@prefix vivo: . @prefix edm: . @prefix ns0: . @prefix dcterms: . @prefix skos: . vivo:departmentOrSchool "Arts, Faculty of"@en, "Political Science, Department of"@en ; edm:dataProvider "DSpace"@en ; ns0:degreeCampus "UBCV"@en ; dcterms:creator "Poole, Avery Dorothy Howard"@en ; dcterms:issued "2013-05-31T09:14:29Z"@en, "2013"@en ; vivo:relatedDegree "Doctor of Philosophy - PhD"@en ; ns0:degreeGrantor "University of British Columbia"@en ; dcterms:description "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 ‘non-interference 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’."@en ; edm:aggregatedCHO "https://circle.library.ubc.ca/rest/handle/2429/44530?expand=metadata"@en ; skos:note "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 ii 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 ‘non- interference 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’. iii 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. iv 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 v 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 vi 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 vii List of tables Table 1 Political systems of ASEAN member states .................................................................. 114 viii List of figures Figure 1 Excerpts from the ASEAN Charter: democracy .......................................................... 163 Figure 2 Excerpts from the ASEAN Charter: human rights ....................................................... 213 ix 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 x 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) xi 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 xii 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 xiii 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. 1 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. 2 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 3 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. 4 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 5 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. 6 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 7 (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. 8 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, 9 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 observations 3 ; 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). 10 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 11 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). 12 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. 13 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. 14 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 15 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 16 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 17 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. 18 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 19 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, 20 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 21 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. 22 …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. 23 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 24 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 ‘legal- rational’ 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). 25 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). 26 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). 27 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 28 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. 29 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). 30 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). 31 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). 32 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 significance 20 – 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. 33 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 34 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 35 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. 36 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? 37 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. 38 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. 39 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 40 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 41 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. 42 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). 43 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). 44 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. 45 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 46 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. ‘Performance- based 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 47 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). 48 (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 Thai- Burmese 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’ 49 (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 legitimacy 35 (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 intra- 35 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). 50 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. 51 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 52 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 so- called ‘driver’s seat’ of regional cooperation – not just in Southeast Asia, but in the wider Asia- Pacific 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, 53 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 writing 39 ). 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.’ 54 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). 55 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. 56 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). 57 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 dominant- party 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 58 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). 59 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. 60 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 import- substitution 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. 61 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). 62 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). 63 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 Secretary- General 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. 64 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). 65 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). 66 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). 67 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. 68 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 extra- regional 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). 69 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 non- interference. 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). 70 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 71 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 post- Cold 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). 72 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 sub- regional, 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 73 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). 74 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 75 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. 76 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. 77 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. 78 Nevertheless, Vatikiotis (2007) argues that this episode did constitute a violation of the non- interference 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. 79 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). 80 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). 81 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 Thai- Myanmar border) of having Myanmar as a member of ASEAN, interpretations of the non- interference 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). 82 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’. 83 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 84 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 85 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 Timor- Leste) 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 86 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. 87 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 far- reaching 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. 88 this as an undesirable state of affairs given the staunch adherence to sovereignty and non- interference 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). 89 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 90 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 91 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). ASEAN- ISIS also argues that the total contribution should be 0.025% of total government revenues (ASEAN-ISIS, 2006). 92 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). 93 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. 94 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 95 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 (extra- regional) 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). 96 ‘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 97 ‘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 non- tariff 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). 98 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). 99 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). 100 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). 101 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). 102 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) 103 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 Political- Security 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 11 th 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). 104 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-the- box” 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). 105 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. 106 The EPG also met with ‘private business sector representatives’ and academics in Singapore 27- 29 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 107 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. 108 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 109 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 Secretary- General. 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 Secretaries- General. Further, the Secretariat should be boosted by ‘recruitment and development of a body of dedicated professional staff’ (5). 110 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’. 111 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. 112 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). 113 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). 114 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 12 th 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. 115 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 13 th 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.) 116 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). 117 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. 118 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’ (Gonzalez- Manalo, 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. 119 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 ‘elite- centric’ 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). 120 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 13 th 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). 121 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 122 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, non- use 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 15th ASEAN Summit in Thailand. 123 ‘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 ‘rules- based’ 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 124 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. 125 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: 126 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 Secretaries- General (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). 127 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 128 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. 129 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. 130 debate in Indonesia was particularly heated. Rizal Sukma, a prominent analyst (at CSIS in Jakarta 124) 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. 131 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. 132 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). 133 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 and decisions that potentially signal increased scrutiny of member states’ domestic affairs (for example, Desker, 2008). It was this tension that led to heated debate within the HLTF over the wording of Article 14 on the ASEAN human rights body (which will be explored in Chapter 6). The expectations of some observers were more pragmatic, given the entrenchment of the norms constituting the ASEAN Way. As Jawhar Hassan of ISIS Malaysia 126 points out, ‘The Charter could never have been but a consensus document. All ten countries had to agree to it’. He notes that the diversity of political regimes across member states, and political instability in some, does not lend itself to the crafting of a charter with standards of democracy and human rights that are rigidly enforceable. All that can be done is to push the envelope as much as possible. To expect otherwise would be naïve (Jawhar Hassan, 2008). Others expressed an understanding of the drafters’ task; for example, Makmur Keliat of the University of Indonesia points out that ‘the HLTF was under time constraints. It’s fine for us, we can think about this and talk about it for ages, but diplomats are under more pressure’ (interview, 2008). Ong Keng Yong argues that ‘It’s not a perfect document, but it’s a start’ (interview, 2008). Similarly, Fuzi (the Malaysian representative to the HLTF) pointed out that 126 The Institute of Strategic and International Studies (ISIS) Malaysia is part of the ASEAN-ISIS network. 134 ‘It is better to have something now than wait until we have a perfect document. We decided to have a Charter first, and then improve upon it’ (Ahmad Fuzi Haji Abdul Razak, interview, 2008). This refers to the provisions allowing for amendment and review after five years (ASEAN 2007a, Articles 48 and 50 respectively). Fuzi also argues that the Charter’s significance goes beyond a mere ‘codification’ of existing agreements. He argues that There has been criticism that the Charter is merely a compendium of existing ASEAN documents. But it is more than that. It expresses the collective will and position of member states. It is the ‘mother document’. And there is a provision that if there is conflict between other documents and the Charter, the Charter will prevail. So the Charter effectively brings all the documents into line (Ahmad Fuzi Haji Abdul Razak, interview, 2008; emphasis added). This underlines my notion that the Charter largely comprises a set of normative statements, bringing certain issues (such as democracy and human rights) into the domain of official ASEAN dialogue. Nevertheless, more skeptical observers believe the Charter has not ‘pushed the envelope’ (to paraphrase Jawhar) at all. They hold that the Charter simply demonstrates again ASEAN’s tendency to engage in certain rhetoric to enhance its international standing, while failing to 135 consistently ‘follow through’ with implementation of its declarations and agreements.127 Some suggest that the Charter is even a ‘step backward’; by ‘codifying’ in text the norm of non- interference and the ‘ASEAN Way’, the Charter effectively sanctions the dominance of regimes such as Hun Sen’s government in Cambodia and Myanmar’s military junta. For example, Desker & Roberts (2008) argue that ASEAN may have even regressed in terms of political and security cooperation and integration…Now that all ASEAN members have ratified the Charter, ASEAN’s ability to sanction Myanmar or other members – by suspending membership, for example, has been seriously compromised’ (33). This is probably going too far; rather than signifying ‘regression’, the Charter codifies the status quo. The problem is more one of a lack of progression; new norms are advanced, but struggle to emerge given the context of normative contestation. As the EPG had noted in 2006, ‘ASEAN’s problem is not one of lack of vision, ideas, or action plans. The problem is one of ensuring compliance and effective implementation’ (ASEAN, 2006a: 4). Thus, a norm of ‘non- implementation’ is in tension with ASEAN’s (apparent) aspirations. As such, claims that the Charter is ‘transformative’ and a ‘milestone’ for ASEAN seem overstated; they are not backed by sufficient evidence of evolution of core constitutive norms such as sovereignty and non-interference, or from the procedural norms constituting the so-called ‘ASEAN Way’, of informal, consensus-driven decision-making. However, neither should the 127 For example, Jones & Smith (2007) argue that there is a ‘dissonance between an official declaratory intent of deepening ASEAN integration…and the actual intra-ASEAN policy practice that remains intergovernmental and bureaucratic’ (160). 136 Charter should not necessarily be dismissed as merely signifying ‘business as usual’ for ASEAN; a more nuanced perspective is required. Despite the constraints on its drafting and adoption, given the path-dependent ASEAN Way, the Charter can be regarded as a set of normative statements for debate that put principles such as democracy and human rights ‘on the agenda’ for dialogue and debate. As I will demonstrate in the following chapters, the apparent incongruence of these principles with traditional practices and procedures does not in itself preclude the possibility of gradual evolution in ASEAN norms. Their inclusion in the Charter was not motivated solely by instrumental concerns regarding ASEAN’s security challenges and the related reputation costs of poor regional responses, but also reflected the work of certain actors attempting to advance certain norms at the regional level. At the same time, as I have shown, the Charter reinforces existing procedural norms, particularly consensus and consultation. This makes evolution of constitutive norms, such as non- interference, to enable a role for ASEAN in democracy and human rights, more difficult. While we can see some ‘ebb and flow’ over time in interpretations of the non-interference norm, it is unclear how the Charter will shape future interpretations. On one hand, non-interference is reaffirmed in the Charter as a ‘principle’ of ASEAN; on the other hand, the ‘space’ opened up for consideration of human rights and democracy suggests an ongoing challenge to the noninterference norm. 137 Conclusion Different visions of ASEAN among officials, observers and analysts are reflected by the varied expectations of the Charter, and what it can or should achieve. These indicate a tension between the desire for ASEAN to respond effectively to regional security and humanitarian challenges, and the tendency to embrace ‘pragmatism’. While the pragmatic perspective may seem to suggest that observers should not be overly optimistic about a ‘normative transformation’ in ASEAN, neither does it preclude the possibility of institutional and normative change. While sovereignty and non-interference undoubtedly remain important to Southeast Asian governments, the security and humanitarian challenges in recent years provoke both instrumental and normative motivations to at least ‘open space’ for debate about the possibility of a new ‘Way’. The ASEAN Charter largely comprises a set of normative statements, and the negotiations during its drafting tell us something about how and why normative standards evolve. If new normative standards do not emerge as expected, there remains a puzzle worthy of study. 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. The following two chapters will explore the debates, dialogues and negotiations surrounding the drafting of the ASEAN Charter. Chapter 5 focuses on the adoption of references to democracy and democratic values, while Chapter 6 explores the references to human rights and the establishment of an ASEAN human rights body. These chapters will consider why there was significantly more debate during the drafting process about the inclusion of references to human rights, than to 138 democracy. In so doing, they explore the various perceptions of legitimacy that shaped the formulation of the text of the Charter, and ultimately, the evolution of ASEAN norms. As we shall see, democracy references were shaped more by perceptions of DRL, and were sufficiently broad and ‘aspirational’ that they were accepted in the Charter text without significant debate. In contrast, concerns about a decline in ERL was crucial to the adoption of human rights references, and heightened debate quite significantly (as did the fact that a human rights ‘body’ was proposed, rather than only references to principles and purposes). 139 Chapter 5 Regional norms and legitimacy: democracy in ASEAN As noted in earlier chapters, attention to regime type and domestic governance in member states has customarily been considered off-limits in official ASEAN dialogue. Membership in ASEAN does not require democratic rule, and the norm of non-interference has traditionally been interpreted as entailing that member states do not publicly criticize the ‘internal affairs’ of other members. Further, there are no grounds for suspension or expulsion of a member due to domestic political circumstances. 128 As such, the ASEAN Charter’s references to ‘strengthening democracy’ and ‘adherence to the principle of democracy’, would seem, prima facie, to be puzzling. This chapter will explore the debates, negotiations and drafting processes preceding the adoption of the Charter, focusing in particular on the context in which these references to democracy were included. Of particular interest are the roles of various actors which influenced the drafting and adoption of the text, and their visions of ASEAN’s desired or ‘appropriate’ role. These actors’ positions must be considered in the context of domestic political circumstances, and perceived links between domestic and regional legitimacy. This chapter begins by reviewing the political systems of the ASEAN member states. The purposes of this are to demonstrate their diversity, to show how the notion of ‘democracy’ is employed in describing different types of regimes, and to provide the context for the subsequent discussion about references to democracy in the ASEAN Charter. The chapter then explores the origins of references to democracy in the discussions and plans that led to the adoption of the Charter. The creation of plans to establish an ASEAN Community, as set out in the 2003 Bali 128 For example, there are no explicit provisions in the Charter or elsewhere enabling the suspension or expulsion of a member state due to an unconstitutional change of government; this will be further discussed later in the chapter. 140 Concord II, was a particularly important step, as then-ASEAN chair Indonesia purportedly sought to introduce a ‘democracy agenda’. Democracy had not previously been mentioned in official ASEAN texts. Following initial resistance by some other member states, it made its way into official ASEAN discourse, including initial plans for the Charter. However, it was referred to in general terms, and debate regarding its ‘meaning’ or implications for member states was apparently avoided. The chapter then explores the progression towards member states’ adoption of the final text of the Charter, with reference to their varying perceptions of legitimacy, at the domestic and regional levels. The empirical puzzles raised by the particular wording of references to democracy in the ASEAN Charter are more easily understood in the context of the role of perceptions of legitimacy in shaping official ASEAN dialogue. Some member states perceive a link between domestic political legitimacy (DPL) and the legitimacy of ASEAN and its norms (IRL); they are thus keen either to advance normative statements about democracy in official ASEAN dialogue, or instead to resist these ideas in order to preserve or enhance DPL. Other member states do not seem to share these perceptions of legitimacy, but may have been instead motivated to agree to the final text of the Charter because of concerns about external legitimacy (ERL) – in part, provoked by Myanmar’s membership. Thus, the chapter explores the tensions among members’ varying perceptions of legitimacy. In particular, there is a tension between ERL and IRL because of member states’ desires to on one hand, enhance ASEAN’s image and international standing, and on the other hand, preserve the ‘unity’ of members states through the ASEAN Way. 141 Political systems of ASEAN member states Table 1 Political systems of ASEAN member states State Official name Political system Brunei Darussalam Negara Brunei Darussalam (Brunei, Abode of Peace) Absolute monarchy. Sultan of Brunei is both head of government and head of state. Cambodia Kingdom of Cambodia Dominant-party parliamentary democracy and constitutional monarchy. Transition to multiparty democracy with UN-supervised elections in May 1993. Coup in 1997 ended coalition rule and restored Hun Sen’s CPP to dominance. Indonesia Republic of Indonesia Multiparty presidential republic. Democratic transition in 1998-99 after the fall of Suharto’s New Order regime. Laos Lao People’s Democratic Republic Communist one-party state. LPRP is the only legal party. Malaysia Federation of Malaysia Dominant-party parliamentary federation and constitutional monarchy. UMNO has held regular multi-party elections but has restricted the electoral process. Restrictions were eased somewhat in the March 2008 elections, and UMNO lost a significant proportion of the popular vote. Myanmar Republic of the Union of Myanmar Presidential republic ruled by a repressive military junta since 1962. Elections in November 2010 (i.e. after the ASEAN Charter came into force) enabled greater participation by opposition parties and formally disbanded the junta, but it remains dominant in parliament through its proxy party, the Union Solidarity and Development Party. 142 State Official name Political system The Philippines Republic of the Philippines Presidential republic. Transition to multiparty democracy after 1986 ‘People Power’ revolution. Singapore Republic of Singapore Dominant-party parliamentary republic. PAP dominates election process in a ‘soft authoritarian’ system. Thailand Kingdom of Thailand Multiparty parliamentary democracy and constitutional monarchy. Democratic transition in 1991-92; coup and martial law in 2006; democratic election in 2007. Vietnam The Socialist Republic of Vietnam Communist one-party state. The CPV has ruled the whole country since 1975. Indonesia Indonesia’s democratic transition has been particularly significant for ASEAN. Since the fall of Suharto’s authoritarian ‘New Order’ regime in 1998 – which had claimed to oversee ‘Pancasila democracy’129 – competitive elections have been held in Indonesia in 1999, 2004 and 2009. There is now a separation of powers among the executive, legislature and judiciary, and the military is under civilian rule (albeit with some continued political influence) and no longer holds seats in parliament. Indonesians enjoy a free press and relative freedom of assembly and organization; domestic politics has ‘opened up’ to a wider range of views, and the number of actors participating outside government has increased. 129 ‘Pancasila’ democracy is based on principles of decision-making through deliberations (musyawarah) to reach a consensus (mufakat). This is in contrast to the Western notion of democracy as decision-making through majority rule (Dosch, 2008a: 69, n26). 143 This increase in the number of actors affects a state’s foreign policy. As a result, Dosch (2008a) argues, one can no longer analyze the foreign policies of Southeast Asian states – particularly Indonesia, the Philippines and Thailand – ‘in isolation from the structures and dynamics of their respective political systems’ (69). Democratization has ‘opened both the conduct of international relations and foreign policymaking to a larger number of actors than were involved in these activities when most regimes were authoritarian’ (69). There is a wider range of voices, including those of CSOs, researchers and analysts, attempting to influence political process and foreign relations. Moreover, public opinion data suggests that most Indonesians have positive attitudes and values towards democracy, and want a strongly democratic country. 