). It should be recalled, however, that the ‘ASEAN Community’ also comprises an Economic Community (AEC) and a Socio-Cultural Community (ASCC); member states’ endorsement of the ASEAN Community thus should be considered in the context of the motivation of deeper economic integration, which has always been prominent in ASEAN’s raison d’être. Economic integration, according to Soesastro (interview, 2008), was the primary motivation for the ‘Community’ initiative; as such, the ASEAN Economic Community Blueprint (ASEAN, 2007f) 102 was the first to be formulated.91 It was adopted on November 20, 2007 (at the same Summit at which the Charter was adopted), and articulated the member states’ goal of regional economic integration by 2015. The ultimate goal is a single market and production base with a free flow of goods, services, capital, and labour (ASEAN, 2007f: 3). Soesastro claimed that it was only later that ‘the leaders felt it would not be sufficient to pursue economic integration – they needed integration in the political and security fields as well’; however, member states remain ‘more likely to cooperate in the economic field’ (interview, 2008). The blueprints for the PoliticalSecurity and Socio-Cultural Communities were not adopted by ASEAN members until March 1, 2009 (ASEAN, 2009c and 2009d). Perhaps they were not the primary focus of member states; certainly the ASC was always likely to be more controversial than the AEC. The Eminent Persons Group and high expectations Member states agreed to establish an ASEAN Charter in the 2005 Kuala Lumpur Declaration, signed at the 11th ASEAN Summit (ASEAN, 2005a). They also appointed an Eminent Persons Group (EPG) to make recommendations for the content and format of the Charter. The EPG comprised mainly former ministers and diplomats – one from each member state (refer to the list of representatives in Appendix B).92 Caballero-Anthony (2008a) notes that the EPG ‘was chaired by former Malaysian Deputy Prime Minister Musa Hitam and included regional 91 Khong and Nesadurai (2007) argue that ‘Unsurprisingly, it is in regional economic cooperation and integration that we see a significant shift in institutional design away from the “ASEAN Way” towards stronger rules and relatively more centralization’ (36). This accords with the view of some other analysts that ‘functional cooperation’ may ‘serve as building blocks for more substantive cooperation among regional actors’ (Tan See Seng, 2009: 2). 92 There is not a great deal of publicly available information in regard to why these particular individuals were appointed by their respective member states. Rosario Gonzalez-Manalo of the Philippines Department of Foreign Affairs describes the EPG members as ‘ten highly distinguished individuals’ (Gonzalez-Manalo, 2009: 40). 103 luminaries such as former Philippine President Fidel Ramos, former Indonesian Foreign Minister Ali Alatas, and Singapore’s Deputy Prime Minister S. Jayakumar’ (212, n58). The EPG members were directed to make ‘bold and visionary’ recommendations for the Charter.93 They were ‘mandated by their leaders to provide practical proposals and “out-of-thebox” recommendations for the intended Charter’ (Gonzalez-Manalo, 2009: 40). Moreover, they ‘were to act in their private capacity as individuals’ (Termsak Chalermpalanupap, 2008c: 103). Thus, as Rizal Sukma (2008a) notes, ‘they were freer in what they could propose than if they had been on active duty and thus more closely tied to government policy’ (140). Four of the ten members were still apparently employed by their respective governments.94 However, the EPG was making recommendations, not drafting the Charter, so this enabled its members to engage in ‘visionary’ discussions without the same pressure to represent their governments as the HLTF members would later face. Thus, the EPG was apparently given a mandate to act as a norm entrepreneur. It was to formulate ideas for later consideration by the HLTF. Ong Keng Yong describes the EPG as a ‘brilliant political move, because it had one representative from each member state, who could sit around and pontificate on what they wanted to do’ (interview, 2008). It is unclear whether this 93 The Prime Minister of (then-ASEAN Chair) Malaysia, Dato’ Seri Abdullah Ahmad Badawi, included this in his December 2005 letter to the EPG regarding its terms of reference (ASEAN, 2006a). However, it should also be noted that the 2005 Kuala Lumpur Declaration had stated that these recommendations should be ‘practical’ (ASEAN, 2005a). 94 These members were Brunei’s Pehin Dato Lim Jock Seng, Minister of Foreign Affairs and Trade II; Cambodia’s Dr Aun Porn Moniroth, Advisor to the Prime Minister and Chairman of the Supreme National Economic Council of Cambodia; Myanmar’s Dr Than Nyun, Chairman of the Civil Service Selection and Training Board; and Singapore’s Professor S. Jayakumar, Deputy Prime Minister, Coordinating Minister for National Security and Minister for Law (refer Appendix B for full list of EPG members). 104 suggests the mandate was designed to create the appearance of change. Establishing EPGs is not common for ASEAN; it formed only two in the decade before the Charter: the ASEAN EPG on Vision 2020 and the ASEAN-China EPG.95 The EPG on Vision 2020 (created in June 1999) was, in a sense, an analogue to the Charter process. It was ‘expected to tap the expertise from the private sector and the academics for fresh insights on how to realise the Vision 2020’, which aimed to achieve a peaceful, stable and prosperous Southeast Asia by 2020 (ASEAN, 1997c).96 The EPG on the ASEAN Charter met eight times during 2006. In addition, it held meetings with representatives of research institutes, civil society groups and the ASEAN Inter-Parliamentary Organisation in Bali, Indonesia on 17-20 April 2006 (discussing, among other topics, the promotion and protection of human rights).97 At one of these meetings, it was presented with a memorandum by ASEAN-ISIS, which took the form of a draft Charter (ASEAN-ISIS, 2006).98 95 The ASEAN-China EPG was established in April 2005 to ‘take stock of the cooperation and recommend measures for strengthening future ASEAN-China dialogue relations as both sides commemorate the fifteenth year of relations in 2006’ (ASEAN, 2005b). It was proposed by the Chinese Premier, Wen Jiabao, ahead of the Year of Friendship and Cooperation between ASEAN and China (2006, the fifteenth anniversary of ASEAN-China dialogue). The EPG comprised mainly former foreign and deputy prime ministers, one from each member state, plus a former Vice Premier of China and a CSIS analyst (Jusuf Wanandi). These individuals met twice during 2005 and submitted their report to ASEAN in November 2005 (ASEAN, 2005b). 96 The EPG on Vision 2020 comprised one ‘eminent person’ from each member state, who met five times in eighteen months, submitting a report to ASEAN in 2000. These ‘eminent persons’ were a mixture of current and former foreign affairs officials, a Member of Parliament, a Senator, a former diplomat, a member of CSIS and an academic (ASEAN, 1997c). The EPG had five meetings in eighteen months, submitting a report to ASEAN in 2000. 97 Participating groups included ASEAN-ISIS, the Working Group for an ASEAN Human Rights Mechanism, Solidarity for Asian People’s Advocacy (SAPA), the Third World Network, and the Migrant Forum in Asia (JCIE, 2006). 98 In preparation of this memorandum, ASEAN-ISIS held ‘brainstorming meetings’ on the ASEAN Charter in Singapore in March 2006 and in Bali in April 2006. Soesastro et al (2006) note that, at its meeting in Bali in April 2006, ‘ASEAN-ISIS invited several representatives of civil society organizations to discuss and provide inputs to the ASEAN-ISIS draft Memorandum on the ASEAN Charter’ (11). The memorandum was presented to both the EPG and the ASEAN foreign ministers at their retreat in Bali in late April 2006. It refers to democracy and human rights in its proposed ‘objectives’ and ‘principles’ of ASEAN, but does not refer to a human rights mechanism. 