130 Domestic values and norms have thus changed in Indonesia’s political realm. Indonesian foreign policy has become generally more oriented towards democracy as both a value and as an appropriate form of governance. Former Indonesian Foreign Minister Hassan Wirajuda (2002) claims that ‘Indonesia has relentlessly pursued the difficult process of reform and democratization. We uphold the rule of law in a democratic, peaceful and constitutional manner’ (15). Such sentiments have been tied to Indonesia’s self-image as a regional leader and a state with growing international status. Green and Twining (2008) note that in September 2006, Hassan told the UN General Assembly that ‘Indonesia’s international clout…has grown substantially as a result of Jakarta’s commitment to employing Indonesia’s democratic values as 130 The Asian Barometer found in 2006 that (based on national random samples of the voting-age population) Indonesians evaluated their democracy at an average level of 7.0 on a 10-point scale, and expressed an average level of desire for a strongly democratic country at 8.5. Nearly three in five Indonesians expressed strong or at least some satisfaction with ‘the way democracy is working in our country’. In ASEAN, these figures were exceeded by Thailand, but not by the Philippines (cited in Diamond, 2010). 144 a “soft power” tool of foreign policy’ (18). Indonesia thus has an interest in the promotion of its values at the regional level, and also in becoming a more significant global player. 131 Singapore and Malaysia The governments of Singapore and Malaysia tend to encourage tight state control, motivated in part by the priorities of industrialization and economic growth. Rizal Sukma (2008a) describes Singapore and Malaysia as ‘offer[ing] successful models of soft authoritarianism’ (143-144). In Singapore, described by Emmerson (2008b) as a ‘materially flourishing autocratic state’ (17), the dominant People’s Action Party (PAP) is heavily involved in the provision of housing and basic welfare, and enjoys a high level of support from the population. Unlike in other countries, including Indonesia, Japan and Taiwan, single-party dominance in Singapore has not given way to a competitive party system; the PAP is entrenched (Hicken, 2008: 90). It enjoys significant political stability in part because of the competence of the bureaucracy, and the long-term partnership between the party and the civil service which makes the party appear to Singaporeans to be virtually synonymous with the state. Levitsky and Way (2002) describe Singapore as ruled by a ‘façade electoral regime’, where ‘electoral institutions exist but yield no meaningful contestation for power’ (54). Thus, it is only nominally democratic. Slater (2008) agrees that Singapore ‘falls short of the minimum procedural definition of electoral democracy’ (56). The PAP has consistently made it difficult for opposition parties to flourish, and thus for a genuine political alternative in elections. 131 For example, Indonesia is a member of the G20 (the Group of Twenty Finance Ministers and Central Bank Governors). As the only ASEAN state to be a member of the G20, Indonesia can potentially represent its neighbours on certain issues, especially when it is acting as chair of ASEAN. In February 2011, for example, Reuters reported that Indonesia had asked the other G20 members ‘to pressure financial market players to not speculate on food prices after rising costs for staples such as rice drove inflation in Southeast Asia's biggest economy to a 21-month high last month’ (Reuters, 2011). 145 The government of Malaysia maintains similarly tight controls over the state, and is characterized by both Case (2009: 313) and Schedler (2006: 3) as an ‘electoral authoritarian regime’. Other analysts have described Malaysia’s regime type as ‘competitive authoritarian’ (Diamond, 2008: Appendix, Table 5; Levitsky & Way, 2010: 318-28), and ‘semi-authoritarian’ (Ottaway, 2003: 4). Authoritarian controls underpin Malaysia’s industrialization and oblige its investors, and while the government ‘has been pressed by Western foreign ministries, international labour organizations, democracy promoters and human rights advocates to roll [these controls] back…the government has mostly ignored these voices’ (315). Kuhonta (2008b) describes Malaysia (along with Singapore) as an ‘administrative state’, which is ‘built upon the pillars of bureaucratic competence and elite autonomy’ (33-4). The administrative state is characterized by political dominance and autonomy from society; it is rational and efficient but does not tend to respond to societal pressures (34). This contrasts with the Malaysian government’s assertion that ‘Malaysia practices Parliamentary Democracy with a Constitutional Monarch’ (Malaysian Government, 2011), and with Jawhar Hassan’s aforementioned claim that ‘Malaysia has always considered itself to be democratic’ (interview, 2009).132 However, it is problematic to claim that Malaysia meets more than the procedural criteria of democracy. In Malaysia, the dominant United Malays Nationalist Organisation (UMNO) remains unified and resilient, and ethnic and religious differences seem to limit opposition efforts. The internal 132 Interestingly, a TNS and Gallup International poll conducted in 2007 found that 74% of those surveyed in Malaysia believe that elections in that country are ‘free and fair’. This was the highest of any country surveyed in Asia (only the five founding member states of ASEAN were surveyed; the Philippines was the lowest with only 22% of respondents agreeing that elections there are free and fair). Malaysia also had the highest proportion of respondents (69%) agreeing that Malaysia is ‘governed by the will of the people’ (TNS & Gallup International, 2007). 146 legitimacy (or DPL, as perceived in the ASEAN context) of the government is undermined by its authoritarian measures such as limiting civil liberties and restricting elections (Hicken, 2008: 90), but this has not meant its undoing. As Case (2009) points out, UMNO has regularly held multi-party elections, and ‘has refrained from grossly rigging or stealing these elections, instead perpetuating its dominance through subtler stratagems’. Thus, he argues, ‘civil liberties and electoral competitiveness are dampened, though not extinguished, [and thus] an intermediate form of electoral authoritarianism persists’ (312-3). While some groups, such as ethnic minorities, may not see UMNO (which is supported by the ethnic Malay majority) as legitimate, they have not – at least until the 2008 elections – significantly challenged its dominant rule. Thailand and the Philippines Thailand has experienced interruptions to democratization. The legitimacy of various governments has often been in contention, including during 2007 as the Charter was being drafted. The 1997 ‘people’s constitution’ attempted to entrench democratic rule, in the wake of the regional economic crisis. However, Connors (2009) argues, there has been for some years ‘an uneasy coexistence between liberal and authoritarian forces’ in Thailand, with ‘the persistence of authoritarian power in the military and the monarchy’ undermining attempts to consolidate democracy (355). The 2006 coup d’état against the Thaksin regime led to the removal of a democratically elected government, in the name of restoring democracy. This precipitated the ‘resurgence of authoritarian politics’, leaving the Thai state in a ‘state of ambivalence’ (356). Jones (2008b) argues that in 2007, as the Charter was being drafted, ‘Thailand was developing along the technocratically guided lines of single-party rule favored by its economically successful and politically stable ASEAN neighbours, Malaysia and Singapore’ 147 (283). He bases this on Thaksin’s ‘oligarchic hold over the Thai political process’, with his Thai Rak Thai party a ‘powerful engine of corporatist control’ (282-3).133 The 2006 coup had some influence on the text of the Charter in regard to its reference to the principle of constitutional government. The Philippines is an electoral democracy, with reasonably fair elections, free press and regard for opposition politics. The ‘people power’ uprising of 1986 toppled the Marcos dictatorship and highlighted the role of opposition mobilization in democratic transition. However, the Philippines has also experienced serious problems of democratic governance. Diamond (1999, 2002) describes it as an ‘electoral democracy’ – competitive but less democratic than ‘liberal democracies’. Case (2002) calls the Philippines a ‘low quality democracy’, and Rizal Sukma (2008a) points out that it has ‘struggled to consolidate’ its ‘fledgling’ democracy (143). Quimpo (2009) goes further, arguing that the Philippines has ‘growing authoritarian tendencies’ and argues that ‘prospects for democratic consolidation in the Philippines in the near future appear bleak’ (335). He claims that it is ‘assured of continuing instability in the coming years’ (349). Certainly, DPL has been challenged by separatist movements and entrenched class differences. Moreover, under Gloria Macapagal-Arroyo (Philippines President from January 2001 until June 2010, and thus during the Charter process), allegations of corruption, political violence and 133 The 2006 coup was followed by internal political struggles under coalition governments led first by Somchai Wongsawat and his pro-Thaksin People’s Power Party (PPP), and later Prime Minister Abhisit Vejjajiva and the Democrat Party. A general election was held in July 2011 and the populist Pheu Thai Party, led by Thaksin’s sister Yingluck Shinawatra, won a majority of seats (265 of 500) in the House of Representatives. Abhisit Vejjajiva’s Democrat Party became the main opposition party. There is a widespread perception in Thailand and abroad that Yingluck, Thailand’s first female prime minister, represents her brother (e.g. Al Jazeera, 2011; Acharya & Wang, 2011). 148 repression have been the highest since the 1986 transition. Arroyo ‘survived several attempts to oust her through people-power type mobilization or a military coup’ (Quimpo, 2009: 344). According to a Pulse Asia survey conducted in October 2007, 42% of Filipinos believed that Arroyo had been the ‘most corrupt’ of the five Filipino presidents since 1986 (Reuters, 2007a). Since Arroyo’s contested victory in the presidential elections of 2004, ‘allegations of electoral fraud remain unanswered, to the detriment of her legitimacy’ (Jones, 2008a: 282).134 The state of ‘democratization’ among the founding states of ASEAN is thus subject to varying interpretations. On one hand the regime transitions of the 1980s and 1990s spurred optimism about a potential ‘wave’ of democratization. On the other hand, as Rodan and Jayasuriya (2009) point out, Not only have authoritarian regimes within advanced economies shown remarkable political durability, as in Singapore and Malaysia, but post-authoritarian regimes in Thailand, Indonesia and the Philippines have, to varying degrees, disappointed democratic expectations (25). The implications of these mixed regime outcomes will be further discussed below. The CLMV states The so-called CLMV states are often referred to collectively by analysts. It is, however, important to explore each state’s domestic political circumstances. Cambodia, according to Slater (2008), exhibits a ‘mix of competitive and authoritarian features, while falling short of the 134 The current President at the time of writing, Benigno Aquino III (who began his term after the Charter came into force), enjoys higher approval ratings than previous Presidents (Ortuoste, 2012: 76). 149 minimum procedural definition of electoral democracy’ (56). (In contrast, he argues, Laos, Myanmar and Vietnam are ‘unambiguously and unabashedly authoritarian’ (56)). Cambodia had elections in 1993 under the supervision of the United Nations Transitional Authority in Cambodia (UNTAC), following a peace accord devised to end the long-running conflict between factions. The long-ruling Cambodian People’s Party (CPP, led by Hun Sen) was forced to share power with the royalist Funcinpec for the next four years. However, Slater describes this as an ‘aborted democratic transition’, because in 1997, once the UN had withdrawn, Hun Sen overturned this power-sharing agreement and returned to dominance (77-8). Cambodia’s 1993 Constitution is based on the principles of liberal democracy, establishing a parliamentary system and (after 1999 amendments), a Senate. However, Cambodia is generally perceived as an illiberal democracy, with the CPP holding elections but only to help legitimize its rule (e.g. Levitsky and Way, 2010: 328-37). Corruption and political violence have ensured that competition in elections is limited, and the population frequently subdued. Sorpong Peou (2001) describes the Hun Sen government’s political legitimacy as ‘precarious’, but ‘not about to collapse’. It cannot claim traditional legitimacy, or legitimacy based on economic achievement. Interestingly, Sorpong Peou argues that it may enjoy more international legitimacy than domestic legitimacy (63). However, as Levitsky and Way (2010) point out, ‘Western democratizing pressure’ has faded since 1993, and CPP dominance in the countryside (in a mostly rural society) has ensured ‘authoritarian stability’ (336-7). On the other hand, economic liberalization in Cambodia (along with Vietnam and Laos) has positioned it as an ‘emerging market’ and proffered hope that ‘global economic integration’ will lead to change in the institutions of the state (Abrami & Doner, 2008: 243). 150 Vietnam has a communist, one-party system. The Communist Party of Viet Nam (CPV) has ruled the north of the country since the 1940s and 1950s, and the whole of Vietnam since 1975. London (2009) identifies the CPV as having been ‘consistently authoritarian’, in that the dominant party ‘discourage[s] or disallow[s] organized political competition’ (375). It has, however, permitted greater pluralism since the beginning of doi moi (renewal or economic renovation) in 1986. London argues that Vietnam has, since 1986 and especially after 1989, ‘embarked on a transition to what is best described as market-Leninism’ (376, emphasis in original). He sees Vietnam’s regime as more ‘open and democratic’ than China, the other major example of market-Leninism, as it has more progressive and paid greater attention to the aspirations and interests of the Vietnamese population (376). Nevertheless, it remains essentially authoritarian. Jones (2008b) suggests that the CPV ‘has successfully stage-managed development’. Doi moi reflected concerns about the domestic economy, but also about ‘maintaining the party’s vanguard status’ (286). Laos – officially the Lao People’s Democratic Republic – has been ruled by the Lao People’s Revolutionary Party (LPRP) since it seized power in 1975. Jones (2008b) describes the LPRP as ‘Marxist-Leninist-Maoist-inspired’. Like Vietnam, the LPRP has adopted market-friendly economic reforms since 1986, but ‘these reforms did not prevent the LPRP from exercising strict control over the developmental process’ (285). Laos has experienced rapid economic growth in recent years, but remains a communist one-party state; the LPRP enjoys a monopoly on political power. While there is an elected National Assembly, which acts as a legislature, candidates for the National Assembly must be approved by the LPRP’s own Lao Front for National 151 Construction, and the majority of National Assembly delegates are thus LPRP members. The real political power and authority rests with the senior LPRP leadership, which makes decisions that are then executed by the government (Freeman, 2001: 142). Gunn (2007) notes that the legislative assembly elections in April 2006 (described as a ‘festival of democracy’ in the state- controlled media) reinforced the LPRP’s dominance; it won 113 out of 115 seats (184). He points out that ‘the party remains hegemonic in Laos and neither political opposition nor dissent is tolerated’ (184).135 Myanmar was, during the period of the Charter negotiation, fully dominated by its repressive military regime – one which Slater (2008) termed ‘freakishly durable’. The ruling State Peace and Development Council (SPDC) lacked legitimacy given its refusal to recognize the results of the 1990 elections, which the National League for Democracy (NLD) won by a landslide. Kyaw Yin Hlaing (2008) described the SPDC’s actions as ‘blatantly undemocratic’ (152). It was accused of using rape, torture, forced labour and arbitrary arrest to keep the population subdued, and of benefiting from Myanmar’s rich resources as well as from production of opium and amphetamines. While it had a ‘highly determined opposition that refuses to disappear’ (Slater, 2008: 56), the regime avoided fatal splits, and cracked down on popular protest (including the peaceful demonstrations in September 2007, a few months before the Charter was signed). The SPDC claimed that it was creating a ‘disciplined democracy’, and had repeatedly promised other ASEAN members that it was writing a constitution and planning to hold elections. There have since been considerable developments in Myanmar, which will be reviewed in Chapter 7. 135 Also in 2006, the Sixth Party Congress chose Choummali Sayason, a serving general, as state president, and Bouason Bouphavanh, a Soviet-trained political economist, was endorsed by the Assembly as the new Prime Minister (Gunn, 2007: 184). This was merely a ‘changing of the guard’; according to Gunn (2007), ‘few observers are holding out for substantive political change in Laos, at least from within the Party-Army’ (185). 152 However, during the drafting of the Charter, the prospects for a functioning liberal democracy appeared grim. The crackdown shaped other member states’ impetus to make normative statements in the Charter about democracy and human rights (particularly because of the impact on ERL, to be further discussed). ASEAN and ‘democracy’ after enlargement Prior to the discussions and statements regarding the ASEAN Community and the Charter, ‘democracy’ and associated terms such as ‘democratic values’ and ‘democratization’ did not appear in official ASEAN statements. Nor did ASEAN leaders publicly use such terms, when discussing the domestic affairs of a particular member state. For example, during the period when Cambodia’s admission to ASEAN was proposed, then delayed, and finally completed, ASEAN leaders referred to the need to ‘find a peaceful solution’ and ‘restore political stability’ in Cambodia (e.g. ASEAN, 1997a). At the Special Meeting of the ASEAN Foreign Ministers in Cambodia in Kuala Lumpur on 10 July 1997, the ministers referred to ‘unfortunate circumstances which have resulted from the use of force’ (ASEAN, 1997d). Interestingly, two weeks later (in late July 1997) at the Thirtieth AMM in Subang Jaya, Malaysia, the then-Cambodian Foreign Minister, Ung Huot, made a statement that mentioned democracy five times. After thanking the ASEAN members for their ‘firm and priceless support…for peace and stability’ in Cambodia, he assured the ministers that ‘the Kingdom of Cambodia adheres to the principles of liberal democracy and pluralism’. He also noted that the Royal Government of Cambodia ‘promises to do everything, to maintain political stability, 153 bringing about peace, democracy, the respect of human rights and the freedom of expression in Cambodia’ (ASEAN, 1997e). Thus, while the ASEAN leaders did not make explicit statements about the nature of the regime in Cambodia, following its UN-supervised elections in 1993, the Cambodian representative to ASEAN clearly felt he must make representations about the state of democracy in Cambodia. At the Post-Ministerial Conference (PMC) following the Thirtieth AMM, the US (in its capacity as an ASEAN Dialogue Partner) was more forthright in referring to democracy in relation to Cambodia. Madeleine Albright, then-US Secretary of State, stated that ‘ASEAN is right to recognize the de-stabilizing implications of having the democratic process in Cambodia disrupted by force’, and that the US ‘will insist on respect for the 1991 Paris Peace Accords, for the Cambodian constitution, and for the democratic process’. Albright went on to say that ‘Similarly, we look forward to a strong effort by ASEAN to encourage respect for law, democracy and human rights in Burma. Here, too, democratic elections were overturned’ (quoted in ASEAN, 1997f). Thus, it was clear to ASEAN foreign ministers that democracy and ‘democratic processes’ were valued by at least one important external partner.136 This clearly had implications for perceptions of both ERL and ORL. As yet, however, the ministers themselves did not refer to such terms in their official statements. 137 136 Other Dialogue Partners, such as the EU, Australia and Canada, expressed in their statements at the same PMC to their concerns about ‘the situation in Cambodia’, and their hopes that violence would cease. They did not explicitly refer to democracy or democratic rule, but all three representatives referred to the importance of Cambodia holding free and fair elections in May 1998 (as planned by the Cambodian government) (ASEAN, 1997g; ASEAN, 1997h; and ASEAN, 1997i). Note also that the UN General Assembly made a resolution in February 1998, stating that it ‘notes that national elections are scheduled to be held in May 1998, and strongly urges the Government of Cambodia to promote and uphold the effective functioning of multi-party democracy’ (UNGA, 1998). 137 Jarasa (2003) reports that the ASEAN Troika, created in July 1997 to broker a settlement to the crisis in Cambodia (as discussed in Chapter 3), emphasized the need for Cambodia to hold free, fair and credible elections 154 Moreover, ASEAN leaders did not publicly refer to ‘good governance’, or the irregular transfer of governance, in regard to the admissions of Cambodia or Myanmar as members. There are no such references in the ASEAN Summit or AMM statements during the late 1990s when both member states were admitted (in 1999 and 1997 respectively). A few years later, as proposals for an ASEAN Community were being formulated, official ASEAN statements and public comments made by ASEAN leaders still avoided discussing ‘democracy’ in relation to the domestic affairs of particular member states, unless that member state referred to it. For example, Myanmar did not receive much attention in official ASEAN statements until the violent attack on a convoy of NLD members on 30 May 2003. After this incident, which attracted international condemnation, the SPDC declared that it would devise a ‘roadmap to democracy’. At the Thirty-Fifth AMM in Phnom Penh in June 2003, the foreign ministers’ Joint Communiqué reported that they had ‘urged Myanmar to resume its efforts of national reconciliation and dialogue among all parties concerned leading to a peaceful transition to democracy’. To this end, the Foreign Ministers ‘looked forward’ to the release of Aung San Suu Kyi and NLD members (ASEAN, 2003b). 138 A few months later in October 2003, at the Ninth ASEAN and offered technical assistance for these. Hun Sen responded (at a workshop on good governance on 13 January 1998) that ASEAN should not interfere with the internal affairs of Cambodia, and that ASEAN leaders were not ‘teachers of democracy’. These were apparently not, however, public statements (115). 138 Malaysia’s then-Prime Minister Mohamad bin Mahathir, a characteristically outspoken individual, was more openly critical: he suggested that Myanmar might need to be expelled from ASEAN if Aung San Suu Kyi was not released (Agence France Presse, 2003a). The Asia Times reported that Malayia’s then-Foreign Minister, Syed Hamid Albar, later ‘softened’ Mahathir’s remarks, saying that ‘just as the decision to admit Myanmar was reached through consensus, the expulsion of Myanmar has to be done in a similar manner’ (quoted in Phar Kim Beng, 2003). Likewise, then-Thai Foreign Minister Surakiart Sathirathai told Agence France Presse that both he and then- Indonesian Foreign Minister Hassan Wirajuda believed that expulsion would be too drastic: ‘We don't have any thoughts about expelling Myanmar from ASEAN. Both of us think that would be going too far’ (quoted in Agence France Presse, 2003b). Surukiart also emphasized that Mahathir’s statement was ‘his private comment. ASEAN has not held any meeting about it’. Moreover, he argued that ‘[Myanmar] staying in the group gives Thailand a 155 Summit in Bali, the ASEAN leaders ‘welcomed the recent positive developments in Myanmar and the Government’s pledge to bring about a transition to democracy’. They also agreed (in a possible corrective to Mahathir’s statement) that ‘sanctions are not helpful’ to such efforts (ASEAN, 2003c). ‘Democracy’ and the ASEAN Community The 2003 Bali Concord II was a key early step in ASEAN’s reinvigoration (as noted in Chapter 4; also refer to the chronology in Appendix A). It envisioned an ASEAN Security Community (ASC) which would ensure that member states lived in a ‘just, democratic and harmonious environment’ (ASEAN, 2003a). This document was signed in October 2003 at the Ninth ASEAN Summit in Bali, Indonesia, and reflects the influence of then-ASEAN Chair Indonesia’s foreign policy, and its visions for ASEAN’s role.139 Indonesia’s Ministry of Foreign Affairs had set out the Security Community idea four months earlier (in June 2003) in a ‘non-paper’140 submitted to the ASEAN Senior Officials Meeting (ASEAN SOM) in Phnom Penh. The proposal set out five ‘tasks’: political development, channel to contact Myanmar to allow us to solve problems together’ (quoted in Agence France Presse, 2003c). Then-Thai Prime Minister Thaksin Shinawatra agreed, saying that ‘Myanmar needs time to prove themselves and show their intentions of still wanting national reconciliation’ (quoted in Agence France Presse, 2003c). Thus, other ASEAN leaders distanced themselves from Mahathir’s comment. 139 Herman Kraft argues that ‘the Chair at any particular time has significant influence over what documents are signed’. Particular declarations are generally taken to reflect, at least in part, the agenda of the current Chair. Thus, Kraft argues, the particular domestic context of Indonesia should be taken into account in analyses of the Bali Concord II (interview, 2009). 140 Rizal Sukma (2008a) explains that a ‘non-paper’ submitted to an ASEAN SOM is unofficial; it is intended to stimulate responses from other member states (as opposed to a ‘paper’ which ‘conveys a fixed official view’) (138, n5). 156 ‘norms-setting’, conflict prevention, conflict resolution, and peace-building after conflict (Rizal Sukma, 2008a: 137). Rizal Sukma of CSIS drafted the first concept paper contributing to the Indonesian proposal (Rizal Sukma, 2003). He writes that the term ‘political development’ was understood by Indonesia ‘as committing the Community to encourage the democratization of Southeast Asia’ (Rizal Sukma, 2008a: 137). He explains that Indonesia did not, at this early stage, openly advocate a “democracy agenda” for ASEAN, preferring instead to recommend that the ASC concern itself with “political development” – a more vague and thus less controversial term. The details of the proposal as these were spelled out, however, clearly registered the spirit if not the letter of an ASEAN “democracy agenda” (Rizal Sukma, 2008a: 137). Indonesian Foreign Affairs officials were clearly conscious that the language with which this ‘democracy agenda’ was proposed would be crucial to its reception. The use of the term ‘political development’ is indicative of the sensitivity of the term ‘democracy’ – but Indonesia’s explanation of the former certainly alluded to the institutions of the latter. According to its ‘non- paper’, ‘political development’ means that member states should ‘promote people’s participation, particularly through the conduct of general elections’; ‘implement good governance’; ‘strengthen judicial institutions and legal reforms’; and ‘promote human rights and obligations through the establishment of the ASEAN Commission on Human Rights’ (quoted in Rizal Sukma, 2008a: 138; emphasis added). The introduction of such matters previously considered ‘taboo’ in official ASEAN dialogue suggests that Indonesia took on the role of a ‘norm entrepreneur’. 