105 The EPG also met with ‘private business sector representatives’ and academics in Singapore 2729 June 2006. Finally, the EPG visited Brussels to ‘study the integration experience and problems in the European Union (EU)’ on 10-11 July 2006 (ASEAN, 2006a: 8; refer also to the Chronology of the ASEAN Charter in Appendix A). Any differences among the EPG members were resolved in a manner that reflected the ASEAN Way. Tun Musa Hitam told The Straits Times shortly after the EPG had submitted its report that the EPG members had (in the words of Hong, 2007) ‘automatically behaved as if they were at an ASEAN meeting, which meant being in the consensus mode. If one person disagreed, the others would backtrack’. Tun Musa says ‘It was just that mentality but it worked out later’ (quoted in Hong, 2007). Hong reports that Tun Musa ‘insisted…that there was no attempt to push any national agenda, but there were robust exchanges over sensitive issues’. In the end, the EPG members came to a consensus regarding the content of the report; Tun Musa credits Singapore Deputy Prime Minister and EPG member S. Jayakumar with having ‘saved the day’ by diffusing their differences (Hong, 2007). Thus, any differences that did exist among the members did not ultimately prevent them from completing the report – although of course this tendency towards consensus decision-making possibly has implications for the substance of the report. The late Ali Alatas – ‘one of the group’s most proactive and vocal members’ (Dosch, 2008a: 83) – reportedly wrote the first draft of the EPG report (Hong, 2007). The final version, submitted in December 2006, certainly seems to be ‘bold and visionary’. It proposes that the Charter include certain ‘Fundamental Principles and Objectives’. The first of these is the 106 active strengthening of democratic values, good governance, rejection of unconstitutional and undemocratic changes of government, the rule of law including international humanitarian law, and respect for human rights and fundamental freedoms (ASEAN, 2006a: 2). The report proposes that these principles be included in the Preamble to the Charter (25). It then suggests that the Charter should refer, as Principles, to specific human rights and fundamental freedoms, namely ‘self-determination and the right to development, without distinction as to race, creed, gender or ethnicity’ (29). In its meetings, the EPG also ‘discussed the idea of setting up a human rights mechanism’, noting that ‘this worthy idea should be pursued further’ (22). In particular, it should be clarified ‘how such a regional mechanism can contribute to ensuring the respect for and protection of human rights of every individual in every Member State’ (22).99 The EPG’s recommendations provoked optimism and concern in different quarters that ASEAN was beginning to place more emphasis on scrutinizing member states’ domestic political situations. This was regarded by many as desirable, particularly given the ongoing problem of how to respond to events in Myanmar (Dosch, 2008: 533).100 As Caballero-Anthony (2008b) notes, ‘expectations were raised that ASEAN was on the cusp of a normative transformation’ (80). Similarly, Emmerson (2008a) points out that ‘optimistic advocates of stronger regionalism 99 The EPG report also argues mentions that ‘mechanisms’ should be created to advance the principle of ‘Commitment to develop democracy, promote good governance and uphold human rights and the rule of law’ (ASEAN, 2006a: 30). It is not entirely clear what form these mechanisms would take. 100 This suggests an instrumental element to motivations for a change in ASEAN’s role vis-à-vis democracy and human rights. Ongoing repression by an illegitimate ruling junta in Myanmar has, since that state’s admission as a member of ASEAN, been a problem for other ASEAN states, given the implications for regional security (e.g. the flow of refugees into Thailand) and the damage to the image and reputation of ASEAN as it struggles to respond effectively. Again, this will be further discussed in the following chapters. 107 began looking to the Charter as potentially a breakthrough text’ (25). These high expectations were thus not based solely on the recommendations of the EPG; as discussed, previous ASEAN statements had introduced references to democracy and human rights. However, the EPG report did encourage or reinforce these expectations. Interestingly, Tun Musa Hitam tried to downplay the relevance or influence of ‘the situation in Myanmar’ on the EPG’s discussions. He told The Straits Times in February 2007 (shortly after the EPG report was published) that the media’s fixation on Myanmar ‘was irritating. The Charter is not about Myanmar. It can be about Malaysia tomorrow, and Indonesia the day after. We are talking about principles’. Musa said the EPG did not formally discuss Myanmar, but it did ‘hear about the situation’ from Dr Than Nyun, Myanmar’s representative to the EPG (quoted in Hong, 2007). The EPG report (2006a) addresses ASEAN’s decision-making procedures, confirming that ‘decision-making by consultation and consensus should be retained for all sensitive important decisions’. However, the EPG was also concerned that ‘consensus should aid, but not impede, ASEAN’s cohesion and effectiveness’. As such, it suggests that ‘ASEAN should consider alternative and flexible decision-making mechanisms’. In particular, ‘if consensus cannot be achieved, decisions may be taken through voting, subject to rules of procedure determined by the ASEAN Council’. (The ASEAN Council was a name proposed by the EPG to replace the ASEAN Summit). Moreover, ‘the flexible application of “ASEAN minus X” or “2 plus X” formula may be applied, subject to the discretion of the relevant ASEAN Community Councils’ (ASEAN, 2006a: 6). The ‘ASEAN minus X’ or ‘Ten Minus X’ formula had been occasionally 108 used by ASEAN, in regard to economic matters; the ‘2 plus X’ formula was also not new.101 Nevertheless, the EPG posed a challenge to the ASEAN norm of decision-making by consensus, by proposing the formalization of exceptions to its application. Indeed, it seems that Tun Musa Hitam initially wanted to mount a greater challenge; in April 2006, at one of the EPG’s earlier meetings, he argued that ‘Consensus is considered a stumbling block firstly in decision-making and secondly in the implementation of any decision’ (quoted in Salim Osman, 2006b). These suggestions by the EPG would have made some states nervous that codifying the ‘ASEAN minus X’ or ‘2 plus X’ may come to be used for decisions which did affect them. The EPG also suggested certain changes to ASEAN’s organizational structure, 102 and referred to the importance of ‘strengthening organisational effectiveness’ by ‘empowering’ the SecretaryGeneral.103 It also argued that ASEAN should be ‘conferred legal personality and be able to engage in legal proceeding [sic]’. While the EPG report did not specifically define ‘legal 101 The ‘2 plus X’ formula had also been used in the past; it refers to another form of flexible decision-making whereby two or more ASEAN states agree to an initiative, which doesn’t affect other member states but may be open for them to join later. Like the ‘ASEAN minus X’ formula, this form of decision-making is usually discussed in the context of economic integration (for example, two states enter an agreement regarding integration of a particular sector) (Hew & Soesastro, 2003: 293). 102 The EPG report proposes that the ASEAN Summit – the primary meeting of ASEAN heads of state and government – be renamed the ASEAN Council, and meet at least twice a year (ASEAN, 2006a: 3). There should also be ‘three Ministerial-level Councils reporting to ASEAN Leaders to oversee the three key aspects of building an ASEAN Community (political-security, economic, and socio-cultural)’ (3). Aside from this increased interaction of leaders, the EPG proposed an enhanced representation of member states at the Secretariat in Jakarta; it suggests the appointment of full time Permanent Representatives of Member States to ASEAN, to be based in Jakarta. Further, its recommends that ASEAN’s Dialogue Partners can accredit Ambassadors to ASEAN (5). 103 The EPG argued that the Secretary-General should ‘take up a greater role to meet the growing expectations of member states as ASEAN steps up its regional integration and international cooperation efforts’ (ASEAN, 2006a: 5). It recommended that the Secretary-General should be supported by four instead of two Deputy SecretariesGeneral. Further, the Secretariat should be boosted by ‘recruitment and development of a body of dedicated professional staff’ (5). 109 personality’,104 it suggested that it included ‘granting ASEAN the capacity to own property, enter into contracts, and for ASEAN to sue and be sued’ (ASEAN, 2006a: 44). It did not specifically include here the ability to negotiate international agreements. It is not entirely clear what this recommendation would mean in practice – how, for instance, ASEAN would ‘enter into contracts’ of its own accord since historically ASEAN declarations and agreements are signed by its member states – but it certainly seems to challenge the notion of ASEAN as a firmly intergovernmental organization, in which heads of member states are the primary leaders.105 The EPG also advocated for a harder line on compliance, recommending that ‘The ASEAN Secretariat be entrusted with monitoring compliance with ASEAN agreements and action plans’ (ASEAN, 2006a: 4). The report argues that ‘ASEAN should have the power to take measures…such as suspension of any of the rights and privileges of membership’ in the event of a ‘serious breach of ASEAN’s objectives, major principles, and commitments to important agreements’ (4). However, it recommends recourse to expulsion only where ‘exceptional circumstances’ arise. According to Mr Termsak Chalermpalanupap, Director of Research and 104 Magliveras & Naldi (2002) define ‘legal personality’ as the ability of an organization to ‘transact, to acquire rights and assume responsibilities, to institute legal proceedings, etc’ (415). The EPG suggested that member states ‘give effect to the separate legal personality of ASEAN, within their respective legal systems’. It goes on to recommend that member states introduce ‘domestic measures, including legislation, to give effect to such privileges and immunities’ to ASEAN, to Secretariat staff including the Secretary-General and Deputy Secretaries-General, and to representatives of member states attending ASEAN meetings (44). 105 Note that ASEAN is listed by the UN as one of its ‘Intergovernmental organizations having received a standing invitation to participate as observers in the sessions and the work of the General Assembly and not maintaining permanent offices at Headquarters’ (UN 2011). It is not clear exactly when this status was conferred upon ASEAN, but its relationship with the UN was certainly officially recognized before the Charter was signed. In a resolution made on 21 November 2002, the UN General Assembly ‘welcomed the cooperation between ASEAN and the UN, and encouraged both organizations to ‘increase contacts and to further identify areas of cooperation, as appropriate’ (UNGA, 2003). While Chapter VIII of the UN Charter (which refers to regional arrangements for the purposes of maintaining international peace and security) does not refer to specific ROs, it would include ASEAN as one such ‘regional arrangement’. 110 Special Assistant to the Secretary-General of ASEAN, two EPG members in particular felt that provisions for suspension and expulsion should not be precluded as ‘the ultimate measures to address a serious breach or serious non-compliance’. These were Tun Musa Hitam and former Philippines President Fidel Ramos (Termsak Chalermpalanupap, 2007a: 40). Other EPG members were reportedly less supportive of these provisions. Musa reported that ‘There were two extreme views. One says no expulsion, no withdrawal...once you are in, you are stuck for life. One says there needs to be expulsion, suspension and room for withdrawal’ (quoted in Hong, 2007). Ultimately, compromise was reached with the reference to ‘exceptional circumstances’ (the meaning of which was not further explicated). Civil society groups were particularly interested in the EPG’s work, particularly given that the EPG undertook consultations with them in the name of making ASEAN more ‘people-centred’. Caballero-Anthony (2008a) writes that ‘The quickening of the region’s pulse was palpable as a number of CSOs and NGOs responded to the EPG’s invitation to get involved in the consultation process’ (212). These groups made submissions which tended to focus on democracy, human rights, and the pursuit of a ‘people-centred’ ASEAN, and were generally pleased by the EPG’s recommendations that a ‘human rights mechanism’ be included in the Charter.106 They were also pleased that the EPG recommended that the Charter provide for the ASEAN Council (replacing the Summit), and the three Councils of the ASEAN Community, to each undertake regular consultations with ‘representatives of the private business sector, civil society organisations, human rights groups, and other stakeholders’ (ASEAN, 2006: 34). 106 For example, refer to one of the more vocal actors is SAPA, a network of national and regional civil society organizations (e.g. SAPA, 2007). Refer also to the work of the Working Group for an ASEAN Human Rights Mechanism (discussed further in Chapter 5). The role of civil society actors in the drafting and negotiations for the Charter will be discussed further in Chapters 5 and 6. 111 Soon after the EPG report was published, a Malaysian former diplomat, Deva Mohd Ridzam, noted that ‘Hopes are high…The peoples of Asean, especially the business community and civil society, want results. Their expectation is for a significant shift in the way Asean goes about its business’ (Deva Mohd Ridzam, 2007). Thus, the EPG report, together with statements by some ASEAN officials and news reports in 2006 and 2007, provoked optimism about ASEAN’s future (e.g. Severino, 2006; BBC Monitoring Asia Pacific, 2006). They ‘signalled that democracy and human rights were its next policy frontiers’ (Caballero-Anthony, 2008b, 80).107 As Emmerson (2008b) notes, ‘the liberal-reformist tenor of the EPG’s advice surprised and heartened democratically minded observers’ (80). Further, the EPG report suggested that there might be greater attention in ASEAN to issues traditionally considered too ‘sensitive’ for official dialogue, and called into question the interpretation of the norm of ‘non-interference in the internal affairs of one another’. While the report does not delve into the issue of noninterference in depth, it mentions that events such as the regional financial crisis, the Severe Acute Respiratory Syndrome (SARS) epidemic and tsunami of 2004 remind member states ‘that their well-being and future are now more intertwined. [They must] calibrate their traditional approach of non-interference in areas where the common interest dictates closer cooperation’ (ASEAN, 2006a: 13). This is a direct challenge by the EPG to interpretations of the non-interference norm, suggesting that the EPG sought to act as a ‘norm entrepreneur’. The report thus suggested that there were grounds for optimism for 107 Moreover, Caballero-Anthony (2008a) notes, the wide circulation of the EPG report and its availability through the Secretariat website was itself a ‘significant departure from the past practice of nontransparency’, and ‘reinforced the perception…that Southeast Asia was indeed on the cusp of an era of “new regionalism”’ (213-4). 