157 These suggestions provoked discomfort among some ASEAN members concerning the possibility of scrutiny of their domestic affairs. Rizal Sukma (2008a) writes that by introducing what it regarded as a ‘democracy agenda’, Indonesia broke new and controversial ground…Questions were raised regarding the possible damage that such a “democracy agenda” might do to ASEAN’s cardinal principles of noninterference, national sovereignty, consensus, and quiet diplomacy. The prospect that ASEAN might intervene in a member’s domestic affairs triggered deep concern (138). In particular, objections were raised in the ASEAN SOMs in mid-2003 that were convened to prepare for the Ninth Summit. As a result, the Bali Concord II ultimately adopted only four of the five proposed ‘tasks’ (renamed as ‘modalities for the ASEAN Security Community’), omitting ‘political development’ (ASEAN, 2003a). Rizal claims that other member states wanted to leave references to democracy and human rights out of the document, arguing that it would be more appropriate to ‘save’ them for a ‘higher agreement – when we get a Charter’;141 thus, they pushed to leave ‘political development’ out of the Bali Concord II. However, Indonesian representatives began to suspect that this omission was a ‘tactic’, ‘so we insisted that political development would be in the VAP [Vientiane Action Programme]’ (Rizal Sukma, interview, 2009). They succeeded; at the next (Tenth) Summit in Vientiane in November 2004, the VAP (discussed in Chapter 4) set out five ‘strategic thrusts’ intended to achieve the ASC – ‘political 141 Note that there had been no official references to a possible future Charter at this stage (2003); the first official reference, as noted in Chapter 4, was made in the 2004 VAP (ASEAN, 2004b). Presumably, however, discussions had been held amongst ASEAN officials or in ‘unofficial’ memoranda. 158 development’ was this time included. However, the VAP did not specifically refer to elections, or to widening political participation by holding them. It was rather less confronting, setting out as one of its ‘strategies for political development’: to ‘promote understanding and appreciation of political systems, culture and history of member countries through increasing people-to-people contacts and track-two activities’ (ASEAN, 2004b: 6).142 This is more in line with the traditional ‘unity in diversity’ approach, and notably deflected attention from elites – those who shape these political systems – by instead focusing on interpersonal relations and ‘Track Two’ dialogue.143 Interestingly, the component of ‘norms-setting’ proposed by Indonesia and included in the Bali Concord II was replaced in the VAP by the ‘strategic thrust’ of ‘Shaping and Sharing of Norms’. The significance of this change is unclear, but the latter phrase would seem, prima facie, to be less contentious (in the sense that it does not imply a direct challenge to traditional interpretations of ASEAN norms). The ASEAN Security Community Plan of Action (ASCPA) was also adopted at the Tenth Summit, and includes ‘political development’ as one of seven ‘areas of activities’ with which to work towards an ASC (ASEAN, 2004a). This delayed inclusion of references to political development seems to mark progress in implementing Indonesia’s ‘democracy agenda’. Rizal 142 The VAP does note that the ASEAN Security Community ‘embodies ASEAN’s aspirations to achieve peace, stability, democracy and prosperity in the region where ASEAN Member Countries live at peace with one another and with the world at large in a just, democratic and harmonious environment’ (ASEAN, 2004b: 6). However, my point here is that the ‘strategic thrusts’ – strategies for achieving the Security Community – do not specifically refer to democracy or to features of democratic rule such as the holding of elections or other ways of increasing political participation, or to the building of democratic institutions. 143 ‘Track Two’ refers to non-governmental or ‘unofficial’ dialogue in the Asia-Pacific region; it is generally conceptualized as referring to meetings of scholars, journalists, and government and bureaucratic officials acting in their ‘private capacities’. Such activities are designed to be informal and allow for frank discussion and the generation of ideas for consideration in ‘official’ circles (e.g. in intergovernmental organizations such as ASEAN, Asia Pacific Economic Cooperation (APEC), and ARF): refer Capie & Evans, 2007: 233-243. 159 Sukma (2008a) notes that despite the ‘watering down’ of ‘political development’, the ASCPA does at least ‘make democracy an objective of ASEAN’ (139): it asserts that political development would ‘support ASEAN Leaders’ shared vision and common values to achieve peace, stability, democracy and prosperity in the region’ (ASEAN, 2004a; emphasis added).144 This is significant given the traditional emphasis on non-interference. Indeed, Caballero- Anthony (2008a) argues that some observers, accustomed to the ‘watering down’ of proposals, were surprised that references to democracy (and human rights) in the draft ASCPA ‘had survived the scrutiny and suggestions’ of the ASEAN SOM (208). However, the texts of the VAP and the ASCPA do not dictate a particular interpretation of ‘democracy’ – for example, they do not refer specifically to elections or other democratic institutions. Rather, the VAP suggested that different ‘political systems’ should be ‘appreciated’. In the meantime, public references to democracy were being avoided by ASEAN leaders in more delicate situations involving Myanmar. For example, in 2005, ASEAN members communicated to Myanmar’s military junta that it would be wise for Myanmar to forego its turn as Chair of ASEAN, due to begin in July 2006 (according to alphabetical rotation). However, reports of these meetings are vague. 145 It is, of course, not surprising that such meetings were ‘closed- 144 As mentioned in Chapter 4, the ASEAN Security Community was later (in the Charter) named the ASEAN Political-Security Community (APSC). The reason for this change was not made explicit, although it seems to be a reference to the objective of ‘political development’. The 2009 ASEAN Political-Security Community Blueprint sets out ASEAN’s plans for ‘cooperation in political development’, including ‘contributing to the building of a peaceful, democratic, tolerant, participatory and transparent community in Southeast Asia’ (ASEAN, 2009c: 2-3). Thus, it seems that Indonesia’s proposal for ‘political development’ to be included as a major objective for ASEAN (to be discussed in Chapter 5) eventually made its way into a fairly prominent place in ASEAN rhetoric. 145 For example, after Indonesia’s Foreign Minister, Hassan Wirajuda, met with U Nyan Min, his counterpart from Myanmar, in July 2005, Marty Natalegawa, then-spokesman for Indonesia’s Foreign Ministry, reported that Myanmar would likely decline the chair, as it was ‘now more aware of its collective interests in ASEAN’ (quoted in 160 door’ discussions and that ASEAN leaders were careful not to be too explicit about the reasons why they believed Myanmar should decline the chairmanship; and indeed, those reasons would not necessarily be expressed in terms of ‘democracy’ and ‘good governance’ so much as the impact of having what is essentially a pariah state representing ASEAN internationally. However, when Myanmar did step aside and decline the chairmanship, at the Thirty-Eighth AMM in Vientiane in July 2006, the Joint Communiqué stated that the decision was made because Myanmar wanted ‘to focus its attention on the ongoing national reconciliation and democratisation process’ (ASEAN, 2006b). U Nyan Win, Myanmar’s then-Foreign Minister, told the news conference that 2006 would be a ‘critical year’, in which Myanmar would draft a new constitution and prepare for free and fair elections (quoted in The Nation, 2005). Official ASEAN statements, particularly its Joint Communiqués, have subsequently referred to Myanmar’s ‘democratisation process’, in generally positive terms.146 For example, the Joint Communiqué of the 39 th AMM in July 2006 in Kuala Lumpur, Malaysia stated in regard to ‘Developments in Myanmar’ that while the foreign ministers ‘expressed concern on the pace of the national reconciliation and peaceful transition to democracy [sic]’, they recognized that Myanmar needs both time and political space to deal with its many and complex challenges. We hope that Myanmar’s efforts to deal with those challenges will Salim Osman, 2005). Katathi Suphamongkohn, then Thailand’s Foreign Minister, reported that ‘we have impressed upon Myanmar the concerns of the international community’ (quoted in Salim Osman, 2005). 146 In contrast, parliamentarians in ASEAN states were more openly critical of Myanmar. During the debate about Myanmar’s potential chairmanship, the ASEAN Inter-Parliamentary Caucus on Myanmar was launched, and comprised sixteen members of the parliaments of Malaysia, Singapore, Thailand, Indonesia and Cambodia. Lim Kit Siang, the then Malaysian parliamentary opposition leader, stated in February 2005 that the caucus aims ‘to ensure genuine democratisation’ in Myanmar, given that its membership ‘has caused grave embarrassment to ASEAN, imperilling international goodwill and investment opportunities for the region’ (quoted in Vatikiotis, 2005). 161 progress…and in this regard ASEAN would remain constructively engaged as required’ (ASEAN, 2006b). Thus, in the period immediately before the Charter drafting process began, ASEAN leaders were keen to label Myanmar as ‘democratizing’. The impetus to do so would strengthen after the Myanmar’s September 2007 crackdown on demonstrators, and ASEAN sought to restore and bolster ERL. References to democracy and the ASEAN Charter At the Eleventh Summit in December 2005, member states adopted the Kuala Lumpur Declaration on the Establishment of the ASEAN Charter (2005), the text of which indicated that references to democracy were expected to be included in the Charter. It states that the Charter will reaffirm ‘principles, goals and ideals’ in ASEAN milestone agreements, the UN Charter and established international law, including the ‘promotion of democracy, human rights and obligations, transparency and good governance and strengthening democratic institutions’ (ASEAN, 2005a; refer Figure 1 below). The Kuala Lumpur Declaration also establishes the EPG, which, as noted in Chapter 4, proposed that similar references be included in the Cha rter. The EPG report argues that ‘ASEAN should continue to develop democracy, promote good governance and uphold human rights and the rule of law’. It states that the ‘basic principles and objectives’ included in the Charter should include ‘democracy’ and the ‘active strengthening of democratic values’ (ASEAN, 2006a). When the Charter itself was published, it adopted similar 162 language. Democracy was included in the Charter as a ‘principle’ of ASEAN, and strengthening democracy as a ‘purpose’ (refer Figure 1). However, there were suggestions in the regional news media in 2007 that some member states did challenge the inclusion of references to democracy. For example, The Jakarta Post reported in June 2007 that ‘rumours have been circulating that during the process of drafting the Charter, several member countries have asked for the removal of references to human rights and democratic values from the Charter’ (Abdul Khalik, 2007). The article claims that Myanmar was particularly resistant, and Singapore had also expressed some concerns. 163 Figure 1 Excerpts from the ASEAN Charter: democracy CHARTER OF THE ASSOCIATION OF SOUTHEAST ASIAN NATIONS PREAMBLE … ADHERING to the principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms; … CHAPTER 1 PURPOSES AND PRINCIPLES ARTICLE 1 PURPOSES The Purposes of ASEAN are: … 4. To ensure that the peoples and Member States of ASEAN live in peace with the world at large in a just, democratic and harmonious environment; … 7. 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; … ARTICLE 2 PRINCIPLES 1. In pursuit of the Purposes stated in Article 1, ASEAN and its Member States reaffirm and adhere to the fundamental principles contained in the declarations, agreements, conventions, concords, treaties and other instruments of ASEAN. 2. ASEAN and its Member States shall act in accordance with the following Principles: … (h) adherence to the rule of law, good governance, the principles of democracy and constitutional government; … (Source: ASEAN, 2007a) 164 References to (un)constitutional changes of government In addition to these references to democracy, ASEAN leaders have also referred to (un)constitutional changes of government since plans were made in 2003 to create an ‘ASEAN Community’. Interestingly, the tone of these references has changed over time. The ASCPA states that ‘ASEAN Member Countries shall not condone unconstitutional and undemocratic changes of government’ (ASEAN, 2004a). As noted in Chapter 4, the EPG report proposes that the Charter refer to the principle of the ‘rejection of unconstitutional and undemocratic changes of government’ (ASEAN, 2006a: 2). However, in the Charter, this was turned into a ‘positive’ reference; as noted in Figure 1 above, the Charter asserts that ASEAN and its member states ‘shall act in accordance’ with the Principles of ‘adherence to the rule of law, good governance, the principles of democracy and constitutional government’ (ASEAN, 2007a: 6).147 This reference to adherence to the principle of ‘constitutional government’, rather than to the rejection of unconstitutional and undemocratic changes of government, clearly has fewer implications for member states. The latter implies a call to action – one which challenges traditional interpretations of ASEAN norms. The rephrasing of this principle creates a situation in which there is no mandate or expectation of member action; rather, they agreed to observe and passively promote the principle of constitutional government. 148 Termsak Chalermpalanupap of the ASEAN Secretariat reports that there was a ‘big debate’ within the HLTF regarding this clause, but that ‘in the end, we used the example of the Thai 147 Moreover, as Emmerson (2008a) notes, the EPG report contains eleven references to ‘constitutional’ or ‘unconstitutional’ government, whereas the Charter contains one (39). 148 This highlights a particular contrast between references to democracy and to human rights in the Charter, in that the provision to establish a ASEAN human rights body (AHRB) clearly precipitates a ‘call to action’ (notwithstanding the limits to the AHRB’s mandate – it cannot undertake investigations but may ‘promote’ human rights in ASEAN through education and awareness. This will be discussed further in Chapter 6). 165 coup that happened in 2006. It was certainly undemocratic and unconstitutional, but it was not unpopular. So we changed it’ (interview, 2008). This is interesting in that it implies a judgment among ASEAN elites about domestic political affairs. Thus, it was significant that Thailand – one of ASEAN’s founding members – was undergoing political turmoil during the debate and drafting of the Charter. Might a reference to unconstitutional government have been included in the Charter, had the coup not occurred? While the EPG had referred to ‘rejection’ of unconstitutional changes of government, which would clearly be controversial, member states had only agreed in the ASCPA to ‘not condone’ such changes. However, this text was apparently still too sensitive given the domestic circumstances in Thailand. 149 And as such, ASEAN was not about to adopt provisions enabling the suspension or expulsion of member states as a punitive measure for unconstitutional changes of government. This reflects the prioritization of unity and stability in intra-ASEAN relations – part of the desire to enhance IRL – as well as ASEAN’s tendency to avoid ‘singling out’ or ostracizing any one member state (such as Myanmar). This example relates to the broader question of the relationship between security and democracy. While democratic rule is widely believed to be conducive to security for a state, it is unclear that ‘democracy promotion’ by a RO will increase security – in fact, it could provoke insecurity, 149 In contrast, the Organization of American States (OAS) does use such provisions. In July 2009, for example, the OAS suspended Honduras in response to the coup that ousted President José Manuel Zelaya, invoking (for the first time) Article 21 of its Inter-American Democratic Charter (OAS, 2009). Interestingly, at the fourth EPG meeting on June 28, 2006 – to which representatives of NGOs and research institutes were invited – Amitav Acharya (then Director of the Institute of Defence and Strategic Studies in Singapore, now called the S. Rajaratnam School of International Studies) raised the example of the ability of the OAS to respond to regional political crises. He told the participants that the foreign ministers of OAS member states meet within 48 to 72 hours of ‘crises of democratic breakdown or backsliding’, so it is possible to respond quickly (quoted in ISEAS, 2006). Thus, the EPG’s recommendation that ASEAN include in the Charter a reference to the ‘rejection of unconstitutional or undemocratic changes of government’ (ASEAN, 2006a: 2) may have been influenced by the example of the OAS. 166 given the tensions that may arise among member states if diplomatic or other actions are taken to push the issue. 150 A reference in the Charter to member states refusing to condone ‘unconstitutional and undemocratic changes of government’ may have enabled member states to take a harder line on Myanmar, and thus to address transnational security threats arising from Myanmar’s membership.151 However, invoking such a clause may worsen security and stability in the region, depending on the reactions of the ruling junta in Myanmar and its potential supporters, such as China. Thus, while ASEAN documents such as the Kuala Lumpur Declaration explicitly draw a link between ‘democracy’ and ‘stability’, tensions arise from the practical realities of domestic politics in ASEAN. The EPG’s suggested reference to ‘undemocratic’ changes of government was also omitted from the Charter, thus removing any references to a particular regime type. (Again, this may have been influenced by the situation in Thailand during the drafting period). This means that the Charter’s remaining references to democracy are broad, aspirational and ‘positive’; they appear as normative statements about ASEAN’s ‘goals’. As Helen Nesadurai (interview, 2008) points out, these Charter provisions are ‘goals with no timeline, so they don’t really represent specific obligations. They are aspirational. So it is not too problematic for members to sign’. Thus, democracy in the Charter does not challenge the norm of moving at a pace ‘comfortable to all’). Rizal Sukma (2008a) argues that the inclusion of references to democracy in the ASC and Charter 150 Refer to Emmerson’s (2008a) volume, in which contributors explore the relationships between democracy, security and regionalism in Southeast Asia. 151 For example, the violence and disorder in refugee camps along the Thai-Burmese border (e.g. Caballero- Anthony, 2008a: 199-200. 167 is hardly a license to intervene. It is less a basis for policy than an attempt, in effect, to encourage and remind ASEAN’s members that they need to embrace democratic values – but in the long run, at each state’s own pace, and depending on its own political will to reform (136). Thus, again, it seems that the references to democracy are broad and aspirational. They do not impose specific or immediate obligations on member states. As ASEAN’s relationship with Myanmar suggests, long-term objectives or expectations need not have a specific timeline. This, of course, is in itself a source of frustration for some observers; for example, Jusuf Wanandi (2007; and interview, 2009) is sceptical that the references to democracy (and human rights) in the Charter are meaningful at all, and thus describes the Charter as a ‘real letdown’. It also should be noted that, in addition to references to democracy, the Principles and Purposes set out in the Charter also state that ASEAN will ‘enhance’ and ‘adhere to’ good governance and the rule of law (ASEAN, 2007a: Articles 1 & 2). These references allude to the competence and performance of governments, and procedural fairness. Some member states regard these practices as more important than the aspirational goal of democracy. For example, Malaysia and Singapore are typically more focused on order and stability – as the basis of economic growth (and thus performance legitimacy) – than competitive and representative democracy. ‘Good governance’ is not defined or explained in detail in ASEAN documents, nor did it arise as the subject of discussion (beyond brief acknowledgements of its inclusion in the Charter) in my interviews in response to open-ended questions about the Charter process. ASEAN has not explicitly associated ‘good governance’ with a particular regime type. 168 There are clearly competing visions of ASEAN and how it can and should develop or progress. This contributes to confusion regarding the extent to which references to democracy in ASEAN documents should be regarded as significant, or as marking normative change. As such, we must consider the context of, and motivations behind, member states’ underlying positions on these references. First, we should consider how ‘democracy’ is defined and interpreted, both generally and in the ASEAN context. The meanings of ‘democracy’ in the ASEAN context Democracy is clearly a contested concept among both scholars and policymakers. The comparative democratization literature indicates a significant variation of definitions of democracy. The more minimalist ‘procedural’ interpretations (notably, from Schumpeter, 1942) involve only the holding of elections and the establishment of the formal institutions of democracy. More complex definitions (e.g. Dahl, 1971; Diamond, 1999) emphasize respect for civil liberties and human rights as necessary aspects of a democracy. Yet further advanced on this spectrum are substantive definitions which are concerned with longer-term outcomes in a ‘democratic’ society. For example, Rueschemeyer (2004) argues that democracy is not truly achieved where economic inequality persists. This spectrum of definitions highlights the problem of identifying ‘democracies’. Moreover, there is a difficulty with placing certain regimes on an assumed spectrum by labelling them (for example) ‘transitional democracies’ or ‘consolidated democracies’. The democratization literature could be regarded as problematic due to its teleological orientation; it tends to rely on the assumption that ‘democratic transition’, 169 at least in a minimalist sense, will inevitably precipitate movement over time (albeit with the potential of some backsliding) towards ‘mature’ or ‘consolidated’ democracy.152 This was particularly apparent in the immediate post-Cold War context, when Fukuyama (1992) famously proclaimed the ‘end of history’ and Franck (1992) argued that the so-called global ‘spread of democracy’ was inevitable. Other scholars identified ‘waves’ of democracy and ‘demonstration effects’ (e.g. Huntington, 1991; Whitehead, 1986; Przeworski et al, 2000). This literature suggests that studies of regions should consider the ‘global context’. For example, it raises the question of whether states undergo democratic transition partly as a result of so-called ‘global norms’. One may also ask whether ROs employ the ‘language’ or rhetoric of democracy in response to the example of other regions (to be further discussed in Chapter 7). The adoption of references to democracy in the text of a regional declaration – a normative statement about democracy – does not necessarily mean that the RO emphasises or upholds a particular ‘model’ of democracy, as an end-goal to which newly democratic states aspire, or which non-democratic states are expected to eventually pursue. The interpretations of ‘democracy’ and ‘democratic values’ by various actors are matters to be explored empirically. And member states in a RO are likely to have various interpretations, in part due to their particular political histories and cultures. Moreover, in policymaking circles, the term ‘democracy’ may, of course, be employed for instrumental reasons. As Collier & Levitsky (1997) point out, there has been a proliferation of 152 Certainly, there is democratization literature which is careful to acknowledge this difficulty. For example, the ‘theoretical starting-point’ of Whitehead’s (2002) book is that ‘democratization is best understood not as a predetermined end-state, but as a long-term and somewhat open-ended outcome’ (3). 170 ‘democracy with adjectives’, leading to ‘hundreds of subtypes’ of democracy (429-30). Emmerson (2008a) notes that this is partly because ‘In contemporary discourse, by and large, “democracy” as a term is a good thing. Some politicians, however, want the legitimacy that the word confers without the constraints that the reality can imply’ (9; emphasis in original). Thus, we see the use of ‘democracy with adjectives’ (Collier & Levitsky, 1997). For example, Myanmar’s ruling party claims to be creating a ‘discipline-flourishing democracy’. Indonesia – before its ‘democratic transition’ in 1998 – had Sukarno’s ‘guided democracy’, followed by Suharto’s ‘Pancasila democracy’. Laos calls itself a ‘people’s democracy’ – its official name is the Lao People’s Democratic Republic – but is an ostensibly communist one-party state. Emmerson (2008a) argues that Typically, these adjectives are meant to prevent a more or less subjugated population from thinking that the noun “democracy” should necessarily imply and require a different qualifier, namely, “liberal” as in “liberal democracy” (9). Thus, ‘democracy’ need not, as is often assumed, be associated with liberal values such as political and civil rights. It may be qualified with an ‘adjective’ for instrumental reasons. Further, we should note that the (Western-dominated) literature on democratization tends to judge claims to ‘democracy’ against a particular model (exhibiting formal institutions of democracy, such as so-called ‘free and fair’ elections). However, this does not suggest that any use of the term ‘democracy’ in Southeast Asia should be judged against this model and, if found wanting, be dismissed as instrumental. ‘Democracy’ cannot be assumed to represent a particular model; it is not invoked in a uniform manner across regions, or across states or societies within a 171 region. 153 Rather, Dosch (2008a) argues, ‘democracies are diverse, and deeply rooted in specific cultural and historical experiences’ (69). Similarly, Friedman (2002) argues that ‘while the potential for democracy is universal, its practice is idiosyncratic. Every democracy is sui generis’ (59). This implies that particular states will not be identified consistently by observers as ‘democratic’ or otherwise; analysts label regime types in different ways. Moreover, it is not clear that the references to ‘democracy’ in the ASEAN Charter are intended to refer to the domestic context (i.e. to member states’ internal governance). Democracy may be broadly invoked to refer to the ‘ASEAN Way’, i.e. to procedural norms in regional dialogue. Dosch (2008a) argues that ‘in Southeast Asia, the notion of democracy has long been based on principles of harmony and consensus’, as opposed to the Western notion of democracy as majority rule (69). Thus, Termsak (2008c) asks ‘Does its commitment to democracy make ASEAN a democratic club? Yes, if democracy means that consulting is preferred to voting and members are assigned equal rather than differentiated status’ (111). Thus, ‘democracy’ may refer to the functioning of the organization, rather than its member states. The references are not, according to Termsak, designed to communicate that ASEAN expects any particular regime type of its member states; he writes that ‘No member government can, and I believe no one wants to, try to change the political system of any other member government in ASEAN through the ASEAN Charter’ (Termsak Chalermpalanupap, 2009: 130-31). This clearly contrasts, however, 153 Leaders in the broader East Asian region have different perspectives on the meaning of democracy. For example, during the so-called ‘Asian values’ debate of the 1990s, the cultural relativist camp (of which the most prominent leaders were Lee Kuan Yew of Singapore and Mahathir Mohamad of Malaysia), objected to the notion of an imported Western model of governance. However, Dosch (2008a) notes that ‘there has never been a consensus among East Asian leaders and thinkers that democracy is a purely Western construct that does not apply to their region’ (68). South Korea’s Kim Dae Jung, for example, believed that ‘Asians are heirs to a rich regional legacy of democratic ideas, goals, and institutions’ (69). 