112 those who believed that the Charter represented an opportunity for change, which would, among other things, enhance ASEAN’s ability to respond to regional crises. It appeared to signal that ASEAN was undergoing a reconsideration of its key norms. Moreover, the EPG report claimed that the ‘ASEAN has clearly signalled its commitment to move from an Association towards a more structured International Organization’ (ASEAN, 2006a: 21).108 The EPG certainly sought to take on the role of ‘norm entrepreneur’ during its discussions and formulation of recommendations for the Charter. It played a role in the process of the evolution of norms, and set the context for subsequent High Level Task Force (HLTF) discussions. It challenged both constitutive and procedural norms, and advanced new ones. Some EPG members felt the report could have gone further; for example, Tun Musa Hitam states that ‘we were asked to be bold and visionary. Personally, I wouldn’t say that it is bold and visionary…but I think it was a very good set of recommendations’ (quoted in Hong, 2007). As mentioned, Musa had wanted a stronger EPG report, particularly on the matter of sanctions. He also indicated (in April 2006) that the norms of non-interference and consensus needed to be reconsidered (BBC Monitoring Asia Pacific, 2006). Musa could thus be regarded as an individual norm entrepreneur; in his capacity as Chairman of the EPG, he sought to challenge 108 The EPG also envisioned an ongoing process of integration among ASEAN members, beyond the Charter. It argues that ‘Beyond ASEAN Community, Member States should ultimately advance to form an ASEAN Union comprising the three pillars of security, economic, and socio-cultural integration, that are closely intertwined and mutually reinforcing, in which human rights and fundamental freedoms of all shall be protected by the rule of law and regional integration, and human security is guaranteed to every ASEAN citizen’ (ASEAN, 2006a: 21). However, Rosario Gonzalez-Manalo, one of the two Chairpersons of the HLTF, noted that there was in the HLTF ‘a general tendency to create a Charter that will keep the intergovernmental character of ASEAN and dispel any suggestion of creating a supra-national body…Any mention of an ASEAN Union – suggested in the EPG Report – was absent in the final Charter’ (Gonzalez-Manalo, 2009: 44). 113 both constitutive and procedural norms. Alatas also played an important role, in writing the first draft of the EPG report; he could also be regarded as an individual norm entrepreneur. However, the question arises as to how far the EPG’s recommendations went in influencing, or shaping, the HLTF’s drafting of the Charter. Tommy Koh, Walter Woon, Andrew Tan and Chan Sze-Wei – the Singaporean delegation to the HLTF – claimed in September 2007 that ‘although the [EPG] report was “endorsed’ by the [Twelfth ASEAN] Summit, there were differences among the ASEAN leaders on a number of controversial issues’ (Koh et al, 2007). They do not elaborate, but this suggests that the HLTF were divided on some matters before they began drafting the Charter. The High Level Task Force and drafting the ASEAN Charter At the 12th ASEAN Summit in Cebu, Philippines in January 2007, member states accepted the EPG report (refer to the Chronology of the ASEAN Charter in Appendix A). In the Cebu Declaration on the Blueprint of the ASEAN Charter, the heads of state ‘endorsed the Report of the EPG’, and recognized ‘the outstanding and comprehensive work of the EPG and its dedication and the efficiency with which it has carried out its mandate’ (ASEAN, 2007e). This implies that the leaders were open to (re)considering the key norms of the organization; however, it does not necessarily mean that the leaders were in agreement with its recommendations or intended to include them in the Charter. 114 In the same Declaration, the leaders also established a High Level Task Force (HLTF) to begin drafting the Charter. They agreed that the draft should be complete in time for consideration at the 13th ASEAN Summit in Singapore in November 2007 (partly to ensure that the Charter was signed in ASEAN’s fortieth anniversary year). The HLTF proceeded to meet thirteen times during 2007, and reported periodically on their progress to the ASEAN foreign ministers. Its members were sitting officials from each member state’s foreign ministry (refer to the list of HLTF members in Appendix C). In addition, Ong Keng Yong served as the ‘Resource Person’ to the HLTF – and ultimately worked to overcome differences among the delegates (particularly in regard to the human rights body) in order to get the Charter drafted in time. The HLTF completed a draft Charter and submitted it to the ASEAN Foreign Ministers on November 19, 2007. The lack of public information regarding the HLTF’s activities means that the nature and extent of debate about the Charter’s text is somewhat difficult to gauge. However, some information can be gleaned from the HLTF members’ own accounts, published in a 2009 volume (Koh et al, 2009). First, the question arises as to the mandate and guidance provided to the HLTF. Tommy Koh, Singapore’s Ambassador-At-Large for ASEAN Affairs and one of the two HLTF chairpersons,109 notes that the HLTF’s mandate was based on the ASEAN Leaders’ directions set out in the 2005 Kuala Lumpur Declaration and the 2007 Cebu Declaration; ‘the relevant ASEAN documents’; and ‘the recommendations of the EPG’ (Koh, 2009: 48; refer also to the Chronology of the ASEAN Charter in Appendix A). The HLTF was expected to draft a Charter that would ‘serve as a legal and institutional framework of ASEAN to support the 109 Koh acted as Chairperson of the HLTF during the second half of 2007, when Singapore was Chair of ASEAN. During the first half of 2007, when the Philippines was ASEAN Chair, Rosario Manalo (Special Envoy for the Philippines Department of Foreign Affairs) acted as Chairperson of the HLTF. (Refer Appendix C for the full list of HLTF members.) 115 realisation of its goals’. It would ‘codify all ASEAN norms, rules, and values’ and ensure that ASEAN agreements adopted before the establishment of the Charter would continue to apply (Koh, 2009: 48). This suggests that, unlike the EPG, the HLTF did not receive a mandate to be ‘bold and visionary’, or to act as a norm entrepreneur. Rather, it ‘scaled back’ the EPG’s vision. For example, as Rizal Sukma (2008a) notes, ‘the HLTF’s members were distinctly cooler towards democracy than their counterparts in the EPG had been’ (140-41).110 In defence of what many referred to as ‘watering down’, Koh (2009) notes that the EPG report was not the only basis, but only one of the bases on which the HLTF drafted the Charter. Some members of the EPG do not understand this and have therefore expressed disappointment with the Charter. They should not feel disappointed because, with only a few exceptions, most of their recommendations have been reflected in the Charter (51).111 Similarly, Nguyen Trung Thanh, the Vietnamese representative to the HLTF (from January to August 2007), argues that ‘There were three bases for the HLTF to work on, namely the ASEAN Leaders’ instructions, the EPG Report and relevant ASEAN documents, but these were too broad to build on’ (Nguyen Trung Thanh, 2009: 97). He also notes that ‘The EPG Report was an important source for reference but the HLTF’s mission was not to copy everything from the 110 Sukma (2008a) argues that this was not coincidental, ‘given their active-duty status and necessary loyalty to incumbent governments’ (140-41). 111 One of those disappointed EPG members was Ali Alatas; at the Expert Roundtable Discussion on the ASEAN Charter, hosted by the ASEAN Studies Centre in Jakarta in July 2008, Alatas (the keynote speaker) ‘expressed his disappointment over the fact that several of the ideas recommended by the EPG were not included in the final draft of the Charter’ (ASEAN Studies Centre, 2008a: 4). 