172 with Rizal’s depiction of the Indonesian perspective: that the references to democracy were intended to represent the ‘democracy agenda’ introduced by Indonesia in 2003.154 Thus, the propensity of the term ‘democracy’ to various interpretations (for both instrumental and non-instrumental reasons) helps to explain the context in which the term ‘democracy’ could be used in the official dialogue and/or text of a RO, even where several of its member states are not considered ‘democratic’ by observers. As Helen Nesadurai points out, ‘New norms have been articulated but left open. So governments have space to socially construct them’ (interview, 2008). Ong Keng Yong reports that during the drafting process, We accepted that there are different ways of interpreting things like democracy. But we agreed that we all believe in good governance, a better life for the citizens of ASEAN, having elections, no tensions between races in our multi-ethnic societies, and so on (interview, 2008: emphasis added). This implies that there was some debate about the meaning of democracy in the HLTF. But neither the Charter nor any other official ASEAN texts reflected this. ASEAN leaders have referred to democracy only in broad terms (without adjectives) in official statements. Thus, crucially, the Charter does not have direct implications for member states – it does not, for example, suggest that they must take specific steps to ‘democratize’ or move towards regime change. (In contrast, as discussed, the proposed assertion that ASEAN ‘will not condone 154 As mentioned in Chapter 3, given the political diversity in ASEAN, one would not intuitively expect ASEAN to adopt such an agenda. Pevehouse (2006) would not expect ASEAN to take on this role; he argues that ‘the more homogenously democratic a regional IO’s membership…the more likely it will be to supply the political will for supporting and protecting democracy and the more likely the regional IO will be used by domestic groups to encourage and support democracy’ (3-4). 173 unconstitutional and undemocratic changes of government’ was rejected by the HLTF, because it had more specific implications; for example, it would imply that ASEAN members would be obligated to respond in some way to changes of government by coup d’état.) Those founding member states which have undergone a ‘democratic transition’ (albeit not fully ‘consolidated’: Acharya, 2003a: 387) see a role for ASEAN in facilitating democratization, or at least the promotion of democracy as a value (if not a ‘regime type’). These ‘democratizing’ states (Indonesia, the Philippines and Thailand) have been more open to the inclusion of references to democracy in ASEAN dialogue. We will now explore the position of individual states on the inclusion of these references in the Charter, with regard to their perceptions of legitimacy. ‘Democracy’ in the Charter and domestic political legitimacy Why, then, did member states agree to include references to democracy in the Charter? Several analysts perceive increased attention to democracy and human rights in ASEAN dialogue as largely attributable to the relatively recent democratic transitions in Indonesia and the Philippines (and to a lesser extent, given subsequent interruptions, Thailand) (e.g. Dosch, 2008b; Jusuf Wanandi, interview, 2009; Nesadurai, interview, 2008; and Huxley, interview, 2008). Mely Caballero-Anthony argues that ‘Change within is the key. Unless you have radical change within states, there will be no significant change at the regional level’ (interview, 2008). This seems intuitively logical. However, democratic transition within a state does not necessarily mean that its elites are likely to promote democratic values at the regional level. As Emmerson 174 (2008b) points out, ‘one cannot readily infer a prodemocratic foreign policy from the domestic practice of democracy’ (78). In fact, it could mean quite the opposite – new governments might be more concerned about shoring up domestic support and less interested in what happens at the regional level, or may wish there to be less scrutiny of domestic affairs in the belief (emphasized by Narine, 2004) that state-building must come before regional norms. In contrast, some member states are more circumspect regarding ASEAN references to domestic governance generally, and thus to ‘principles of democracy’. The newer members of ASEAN (i.e. the CLMV states) tend to zealously guard sovereignty and are wary of the influence of the founding member states in their internal affairs (e.g. Acharya, 2009: 139-43). Thus, one might assume that the absence of democratic transition in a state means that its political elites will oppose references to democracy by ASEAN. Member states’ positions on the Charter’s references to democracy cannot be assumed to correspond neatly to longevity of membership, 155 or to whether or not they have undergone democratic transition. More generally, the significant political, cultural and historical diversity among all member states suggests that we cannot generalize about their positions. We shall see that the evidence suggests a range of motivations among member states underpinning their positions on references to democracy, which are best understood with reference to the role of legitimacy in shaping regional norms. As Tim Huxley of IISS points out, ‘A large proportion of Southeast Asian States are characterized by contested legitimacy, or will 155 As we shall see, the representatives of some founding member states, such as Singapore and Malaysia, were relatively wary of the inclusion of references to democracy in the Charter. 175 face contested legitimacy’ (interview, 2008). In this context, some member states see a link between domestic political legitimacy (DPL) and the legitimacy of ASEAN (IRL). Representatives of some member states see certain ASEAN norms as potentially facilitating the pursuit of DPL. This may explain both the support of, and resistance to, these norms. For example, as will be discussed below, Indonesia and the Philippines (and to a lesser extent, Thailand) have tended to support references to democracy in official ASEAN statements because they perceive advancement of democracy norms in ASEAN as enhancing DPL at home. In contrast, other states – particularly the newer, non-democratic members of ASEAN – see the absence of such references to democracy as more likely to enhance DPL. It will be demonstrated below that perceptions of DPL have varying effects on regional norms; there is a tension between these, which ultimately resulted in the specific text of the Charter. Indonesia: a ‘norm entrepreneur’ Indonesian representatives have played a particularly significant role in introducing ‘democracy’ to the ASEAN lexicon. What were their motivations for doing so? The following discussion suggests that several Indonesian representatives and analysts perceive a link between DPL in Indonesia and the legitimacy of ASEAN and its norms (IRL). This is tied to attempts to consolidate democratic rule in Indonesia, and to enhance its role as a leader of ASEAN. As the importance of democracy has strengthened, Indonesia has advocated for ASEAN to have a role in promoting democracy in Indonesia and other member states. 176 The inclusion of references to democracy and democratic rule in the Charter was driven by Indonesia’s foreign ministry, its position having been influenced by arguments put forward by CSIS. Indonesia’s 2003 proposal for an ASEAN Security Community alluded to a perceived link between Indonesia’s leadership role in ASEAN, and ASEAN’s international standing. In his paper on which the Indonesian submission to the SOM was based, Rizal Sukma (2003) wrote that the Ninth ASEAN Summit (of which Indonesia was chair, and at which the Bali Concord II was signed) ‘provides a timely opportunity for Indonesia…to reclaim its “strategic centrality” within ASEAN which, in turn, would enable the Association to reclaim its “diplomatic centrality” within the international community’ (1). He thus alludes to perceptions of external regional legitimacy (ERL). Indonesia has long perceived itself as the natural leader of ASEAN, by virtue of being the largest member state with the greatest population. The late Ali Alatas, former Indonesian Foreign Minister, argued in November 2007 that ‘as Soeharto said, we have the biggest responsibility because we are the largest, and we will exert our responsibility…[But] we did not want to use the word leader, because a leader dictates. We just give them guidance or suggestions’ (quoted in Kornelius Purba & Abdul Khalik, 2007). However, Indonesia’s position is also driven by a belief that democratic rule is desirable per se. Dr Makmur Keliat of the University of Indonesia claims that ‘Many in Indonesia think the Charter should be used to strengthen democratic processes in ASEAN countries, like in the EU’ (interview, 2008). Moreover, Rizal (2008a) argues, Unlike most of the other member states, Indonesia’s support for democracy in a regional context reflected its new political identity. That support was also a tactical move to help deter antidemocratic forces inside Indonesia from reversing political reform (144). 177 Thus, Indonesia has encouraged a role for ASEAN in promoting democracy as part of an effort to encourage reform both domestically and by its neighbours. Some argued that Indonesia would have to ‘take the lead’ on the issue, even if it provoked resistance from other member governments. Ikrar Nusa Bakti of the Indonesian Institute of Sciences stated in June 2007 that I think Indonesia now is the most democratic country in ASEAN. We should not let ourselves be bogged down by other ASEAN members. It’s time to show our firmness and greatness (Quoted in Abdul Khalik, 2007b). Evidence of such positions among Indonesia’s foreign policymaking and academic elite has led scholars such as Dosch (2008a) to argue that ‘democratic Indonesia’s new approach to the conduct of foreign policy reflects domestic political agendas, and is less sensitive to ASEAN solidarity than it was when the country was under authoritarian rule’ (85). Indonesian foreign policy advanced its ‘democracy agenda’ in the context of this support from analysts and a determination to demonstrate a new foreign policy direction in the post-Suharto era. 156 According to the late Hadi Soesastro of CSIS, during 2007 then-Foreign Minister Hassan Wirajuda ‘made special efforts to lobby all member states’ on the references to democracy and human rights in the ASEAN Charter (interview, 2008). Similarly, Abdul Khalik (2007b) in The Jakarta Post reported in June 2007 that Dian Triansyah Djani, then the Indonesian Foreign 156 Alexandra Retno Wulan of CSIS notes, however, that Indonesia ‘had an aggressive foreign policy until recently, therefore we don’t want to be perceived as being dominant’ (interview, 2008). 178 Ministry’s director general for ASEAN Affairs and Indonesia’s representative to the HLTF, had spoken about the Charter at a roundtable discussion in Jakarta. He told the participants that Indonesia (in Abdul Khalik’s words) ‘will always be at the forefront of efforts’ to ensure that the principles of democratic values and human rights are ‘enshrined in the charter’.157 (However, according to Abdul Khalik, some other speakers at the discussion were concerned that Indonesia would ‘back down on demands for the inclusion of these principles’ because of pressure from several members of the HLTF: Abdul Khalik, 2007b). Based on such empirical evidence, Dosch (2008b) argues that in general (not specifically in the context of the HLTF), the Indonesian government is following a foreign policy strategy of reforming ASEAN into an organization that actively subscribes to democratic values and thus forcing members to deal with the challenge of political reform (538). For Dosch, this is to be expected in a democracy, where foreign policy choices are ‘linked to the interests of other key actors’, and will be analyzed in terms of the perceived effect on the political standing of decision-makers (530). Thus, for Dosch, the emergence of liberal norms and values at the domestic level is expected to translate to promotion of same at the regional 157 Interestingly, Dian Triansyah Djani also stated that ‘the substance of the ASEAN Charter will not be far from the recommendation of the Eminent Persons Group, which has highlighted the importance of including human rights and democratic values in the Charter’ (quoted in Abdul Khalik, 2007b). 179 level, because of a ‘diffusion of democratic values from domestic to regional levels of decision- making’ (531).158 Indonesia thus acted as a ‘norm entrepreneur’ in the process of formulating and adopting references to democracy and democratic rule in the text of the Charter. Certain prominent Indonesians may also be regarded as having acted as individual norm entrepreneurs in this process, notably Rizal Sukma and the late Ali Alatas (the latter reportedly wrote the first draft of the EPG report: Hong, 2007). However, some analysts in Indonesia expressed frustration after the Charter was signed (as discussed in Chapter 4), and would prefer that Indonesia continue to advocate certain values and principles in the absence of sufficient promotion by ASEAN. Jusuf Wanandi, who is (as well as a Senior Fellow at CSIS in Jakarta) the President Director of The Jakarta Post, oversaw a July 2008 editorial which expressed concern about ‘the values and principles Indonesia stands for, including democracy, freedom and human rights’. The editorial argues that While it is not the business of any ASEAN government to push for regime changes in the region, it should not stop Indonesia from insisting on these values and principles being observed within ASEAN, thus written into the charter, if we seriously want to build ourselves a respected community (The Jakarta Post, 2008a). Thus, Indonesia has been attempting to advance certain norms in ASEAN at the risk of being perceived as divisive and challenging the ASEAN Way of consensus and ‘unity in diversity’. 158 While the argument that Indonesia promotes its democratic values to its fellow ASEAN members is convincing, it should be qualified by the limitations to democratization, both in Indonesia and amongst its neighbours. No member state, including Indonesia, is a ‘consolidated’ or ‘mature’ democracy. 180 A realist interpretation of Indonesia’s role in the drafting of the Charter would hold that Indonesia is motivated primarily to enhance its own position in ASEAN, rather than advancing norms for their own intrinsic value. Certainly this has some basis, given Indonesia’s traditional role as the largest, most influential member of ASEAN, and suggestions that it could reclaim its ‘strategic centrality’. Indeed, insofar as perceptions of a link between DPL and IPL shape the Indonesian position on the Charter, Indonesian representatives may well be motivated to advance ASEAN norms that support the domestic political regime. This does not, however, preclude the significance of the belief in democratic norms per se. There need not be a choice between a realist and ideational explanation of Indonesian motivations to push for the inclusion of references to democracy in the Charter. Put differently, one can advance arguments for democratic norms with an instrumental purpose; the motivation need not be altruistic. Other member states The stance of other member states on the matter of democracy in ASEAN is less explicit. Some states, such as the Philippines and Thailand, were generally supportive of references to democracy in the Charter but were more vocal on the human rights provisions (to be discussed in Chapter 6). Other states were not explicitly supportive of either democracy or human rights (Singapore and Malaysia), or were clearly resistant (the CLMV states). We will explore the dynamics of DPL in various states, which help to explain the context in which they ultimately agreed to the text of the Charter. 181 Thailand and the Philippines Debates regarding the legality of changes of government and the legitimacy of governments in power has often preoccupied the Thai political landscape in recent years. Understandably, Thai representatives in ASEAN dialogue have not made public statements about democracy as a value or appropriate form of governance. In contrast, as will be discussed further in Chapter 6, the Thai foreign ministry was outwardly supportive of the references to human rights, and in particular the provision for the establishment of the AHRB, in the Charter. Pradap Pibulsonggram, Thailand’s representative on the HLTF, states that Thailand’s position during the drafting of the Charter was that ‘ASEAN has to give prominence to the promotion of democracy, good governance, human rights and fundamental freedoms as shared values’ (Pradap Pibulsonggram, 2009: 86). He notes, however, that securing national endorsement of the Charter was complicated by the fact that the Thai National Legislative Assembly (NLA) was, during 2007, drawing up a new Constitution for Thailand. The Constitution came into force shortly before the Charter was due to be adopted, adding pressure to the HLTF’s already tight deadline given that it required the Thai Parliament to consent to the Charter before the Head of Government could sign it (as opposed to considering it for ratification after signature) (Pradap Pibulsonggram, 2009: 91). The HLTF members agreed, towards the end of the drafting period, not to raise any new issues for discussion in the interests of finishing the draft with enough time for the NLA to consider it, as well as for ‘legal scrubbing’, and submission to the ASEAN Heads of State and Government in November. 182 Like Thailand, the stance of the Philippines in regard to references to democracy appears to have been generally supportive. Again, like Thailand, the Philippines was more actively vocal on the inclusion of references to human rights; it is more difficult to explain the stance of the Philippines on references to democracy in the ASEAN Charter. Certainly, increased emphasis by ASEAN on democratic values (such as free and fair elections, civil and political rights, and an absence of corruption) was not necessarily in the Arroyo government’s interests. We did not see statements by Philippines officials that explicitly looked to advance norms of democracy in ASEAN. Nevertheless, the Philippines is nominally democratic, and was perceived to be one of the states with a more favourable stance on ASEAN’s references to democracy (e.g. Dosch, 2008b; Jusuf Wanandi, interview, 2009; Nesadurai, interview, 2008; and Huxley, interview, 2008). Singapore and Malaysia From the point of Singaporean elites, the inclusion in the ASEAN Charter of gestures towards democracy as an aspirational goal or principle did not threaten their perceptions of DPL. Nor was it in Singapore’s interests to actively promote the inclusion of these references. Singapore does not tend to see its DPL as tied to the legitimacy of ASEAN and its norms. Its DPL has, since independence, relied primarily on performance-based legitimacy (which is based in particular on the ability of the Singaporean government to deliver favourable economic results) rather than ASEAN’s IRL. That said, Singapore needs a ‘viable’ ASEAN, and looks to sustain a key role within it, so that it may advance its interests in broader regional and global context through ASEAN. 159 159 Note that Singapore, unlike Indonesia, is not a G20 member. 183 Thus, Singapore had an ambiguous position on references to democracy in the Charter. It was perceived as generally supportive of the references to democracy, but did not make explicit statements to this effect. For example, in September 2007, Tommy Koh, Walter Woon, Andrew Tan, and Chan Sze-Wei – Singapore’s delegation to the HLTF – wrote a piece in the Straits Times (Singapore) explaining what the Charter ‘will do for ASEAN’. They explored seven measures which will potentially ‘transform ASEAN into a stronger, more united and effective organisation’, but none of these mention democracy. Instead, they focused on ASEAN becoming more ‘rules-based’, having stronger institutions, empowering the Secretariat, and deepening and widening integration, among other measures (Koh et al, 2007b). Of course, it was not particularly surprising that the Singaporean representatives would emphasize strong, effective institutions, given the characteristics of their domestic political system. Singapore wants ASEAN to remain intergovernmental and to respect the sovereignty of its members, and is not generally open to criticism of its domestic affairs. At the same time, an efficient, effective and institutionalized ASEAN is in the interests of Singapore’s (performance) legitimacy (for example, it may facilitate intra-ASEAN trade and thus benefit the Singaporean economy). The situation is similar in Malaysia. While the Charter was being discussed and drafted, Malaysia – with dominant-party rule by a unified UMNO – was unlikely to be particularly concerned about a possible link between DPL and IRL in ASEAN. DPL in Malaysia has likely become more performance-based as economic growth has increased; like Singapore, its DPL is not generally seen as tied to the legitimacy of ASEAN and its norms. As such, during 2007 as 184 the Charter was being drafted, Malaysian representatives did not seek to challenge traditional ASEAN norms – nor did they try to obstruct the inclusion of references to democracy. For example, during the 40 th AMM in July 2007 in Manila, the New Straits Times (Malaysia) reported that ‘apparently some member countries want to ensure governments established by unconstitutional means should not be included as a member of ASEAN, prompting other states to question the motive [sic]’ (Wan Hamidi Hamid, 2007). Malaysia’s then Foreign Minister, Datuk Seri Syed Hamid Albar, responded to the Malaysian press that ‘for Malaysia, we think it is sufficient for a country to adhere to the rule of law, good governance and democratic principles. There’s no need to expand the definition’ (quoted in Wan Hamidi Hamid, 2007). As such, he said that Malaysia would, at the 40 th AMM, ‘propose a way for all members to accept the basic purposes and principles of ASEAN as the basis for the draft charter’ (Wan Hamidi Hamid, 2007). This suggests that Malaysia sought to ensure that the references to democracy and governance were not too onerous, and certainly were not accompanied by provisions for sanctions for member states in which unconstitutional changes of government take place. This may be interpreted as a conciliatory role; but it may also simply reflect Malaysia’s own interests – avoiding undue emphasis on governance or internal affairs in the Charter. Thus, during the drafting and adoption of the Charter, the governments of Malaysia and Singapore were not publicly vocal on the inclusion of references to democracy (or at least, there is little evidence of public support for these references). Malaysia and Singapore were concerned with maintaining controls and economic growth, and are happier to maintain the status quo in ASEAN than to advance new norms of democracy and democratic rule. Malaysian and Singaporean elites were in a better position to link DPL to the performance legitimacy of 185 governments, rather than tie it to the legitimacy of ASEAN and its norms – which is more likely in Indonesia, the Philippines, or Thailand. 160 Malaysia and Singapore did not actively resist the references to democracy in the Charter. Rather, they generally supported the inclusion of such references in principle (or in broad, ‘aspirational’ terms), while resisting any moves to make them more significant or consequential, or risk any significant dissent among the ranks of ASEAN members. The CLMV states The CLMV states were generally more obstinate than other members in regard to the references to democracy in the Charter, or ASEAN’s role in regard to democracy more generally. For example, the late Dr Hadi Soesastro of CSIS depicted the CLMV states as blocking certain initiatives in both the EPG and HLTG, such as the proposal for ‘Ten Minus X’ voting.161 Similarly, Dr Makmur Keliat of the University of Indonesia attributes the fact that the Charter is ‘very thin’, compared to the ‘very thick’ EU constitution, to the CLMV states. He reports that when he asked Ali Alatas why the Charter ‘only contains general principles’, Ali Alatas answered that it was ‘because there was lots of resistance from the CLMV countries’. He also described the Charter as a ‘middle way between those who want the Charter to be more democratic, such as Indonesia and the Philippines, and others, especially the CLMV states’ (Makmur Keliat, interview, 2008). 160 Rodan and Jayasuriya (2009) note that ‘Not only have authoritarian regimes within advanced economies shown remarkable political durability, as in Singapore and Malaysia, but post-authoritarian regimes in Thailand, Indonesia and the Philippines have, to varying degrees, disappointed democratic expectations’ (25). Thus, the notion that economic growth precipitates democratic transition is challenged by the cases of Southeast Asia. 161 As discussed in Chapter 4, the ‘Ten Minus X’ formula was already in occasional use by ASEAN member states (in economic matters only); however, the EPG had proposed to formalize or codify it in the Charter, which made some states nervous about the potential future use of it. This would have been an explicit challenge to the norm of decision-making by consensus. Ultimately, the Charter did not include the ‘Ten Minus X’ formula. 186 The accounts of HLTF members are (unsurprisingly) more careful to recognize the complexities facing the CLMV representatives. Ong claims that ‘the atmosphere was quite tense’ among the CLMV members of the HLTF: They had no problem with the general principles of democracy and human rights, but to put them in the Charter would make it very difficult for them to get acceptance from their parliaments or other domestic bodies. They saw this as representing intervention in their domestic governance (Ong Keng Yong, interview, 2008). Interestingly, Ong also said that ‘the Prime Ministers of Myanmar and Vietnam have to be ‘hardliners’ – they can’t be seen as taking a soft position’ (interview, 2008). These statements differ somewhat from the general perspective of observers that the HLTF representatives of the CLMV states did find the principles of democracy and human rights to be ‘problematic’. Certainly, the CLMV states were generally more resistant than other states to the idea of references to democracy in the Charter. Rather, they looked to reiterate traditional interpretations of ASEAN norms, such as non-intervention, sovereignty, and the ‘ASEAN Way’ of consensus decision-making. Incorporating these norms into the Charter would establish a legal basis on which these principles could be upheld, and thus would assist the imperative to protect their domestic political circumstances from outside scrutiny or ‘interference’. The representatives of these member states did not perceive a ‘positive’ link between DPL and the 187 legitimacy of ASEAN and its norms (IRL); rather, it was resistance to democracy norms in ASEAN that were seen by elites as strengthening perceptions of DPL. 162 These elites’ perceptions of the effects of democracy norms in ASEAN have been shaped in part by observing instability among their democratizing neighbours. As Rizal Sukma (2008a) notes, ‘Because democracy in the ASEAN countries is still nascent and fragile, it is hard for them to stand on solid ground as successful exemplars of that political choice’ (144). The coup in Thailand in 2007 ‘showed not the success of democracy but its vulnerability’, and the political systems of Indonesia and the Philippines is ‘rife with defects’. Thus, for leaders of other ASEAN states, including Vietnam, ‘democracy à la Indonesia or the Philippines was not a solution to be adopted but a set of problems to be avoided (144-5). This is, of course, likely to reflect leaders’ concerns about their own political survival and stability of regimes; Rizal notes that ‘worried about opposition and infiltration, they are reluctant to initiate changes which could get out of hand’ (145). Aung Bwa (Myanmar’s representative to the HLTF) claimed that Myanmar now had a stronger position in ASEAN negotiations than in the past. He writes that when Myanmar first joined ASEAN in 1997, we were a new member state compared to the older members which were already into their 30 th year as members of the Association. We, as a new member, had to accede to whatever agreements or treaties we were 162 Intuitively, it may seem that the CLMV states’ shorter ASEAN memberships may make them less likely to perceive a link between DPL and the legitimacy of ASEAN; however, they were motivated to join the Association at least in part by the legitimacy that it could bestow upon them (at least, among the elites). 