116 EPG’s recommendations’ (99).112 Ong Keng Yong claims that while the EPG report was a ‘starting point’, it was also ‘a constant source of dilemma. What the EPG recommended was not what the [HLTF] could include in the draft ASEAN Charter without contention’ (Ong, 2009: 110). In other words, the HLTF reinforced the traditional understandings of the consensus norm. The statements made in the Charter had to represent a consensus amongst member states. Thus, perceptions clearly differ regarding the significance of the EPG report for the drafting of the Charter. Some groups (such as CSOs and some former officials) advocated ‘bold and visionary’ suggestions, which implied a reconsideration of ASEAN norms. Others (who were more directly involved in the drafting process) were more concerned with upholding or even reinforcing ASEAN norms, such as consensus and moving ‘at a comfortable pace’. It seems that the EPG report was used as one of several references in drafting the Charter, but it also shaped the HLTF’s understanding of the expectations that had developed regarding the Charter. Nguyen Trung Thanh (2009) notes that ‘the HLTF members were under a lot of pressure’ given the expectations ‘both within and outside ASEAN to bring about a new breakthrough for ASEAN’ (97). The HTLF did, however, defer to the foreign ministers for guidance on difficult matters. At their annual retreat in March 2007, the foreign ministers received the HTLF’s first progress report, and rejected the notion that sanctions might be included in the Charter. In announcing this 112 On the other hand, Pradap Pibulsonggram (2009), the Thai representative to the HLTF, claims that ‘It was clear from the outset that the HLTF had to operate within the parameters laid down by the Eminent Persons Group on the ASEAN Charter, as adopted by the ASEAN Leaders’ (82). He thus depicts the EPG report as having a greater role in shaping the HLTF’s deliberations. However, most accounts by HLTF members present the EPG’s suggested guidelines as relevant but not prescriptive, and defend the Charter’s failure to go further in accepting them. 117 decision, the then HLTF Chairperson, Rosario Manalo of the Philippines, stated that such provisions are ‘divisive, confrontational and we don’t want any provision that would embarrass any member state’ (quoted in SIIA, 2007).113 This is clearly a reaffirmation of the procedural norms of consensus and consultation in the interests of ensuring ‘unity in diversity’.114 Malaysian HLTF member Ahmad Fuzi Haji Abdul Razak stated, in regard to the suggested provisions for sanctions and expulsions, that ‘We debated these in the HLTF but decided that ASEAN would lose more by adopting these’ (interview, 2008). Some are keen to highlight the HLTF’s own contribution to the Charter. Gonzalez-Manalo, who acted as one of two Chairpersons of the HLTF during 2007, notes that while the EPG report had ‘provided much muscle’ for the Charter drafted by the HLTF, ‘It is important to note…that there were some points in the Charter that were not based outright on the EPG report’ (GonzalezManalo, 2009: 43). These include the provision for an ASEAN Coordinating Council and the Committee of Permanent Representatives (the EPG had referred to Permanent Representatives, but didn’t propose that they form a committee) (43). Further, she claims that ‘the proposal for 113 Manalo went on to claim that even in the absence of sanctions, ASEAN members are expected to observe the Charter because it will be ‘legally binding’ (quoted in International Herald Tribune, 2007). This is interesting because it reveals different interpretations by members of the term ‘legal’. (As discussed, it is unclear what ASEAN’s ‘legal personality’ established by the Charter specifically entails). 114 Views among the foreign ministers at this retreat did apparently differ; then-Thai Foreign Minister Nitya Pibulsonggram reported that the ministers had discussed the idea of imposing sanctions on members that violate the ASEAN Charter (Kyodo News Service, 2007). The Philippines, which was Chair of ASEAN during the first half of 2007, reportedly ‘sought to replace the group’s consensual decision-making with majority voting and sanctions on members guilty of serious violations of the charter’ (Burton & Landingin, 2007). However, as mentioned, the foreign ministers ultimately agreed to reject the idea. 118 the creation of an ASEAN Human Rights Body did not come from the EPG but was a strongly debated subject by the High Level Task Force and the ASEAN Foreign Ministers’ (43).115 The HLTF’s work was complicated by the number of stakeholders wanting to influence the Charter’s content – both ‘norm entrepreneurs’ and ‘norm reinforcers’. As Nguyen Trung Thanh (Vietnam’s representative) notes, ‘Each member country, each circle in ASEAN had their own priorities that they wanted to be reflected in the Charter’ (Nguyen Trung Thanh, 2009: 97). Moreover, other officials and non-state actors from various countries had opinions. Koh (2009) claims that the HLTF took these into account; while it was not required to consult with ASEAN Senior Officials, Parliamentarians, and representatives of civil society, it did so anyway, ‘to earn the goodwill of the various stakeholders’ (50). This provided the appearance of consultation and dialogue (reflecting the ASEAN Way), and also seemed to address perceptions of an ‘elitecentric’ ASEAN (e.g. Acharya, 2003a: 375). However, as Pradap Pibulsonggram (2009) (the Thai representative) notes, the HLTF ‘faced the challenge of balancing their pragmatism with the high expectations and interventions from civil society groups and a number of disparaging journalists’ (86). Ultimately, of course, the HLTF members were constrained by what representatives of their various governments would accept. Pradap Pibulsonggram (2009) notes that after the foreign ministers adopted the final draft of the Charter in New York in September 2007, and the text had 115 Either Gonzalez-Manalo is suggesting that a human rights body had been discussed by the HLTF and/or Foreign Ministers before the EPG made its recommendations, or she regards the ‘ASEAN Human Rights Body’ as a specific and distinct proposal that did not have its genesis in the EPG’s rather more broad reference. Indeed, the Foreign Ministers were indeed the first individuals to discuss (in official dialogue) an ASEAN human rights body in 1993; however, the EPG revitalized the idea by making reference to it in its report, which encouraged high expectations among CSOs and analysts (as will be further discussed). 119 been legally ‘scrubbed’, ‘each member of the HLTF had to redouble his or her efforts to secure national endorsement from his or her government’ (91). (As will be discussed in Chapters 5 and 6, some governments wanted certain provisions to be watered down and others wanted them to be more far-reaching.) Koh (2009) claims that, before the Charter, previous efforts to make ASEAN more institutionalized had ‘resulted in indecision’, in part because ‘bureaucratic agencies in the member states were reluctant to commit to region-wide initiatives for fear of losing their national independence of action’ (108). During the drafting process, Ong (interview, 2008) notes, the HLTF had attempted to ensure ‘buy in’ across all ‘sectoral bodies’; he had to ‘personally lobby’ the Agriculture Ministers, Finance Ministers, and others. According to Ong, they were ‘skeptical’, and the Finance Ministers were ‘the most difficult, because they see themselves as ‘first among equals – they oversee the treasuries which finance the other sectors’. For some members, ensuring that the Charter was accepted by all member states by the 13th ASEAN Summit in Singapore very important, even if this meant that some provisions in the draft were ‘watered down’. In particular, Singapore was particularly keen that the Charter be signed during its period as chair.116 In March 2007, around the time that the ASEAN foreign ministers indicated that they would not include provisions for sanctions in the Charter, including for suspension or expulsion of members, then-Secretary-General Ong Keng Yong argued that ‘Our credibility would be badly affected if we cannot produce a Charter’ (Quoted in International Herald Tribune, 2007). Thus, the very creation of the Charter was perceived by some key ASEAN officials as paramount. 