188 compelled to sign. However, in the drafting of the ASEAN Charter we are now in a stronger position, with equal footing with the other members (Aung Bwa, 2009: 27-28). This desire to gain ‘equal footing’ reflects the importance of ASEAN membership to Myanmar’s self-image. Thus, DPL in Myanmar had a complex relationship with IRL. Myanmar wanted ASEAN to persist and to embody ‘status quo’ norms, but not to develop new roles involving scrutiny of domestic governance (as precipitated by the desire of some other member states want to enhance ASEAN’s IRL). This apparent ‘balancing act’ by Myanmar is illustrated by comments by Marty Natalegawa, Indonesia’s Permanent Representative to the UN between September 2007 and October 2009 (and at the time of writing, Indonesia’s Foreign Minister). He told the UN Security Council (UNSC), at its meeting on ‘The Situation In Myanmar’ on 5 October 2007, that The situation in Myanmar is at stark variance with the common path that countries within ASEAN, including Myanmar, are currently embarking – namely the vision of an ASEAN Community, bound together by shared values that include democracy and respect for human rights and fundamental freedoms. We are currently working on the ASEAN Charter, as the legal instrument of the organization, on the basis of these shared values. In the exercise of constructing this democratic vision, Myanmar has not been an outside partner. On the contrary, she has been working together with the rest of the ASEAN members. That is what makes the recent developments in the country all the more difficult for the other ASEAN members (Marty Natalegawa, 2007). 189 This statement in itself does not necessarily mean that the Myanmar regime sees itself as being in a quandary – it is a representation by an Indonesian official to the UNSC. However, it does remind us that Myanmar was, at the time of the crackdown, part of the Charter drafting process, and its representatives to ASEAN were attempting to reconcile Myanmar’s membership in ASEAN (and adherence to the norms which this implies) with its domestic imperatives and traditional resistance to external interference. Myanmar did not want to be kicked out of ASEAN, but neither was it willing to completely acquiesce to ASEAN’s suggestions that Myanmar rapidly incite a ‘peaceful transition to democracy’, or to ASEAN’s Dialogue Partners’ calls for the junta to cease violence against peaceful demonstrators and ‘enter into a dialogue with the opposition’ (Deutsche Welle, 2007; see also Council of the European Union, 2007, and Downer, 2007). Domestic regime security remained more important. And of course, Myanmar knew it had an ultimate ‘veto’ because of the norm of consensus decision-making. Summary The ASEAN member states all have concerns about DPL, but these are manifested in diverse ways, and are addressed differently depending on regime type, role and influence within ASEAN, and visions of its future. The strong, dominant-party states – Singapore and Malaysia – are less inclined to tie their perceptions of DPL to the legitimacy of ASEAN and its norms. In other words, they see less of a link between DPL and IRL. The states that are potentially more politically unstable, and (not unrelatedly) have had democratic transitions – Indonesia, Thailand and the Philippines – look more to ASEAN as a potential source of support for their domestic regimes. In other words, they see a link between DPL and IRL, and hope that a greater role for ASEAN in democracy and human rights will enhance DPL (although, as discussed, Thailand has 190 been more preoccupied with domestic political matters in recent years and less focused on ASEAN’s role than Indonesia and the Philippines). The newer members – Cambodia, Laos, Myanmar and Vietnam – tend to be concerned that new norms in ASEAN may hinder, rather than help, their efforts to enhance DPL. In other words, they perceive a link between DPL and IRL, but seek to resist democracy and human rights norms in order to preserve DPL; so the link tends to work in an ‘inverse’ fashion. They generally prefer to reiterate the traditional ASEAN norms of sovereignty, non-interference and consensus decision-making. Democracy in the Charter and external regional legitimacy The very creation of the Charter was motivated in part by a desire to enhance ASEAN’s international standing (as discussed in Chapter 4). However, the content of the Charter also was shaped by ERL concerns. The inclusion of references to both democracy and human rights were perceived by some ASEAN leaders as important for ASEAN’s credibility, and perceptions of its ERL. They expressed concern about the expectations of states or organizations outside the region, in regard to ASEAN’s role. For example, then-Malaysian Prime Minister Abdullah Ahmad Badawi argued in 2005 that the development of a Charter was important because there was a ‘great expectation on the part of the international community for ASEAN to play a greater role in the affairs of the region’ (quoted in China Daily, 2005). He hoped that the Charter would enhance ASEAN’s credibility and advance its development into a ‘mature regional organization’. Such concerns became particularly prevalent because of the membership of Myanmar. ASEAN had, since 2003, consistently referred in its Joint Communiqués to Myanmar’s domestic political 191 situation. These statements mostly focused on the need for Myanmar to focus on its efforts of ‘national reconciliation’ and a ‘peaceful transition to democracy’ (for example, ASEAN, 2003b). The tone of these statements was encouraging, responding to the junta’s gestures towards reform, such as its declared ‘roadmap to democracy’. Member states generally avoided exerting pressure on the junta, on the grounds that isolating Myanmar would be counterproductive. However, at the time, the ‘constructive engagement’ approach was not regarded as particularly effective in its attempt to encourage change in Myanmar in regard to ‘democratic’ processes and human rights. Member states became increasingly concerned about the impact of Myanmar’s political situation and human rights records on the international image and reputation of ASEAN. These concerns were underpinned by international criticism of ASEAN for failing to ‘deal with’ its recalcitrant member. Trade and dialogue partners at times declared their positions by requesting that ASEAN exclude Myanmar from meetings. 163 While ASEAN members generally stood by Myanmar, they themselves became more openly critical of the junta (as discussed in Chapter 3). The starkest example occurred in September 2007, when Singapore’s Foreign Minister George Yeo expressed the ASEAN foreign ministers’ ‘revulsion’ in response to the junta’s crackdown on protestors in Yangon, in which at least 15 people died. 163 The most prominent example is the EU, with whom trade relations have been strained since Myanmar joined ASEAN in 1997. For example, in 2004 the EU attempted to prevent Myanmar’s participation in the Asia-Europe Meeting (ASEM). ASEAN defended Myanmar’s right to participate, and the EU relented after Myanmar’s ruling State Peace and Development Council (SPDC) announced that it would send only low-level officials to the meeting (Kyaw Yin Hlaing, 2005: 178). Sporadic talks about an EU-ASEAN free trade agreement have been hampered by the EU’s refusal to negotiate with the military dictatorship in Myanmar. 192 Occurring only two months before the Charter was due to be signed, this incident highlighted the need to improve the organization’s image, and give the impression of aspirations of a general commitment to democratic norms. Arnold (2007) argued that ‘ASEAN’s original members, more developed and relatively more democratic…now see Myanmar as a diplomatic embarrassment that needs to be handled through careful pressure and persuasion’. These member states ‘recognize how Myanmar has become an obstacle to the development of ASEAN’s international stature’. The potential material costs were apparent when the US trade representative, Susan Schwab, indicated in November 2007 that the situation in Myanmar was blocking progress towards a US-ASEAN free trade agreement (Arnold, 2007). The impetus to sign the Charter (in the same month), with its references to democracy and human rights, must have become greater, given the damage to perceptions of ERL. 164 This is supported by the statement made by Yeo on behalf of ASEAN foreign ministers, in that he drew a link – not necessarily consciously – between democracy and ASEAN’s image. As well as demanding that Myanmar ‘resume its efforts at national reconciliation with all parties concerned, and work towards a peaceful transition to democracy’, he expressed concern to [Myanmar’s Foreign] Minister Nyan Win about the ‘serious impact’ of the crackdown ‘on the reputation and credibility of ASEAN’ (ASEAN, 2007g). As Emmerson (2008b) points out, Yeo comes across in this statement as an ‘instrumental democrat’ – his statement 164 Although note that the day before the Charter was signed, Arroyo made a statement to her fellow heads of state that the Philippines’ Congress was unlikely to ratify the Charter unless Myanmar committed itself to democratic reforms and released Aung San Suu Kyi from house arrest (Arnold, 2007). Thus, at least one head of state in ASEAN did not appear to believe that adoption of the Charter, with these references to democracy, would be sufficient; ASEAN had to continue to put pressure on Myanmar. This perhaps reflects the multiplicity of motivations for these references – or the interaction of perceptions of legitimacy at different ‘levels’. 193 seemed to suggest that a transition to democracy in [Myanmar] was desirable not per se but as a means of assuaging foreign opinion. By that logic, “revulsion” against the dictatorship’s behaviour was meant to deflect the outrage of democratic governments outside Southeast Asia – outrage both at the junta and at ASEAN for tolerating such tyranny (73). Thus, perceptions of ERL were also important in shaping the content of the Charter. These provided an impetus to include references to democracy in the text; the drafting of the Charter took place amid concern about Myanmar’s lack of progress in making its supposed ‘transition to democracy’. Conclusion Democracy is a contested concept that invites an array of interpretations, sometimes constructed for instrumental reasons by political elites. The lack of debate about democracy in the Charter drafting process suggests that ASEAN leaders avoided confronting a sensitive issue, and instead adopted broad, ‘aspirational’ references to democracy in the Charter. Steps were taken early – in response to Indonesia’s proposal – to ‘water down’ discussions regarding democracy such that they did not overly challenge the continued prioritization of unity and consensus, as embodied by the ASEAN Way. ASEAN leaders were thus able to reconcile the Charter’s references to democracy with traditional understandings of ASEAN norms – although some remained dissatisfied that more ‘progress’ was not made on challenging or reinterpreting these understandings. 194 Some member states, however, were willing to push further to advance norms of democracy – as a value and/or form of governance – in the Charter. These were the states that perceive a link between DPL and IRL, and also see the benefits to ERL, of an ASEAN which at least purports to pay attention to domestic political values and regimes. However, a higher number of member states were either less willing or unwilling to support such new norms; they did not seem to perceive a link between DPL and the internal or external legitimacy of ASEAN. In contrast, as Chapter 6 will demonstrate, there was heated debate about the Charter’s references to human rights and an ASEAN human rights body – and perceptions of ERL were crucial. 195 Chapter 6 Regional norms and legitimacy: human rights in ASEAN This chapter will explore the debates, negotiations and drafting processes pertaining to the inclusion of the Charter’s references to human rights. It focuses in particular on the roles of various actors and their perceptions of legitimacy, and the way in which these perceptions shape the evolution of norms, as expressed in the Charter. The ‘promotion and protection’ of human rights has not traditionally been considered to be part of ASEAN’s role, but the adoption of the Charter suggested that this was changing. This is particularly interesting given the poor human rights records of some member states, 165 and the fact that only four of the ten member states have national human rights bodies. 166 The chapter begins by exploring understandings of human rights in the ASEAN context. It then examines the origins of references to human rights in ASEAN. References in official ASEAN dialogue to human rights appeared after the World Conference on Human Rights in Vienna in 1993. The chapter then explores the progression towards the adoption of the final text of the Charter, and considers why the references to human rights and the AHRB provoked more debate and controversy within ASEAN than the references to democracy. Despite the latter few HLTF meetings being dominated (and protracted) by disagreement over Article 14 (which states that ‘ASEAN shall establish an ASEAN human rights body’: ASEAN, 2007a), the AHRB was ultimately included in the Charter. 165 Since 2006, Indonesia has been the only state in Southeast Asia considered ‘Free’ by Freedom House (a measure combining political rights and civil liberties ratings). The remaining Southeast Asian states are evenly divided between ‘Partly Free’ (Malaysia, the Philippines, Singapore, Thailand, and Timor-Leste) and ‘Not Free’ (Brunei, Cambodia, Laos, Myanmar, and Vietnam) (Freedom House, 2012). 166 At the time of writing, there are national human rights bodies in the Philippines (founded 1987), Indonesia (1993), Thailand (1997) and Malaysia (1999). 196 The adoption of the text of the Charter, referring to the importance of promoting and protecting human rights and establishing a human rights body, is best understood with reference to notions of legitimacy. As this chapter will demonstrate, in contrast to the references to democracy, concerns about DPL were less relevant in the case of references to human rights. Certainly, some states advocated the inclusion of references to human rights in the Charter because their visions for ASEAN’s role are linked to efforts to advance certain ideas as ‘appropriate’ at the domestic level. But external legitimacy (ERL) was more important in this case; member states were influenced by concerns regarding ASEAN’s image and international standing. In particular, its credibility in regard to human rights norms was perceived to be at risk because of its inability to effectively address ongoing human rights crises in Myanmar. Thus, member states – even those who generally resist increased interference in internal affairs – accepted the need to adopt references in the Charter to a role for ASEAN vis-à-vis human rights. 167 Nevertheless, as the chapter then discusses, there were expressions of disappointment regarding the references to human rights in the Charter. Certainly the inclusion of human rights was not the result of substantive debate about the ‘meaning’ of human rights in ASEAN, or ASEAN’s role in ‘promoting and protecting’ them. However, we should not dismiss as insignificant the inclusion of references to human rights and the AHRB in the Charter. Expectations within and outside the region on ASEAN to develop a meaningful role in the human rights issue-area will continue. 167 As will be discussed, the less supportive states were also compelled, in the end, to accept the human rights references with the assurance that the norm of decision-making by consensus would be reiterated. 197 The meanings of ‘human rights’ in the ASEAN context The question naturally arises as to how the term ‘human rights’ is to be interpreted or defined as it is used in official ASEAN text. As we shall see, there is little evidence to suggest that this was debated during HLTF meetings; debate instead focused on whether a provision to establish a human rights mechanism should be included in the Charter, and if so, its role and structure. One of very few reports of HLTF discussion in regard to the definition of human rights are assertions that the HLTF agreed, following a two-hour consultation with the four NHRIs, that the AHRB would ‘define human rights in an ASEAN context’ (Koh, 2009: 57). There is no elaboration on what this might entail. This is an interesting point in regard to regional norms. Considering the prevalence of the ‘ASEAN Way’ of consensus and the limited time the HLTF had to draft the Charter, it was likely that substantive debate on this sensitive topic was largely avoided – in the knowledge that formulating broad, ‘aspirational’ references to human rights was the best way to ensure they would be accepted. This suggests that the HLTF members focused on negotiating the kind of normative statement that could be made. At the same time, the fact that the HLTF established a human rights body – i.e. it took a further step to an institutional commitment – implies a sufficient or minimal sense of the normative standards of human rights. 168 168 Notably, we did not see this institutional commitment for democracy – although, as discussed in Chapter 5, it is unclear how ASEAN states could really ‘do anything’ about democracy without violating the normative standard of non-interference. (The creation of the AHRB does not, in itself, necessarily violate non-interference; that would depend on its subsequent actions.) 198 There had, however, been earlier debates about human rights in Southeast Asia, which provide some context for contemporary developments. These have been particularly prominent since the late 1980s, with the emergence of the ‘Asian values’ debate; international pressure on certain regimes to reform and recognise international human rights ‘standards’; and criticism from civil society groups and human rights NGOs within the region. Proponents of the ‘Asian values’ position held that ‘human rights, in particular civil and political rights, were culturally specific and could not be applied universally’ (Avonius & Kingsbury, 2008: 1). Instead, they argued, rights should be interpreted as culturally and developmentally specific, and based on ‘Asian values’. Such values included the right to self-determination as supported by the policy of non- interference; cultural specificity; and prioritizing economic development (Avonius & Kinsgbury, 2008: 3-4). This argument was articulated at the 1993 Asian Regional Preparatory Meeting for the World Conference on Human Rights in Bangkok (one of several regional meetings held in preparation for the World Conference in Vienna). This meeting was attended by representatives of states in East Asia, South Asia and the Middle East. The resulting Bangkok Declaration asserts that Asian states recognize that while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds (World Conference on Human Rights, 1993: section 8). 199 The Bangkok Declaration also notes that there should be no interference in the internal affairs of states, and that human rights should not be used as an ‘instrument of political pressure’ (Section 5); and that states ‘have the primary responsibility for the promotion and protection of human rights through appropriate infrastructure and mechanisms’ (Section 9). This was the first time that such views had been expressed with apparent consensus across the broader ‘Asian’ region (Avonius & Kingsbury, 2008: 3). This was a source of tension at Vienna two months later (in June 1993). Certain delegates, particularly from the US and Europe, viewed the Bangkok Declaration as ‘retrogressive and reprehensible’, according to Awanohara et al (1993). These delegates vigorously defended the universality of human rights, and were concerned that some states were emphasizing a ‘variety of contexts’ in order to justify exceptions to this universality. Representatives of some Asian states responded by resisting the ‘Western’ emphasis on individual, rather than collective, rights. The late Ali Alatas (then Indonesia’s Foreign Minister) stated at the Vienna conference that Indonesia and the developing world must maintain a balance between an ‘individualistic approach’ to human rights and the interests of society as a whole. Kishore Mahbubani, then a Senior Singapore Foreign Ministry official, went further, invoking the Confucian principle of ‘community over self’ (Acharya, 2003b: 154-5). Thus, representatives of at least two ASEAN foreign ministries articulated reservations about the notion of ‘universal’ human rights. The ASEAN foreign ministers then affirmed this stance collectively. In July 1993 at the Twenty-Sixth AMM, the foreign ministers acknowledged the Vienna Declaration and ‘reaffirmed ASEAN’s commitment to and respect for human rights and fundamental freedoms’ 200 (ASEAN, 1993). As mentioned, they agreed that a regional human rights mechanism should be considered. However, they also asserted that human rights should also be ‘protected and promoted with due regard for specific cultural, social, economic and political circumstances’.169 Further, this protection and promotion ‘should take cognizance of the principles of respect for national sovereignty, territorial integrity and non-interference in the internal affairs of states’. There should also be a ‘balance between the rights of the individual and those of the community’ (ASEAN, 1993). Thus, the foreign ministers were clearly anxious to affirm traditional interpretations of ASEAN norms – in a sense indicating a sort of ‘hierarchy’ of norms, and depicting human rights as remaining under the purview of individual sovereign states. This was, in itself, a basic consensus regarding normative standards of human rights in ASEAN. The ‘Asian values’ debate gathered force during the 1990s, with Malaysia’s Prime Minister Mahathir Mohamad and Singapore’s Prime Minister Lee Kuan Yew becoming the most outspoken proponents of the ‘Asian values’ position. Their assertions were countered by critics predominantly in the Western media, human rights NGOs and academia. Avonius & Kingsbury (2008) describe the general claims of critics thus: …that ‘Asian values’ were not exclusively Asian, that they were overly generalized, that they were not accurately representative of the heterogenous cultures of Asia, that they 169 Such arguments were not only the purview of state officials; for example, ASEAN-ISIS alluded to the ‘Asian values’ debate in its policy paper submitted to ASEAN in 1992 (discussed earlier), and emphasized the ‘situational uniqueness’ of human rights in Southeast Asia. ASEAN-ISIS lamented the ‘tendency of the industrial countries to make economic and political cooperation with developing countries contingent...upon human rights criteria based on Western perceptions and priorities in civil and political rights without due emphasis given to other dimensions of human rights which are of equal or sometimes of even greater concern to the developing ASEAN nations’ (quoted in Kraft, 2006: 76). 201 represented particular authoritarian political structures, and that they were, in non- communist states, a blind for laissez-faire capitalism (4). Such criticism reflects the increasing recognition of human rights promotion in the post-Cold War world, and the notion of ‘universal’ human rights. Donnelly (2003) claims that human rights are now almost universally accepted as ideal standards; three quarters of the world’s states ‘have undertaken international legal obligations to implement these rights by becoming parties to the International Human Rights Covenants’, and most other states ‘have otherwise expressed approval of and commitment to their content’ (1). As such, Donnelly argues, there are limits on all countries’ abilities to ‘define’ human rights (108). From this perspective, the defence of an ‘Asian values’ position may be driven by resistance to external interference, perhaps to avoid scrutiny of human rights records. 170 The ‘Asian values’ debate lost momentum after the 1997-98 regional financial crisis, which challenged the notion that ‘Asian values’ were conducive to economic development. As most ASEAN member states struggled to stabilize their currencies and mitigate the effects of economic collapse, the debate largely faded (Avonius & Kingsbury, 2008: 4). Its legacy remains, however, in the sense that human rights have been traditionally demarcated as one of the ‘sensitive issues’ excluded from official ASEAN dialogue. Even as ASEAN leaders came to agree that they would include a regional human rights body in the Charter, they avoided substantive debate regarding the ‘meaning’ of human rights for ASEAN, or specifically what powers the AHRB would have. Those who were particularly supportive of the establishment of 170 This is not to suggest that ASEAN leaders have uniformly supported a view of human rights in ASEAN as idiosyncratic. For example, as mentioned, Indonesia’s Foreign Minister Hassan Wirajuda argued in 2004 that universal human rights are ‘by no means alien’ to Southeast Asia (Hassan Wirajuda, 2004). 202 the AHRB knew that their best chance of success was to avoid a contentious debate that would threaten the achievement of consensus on the issue. A succinct, broad reference to the AHRB, with TOR ‘to be determined’, was the most likely outcome. And the Charter’s reaffirmation of the norms of respect for sovereignty and non-interference allayed the concerns of those officials concerned with ensuring that the AHRB was to be firmly intergovernmental. References to human rights in ASEAN The first reference by ASEAN Foreign Ministers to the idea of a regional human rights mechanism was the aforementioned statement made in July 1993, shortly after the World Conference on Human Rights in Vienna. (There is no reference to human rights in ASEAN’s founding documents: the Bangkok Declaration (1967), Declaration of ASEAN Concord (1976b) or the Treaty of Amity and Cooperation (1976a)). The Vienna Declaration had referred to the need to consider ‘regional and sub-regional arrangements for the promotion and protection of human rights’ (UNGA, 1993). Soon afterwards, the ASEAN Foreign Ministers agreed that ASEAN should ‘consider the establishment of an appropriate regional mechanism on human rights’ (ASEAN, 1993). This appears to have been an acknowledgement of the relevance of the normative standard of the ‘promotion and protection’ of human rights to the RO. 203 Over the next decade, there was scarce mention of human rights in official ASEAN texts. An exception is the 1998 Hanoi Plan of Action (HPA), a six-year plan (1998-2004) to implement ASEAN’s Vision 2020.171 The HPA asserts that ASEAN will enhance exchange of information in the field of human rights among ASEAN Countries in order to promote and protect all human rights and fundamental freedoms of all peoples in accordance with the Charter of the United Nations, the Universal Declaration of Human Rights and the Vienna Declaration and Programme of Action (ASEAN, 1998a). This suggests that ASEAN members were aware of ‘global’ human rights norms, and perceived norms as articulated by external actors as relevant. However, they have a mixed record of adopting international human rights conventions. At the time of writing, the Convention on the Rights of the Child is the only convention ratified by all ten member states. Six member states (Cambodia, Indonesia, Laos, the Philippines, Thailand and Vietnam) have ratified or acceded 172 to the International Covenant on Economic, Social and Cultural Rights (ICESCPR) and the International Covenant on Civil and Political Rights (ICCPR). 173 (Of course, there is not 171 The Vision 2020 itself does not mention human rights. It does, however, refer to development and creating a ‘community of caring societies, in which member states are ‘governed with the consent and greater participation of the people with its focus on the welfare and dignity of the human person and the good of the community’ (ASEAN, 1997k). 172 ‘Accession’ to a treaty has the same legal effect as ratification; it is an act by which a State signifies its agreement to be legally bound by the terms of a particular treaty, but it is not preceded by an act of signature (as is ratification), usually because the treaty has already come into force (UNTC, 2010). 173 The Philippines has ratified the highest number of other international human rights conventions, and Cambodia also has a strong record, having ratified or acceded to most of them. Thailand, Vietnam and Indonesia have acceded to or ratified some conventions (ten, seven and six respectively, out of a total of 17). Brunei, Malaysia, Myanmar and Singapore have the worst records of committing to such conventions; they have ratified or acceded to only the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child, and Malaysia has also committed to the Convention on the Rights of Persons with Disabilities (UNHCR, 2011). 204 necessarily a correlation between ratification of international human rights conventions and human rights records.) 