116 In late October 2007, then-Singaporean Foreign Minister George Yeo told Singapore’s Parliament that sanctions against Myanmar had been ruled out, and that ‘We fully expect Myanmar to be present and to sign the ASEAN Charter, the legal scrubbing of which was happily completed at midnight last night’ (quoted in Reuters, 2007b). 120 The final text of the Charter Upon the signing of the Charter on November 20, 2007, member states declared in a media release that they had established a ‘legal and institutional framework’ for ASEAN, listed its ‘key principles and purposes’, and given it a ‘legal personality’ (ASEAN, 2007b). The public statements surrounding the signing of the Charter recognized – at least rhetorically – that greater institutionalization was afoot. For example, Ong Keng Yong stated that the Charter would ‘serve the organisation well in three interrelated ways, such as, formally accord ASEAN legal personality, establish greater institutional accountability and compliance system [sic]’ (quoted in ASEAN, 2007b). The final text of the Charter includes normative statements referring to democracy and human rights, albeit in a somewhat different form from the EPG’s recommendations. Among the fifteen ‘Purposes’ of ASEAN set out in Article 1, the seventh is To strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN (ASEAN, 2007a: 3). Further, Article 2 declares the ‘Principles’ to which ASEAN and its member states adhere. These include ‘adherence to the rule of law, good governance, the principles of democracy and constitutional government’, as well as ‘respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice’ (5). Notably, the EPG’s phrase ‘rejection of unconstitutional and undemocratic changes of government’ was omitted, and 121 replaced by the more palatable reference to ‘adherence’ to ‘constitutional government’. (This is a key point in regard to the norm of non-interference, and will be discussed in greater depth in Chapter 5.) Further, the omission of the EPG’s phrase ‘active strengthening of democratic values’ is significant. The Charter also includes a provision for the establishment of an ASEAN human rights body, although further details are not provided (Article 14, ASEAN, 2007a: 18). It simply states that the body ‘shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting’.117 Nevertheless, I note that the Charter appears to address the ‘principles’ of democracy and human rights differently. The rather general references to the former (for example, the reference to ‘strengthening democracy’) contrast to the more specific references to the latter (the ‘promotion and protection of human rights’, and of course the ‘human rights body’). This puzzle will be further explored in Chapters 5 and 6, which explore the negotiations and processes of engagement in relation to the principles of democracy and human rights, respectively. The constitutive norms of sovereignty and territorial integrity, equality, non-interference, nonuse of force and peaceful dispute settlement are reiterated in Article 2 of the Charter (ASEAN, 2007a: 6). The constitutive norm of inclusion is effectively reiterated in Article 6, which sets out the criteria for admission of new members (including location in the recognized geographical location of Southeast Asia). Thus, the six core constitutive norms identified in Chapter 3 are 117 While this dissertation focuses on the period leading up to the adoption of the Charter, I note here that a High Level Panel was subsequently appointed to draft the terms of reference for the body, and the ASEAN Intergovernmental Commission on Human Rights (AICHR) was ‘launched’ on October 24, 2009 at the 15 th ASEAN Summit in Thailand. 122 ‘codified’ in the Charter. One could, however, argue that the references to democracy and human rights posed some degree of challenge to the norms of sovereignty and non-interference (as will be explored further in Chapters 5 and 6). In regard to ASEAN’s procedural norms, it is interesting to note the claims by some regional leaders and Secretariat staff that the adoption of the Charter is moving ASEAN towards a ‘rulesbased’ entity (for example, Termsak Chalermpalanupap, 2009: 122; Surin Pitsuwan quoted in ASEAN, 2008b). These implied that the ‘ASEAN Way’ of consultation and consensus had been reconsidered, or would be reconsidered as a result of the Charter. However, the Charter does reaffirm the consultation and consensus norms, albeit with qualifications. Consensus is included in the preamble as one of the principles to be ‘respected’. Article 20, titled ‘Consultation and Consensus’, states that ‘As a basic principle, decision-making in ASEAN shall be based on consultation and consensus’. However, ‘Where consensus cannot be achieved, the ASEAN Summit may decide how a specific decision can be made’ (ASEAN, 2007a: 22). Further details are not provided; the implications of this provision are thus unclear, given that the Summit – the primary annual meeting of heads of government of member states – itself uses consensus decision-making. This provision of the Charter thus seems to use circular rhetoric which gives the appearance of change, but the norm is reiterated or perhaps even reinforced. Voting, a measure proposed by the EPG where consensus cannot be achieved, is not mentioned in the Charter.118 118 However, during the drafting of the Charter, the views of foreign ministers had differed on this issue. In March 2007, following the meeting of foreign ministers in Siem Reap, Cambodia, Singaporean Foreign Minister George Yeo stated that ASEAN may have to consider introducing voting in order to resolve conflicts or crucial problems. He said ‘I think we should have a provision for that. We’ve given some of our views to the High Level Task Force to draft it’ (quoted in Kyodo News Service, 2007). In contrast, however, then-Thai Foreign Minister Nitya 123 The Charter does not make explicit reference to the norm of moving at a pace ‘comfortable to all’. It does assert that the member states are ‘bound by geography, common objectives and shared destiny’, but embrace the principle of ‘respect for the different cultures, languages and religions of the peoples of ASEAN, while emphasizing their common values in the spirit of unity in diversity’ (ASEAN, 2007a, 1 & 7). Thus, the Charter alludes to the importance of inclusiveness and unity in diversity, while not really addressing the possible tensions between these principles and a more ‘rules-based’, institutionalized ASEAN. The Charter addresses dispute resolution in several articles comprising Chapter VIII. Article 23 states that member states engaged in a dispute may agree to use good offices, conciliation or mediation in order to resolve the dispute, and ‘may request the Chairman of ASEAN or the Secretary-General of ASEAN…to provide good offices, conciliation or mediation’. Article 24 notes that some ASEAN instruments may have specific dispute settlement mechanisms and procedures. If a dispute remains unresolved, Article 26 asserts that the dispute shall be referred to the ASEAN Summit for decision (ASEAN, 2007a: 23-5). As noted, the Summit uses consensus decision-making, casting doubt on its ability to engage in effective dispute resolution. However, perhaps the most significant contribution in regard to dispute resolution is to recognize the possible roles of the Chair and/or the Secretary-General.119 Pibulsonggram asserted that ‘consensus or unanimity remains our fundamental decision-making rule on general issues. We are not to abandon that principle, just as we will never give up the noninterference policy’ (quoted in Kyodo News Service, 2007). 