174 It is also worth noting that only three ASEAN states have participated in UN human rights bodies. Indonesia and the Philippines were elected members of the UN Human Rights Council (established in 2006, to replace the UN Commission on Human Rights) in 2007 and 2010, and Malaysia was a member in 2009. These three states were also the only Southeast Asian states to have been members of the UN Commission on Human Rights. (Again, participating in UN human rights bodies does not in itself demonstrate a commitment to promote and protect human rights; as will be discussed later, several ASEAN states have poor human rights records). Moreover, the HPA was designed to promote a regional approach to human rights, rather than relating to the positions of individual member states on international agreements. The HPA is an early example of ASEAN taking a collective step vis-à-vis human rights regardless of member states not having taken certain ‘national’ steps. ASEAN members collectively referred to ‘global’ human rights norms in the HPA. As mentioned in Chapter 4, the 2004 Vientiane Action Programme (VAP, which replaced the HPA) and the 2005 Kuala Lumpur Declaration both 174 For example, Cambodia has ratified or acceded to the Genocide Convention; the International Convention on the Elimination of All Forms of Racial Discrimination; the ICCPR; the ICESCPR; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Elimination of All Forms of Discrimination Against Women; and the Convention on the Rights of the Child (UNTC, 2011). However, Cambodia’s human rights record continues to be poor; Human Rights Watch reported in 2012 that ‘The government of the ruling Cambodian People's Party (CPP) continues to use the judiciary, penal code, and threats of arrest or legal action to restrict free speech, jail government critics, disperse peaceful protests by workers and farmers, and silence opposition party members’ (Human Rights Watch, 2012). (It is worth noting that Cambodia ratified or acceded to several of these human rights conventions in 1992 – the same year as the UN Transitional Authority in Cambodia (UNTAC) was established, to supervise a ceasefire and the withdrawal of external forces after several years of violent conflict. UNTAC then supervised elections in Cambodia in 1993). 205 made it clear that human rights were expected to be incorporated into the Charter in some form. The VAP’s ‘strategic thrust’ of ‘political development’ (discussed in Chapter 5) includes the strategy to ‘promote human rights’. This is to involve the ‘completion of a stock-taking of existing human rights mechanisms and equivalent bodies’, and the formulation of a Memorandum of Understanding as the basis for a network among them (ASEAN, 2004b: 29). 175 It also seeks the establishment of an ASEAN commission on the rights of women and children, and ‘elaboration of an ASEAN instrument on the protection and promotion of the rights of migrant workers’ (30). As discussed, the Kuala Lumpur Declaration stated that the Charter would reaffirm ‘principles, goals and ideals’ including the ‘promotion of democracy, human rights and obligations…’ (ASEAN, 2005a). Thus, while a human rights body or mechanism is not specifically mentioned in these key documents, the issue of human rights in ASEAN was expected to appear in the Charter. The Eminent Persons Group and human rights The EPG report, submitted to ASEAN in January 2007 at the 12 th Summit in Cebu, Philippines, argues that ‘respect for human rights and fundamental freedoms’ should be one of ASEAN’s ‘Fundamental Principles and Objectives’ (ASEAN, 2006a: 2). The EPG also reported that it had discussed the possibility of setting up an ASEAN human rights mechanism, and noted that this worthy idea should be pursued further, especially in clarifying how such a 175 The VAP does not explicitly name these ‘existing human rights mechanisms’. It may be referring to the national human rights institutions (NHRIs) in Indonesia, Malaysia, the Philippines and Thailand (to be discussed later in the chapter). 206 regional mechanism can contribute to ensuring the respect for and promotion of human rights of every individual in every Member State (22). Thus, the EPG suggested that human rights were individual; this challenged the notion held by advocates of ‘Asian values’ in the late 1980s and 1990s that human rights were collective or community-oriented (this will be discussed further below). Again, this may reflect the influence of ‘global’ human rights norms on ASEAN normative standards; at least, it suggests that the human rights debate in ASEAN has been changing in recent decades. There is little evidence of significant debate within the EPG regarding human rights. Ultimately, as mentioned, the EPG did refer to the ‘possibility’ of a human rights ‘mechanism’, which at least suggested to the public and to analysts that the HLTF might also consider including this in the Charter. It is unclear, given the lack of evidence, whether the EPG was directed by the foreign ministers to consider and/or include this reference; in any case, it appears that the EPG and the foreign ministers were broadly in favour of providing for the establishment of a human rights body in the Charter. There was, however, significantly more debate and division within the HLTF on this matter. The High Level Task Force and human rights The prospect of a human rights mechanism was discussed at the 12 th Summit as the EPG completed its work and the HLTF was convened to commence drafting the Charter. Caballero- Anthony (2008b) reports that Gloria Arroyo, in her capacity as representatve of the then-ASEAN chair (the Philippines), insisted on the inclusion of a provision establishing a human rights 207 mechanism in the draft Charter, ‘despite the reservations by other leaders of ASEAN’ (81).176 Indeed, the members of the HLTF – all sitting officials from the foreign ministries of the ASEAN member states (refer Appendix C) – clearly were not in agreement in this regard. Their first progress report to the ASEAN Foreign Ministers, submitted in March 2007 at the Foreign Ministers’ retreat in Siem Reap, Cambodia, did not mention a human rights mechanism. However, after discussing the progress report, the Ministers advised the HLTF that they had decided ‘to include a draft provision on an ASEAN Human Rights Commission as an organ’ (Koh, 2009: 54). (Note that this ‘Commission’ was later renamed a ‘Body’ in the Charter). At the same retreat, the foreign ministers rejected the EPG’s proposal for sanctions, arguing that such a provision would be overly ‘divisive’ and ‘confrontational’ (SIIA, 2007). This seemed to indicate that the human rights mechanism was not intended to threaten any member state with the potential for punitive measures in the face of human rights violations, and thus cast doubt on the clout or credibility of the human rights mechanism. Despite the Foreign Ministers’ instructions, HLTF Co-Chairperson Tommy Koh’s (2009) account of the thirteen meetings of the HLTF during 2007 indicates that it continued to lack unanimity on the issue of a human rights body. Indeed, this became the most contentious issue during the HLTF’s drafting of the ASEAN Charter. Koh reports that, during their seventh meeting in June 2007, the HLTF members agreed that the AHRB would be ‘inter-governmental in composition’; ‘would not be a finger-pointing body’; and ‘would define human rights in an ASEAN context’ (57). However, at the eighth meeting in Manila in July 2007, the discussion 176 Arroyo also insisted, at the same Summit, that ASEAN adopt the Convention on the Rights of Migrant Workers (Caballero-Anthony, 2008b: 81). 208 apparently backtracked to whether the AHRB should exist at all. The HLTF members were ‘divided into three camps’: Indonesia and Thailand were in favour of the creation of an ASEAN human rights body; Cambodia, Laos, Myanmar and Vietnam opposed it; and Brunei, Malaysia, the Philippines and Singapore ‘occupied the middle ground’ (58). The HLTF held its second meeting with the Foreign Ministers on July 30, 2007, and requested ‘guidance’ for the matters on which they were unable to reach a consensus. Upon receiving this guidance, Koh reports that ‘the decision of the Ministers to establish an ASEAN human rights body was received by some of my colleagues with disbelief’ (60). By the tenth meeting, held in Chiang Mai, Thailand in September, 2007, the members of the HLTF had accepted that they must include a provision to establish the AHRB. However, disagreements continued regarding the function of the body; whether the Ministers had instructed the HLTF to draft the terms of reference (TOR); and (if so) whether the TOR should be completed before the Charter was completed and signed (Koh, 2009: 62). The Philippines, Indonesia, Malaysia and Thailand argued that the AHRB’s function should include monitoring, and that the TOR should not be included in the Charter. The Philippines and Malaysia had apparently become more supportive of the AHRB proposal by this stage. In contrast, Cambodia, Laos, Myanmar and Vietnam held that the AHRB should only have consultative status, and that the TOR ‘must be finished by the HLTF as a package’ (62). Singapore and Brunei remained on some sort of ‘middle ground’. Representatives of the CLMV states apparently believed that ‘rushing through’ the TOR would make it less likely that the AHRB would be empowered to monitor and/or investigate purported human rights abuses; the 209 principle of consensus decision-making and the time pressure faced by the HLTF would both likely serve to ‘water down’ the TOR if they were included in the Charter. At the Chiang Mai meeting, the two camps gathered in different rooms, and Koh (in his capacity as Chair of the HLTF) and Walter Woon (Singapore’s representative to the HLTF) acted as go- betweens, revising the draft text several times in an attempt to reach a compromise (Koh, 2009: 63). The final draft (which became Article 14 of the Charter) provided for the establishment of the AHRB, with the TOR ‘to be determined by the ASEAN Foreign Ministers Meeting’ (ASEAN, 2007a: 19). Thus, when the Charter was signed in November 2007, the functions and powers of the AHRB were yet to be determined. Indonesia and the Philippines were reportedly key in obtaining approval for the establishment of the AHRB, in a compromise understanding that the Charter would not introduce majority voting in ASEAN decision-making procedures. Dosch (2008a) points out that ‘Between a human rights mechanism and any departure from consensus-based decision-making, Hanoi, Vientiane, and Yangon (Rangoon) feared the latter prospect more’ (85). This was because consensus was regarded by these members as the overarching principle – its retention as a decision-making method would ensure that they could have some influence over the extent of the AHRB’s powers. Thus, the decision-making (procedural) norms of the ASEAN Way were effectively reiterated (and in fact, ‘codified’) – as discussed in Chapter 4. Moreover, it seemed clear to many observers that the CLMV states would only agree to a minimal role for the AHRB. 177 The 177 Note that there is a tendency amongst analysts and observers to refer collectively to, and thus group together, the CLMV states and assume they maintain a uniform position; however there is some evidence to challenge this, as will be discussed. 210 late Hadi Soesastro, for example, summarized the Indonesian position thus: ‘We would like to see the human rights body conduct investigations – this is what human rights bodies are meant to do. But the CLMV put a stop to it’ (interview, 2008). Conceptions of the role and functions of the AHRB clearly differed across members. The time pressure dimension in shaping the outcome of the Charter is interesting. Tommy Koh (2009: 65-6), Ong Keng Yong and Termsak Chalermpalanupap each note that the HLTF (in which all were participants) faced time constraints towards the end of the drafting process in late 2007 (Ong Keng Yong, interview, 2008; and Termsak Chalermpalanupap, interview, 2008). Ong Keng Yong laments that in regard to Article 14 establishing the AHRB, it ‘took us several meetings just to get those two paragraphs’ (interview, 2008). Thus, at the 13th and final HLTF meeting in October 2007, it was thus agreed that any ‘new ideas’ should not be discussed, and the Chair (Rosario Manalo) ‘introduced the ground rule that any amendment which was met by even a single objection would not be accepted’ (Koh, 2009: 65). This ‘single actor veto’ suggests a significant reinforcement of the norm of consensus. It also meant, of course, that Myanmar could veto any aspect of the negotiation process in regard to the AHRB. Under the subheading ‘Human Rights Issue’, Aung Bwa, Myanmar’s representative to the HLTF, writes that After years of experience, I used two effective weapons to my advantage: consensus, and “putting brackets” on issues that were not in our national interest…Eventually we managed to remove the brackets in the spirit of give and take, giving here a little and 211 taking there a bit, but never compromising on the vital issues that could be detrimental to the national interests (Aung Bwa, 2008: 33). Aung Bwa does not elaborate on which specific aspects of the ‘human rights issue’ he refused to compromise. As mentioned, Koh (2009) reports that Myanmar was one of the members that argued that the TOR must be finished by the HLTF ‘as a package’, and that the AHRB would only have consultative status (62)). In any case, this arrangement supports the argument that procedural norms (in this case, consensus) were reaffirmed in the Charter process, hindering change in constitutive norms (particularly non-interference) or perhaps, the emergence of new norms (of ‘appropriate governance’). Given this effective ‘single actor veto’, the TOR for the AHRB were probably unlikely to be included in the final text of the Charter, given the earlier difficulty of securing agreement from all HLTF members that a provision simply to establish the AHRB would be included in the Charter. It seems that only a broad and non-imposing version of the TOR would have had any chance of being included – certainly not one that gave the AHRB a mandate that would threaten the non-interference norm. As Aung Bwa suggests, states were able to manoeuvre to their advantage given the deadline and the norm of consensus. Ultimately, the final draft of the Charter (excerpts of which are reproduced in Table 2 below) included a provision to establish a human rights body (Article 14), but avoided setting out its terms of reference. Kavi Chongkittavorn (2007c) argues that 212 the Charter reflected the conservative side of ASEAN without any of the liberal ideas that the ASEAN Eminent Persons Group recommended in their report. At the very core is the ASEAN way at work: agree on the least objectionable ideas, not the most desirable ones…The drafters did not want to get bogged down with the interpretations of the mechanisms and scope of the proposed human rights body. Again, the time pressure and the expectation that the draft would be completed by the 13th Summit in Singapore contributed to this effort to avoid becoming ‘bogged down’. The norm of consensus made it difficult for norm entrepreneurs (including Indonesia, possibly the Philippines and ASEAN-ISIS, to be further discussed) to make much headway on the norms of ‘promotion and protection’ of human rights. 213 Figure 2 Excerpts from the ASEAN Charter: human rights CHARTER OF THE ASSOCIATION OF SOUTHEAST ASIAN NATIONS PREAMBLE … ADHERING to the principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms; … CHAPTER 1 PURPOSES AND PRINCIPLES ARTICLE 1 PURPOSES The Purposes of ASEAN are: … 7. 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; … ARTICLE 2 PRINCIPLES 1. In pursuit of the Purposes stated in Article 1, ASEAN and its Member States reaffirm and adhere to the fundamental principles contained in the declarations, agreements, conventions, concords, treaties and other instruments of ASEAN. 2. ASEAN and its Member States shall act in accordance with the following Principles: … (i) respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice; … CHAPTER IV ORGANS ARTICLE 14 ASEAN HUMAN RIGHTS BODY 1. In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body. 2. This ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting. (Source: ASEAN, 2007a) 214 Member states and ‘human rights’ in the Charter In considering the central puzzle as to why the AHRB was created, we return to the question of whether domestic political situations and political change leads to promotion of certain values at the regional level. As discussed in Chapter 5, it seems to intuitively make sense that the democratizing states in Southeast Asia would be supportive of the promotion of democracy and human rights at the regional level. Dosch (2008a) argues that it is no coincidence that Indonesia and the Philippines pushed hardest for human rights and democracy in the Charter. He suggests that It is a logical consequence of domestic political change that the two most democratic states in Southeast Asia in 2007 should have been driving forces in the quest for a regional commitment to democracy and human rights (84). Jawhar Hassan casts a wider net, claiming that Indonesia, Malaysia, Philippines and Thailand were gung-ho on civil and political rights. They could be described as the champions of human rights and democracy. Myanmar, Vietnam and Laos resisted the most. This reflects their domestic political situations (Jawhar Hassan, interview, 2009). Other analysts in the region, such as Helen Nesadurai and Mely Caballero-Anthony, emphasize the importance of domestic change in perceptions of the values of democracy and human rights, as the crucial factor in explaining regional change (interviews, 2008). Thus, the more ‘progressive’ states in these areas are expected to be the greatest supporters of references to democracy and human rights in official ASEAN text. However, as discussed in Chapter 5, I 215 argue that this causal link cannot simply be assumed; we must ask why democratizing states would push for this ‘regional commitment’. The question arises whether these states believe that human rights – as a set of values and/or as an officially recognized principle which must be defended – should be formally recognized at the domestic level as a prerequisite to regional ‘promotion and protection’ of human rights. Those states that supported the inclusion of references to democracy in the Charter also supported the inclusion of references to human rights and of a provision to establish a human rights body in ASEAN. Likewise, states that resisted references to democracy also resisted references to human rights – in fact, their resistance to the human rights references (particularly the AHRB) was stronger. As we shall see, there is less evidence that DPL (i.e. political elites’ perceptions of how their societies perceive the legitimacy of their national governments) had a direct impact on the inclusion of human rights and the AHRB in the Charter. Rather, as the following section will show, ERL was particularly important (i.e. elites’ perceptions of how others view the legitimacy of ASEAN from outside the region). Indonesia: a ‘norm entrepreneur’ Indonesia was significant in pushing for the inclusion of references to human rights and a provision for an AHRB in the Charter; it acted as a ‘norm entrepreneur’. Indonesian officials became involved early in such discussions. For example, in 2004 at the Fourth Workshop on the ASEAN Human Rights Mechanism in Jakarta, Indonesian Foreign Minister Hassan Wirajuda stated that ‘human rights as a universal value [sic] are by no means alien to us in Southeast Asia’. Hassan also reminded participants that respect for human rights is enshrined in the 216 Bandung Principles, ‘to which ASEAN subscribes’. Indeed, he said, the first Bandung Principle, agreed to by participants in the Asian-American Conference in April 1955, is ‘Respect for human rights and for the principles and purposes of the Charter of the United Nations’ (Hassan Wirajuda, 2004). Dian Triansyah Djani, the Indonesian representative to the HLTF, notes that in the years following the collapse of Soeharto’s New Order regime, in which Indonesia ‘changed dramatically’, ‘the quest to have a Charter that reflects the norms and values of the new Indonesia became more and more evident’ (Dian Triansyah Djani, 2009: 141). The promotion and protection of human rights was one of these ‘imperative’ elements (along with ‘democracy, good governance, fundamental freedoms, rule of law and constitutional government’ (141-2)). Dian notes that these objectives of the Indonesian delegation to the HLTF were influenced by the ‘countless interactions’ undertaken with civil society groups, academics and politicians, in recognition that the interests of many stakeholders must be taken into account in the drafting process. Thus, when the turn came for Indonesia to host the HLTF (the seventh meeting, in June 2007), it was ‘our main mission’ to ensure that the Charter did include a mechanism or body to promote human rights (142). Several Indonesian analysts and parliamentarians argued that the AHRB was an important aspect of Indonesia’s position on the content of the Charter. For example, Rizal Sukma of CSIS argued in June 2007 that 217 Inclusion of human rights and democratic principles in the charter is non-negotiable. Indonesia must fight for it because we will have no basis for protecting people’s rights if the principles are not included in the charter (Quoted in Abdul Khalik, 2007). Rizal thus implied that there was a direct link between the advancement of human rights norms in Indonesia and at the regional level. Similarly, Marzuki Darusman (at the time of writing, the co-Chairperson of the Working Group for an ASEAN Human Rights Mechanism) 178 argued in March 2007 that The drafting of the charter is a great opportunity to have a human rights mechanism in ASEAN after years of effort. If we pass this opportunity we will have to start back at square one (Quoted in Abdul Khalik, 2007a). Three months later, at the aforementioned seventh meeting of the HLTF, Marzuki ‘made an eloquent speech in support of an ASEAN human rights mechanism’ (Dian Triansyah Djani, 2009: 143). Around the same time, Ali Alatas (who had acted as Indonesia’s representative to the EPG) argued that the AHRB ‘is a significant step forward. We have been trying to get that for a long time...[T]o put a regional human rights body inside the Charter is in line with the demands of the 21 st century’ (quoted in Salim Osman, 2007). Such a mechanism is thus depicted as a special project for Indonesia – a direct link to its own domestic values, and thus DPL. This seemed to be reflected in the positions of the officials who represented Indonesia in official ASEAN dialogue. Dian Triansyah Djani initially seemed confident that Indonesia’s position 178 Marzuki Darusman’s former positions include Attorney General of Indonesia, Member of Parliament for the Golkar Party, and chair of KOMNAS HAM (the Indonesian human rights body). 218 would be upheld by the Charter. In March 2007, he stated that ‘the substance of the ASEAN Charter will not be far from the recommendations of the [EPG], which has highlighted the importance of including human rights and democratic values in the Charter’ (quoted in Abdul Khalik, 2007). Moreover, he indicated that Indonesia would be at the forefront of efforts to ensure this. (It is unclear whether he would have maintained this claim later in 2007, after the Charter was drafted; one would assume a degree of disappointment.) Again, Indonesian elites perceived a link between DPL in Indonesia and the perceived legitimacy of ASEAN and its norms (IRL). This is not to suggest that Indonesian officials believed or implied that new ASEAN norms could be advanced without adjustment or reinterpretation of traditional normative underpinnings. In arguing that ASEAN should promote the ‘shaping and sharing of norms’ including human rights and democracy, in order to establish the ASC, then Indonesian Foreign Minister Hassan Wirajuda (2004) concedes that this won’t be an easy ride for all of us. For it will mean relinquishing a certain degree of national sovereignty. For it will mean adjusting national standards to common regional standards. After all, we are building a community. 179 179 In articulating Indonesia’s official position in this manner (in a keynote speech at the Fourth Workshop on the ASEAN Regional Mechanism on Human Rights in 2004), Hassan was clearly ahead of the thinking in other ASEAN states. It is unclear whether his statement necessarily reflects a broader view in the Indonesian Foreign Ministry; certainly, as discussed in earlier chapters, the Ministry introduced and advanced the idea of an ‘ASEAN community’, but Hassan took an additional step in acknowledging that some sacrifice of sovereignty would be necessary for ASEAN states. 219 Thus, we see evidence that Indonesian foreign policy is oriented towards a view that domestic and regional norms and values are, or should be, linked. Moreover, for Indonesia, regional norms may need to evolve or be reinterpreted as domestic priorities change. This is based on elites’ perceptions of a link between DPL, i.e. perceptions of the legitimacy of Indonesia’s democracy, and IRL, i.e. perceptions of ASEAN’s legitimacy in the eyes of Indonesian elites. Indonesia again acted as a norm entrepreneur (as it did in regard to references to democracy, discussed in Chapter 5) with a particular interest in agenda-setting in regard to human rights norms. As a transitional democracy, elites felt that regional democracy and human rights norms would reflect Indonesian values, and thus made a connection between DPL and IRL. The Philippines and Thailand The Philippines also played an important role in putting human rights on the HLTF’s agenda. As mentioned, early in the drafting process, Philippines President Gloria Arroyo urged the Foreign Ministers to instruct the HLTF to include in the draft Charter a provision to establish a human rights mechanism. Later in 2007, when the ASEAN foreign ministers announced that they had agreed to create a human rights body, Philippines Foreign Secretary Alberto Romulo said that ‘This is a historic decision. This is a victory for human rights...We believe that there must be a human rights body in the ASEAN charter. We felt that it’s a sine qua non’ (quoted in Gutierrez, 2007). The Philippines thus took a position that clearly supported the inclusion of the AHRB in the Charter. It is difficult to draw conclusions about perceptions of DPL in the Philippines, and the possible impact on its position on the AHRB; aside from the lack of public statements about the reasons for the Philippines’s stance, its support for the AHRB might be due in part to perceptions of ERL (to be further discussed below). 220 Thailand also was supportive of the AHRB provision. As mentioned in Chapter 5, one of Thailand’s representatives to the HLTF, Pradap Pibulsonggram, asserts that Thailand’s position is that ASEAN must promote ‘democracy, good governance, human rights and fundamental freedoms as shared values. Thailand thus pushed for the establishment of an ASEAN human rights body in the ASEAN Charter’ (Pradap Pibulsonggram, 2009: 86). There did not seem to be many public statements made during 2007 by Thai officials about the AHRB (at least in part given the domestic political situation in Thailand). Nevertheless, Thailand has certainly been depicted as one of the supporters, along with Indonesia and the Philippines, of the AHRB (for example, Associated Press, 2007). As with the Philippines, however, it is difficult to make causal claims about DPL in regard to Thailand’s stance on the AHRB. Malaysia and Singapore Malaysia was apparently supportive of the inclusion of a provision for the AHRB in the Charter, but was anxious that it should not be an overly divisive issue, or imply interference in member states’ domestic affairs. At the 40th AMM in Manila in July 2007, the then Malaysian Foreign Minister Syed Hamid Albar told the Malaysian press that (in the journalist’s words) Malaysia’s position on this issue is to have an enabling provision to have the [human rights] commission. This basically means don’t rush the issue, find a way for all member countries to agree on the form and type of the commission, and let the government leaders endorse it later (Wan Hamidi Hamid, 2007). 