119 Indeed, this provision has been exercised since the Charter was signed, during the border dispute between Thailand and Cambodia in 2011; this will be discussed in Chapter 7. 124 In the months that followed the signing of the Charter, members of the HLTF which drafted the Charter described it as a ‘milestone’, and even as transformative. For example, Tommy Koh stated in January 2008 that it ‘will bring about an important transformation to ASEAN’ (T. Koh, 2008). Later that year, Ngurah Swajaya, Indonesia’s representative on the HLTF, argued in The Jakarta Post that the Charter ‘shall significantly transform ASEAN as a rules-based organization’ (Ngurah Swajaya, 2008). Similarly, when the Charter came into force in December 2008, Fuzi hailed it as signalling the beginning of a ‘new era’ for ASEAN (quoted in Malaysian National News Agency, 2008). Interestingly, Fuzi also stated that ‘The Charter is just one of many vehicles. But it is important to have’ (interview, 2008). Ong Keng Yong states a little more definitively that the we agreed that as much as possible, the Charter should be the source of ASEAN’s authority and mandate. So that if there was any doubt about anything in the future, we can go back to this one source (interview, 2008). The Charter was thus depicted by its drafters as marking significant change. Other prominent figures agreed (at least, publicly), including former ASEAN Secretary-General Rodolfo Severino, who described the Charter as a ‘milestone in the life of ASEAN’ (quoted in ASEAN Studies Centre, 2008a: 2). Further, recalling the goals of the Bali Concord II, Indonesian President Susilo Bambang Yudhoyono argued that the Charter will enable members to ‘enhance the process by which we are transforming ASEAN from a loose association to an ASEAN Community’ (quoted in Hamann, 2008). Fuzi emphasized the value of the Charter for members’ perceptions of ASEAN: 125 The important thing is that the members all realize that they must give ASEAN more importance. The Charter provides for this. They must come up with a common position, and prioritize ASEAN over relations with other regional organizations and other third parties (interview, 2008). This emphasizes both the intergovernmental nature of ASEAN, in that it was up to member states to boost the Association’s relevance, and the notion that the Charter was part of an effort to bring about change in intra-ASEAN relations. However, questions have arisen as to how meaningful or ‘transformative’ the Charter really is. The Charter does make changes to ASEAN’s structure, for example by convening the ASEAN Summit (the primary meeting of Heads of State or Government of the member states) twice a year instead of annually (Article 7, ASEAN, 2007a: 11). It also asserts that each member state shall appoint a Permanent Representative to ASEAN, making up a Committee of Permanent Representatives based in Jakarta (Article 12, ASEAN, 2007a: 16-17)120. Other changes include forming an ASEAN Coordinating Council comprised of member states’ foreign ministers (Article 8, ASEAN 2007a: 11-12); providing for the appointment of four Deputy SecretariesGeneral (Article 11, ASEAN 2007a: 14-16); and providing the Secretariat with the ‘necessary financial resources to perform its functions effectively’ (Article 30, ASEAN, 2007a: 26).121 120 These Permanent Representatives maintain separate offices, although Chalermpalanupap (interview, 2008) has claimed that they are likely to ultimately be housed in a new building next to the ASEAN Secretariat. 121 In keeping with previous protocol, the Charter states that the Secretary-General is to be ‘appointed by the ASEAN Summit for a non-renewable term of office of five years, selected from among nationals of the ASEAN Member States based on alphabetical rotation’ (Article 11, ASEAN, 2007a: 14-15). 126 However, this latter provision has already been cast in doubt given that there were no changes made to the formula for member state contributions. Termsak Chalermpalanupap, who was Special Assistant to Ong Keng Yong during the drafting process, reports that ‘We tried to talk them into a new formula for contributions, but they refused. I think it will take another ten years. In 2015 [when the ASEAN Community is due to be created] we will have to talk again about how to increase resources’ (interview, 2008). Thus, there appears to be an incongruity in declaring an intention to ‘empower’ the Secretariat, while failing to take measures to increase its resources and thus capacity. This reaffirms ASEAN’s status as a firmly intergovernmental organization, with no intentions to adopt the ‘supranationalism’ of the EU. Ong Keng Yong notes that, in order to assuage concerns about ‘how much power to give to this animal called ASEAN’, ‘we took the line that the Charter is not a move to give the Secretariat more power, or subjugate the individual member states to it’ (interview, 2008). As mentioned, the Charter also confers legal personality on ASEAN, albeit without elucidation of what this means in practical terms (ASEAN, 2007a, Article 3). Emmerson (2008a) notes that, in principle, the Charter …will allow ASEAN, as a legal personality, to reach agreements with comparable entities such as the EU, agreements that will be, in theory, binding under international law. Possessing legal status will also, though again only in principle, make it easier for 127 the Association to ensure that member states actually comply with its agreed-upon rules and decisions (25-6).122 It is unclear why having legal personality would enhance ASEAN’s ability to ensure compliance by its member states. The implications of gaining legal personality have apparently not been explained by ASEAN officials or member state representatives. Indeed, Emmerson (2008a) goes on to argue that the Charter ‘will not transform ASEAN into a body with fully executive authority including the power to force its members to carry out its decisions. But the Charter could at least open some room for making the Association less allergic to interference’ (26). The conferring of legal personality thus does not seem to indicate any significant change to ASEAN norms in the short term. Helen Nesadurai agrees that, in regard to giving ASEAN legal personality, ‘it is unclear what this means’. And in relation to whether it might mean that the Secretary-General or Secretariat may sign agreements on behalf of ASEAN, she argues that ‘It is unlikely that member states wouldn’t continue to sign off [agreements] specifically’ (interview, 2008). More broadly, questions have been raised regarding the degree to which the Charter really makes ASEAN more ‘institutionalized’ and ‘rules-based’ given the lack of sanctions to enforce it. As mentioned, the EPG had recommended that ASEAN should be able to take measures, including the suspension of membership, in response to serious breaches of ASEAN’s objectives, major principles, and agreements. However, the Charter avoids mentioning any ‘measures’, asserting 122 Note that several Dialogue Partners have appointed ambassadors to ASEAN since the Charter was signed (e.g. Australia in 2008, the UK and Canada in 2009, and the US in 2011). This raises the possibility of ASEAN itself entering into agreements with these states; however, at the time of writing, the heads of ASEAN states remain responsible for signing agreements. 128 that ‘In the event of a serious breach of the Charter or non-compliance, the matter shall be referred to the ASEAN Summit for decision’ (Article 20). So again, the Charter avoids specific guidance by deferring to the Summit (and thus to the norms of consultation and consensus). This, of course, has implications for the perceived significance of other aspects of the Charter, such as the ‘Principles’ of ‘adherence’ to democracy and the ‘promotion and protection’ of human rights. The continued challenges of dealing with the recalcitrant military regime in Myanmar, and security challenges there and in other parts of the region, means that a growing number of actors are lobbying for ASEAN to play a greater role in ‘promoting’ and ‘protecting’ democracy and human rights.123 However, without more robust decision-making procedures, it is unclear that there is a basis for member states to demand that the provisions regarding democracy and human rights be upheld. Thus, ASEAN’s procedural norms are ultimately reinforced in the Charter, and this affects how emerging constitutive norms – including democracy and human rights – are managed. Reactions to the Charter Several analysts are rather less enthused about the capacity of the Charter to precipitate institutional and/or normative change in ASEAN. They lament the ‘watering down’ of the EPG’s recommendations, and describe the Charter as ‘toothless’ (For example, SIIA, 2007). The 123 The crackdown on protesting monks in Myanmar in September 2007 – three months before the Charter was signed – may have influenced the pressure on ASEAN leaders to have something ‘on paper’ to this end. Further, the struggle to deliver humanitarian assistance to the Burmese people following Cyclone Nargis in May 2008 reiterated for many – both within Southeast Asia and in the wider ‘international community’ – that ASEAN has a responsibility to respond effectively to such disasters. 129 debate in Indonesia was particularly heated. Rizal Sukma, a prominent analyst (at CSIS in Jakarta124) who directly contributed to Indonesia’s proposal for an ASEAN Security Community in 2003, points to what he describes as several ‘shortcomings’ in the Charter. He argues that it makes a ‘false promises in its building of a genuine community’, and that claims to make ASEAN more rules-based ‘overnight’ were ‘misleading’ - particularly given that these rules are ‘meaningless without mechanisms to enforce compliance’ (Rizal Sukma, paraphrased in ASEAN Studies Centre, 2007a: 7). Another critic, Jusuf Wanandi (also at CSIS), writes that the Charter is a ‘real letdown’: It is void of the vision, progress and courage that is needed to guide ASEAN to face the future. It is business as usual and the charter only constitutes a compilation and codification of what had already been decided before in various agreements and treaties, except for some small incremental changes (Jusuf Wanandi, 2007). Thitinan Pongsudhirak, of the Institute of Security and International Studies (ISIS) in Bangkok, agrees that ‘the Charter they ended up with is very diluted, to the point where it doesn’t make any new ground. What we have is a codification of existing norms’ (quoted in Arnold, 2007). Criticism in Indonesia was particularly prominent. During 2008, parliamentarians and analysts disagreed on whether Indonesia should ratify the Charter at all, with some calling it ‘useless to Indonesia’ because it did not include sanctions, or provide details on the human rights body (Abdul Khalik, 2008). Critics in the Indonesian House of Representatives also described the 124 The Centre for Strategic and International Studies (CSIS) is a research institute that forms part of ASEAN-ISIS. Rizal Sukma’s role as a ‘norm entrepreneur’ in the Charter process will be discussed in Chapter 5. 130 Charter as ‘toothless’ (Abdul Khalik & Dian Kuswandini, 2008). An editorial in The Jakarta Post (of which Jusuf Wanandi is President Director) in July 2008 described the Charter as a ‘betrayal’ of the EPG report, and argued that to ratify would be to ‘sell out on the values Indonesia stands for, including democracy, freedom and human rights’ (The Jakarta Post, 2008a). Ultimately, Indonesia’s ratification of the Charter (in November 2008) was delayed by some months by this debate (Abdul Khalik & Dian Kuswandini, 2008).125 This was a source of frustration for Termsak, who believes that Indonesian parliamentarians took a narrow and nationalistic view. For example, they focus on voting and complain that there is no change in decision-making. They asked what the Charter can do for Indonesia. I think they are asking the wrong question (interview, 2008). The final ratification by Thailand in the same month (delayed in part because of its domestic political upheaval in late 2008) enabled the Charter to come into force thirty days later, on December 15, 2008. Thus, there was contention and disappointment regarding the contents of the Charter. 125 Shafiah Fifi Muhibat of CSIS (interview, 2008) claims that, in this debate, the Indonesian Foreign Ministry advocated a quick ratification by Indonesia, because it was ‘embarassing’ that Indonesia was among the last few states to ratify the Charter. Moreover, they felt that ‘Indonesia is the biggest country [in ASEAN], we don’t want to be slowing ASEAN down’. Others, ‘mostly academics and parliamentarians, wanted to hold off while we discussed it. But in the end, the lobbying of the Foreign Ministry was stronger’. Moreover, Shafiah Fifi argues, following the ratification of the Charter by the Philippines (on October 7, 2008), the Indonesian parliament ‘panicked’ because it would be ‘embarrassing’ if Indonesia was the last member state to ratify. Thus, while Indonesia played a key role in advocating for the inclusion of references to democracy and human rights in the Charter (to be discussed in Chapters 5 and 6), the Indonesian government apparently also did not want to be seen as overly difficult, and perhaps wanted to maintain or advance a leadership role in ASEAN. Lina Alexandra, also of CSIS (interview, 2008), claims that the Indonesian Foreign Minister argued in Parliament that the Charter was supposed to be broad, and could be reviewed and amended in future; in the meantime, Indonesia should ratify. 131 Critics are concerned that, despite rhetoric to the contrary, the Charter will not really move ASEAN beyond a ‘talk shop’ in any meaningful way. Such criticism is borne partly of frustrated expectations. Observers were hoping that the Charter process would challenge the imperative of being careful to move along at a pace ‘comfortable to all’. Unity among member states has always been important, and indeed a rationale for the ASEAN Way. It appears that it remained a high priority during the drafting, negotiations and signing of the Charter, and on these grounds, some ‘watering down’ took place several months before the Charter was signed (for example, at the aforementioned foreign ministers’ retreat in March 2007). Thus, the Charter was not as likely as some may have hoped to precipitate change that risked the maintenance of an (at least ostensibly) united Association. Termsak points out that ASEAN likes to do things gradually, step by step, starting with the easy and simple things first. Gradualism with flexibility will ensure that every Member State is comfortable with the pace of cooperation in ASEAN. No Member States will be left behind (Termsak Chalermpalanupap, 2007b: 5). Moving at a pace ‘comfortable to all’ thus seems a higher priority to some key actors than attempting to overhaul other norms and principles recognized as less than ideal. This is a reinforcement of an ‘old’ norm. Termsak defends this, acknowledging that while ‘the ASEAN Way is often neither the most desirable nor the most effective way of achieving worthy objectives…it is usually the least objectionable way of getting things done with the voluntary participation of all.’ From his perspective, critics of the Charter are idealists who forget that political diversity among member states is ‘a given reality’ (3-4). 132 Some object to this approach on the grounds that ASEAN is harmed by continuing to cater to the ‘lowest common denominator’. This phrase is sometimes used to refer to the perceived tendency of the so-called ‘CLMV’ states – particularly Myanmar – constraining ASEAN by objecting to statements
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UBC Theses and Dissertations
Institutional change in regional organizations : the emergence and evolution of ASEAN norms Poole, Avery Dorothy Howard 2013
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