221 Malaysia thus apparently supported the broad, ‘aspirational’ approach to human rights in the Charter. Interestingly, after the Charter came into force in December 2008, Syed Hamid Albar’s successor Datuk Seri Dr Rais Yatim said that Malaysia welcomed the AHRB, but that ‘We need to imbue within our human rights, just and fair disposition, co-mingled with Asian culture’. He argued that the AHRB needed to take into account musyawarah (consultations) and adat (customs), and that ‘we will wait for the experts to draw up their parameters and the ministers will continue to guide them, so that it becomes a lasting and an Asian reflective mechanism’ (quoted in Mohd Nasir Yusoff, 2008). While this approach reflected the perceived importance of ASEAN norms such as consensus, unity and ‘moving at a pace comfortable to all’, but it also suited Malaysia’s interests of avoiding too much scrutiny of domestic affairs (which would perhaps affect DPL in Malaysia). Ahmad Fuzi Haji Abdul Razak, Malaysia’s representative to the HLTF, claims that the quality of human rights is changing. Many countries realize they can’t put human rights aside. There is still a lot to do, in the CLMV countries…[and] even in Malaysia, but we are not running away from the issue (interview, 2008). Thus, Malaysian leaders were keen to depict Malaysia as engaged in the issue of human rights, while emphasizing that it was a long term process. Singapore’s role in the debate regarding the AHRB, and in the broader Charter process, is significant. It could be argued that Singaporean officials had a particular influence in resolving differences among the HLTF members. As mentioned, Koh and Woon – members of the 222 Singaporean delegation to the HLTF – liaised between the ‘camps’ that developed within the HLTF as they debated the inclusion of the AHRB in the Charter. Once this obstacle was overcome and the draft of the Charter was completed and legally ‘scrubbed’ in late October 2007, Koh told The Straits Times that we felt relieved and happy that our historic task has been accomplished and that we had conducted our work in the customary ASEAN tradition of mutual respect and mutual accommodation in order to achieve consensus (quoted in Li Xueying, 2007). Singaporean officials seemed to be anxious that all member states to sign the Charter at the 13th ASEAN Summit in Singapore on 20 November, 2007 – despite any potential delays that might arise given the recent crackdown in Myanmar and the ASEAN Foreign Ministers’ collective expression of ‘revulsion’. Singapore’s Foreign Minister, George Yeo, told his Parliament that the draft was complete, and that ‘We fully expect Myanmar to be present and to sign the ASEAN Charter’ (quoted in Li Xueying, 2007). As the then-Chair of ASEAN, it was in Singapore’s interests to have the Charter concluded within its chairmanship, with plans to establish an AHRB – perhaps in particular given the events in Myanmar. As Ong Keng Yong notes, ‘Singapore was chairing, and wanted the draft to be signed at the Singapore Summit. So Singapore deployed a lot of effort to get it moving’ (interview, 2008). Encouraging a timely conclusion to the drafting process ultimately meant, as discussed, that the Charter would refer only to the establishment of an AHRB (but not to any further details or terms of reference). Thus, in contrast to Indonesia, neither Singaporean nor Malaysian elites perceive a particularly strong link between DPL and IRL (as discussed in Chapter 5); they provided cautious support for 223 the AHRB, with Malaysia perceived as somewhat more explicitly supportive. Singaporean and Malaysian leaders are naturally less concerned than Indonesia (and the Philippines and Thailand) about attempting to gaining DPL by being seen by their populations as promoting norms such as democracy and human rights at the regional level. The CLMV states As discussed, the CLMV states were less supportive of the AHRB. Ong Keng Yong, former ASEAN Secretary-General and so-called ‘Resource Person’ for the HLTF, reports that as the HLTF discussed the possibility of an ASEAN human rights body, The atmosphere at this time was quite tense, especially among the CLMV members. They had no problem with the general principles of democracy and human rights, but to put them in the Charter would make it very difficult for them to get acceptance from their parliaments or other domestic bodies. They saw this as representing intervention in their domestic governance (interview, 2008). This suggests that domestic political priorities in the newer ASEAN members were expected to be hindered by an enhanced role for ASEAN in ‘promoting and protecting’ human rights. The proposed AHRB was seen as an unwelcome infringement on domestic affairs. While it is difficult to obtain evidence to support this argument, one can interpret the limited statements of key individuals, such as HLTF representatives. Myanmar’s representative to the HLTF, Aung Bwa, describes ‘the most challenging task’ of discussing the ‘human rights clause’, and the compromise reached to refer to a human rights body rather than a commission. He complains 224 that ‘Some of our colleagues were assuming the role of champions of human rights and adopting a “holier-than-the-Pope” approach. Those who live in glass houses should not throw stones!’ (Aung Bwa, 2009: 32-3). As discussed in Chapter 4, Myanmar and other newer member states tend to be concerned that advancement of new norms in ASEAN may hinder, rather than help, their efforts to enhance DPL. They have tended to decry challenges to the constitutive ASEAN norms of sovereignty and non-interference. Nevertheless, evidently they agreed to incorporate references to human rights in the Charter. A few days before the Charter was signed (in November 2007), Ong told Reuters that ‘Myanmar has not fought to take out words like ‘human rights’ and ‘democracy’. They are not against putting these down as an aspiration, but they ask for more time’ (quoted in De Clercq, 2007). As discussed, Myanmar agreed to the inclusion of Article 14 on the proviso that is would not include terms of reference for the AHRB – only the agreement to establish it. Interestingly, however, Cambodia’s HLTF representative, Kao Kim Hourn, is less openly critical of his ‘colleagues’ – in fact, he laments the fact that members of the HLTF were sometimes split into two groups, between the so-called old members and new members on certain issues, such as human rights. This old thinking and mentality do not and will not serve ASEAN well (Kao Kim Hourn, 2009: 153). Moreover, argues Kao Kim Hourn, ‘there is the need to distinguish between domestic political pressures and a new layer of regional responsibilities, and thereby a plan to reconcile these two conflicting sets of demands for the benefit of all [sic]’ (154). Kao Kim Hourn does not elaborate 225 on Cambodia’s position or his personal views on the AHRB, but clearly recognizes the tensions among member states’ positions and between domestic and regional imperatives. His more moderate views challenge the notion that the CLMV states should be treated collectively in regard to Charter negotiations (although his views are not necessarily representative of the overall Cambodian government position on human rights and ‘regional responsibilities’).180 There is not much evidence in regard to Vietnam’s position on the AHRB. Its representative to the HLTF, Nguyen Trung Thanh (career diplomat in the Foreign Ministry), notes that ‘For quite a long time, the human rights issue was not put on the agenda of official ASEAN meetings’; as such, ‘there is every reason for the HLTF to be proud of their ability to tackle the once very sensitive issue or even a “taboo” in ASEAN’ (Nguyen Trung Thanh, 2009: 102-3). He doesn’t, however, provide specific details on Vietnam’s position on the AHRB. It is difficult to find other statements by Vietnamese officials on the AHRB. Gopalakrishnan of Reuters (2007) reports that Vietnam is, along with Laos and Cambodia, ‘not comfortable’ with the idea of a human rights body. 181 180 Dr Kao Kim Hourn is, at the time of writing, Executive Director and a founding member of the Cambodian Institute for Cooperation and Peace (CICP, which is part of the ASEAN-ISIS network). He is also Secretary of State in Cambodia’s Ministry of Foreign Affairs and International Cooperation, and his portfolio includes Cambodia’s involvement in ASEAN and ASEM. Kao Kim Hourn is also an adviser to the Prime Minister of Cambodia, and President and founder of the University of Cambodia. He was educated in the United States, earning a PhD in political science at the University of Hawaii. He was the Secretary General of the Cambodia committee of the Council for Security Cooperation in the Asia Pacific (CSCAP), a Track Two dialogue, from 2001-2004. Thus, his career has not been limited to the Cambodian government, which may explain his more moderate views. We do not have sufficient evidence of HLTF proceedings to ascertain whether he influenced the positions of other representatives. In any case, it is important to note that the HLTF representatives of the CLMV states were not all of uniform opinion in regard to human rights in ASEAN. 181 In contrast, and similar to some aforementioned accounts, Gopalakrishnan (2007) identifies Philippines, Malaysia, Thailand and Indonesia as ‘pushing for a human rights body’. 226 It is also difficult to find explicit statements regarding the position of Laos on the AHRB. Laos’ representative to the HLTF, Bounkeut Sangsomsak, notes that during the drafting process, the AHRB was a matter of intense deliberation, ‘not because of any disagreement over the creation and protection of human rights within ASEAN but over the different views on the concept of human rights’. While some members of the HLTF held that ASEAN should uphold universal human rights, others argued that ASEAN should uphold the value of Southeast Asia since almost all ASEAN member states used to be under colonial rule and had gained independence only three to four decades ago. The political institutions of those countries were relatively weak, and they were only in the initial stages of their nation-building (Bounkeut Sagsomsak, 2009: 164-5). Bounkeut does not specify to which states he is referring. As discussed, Laos has certainly been perceived by analysts as more resistant to the AHRB, and tending towards defending the ASEAN norms of sovereignty and non-interference. Summary: member states’ positions on the AHRB Thus, some HLTF representatives were more supportive of the AHRB (Indonesia, the Philippines and Thailand), and others were more resistant (the CLMV states). Others seemed to occupy a more moderate position: Singapore, Malaysia and Brunei – although as discussed, some include Malaysia in the more ‘supportive’ camp. According to Ong, Singapore and Brunei supported the idea of a human rights body in principle, but ‘have their own way of doing things. They believe we shouldn’t simply follow the West and call it a ‘commission’ or ‘mechanism’’. 227 He claims that the most supportive members were Thailand, the Philippines, Indonesia and Malaysia, which ‘already have domestic human rights bodies. They are more open, and are used to dealing with human rights issues’ (although as noted above, Malaysia appears to have been less supportive that the former three states). As mentioned, Ong saw the CLMV states as resistant to the AHRB; ‘so it was like a football formation: four, two, four’ (interview, 2008).182 In any case, it certainly seems that there is sufficient evidence that some member states were more supportive than others of human rights appearing in the ASEAN Charter. However, this does not in itself adequately explain why the final text was adopted. As this discussion demonstrates, perceptions of DPL were not as relevant to the adoption of human rights references as they were to the adoption of democracy references. (An exception was Indonesia, which, as discussed, did directly relate its position on the AHRB to its own domestic political circumstances; perceptions of a link between DPL and IRL (and perhaps also ERL) were important in the case of Indonesia). What convinced some of the less supportive members to agree to the inclusion of human rights and the AHRB in the final text of the Charter were their shared concerns about ASEAN’s international credibility, and thus their perceptions of ERL. 182 Opinions seem to differ on whether Malaysia should be included in this category of ‘most supportive’ of the AHRB with Indonesia, Thailand and Malaysia. The head of ISIS Malaysia, Tan Sri Mohamed Jawhar Hassan, puts the latter three states in what he calls ‘tier 1’ and Malaysia in ‘tier 2’, ‘although maybe it is 1.5, because there are some very vocal individuals in Malaysia’ (Jawhar Hassan, interview, 2009). 228 ‘Human rights’ in the Charter and external regional legitimacy Concerns regarding ERL have also shaped the imperative to include a provision in the Charter to establish the AHRB. Indeed, perceptions of ERL had a greater impact on the inclusion of references to human rights than on the inclusion of references to democracy. Human rights is an issue which was, in the HLTF’s discussions and ASEAN debate generally, more sensitive and stimulated significantly more debate than the references to democracy. Criticisms of Myanmar from outside the region were particularly influential on perceptions of ERL, and scrutiny of human rights records in other states was also important. The member states which were more supportive of including a provision to establish the AHRB in the Charter were Indonesia, Thailand and the Philippines. During the drafting process, representatives of these countries publicly linked the need for a human rights body to ASEAN’s credibility and international standing – thus making a direct claim about ERL. Thailand’s then- Foreign Minister Nitya Pibulsonggram stated in March 2007 that failing to address human rights in the Charter would impact ASEAN’s credibility, and thus the foreign ministers had ‘agreed in principle that an establishment of the regional human rights mechanism will be reflected in the charter’ (Quoted in Kyodo News Service, 2007). Jawhar agrees that references to human rights were regarded as necessary from the point of view of ASEAN’s credibility. Thus (he said in 2009), the clause referring to ‘respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice’ (ASEAN, 2007a, Article 2(i)) was necessary, because ‘if we don’t have this, other countries will say ASEAN is rubbish’ (Jawhar Hassan, interview, 2009). Ong Keng Yong referred to credibility in regard to the mandate of the AHRB: 229 ‘A key consideration is that it cannot be a body that just sits there and listens. Even Myanmar and Vietnam agreed on this. To be credible, we must go beyond this’ (interview, 2008). The Charter’s references to human rights were clearly motivated at least in part by the ERL concerns provoked by the membership of Myanmar. As discussed in Chapter 5, the history of repression, political violence and crackdowns on demonstrations has long drawn international attention to Myanmar, and to ASEAN’s apparent inability to exert significant pressure on the regime to improve the situation. The regime’s violent reaction to protests led by Buddhist monks in September 2007 surely highlighted, for the HLTF and ASEAN leaders, the ramifications for ASEAN’s image and reputation of Myanmar’s continued membership, and the need to include a human rights mechanism in the Charter. 183 Shortly after this incident, then-ASEAN Secretary- General Ong Keng Yong stated in an interview with Reuters that ‘The world is outraged after the shooting of monks by soldiers’ (quoted in De Clercq, 2007). Marty Natalegawa, then Indonesia’s Permanent Representative to the UN, told the UN Security Council in October 2007 that the tragic events in [Myanmar] do have serious implications for the credibility and reputation of ASEAN. We cannot look the other way because it is impossible to advance 183 The crackdown provoked immediate condemnation from various governments and organizations, including the US, UK, France, EU, UN, G8, Human Rights Watch and International Crisis Group (e.g. Agence France Presse, 2007). In November 2007, the US Senate ‘voted unanimously to urge ASEAN to suspend Myanmar until the regime shows respect for human rights’ (De Clercq, 2007). In the same month, Human Rights Watch sent an open letter to Secretary-General Ong, arguing that the events in Myanmar ‘show the need for a strong Charter to deal with grave human rights violations’, through ‘an effective regional human rights mechanism’ (Human Rights Watch, 2007b). 230 together if a member fails to honor the values espoused by the group (Marty Natalegawa, 2007). 184 Thus, Marty made a representation to the UN that ASEAN members understood the link between Myanmar’s domestic circumstances and ERL. Moreover, interestingly, his comments depict ASEAN values as conducive to enhancing ERL. Similarly, Alberto Romulo, the Foreign Secretary of the Philippines, said in July 2007 that his government saw the AHRB as necessary to give ASEAN ‘more credibility in the international community’ (The Star, 2007). He argued that ‘the world is looking to [Myanmar] to live up to its promises, and to ASEAN to encourage progressive development in our region, which must entail improvements in both human security and freedom’ (quoted in Burton & Landingin, 2007). Thus, Romulo makes a direct connection between Myanmar’s domestic situation and perceptions of ASEAN’s external legitimacy (or ERL). Ong also draws this link, stating in July 2006 that ‘ASEAN is concerned about the impact of this [Myanmar] issue…on our credibility and standing, because the world seems to think that ASEAN should be the one tackling this issue and bring about some positive outcome’ (quoted in Bayron, 2006). Chandra Muzaffar agrees, arguing that that ‘ASEAN leaders probably wish the situation in Myanmar wasn’t so because it attracts so much international attention to ASEAN’ (interview, 2008).185 In the month that the Charter was signed, Katsumata said of the AHRB: ‘This is for the international audience, to 184 This is an excerpt of a statement made at the meeting of the Security Council on ‘The Situation in Myanmar’, held in New York on October 5, 2007. 185 Muzaffar notes that this international criticism is motivated in part by ‘geopolitical’, as well as ‘moral’, reasons: ‘The US is concerned about the influence of China and India on Myanmar, and the resources in Myanmar means international powers are taking notice. The US is concerned about China’s influence, although it is an unspoken concern’ (interview, 2008). From ASEAN’s point of view, however, the motivations for international criticism are less important than the impact of the criticism itself on perceptions of ERL. 231 show [that ASEAN] is doing something’ (quoted in Yeoh En-Lai, 2007). These views reinforce the notion that political elites’ perceptions of how others view the legitimacy of ASEAN from outside the region were crucial in the decision to establish an AHRB. While Myanmar has long attracted the most international attention in regard to human rights issues, other ASEAN member states have also been criticised in this regard. Security forces in several states, including the Philippines, Cambodia, Vietnam and Laos have been accused of human rights abuses such as extra-judicial killings and ‘disappearances’, political violence and imprisonment of political dissenters, and repression of freedom of speech, association and religion (e.g. Freedom House, 2007). Singapore and Malaysia do not tend towards political violence but have been criticised for repression of freedom of speech and association and restrictions on political opposition, and for their use of the Internal Security Act (ISA) to detain suspects without charge or trial for long periods. 186 Human rights in Thailand came under international scrutiny during 2006-07 given the coup and imposition of martial law, restrictions on freedom of press, assembly and association (e.g. Connors, 2011). Thailand has also been criticised for human rights violations by police and military in the Muslim-dominated southern region (Human Rights Watch, 2004). Indonesia fares better in contemporary assessments of human rights (it is the only ASEAN state to be designated ‘Free’ by Freedom House’s Freedom 186 For example, in December 2005 the United Nations Special Rapporteur on human rights and counterterrorism, Martin Scheinin, expressed concern that the ‘ISA [in Malaysia] is not in accordance with international human rights standards’, and requested that the Malaysian government indicate its willingness to amend or repeal the Act (Human Rights Watch, 2006b). In January 2010, the deputy Asia director of Human Rights Watch, Phil Robertson, called Singapore ‘the textbook example of a politically repressive state’. Human Rights Watch’s World Report 2010 criticized Singapore’s ‘draconian laws’, including the ISA and laws allowing corporal and capital punishment (Human Rights Watch, 2010). The US Department of State produces annual Country Reports on Human Rights Practices, and these routinely criticize Malaysia’s and Singapore’s ISAs and other laws restricting freedom of speech, association and political persuasion (among other concerns) (US Department of State, 2011). 232 in the World reports since 2006: Freedom House, 2012), but its international image carries the legacy of the Indonesian National Army’s (TNI) abuses in East Timor, particularly since the post-referendum crackdown of 1999. Separatist conflicts in Aceh (which has been nominally resolved at the time of writing) and West Papua have also contributed to concerns about human rights in Indonesia (e.g. Human Rights Watch 2008, 2007a, 2006a). International criticism of these various human rights issues contributed to the impetus to include human rights in the Charter. Perceptions of outsider regional legitimacy (ORL) expressed in news releases by abovementioned groups such as Freedom House and Human Rights Watch naturally contribute to ASEAN elites’ perceptions of ERL. As Chandra Muzaffar notes, criticism of human rights in various ASEAN states – not just Myanmar – formed important ‘external factors’ contributing to the inclusion of references to human rights in the Charter (interview, 2008). In other words, perceptions of ERL significantly contributed to the decision to include references to human rights and the AHRB in the Charter. 187 Thus, some member states were motivated more by a desire to ensure that ASEAN appeared to be advancing human rights norms – in making normative statements – than by belief in human rights as normative standards. Katsumata (2009) takes this perspective, but focuses specifically 187 Interestingly, the national human rights bodies in Indonesia, the Philippines, Thailand and Malaysia, who have generally supported the proposal for an AHRB, may also be motivated by perceptions of ERL. Their support may be interpreted as an attempt to deflect international attention or involvement in human rights issues in Southeast Asian countries, or to enhance their international credibility (and indeed, external legitimacy). For example, Avonius (2008) claims that Indonesia created KOMNAS HAM in response to ‘growing international pressure’ during the 1990s on human rights issues, particularly in regard to East Timor following the 1991 Dili massacre (106). However, he notes, ‘although the commission was most probably conceived as a form of window-dressing for the international human rights forum, it actually emerged as an influential tool for change due to the courage of the individuals appointed as its first commissioners (106-7). 233 on states’ concerns with their own legitimacy (i.e. DPL), rather than with ERL. He argues that ‘the ASEAN members have ‘mimetically’ been adopting the norm of human rights which is championed by the advanced industrialized democracies, motivated by their desire to be identified as advanced and legitimate’. They are responding to the social environment created by the advanced industrialized democracies in which the norm of human rights is an element of legitimacy – a ‘prerequisite for any state in securing its identity as a legitimate member of this community’. According to Katsumata, this desire for legitimacy extends also to ASEAN itself, as the member states ‘have been emulating the Western industrialized democracies and setting out liberal reform plans, with the intention of securing ASEAN’s identity as a legitimate institution in the community of modern states’ (625). (Interestingly, this illustrates how there may be between DPL, IRL and ERL). Katsumata’s argument has some merit, in that it is cognizant of the ‘models’ created by certain significant states and ROs that purport to prioritize human rights (e.g. the United States, the United Kingdom, the EU, the OAS). However, it is also problematic. The ‘emulation’ argument – adopted in a similar form by Jetschke and Rüland (2009)188 – risks depicting ASEAN as something of a normative vacuum. It neglects the existence of what Acharya (2004) calls ‘prior 188 Jetschke and Rüland (2009) argue that ‘members of ASEAN continuously engage in cooperation rhetoric and devise cooperation projects because they emulate the European integration project, even though Southeast Asian leaders and scholars persistently stress that ASEAN is no Southeast Asian version of the European Union’ (181). They note that states are ‘driven to assume specific cultural scripts or institutional forms such as democracy, human rights or capitalist modes of production because they regard them as constitutive for statehood’ (183). This ‘institutional isomorphism’ is assumed to increase legitimacy, access to resources and thus survival capabilities (183). However, Jetschke and Rüland argue, ASEAN lacks the mechanisms necessary for international cooperation, such as a ‘legacy of legalism’ or ‘mechanisms of monitoring’ (181). Thus, for example, ‘although a human rights mechanism was eventually agreed, its implementation remained open to further negotiation. The ASEAN Charter is thus testimony to the persisting aversion that the majority of ASEAN members nurture against deep institutionalization of regional cooperation’ (198). 234 local norms’ (247-8) – in other words, existing normative standards. As discussed, ASEAN is not simply a receptacle for various ‘global’ norms; rather, it is a site of ‘competing normative terrains’. ASEAN norms have been advanced, negotiated, and evolved over time – in some cases, ‘localized’ as Acharya (2004) puts it – and reflect competing interests, ideas and values from a variety of sources. This is illustrated by reports that, even where ASEAN did look to the example of the EU, often it was to affirm ASEAN’s distinctive characteristics. For example, Ong Keng Yong reports that during the drafting process, ‘We had the EU constitution on the table in front of us, and it was four hundred pages; that was too long for ASEAN’ (interview, 2008). Fuzi notes that People are quite critical of the Charter, especially when they compare it with the EU constitution. But they cannot be directly compared...The EU is a long term model, but we are not following the exact same steps’ (interview, 2008). Thus, even where ASEAN officials look to the EU for comparison, it is ‘indirect’ or not an activity they wish to emphasise. This suggests a more complex process than simply ‘emulation’ of European institutions. Moreover, when we consider the empirical evidence, the adoption of the provision to establish the AHRB – a normative statement – was not a straightforward matter of ‘emulation’. During the debate about the adoption of Article 14, members were concerned about preserving unity and the ASEAN Way. This tension was illustrated by the debate about what the AHRB would actually do – its mandate and powers. The then-Thai HLTF member, Sihasak 235 Phuangketkeow, 189 noted (also in March 2007) that this body would likely exist for to promote awareness of human rights, rather than fulfilling an investigative or monitoring role (Kyodo News Service, 2007). Thus, it appears that the ASEAN foreign ministers recognised early in the drafting process that the AHRB was necessary partly in order to boost ASEAN’s credibility overseas (i.e. ERL), but they also were careful not to suggest that the body might threaten the Association’s non-intervention norm. Pradap Pibulsonggram, Thailand’s second HLTF representative, claims that ‘it soon emerged that the HLTF did not want the body to partake in “finger-pointing”’ (Pradap Pibulsonggram, 2009: 89-90). While Indonesia, as mentioned, wanted the AHRB to have a more extensive mandate, the ‘consensus’ position was that the AHRB would only promote awareness of human rights, in the knowledge that a mandate of monitoring/investigative powers would not be accepted by the ASEAN heads of state. The HLTF can thus be seen as attempting to ‘strike a balance’; it had been instructed to include a provision to establish the AHRB, but was aware of the limitations necessary to have this provision accepted in November. In so doing, the HLTF members hoped, ASEAN would enhance its international legitimacy without threatening the sovereignty of its members, and ensuring that the AHRB would remain under the direction and influence of ASEAN members only. Vietnam’s representative to the HLTF, Nguyen Trung Thanh, claims that 189 Sihasak Phuangketkeow acted as Thailand’s representative on the HLTF from January–March 2007, and Pradap Pibulsonggram took over the role from April–November 2007. Both are attached to Thailand’s Ministry of Foreign Affairs (refer Appendix C). (Interestingly, after the Charter was signed in November 2007, Sihasak Phuangketkeow acted as Chairperson for the High Level Panel on the ASEAN Human Rights Body which was convened to draft the terms of reference for the AHRB and then ‘launch’ it). 236 The positive signal was given for the HLTF to proceed with the issue in order to prove that ASEAN had no fear in dealing with this matter…A common understanding was agreed that ASEAN needs to establish its own standards for human rights protection and promotion, and that human rights should not be left as an excuse for outsiders to intervene into ASEAN’s own affairs (Nguyen Trung Thanh, 2009: 103). Thus, perceptions of ERL influenced the decision to include human rights in the Charter, but ASEAN’s traditional concern about the threat of external interference (discussed in Chapter 3) also shaped the formulation of the text, and public depictions of the AHRB. Concerns regarding ASEAN’s image have sometimes been expressed in terms of comparisons to other regions. For example, Indonesia’s representative to the HLTF, Dian Triansyah Djani, argues that ‘Noting that Asia is the only continent that does not have a human rights body/mechanism, it would be hard to envision an ASEAN Charter that does not have any mention of a mechanism/body to promote and protect human rights’ (Dian Triansyah Djani, 2009: 142). This suggests that part of the impetus for the human rights body may have been simply that it ‘seemed appropriate’ to include in the Charter.190 In other words, there were incentives to make a normative statement about human rights. As could be anticipated, subsequent debates (after the Charter was signed) about what the AHRB might do – or not do – did reflect an underlying debate about normative standards. 190 Most regional intergovernmental organizations have made declarations on human rights, as well as human rights bodies or mechanisms. The European Union (EU) has the European Convention on Human Rights (1950) and the European Court of Human Rights (1950); the Organization of American States (OAS) has the American Convention on Human Rights (1969) and the Inter-American Commission on Human Rights (1959); the African Union (AU) has the African (Banjul) Charter on Human Rights (1981) and the African Court of Human and People’s Rights (1998); and the League of Arab States has the Arab Charter on Human Rights (1994), but no human rights body / commission. 237 Conclusion The original impetus for the Charter was to reinvigorate ASEAN and enhance its credibility. The provision establishing the ARHB was motivated in part by such concerns. However, despite the history of official references to the possibility of such a body, the drafting of Article 14 provoked much debate, given the varying attitudes of the various member states to ASEAN’s role in regard to human rights. The provision was ultimately accepted, albeit in ‘watered down’ form, because of the support of some key member states, and the concerns among members about the Association’s international credibility. Perceptions of ERL were particularly important, influencing even those states which in principle resist a human rights role for ASEAN, such that they ultimately accepted the need to refer to the establishment of a human rights body. In the context of so-called ‘global norms’ of promotion and protection of human rights, and the existence in other regional organizations (ROs) of human rights bodies, certain members of the HLTF believed that Article 14 was important for ASEAN’s credibility and international standing. One may be sceptical about whether the AHRB ‘matters’, particularly given the concerns about ERL, which may suggest that the AHRB is more likely to be a façade rather than marking a substantial change. However, even though its powers were ill-defined, it could be argued that the creation of the AHRB is in itself significant, given the traditional perspective of human rights as ‘taboo’ in official ASEAN dialogue. In creating this body, ASEAN leaders have explicitly recognised human rights as being part of official discourse. There is pressure from both within the region and outside it to make the body more meaningful, and it seems unlikely that this 238 pressure is about to decline. There are likely to be increasing expectations that ASEAN will more closely scrutinise the human rights records of member states, which will have implications for interpretations of ASEAN norms (such as the norm of non-interference). These implications are unclear given the different positions on the AHRB’s mandate, functions and powers. As this account has shown, the positions of ASEAN member states on the AHRB varied, but in a more nuanced way than simply being either supportive or resistant. All member states had an interest in addressing the damage done to ASEAN’s international image due to human rights issues, particularly in Myanmar. This is what ultimately convinced them to accept the proposal for an AHRB (which ultimately led to the creation of the ASEAN Intergovernmental Commission on Human Rights, to be discussed in Chapter 7). However, some member states – the CLMV states, which also had concerns about the effect on DPL of inclusion of references to democracy in the Charter – were anxious to ensure that the AHRB’s mandate and role were not set out in the Charter; they pushed to leave the terms of reference to be formulated after the Charter was signed. They ultimately accepted the inclusion of the AHRB in the Charter, after much debate, because the other member states agreed to uphold the norm of consensus decision- making. Thus, again, we see normative contestation in ASEAN, which is recalibrated over time by various perceptions of legitimacy. 239 Chapter 7: Conclusions: findings, contributions and future research This chapter evaluates the findings of the dissertation, considers their implications, and points to directions for future research. First, I review the key findings, particularly in regard to norms, legitimacy and the importance of domestic context. I then consider the implications of these findings for the study of ASEAN, and for the study of norms generally (particularly in regional institutional contexts). I expand the dissertation’s brief analysis of the role of Secretariat officials, and then discuss the establishment, following the signing of the Charter, of the ASEAN Intergovernmental Commission on Human Rights (AICHR). Finally, after a brief review of post-Charter developments in Myanmar, I outline some opportunities for future research suggested by this study. This dissertation is primarily an investigation of ASEAN norms, which (as discussed in Chapter 2) are treated as synonymous with ‘regional norms’ in the Southeast Asian context. It focuses on how and why these norms change, or do not change, over time. It provides an empirical account and analysis of the process by which the ASEAN Charter was proposed, discussed, negotiated and drafted. In so doing, it provides a study of the emergence and evolution of norms in a particular regional institutional context. This context is one of competing norms, or ‘normative contestation’. Norms are dynamic and evolve over time. They cannot be assumed to evolve in a ‘linear’ fashion; nor can new norms be assumed to fit or be congruent with ‘old’ or existing norms. Moreover, adherence to existing norms can cause ‘pushback’, or resistance to new norms. We need a more nuanced account of 240 the evolution of norms, and the contestation among those norms; I explore the ASEAN Charter process as a step towards this end. In exploring this process, issues of legitimacy are central to explaining the outcome. The dissertation shows that perceived legitimacy is an important factor in the emergence and evolution of norms in a regional institutional context. Perceptions of legitimacy at different ‘levels’ – domestic, regional, external – shape the evolution of norms. Studying legitimacy helps us to understand the positions of officials representing member states in ASEAN dialogues. Exploring perceptions of legitimacy enables us to understand interpretations of norms by different actors at various points in time. Norms and normative contestation The results of my investigation lead to several observations. First, norm entrepreneurs may play an important role in introducing and advancing particular norms. These may gain resonance in a regional institutional context, and ultimately influence the content of a normative statement by a RO. In order to understand these processes, we must examine the empirical evidence and ‘trace’ the negotiations and debate precipitating the normative statement. The role of norm entrepreneurs, and the actions of others (e.g. political elites representing member states) in accepting or resisting the advancement of new norms, may be motivated by different factors, such as a changing domestic political context (e.g. democratic transition) or external factors (e.g. criticism by states or organizations outside the region). We need to go beyond simply identifying such factors, and ask: how do they actually influence the formulation of normative 241 statements? As I have shown, we can better understand the motivations for advancing or resisting certain norms by exploring perceptions of legitimacy. This dissertation contributes to the literature on ASEAN, particularly in regard to the emergence and evolution of ASEAN norms, and the dynamics of intra-ASEAN relations. As Chapters 5 and 6 illustrate, the inclusion of references in the Charter to human rights and an AHRB was more contentious – provoking far more debate in the High Level Task Force (HLTF) – than the inclusion of references to the ‘Principle’ and ‘Purpose’ of democracy. In part, this was because the provision to establish a body had greater implications for member states. It signified a greater institutional commitment by ASEAN to ‘following up’ its normative statements about human rights. The prospect of ASEAN scrutiny of member states’ human rights records predictably led to heated debate in the HLTF. This was mitigated by the assurance that the AHRB would not be a ‘finger-pointing body’, and crucially, by the reassurance that the norm of decision-making by consensus would be reaffirmed in the Charter. This study demonstrates that there are competing norms at play in ASEAN. While norm entrepreneurs look to advance new norms, the reaffirmation of certain existing norms may hinder their emergence. In this case study, the desire of some states to reaffirm the norm of decision- making by consensus was an obstacle to the emergence of human rights norms in ASEAN. A compromise was struck among the member states (as discussed in Chapter 6): Vietnam, Laos and Myanmar agreed to the inclusion in the Charter of Article 14, which provides for the establishment of the AHRB, on the understanding that the Charter would not introduce majority voting in ASEAN’s decision-making procedures (Dosch, 2008a: 85). This compromise was 242 accepted by Vietnam, Laos and Myanmar because the reaffirmation of the norm of consensus was regarded by these member states as ensuring that they could retain the right to influence – and limit, if need be – the mandate and powers of the AHRB. The so-called ‘watering down’ of the Charter, about which several observers complained (as discussed in Chapter 4), is a result of normative contestation in ASEAN. Exploration of the inclusion of references to democracy also illustrated the interplay of competing norms in ASEAN. Member states are politically diverse and have differing views of democracy (as discussed in Chapter 5). These differences were not debated in the HLTF – members did not address the definition of democracy ‘in the ASEAN context’ – because of the importance of the procedural norms of decision-making by consensus and of moving at a pace ‘comfortable to all’. Member states avoided addressing this issue and instead adopted broad, ‘aspirational’ references to democracy. This enabled the adoption of the Charter’s text (by consensus) in November 2007. While some states, particularly Indonesia, sought to promote new norms of democracy, other states’ support for existing ‘ASEAN Way’ norms hampered such efforts. In regard to both the references to human rights and democracy, then, the case study of ASEAN demonstrates normative contestation in a RO. It shows that the emergence of some norms may be hindered by the existence, and sometimes reaffirmation, of other norms. Thus, we cannot study the emergence of one norm in isolation but must consider the ‘competing normative terrains’ (Ba, 2009) of the regional institutional context. When a RO makes a normative statement, it takes place in a context of normative contestation. A dynamic normative 243 environment also shapes the context in which a normative statement may (or may not) be followed by a change in behaviour indicating the emergence of a normative standard. These findings therefore contribute to the literature on norms by exploring a case of normative contestation. The Charter comprises a set of normative statements; exploring the process through which this text was agreed upon helps us to gauge the perspectives and intentions of the relevant actors. The Charter also advances normative standards, particularly consensus decision-making. In a situation of ‘competing normative terrains’, it may be difficult for new norms to emerge. This study demonstrates that a norm may be ‘accepted’ in a regional normative statement by member states with varying interpretations of that norm, and these states do not necessarily regard it as having an intrinsic moral value – in other words, they do not necessarily share the same normative standards. Varied perceptions of legitimacy affect these perspectives and intentions. Legitimacy An examination of perceived legitimacy provides a greater understanding of the different member states’ positions on ‘new’ and ‘existing’ norms. This study highlights the notion (discussed in Chapter 2) that legitimacy depends on perception or belief (in this case, the perceptions or beliefs of political elites). This is particularly relevant where a RO under study is characterized by low levels of institutionalization and legalization. In this ‘thinner’ institutional context, perceptions and expectations matter more than formal rules and explicit arrangements and institutions. The concepts of domestic political legitimacy (DPL), internal regional 244 legitimacy (IRL) and external regional legitimacy (ERL) have been used in this study to explore the various dynamics of member states’ positions (represented by political elites), and their relationships with other states and the RO, providing a nuanced account of the emergence and evolution of norms. First, where certain member states perceived a positive link between DPL and IRL, they were more likely to seek to advance democracy norms – norms that relate to ‘appropriate’ domestic governance. In this study, Indonesia, the Philippines and (to a lesser extent) Thailand were supportive of democracy norms in ASEAN – and Indonesia actively promoted these norms (as discussed in Chapter 5). Second, and conversely, member states that perceived a negative link (i.e. perceived greater IRL as inimical to DPL) are more likely to resist new democracy norms in the RO. In this study, Laos, Myanmar, Vietnam and to a lesser extent Cambodia resisted democracy norms. Third, member states that do not perceive a particular link between DPL and IRL take a more moderate position. In this study, the positions of Singapore, Malaysia and Brunei were not explicit but seemed cautiously acquiescent to references to democracy. Member states’ positions in regard to the references to human rights and the AHRB were not driven primarily by perceptions of the interaction of DRL and IRL; the more significant factors for most states in this regard were their perceptions of ERL. Their positions corresponded fairly closely to their positions on the references to democracy, but their logics for doing so, in regard to perceived legitimacy, were different. Indonesia, the Philippines, Thailand and (to a lesser extent) Malaysia were supportive of making a normative statement about human rights and including a provision to establish an AHRB (as discussed in Chapter 6). This was especially 245 because they wanted to enhance ERL. They had concerns about ASEAN’s image and international standing, particularly because of the international attention to human rights crises in Myanmar (which heightened after the regime’s crackdown on demonstrators in September 2007). Indonesia’s position stood out in that it was influenced not only by its perceptions of ERL but by perceptions of a link between DPL and IRL. Its norm entrepreneurial role in regard to both democratic and human rights references in the Charter was influenced by its desire to advance ‘Indonesian values’ of human rights and democratic principles. Again, Laos, Myanmar and Vietnam and (to an extent) Cambodia were more resistant of the advancement of human rights norms; they expressed concerns about the mandate and role of the AHRB, and (successfully) pushed to delay the formulation of the Terms of Reference (TOR) for the AHRB until after the signing of the Charter. With assurances that decision-making by consensus would be reaffirmed, and that the AHRB would not be a ‘finger-pointing body’, they agreed to the inclusion of a provision in the Charter to establish the AHRB. The arguments about ASEAN’s international reputation and credibility made by officials from Indonesia, Thailand, the Philippines and the then-ASEAN Secretary-General, Ong Keng Yong, shaped the context in which the CLMV states agreed to the text of the Charter. Perceptions of ERL were thus important in determining the form of the final text. The positions of Singapore and Brunei on the AHRB were more moderate; they occupied the ‘middle ground’. Singapore was essentially supportive of the AHRB provision, and played a role in liaising between the ‘camps’ of member states that disagreed on whether to include the AHRB. Singapore was particularly keen that the Charter would be signed during its 246 chairmanship; this may have been more to do with its own international standing than with perceptions of ERL, but it underscores the importance of perceptions of legitimacy generally. It should be noted that perceptions of ERL were also linked more broadly to concerns about ASEAN’s role in the region. In October 2007, one month before the Charter was adopted, Singapore’s Ambassador-At-Large and Co-Chair of the HLTF Tommy Koh lamented that ‘ASEAN suffers from a serious perception problem and, as the saying goes, perception is sometimes more important than reality’. More specifically, ‘…policy makers in Washington and Brussels do not take it seriously and continue to disrespect the institution’. Koh argues that ASEAN has played a ‘vital role’ in the ‘evolving regional architecture’ of the post-Cold War environment, driving the creation of APT and the East Asia Summit (EAS) for both economic and strategic reasons. Despite this, ‘I suspect there is very little understanding in Washington and Brussels of this critical role. I also suspect that some people in those capitals continue to view ASEAN as a pawn rather than as a player’ (Koh, 2007: 26). As such, the Charter was designed to project the image of ASEAN as the centre of regional architecture, and thus to enhance perceptions of ERL. With the creation of the Charter, ASEAN was ‘reinventing itself into a more rational, coherent, and dynamic organization’ (Koh, 2007: 27). Upon its adoption in November 2007, Ong asserted in a press release that the Charter would ‘reinforce the perception of ASEAN as a serious regional player in the future of the Asia Pacific region’ (quoted in ASEAN, 2007b). Thus, the very creation of the Charter, as a representation of a ‘legal and institutional framework’ for ASEAN, was motivated in part by the desire to enhance 247 ASEAN’s international standing, and its self-image as a ‘driving force’ in the Asia-Pacific region. The importance of domestic context This study demonstrates the importance of the domestic context in the discussions about, and drafting of, agreed-upon text in a regional context. Literature on ASEAN tends to overlook the diversity of member states’ positions, and the effect of domestic political considerations on the position of member states vis-à-vis official regional text. Instead it focuses more on the dynamics of regional dialogue (such as the ASEAN Way) in explaining empirical developments. As Dosch (2008a) notes, ‘domestic politics are often completely neglected as a field of possibly causal variables’ in explanatory studies of Southeast Asia (70). However, as this study shows, domestic context is important in shaping the perspectives and decisions of member states. It proposes an analytical framework for exploring how domestic factors matter. The concepts of DPL, IRL and ERL allow us to explore how perceptions of legitimacy at different ‘levels’ shape the emergence and evolution of regional norms. More specifically, they allow us to explore the nuances of member states’ varied positions on certain aspects of official regional text. Some scholars regard the domestic context as less important than the ‘global’ context in explaining the emergence and evolution of ASEAN norms (as discussed in Chapter 6). Katsumata (2011, 2009, 2007) and Jetschke & Rüland (2009) argue that ASEAN states are 248 ‘mimetically adopting’ or ‘emulating’ the ‘global’ norms of democracy and human rights. Moreover, they note the influence of the adoption by other ROs of these global norms. For example, Katsumata (2007) argues that In today’s globalised society, human rights and democracy constitute elements of international legitimacy. These principles have become global norms, which have been practiced by prominent international institutions such as the OSCE, the EU and the UN. Taking into consideration the implications of these global norms for ASEAN’s international standing, it is understandable that its members have repeatedly expressed their readiness to address these norms (2). From his point of view, the norms of democracy and human rights advocated by other ROs create pressure on ASEAN to change in order to gain international legitimacy and standing in the international community. Elsewhere, Katsumata (2009) argues that the ASEAN members ‘have been emulating the Western industrialized democracies and setting out liberal reform plans, with the intention of securing ASEAN’s identity as a legitimate institution in the community of modern states’. He refers to this as ‘mimetic adoption’ of external or global norms (625). While I agree that perceptions of ERL influenced the inclusion of references to human rights and the AHRB in the ASEAN Charter, I do not see them as more important than domestic or intra- regional factors. Domestic context is very important. As Jawhar Hassan argued, ‘the most important factor’ in regard to ASEAN’s attention to democracy and human rights is that ‘Indonesia, Thailand and the Philippines became democratic’. Moreover, while the creation of 249 the AHRB was partly ‘responding to external pressure, especially regarding Myanmar…the impetus was more internally driven – by Indonesia, Philippines, Thailand’ (interview, 2009). However, while democratization has certainly been important in ASEAN, assuming that it necessarily precipitates the promotion of ‘democratic values’ by a RO leads to an incomplete explanation. The inclusion of references to democracy in the ASEAN Charter cannot be entirely explained by the diffusion of democratic values from the domestic to the regional levels. Thus, Dosch’s (2008a) argument that democratic transitions in Indonesia, the Philippines and Thailand were the crucial drivers of the references to democracy in the ASEAN Charter is too straightforward. A more nuanced explanation is that some state elites see ASEAN’s promotion of such norms as conducive to DPL; they perceive a link between DPL and IRL. In contrast, state elites in non-democratic states are more likely to see ASEAN’s promotion of such norms as detrimental to DPL. Another approach, which takes into account both ‘global’ and ‘local’ norms, is Acharya’s (2004) argument about ‘norm localization’ (mentioned in Chapter 2). Acharya explores the ‘localization’ of foreign ideas: their construction by local actors such that they develop in congruence with local practices. The question arises as to whether the references to democracy in official ASEAN statements reflect the construction of so-called ‘global’ norms of democracy, in the ASEAN context. As Acharya points out, The “ASEAN Way” is regarded as a unique set of norms and practices shaping regional cooperation in Southeast Asia. Such actors are unlikely to adopt a foreign norm wholesale and are likely to have developed a habit of localizing foreign ideas (249). 250 One could argue that ‘foreign norms’ have been ‘localized’ in the formation of the Charter. For example, as discussed in Chapter 6, the HLTF members were careful to emphasize that human rights should be ‘defined in an ASEAN context’. However, this study suggests that normative statements can be made without debate taking place in regard to the meaning or content of norm; as such, it is difficult to gauge the influence of ‘foreign norms’. Moreover, the environment of normative contestation makes it difficult to identify ‘localization’. Implications for the future of ASEAN norms What are the implications of the text of the Charter for ASEAN norms, i.e. normative standards? The references to democracy and human rights in the Charter may be regarded as ‘aspirational’. They do not have a timeframe but may be instead perceived as long-term goals, and represent member states’ intentions to ‘advance’ democracy and human rights norms. For example, in regard to democracy norms, Surin Pitsuwan (at the time of writing, the current ASEAN Secretary-General) 191 argued in 2008 that Different members of ASEAN are going through different processes and rhythms of democratization. Some that used to be leading are now relapsing. Some that used to be behind in the process are now stepping forward. But on the whole, the fact that the charter has enshrined these democratic principles and characteristics as an aspiration for ASEAN as a community is something that will serve as a benchmark for all of us (quoted in The Jakarta Post, 2008b). 191 Surin succeeded Ong Keng Yong as ASEAN Secretary-General on 1 January 2008. 251 From this perspective, the Charter is, as Tay (2008) notes, as ‘a step forward…not an end in itself, but just a useful beginning.’192 In a more moderate assessment, Thitinan Pongsudhirak asserts that the Charter ‘is not the giant step forward that ASEAN would like the rest of the world to believe’ (quoted in Arnold, 2007). He does regard the Charter, ‘even in its diluted form from the original draft, [as] sound and ambitious’. However, he also argues that there is an inherent contradiction in retaining the non- interference norm ‘while calling for human rights and fundamental freedoms’, and argues that the Charter will be ‘farcical unless [the] democratisation gaps are increasingly bridged’ (Thitinan Pongsudhirak, 2009). Thus, he effectively acknowledges the context of competing ASEAN norms. From this perspective, democracy and human rights norms (as normative standards) may strengthen, but this cannot be assumed. Termsak Chalermpalanupap (2008a) of the ASEAN Secretariat – a champion of the Charter – acknowledges that it is ‘imperfect’, but argues that ‘it is certainly good enough to be given a chance’ (8). Thus, some observers acknowledge that the Charter has limitations, without dismissing it as insignificant. A more cynical interpretation is that the depiction of democracy and human rights references as aspirational is designed to ‘put a positive spin’ on the diluted or ‘watered down’ Charter text. This suggests that normative statements will not necessarily translate to normative standards of democracy and human rights. Jones & Smith (2007) are particularly skeptical, arguing that ASEAN tends to make ‘process not progress’; its only ‘limited’ goal is ‘maintaining regional 192 Note that the Charter does include provisions for amendment and review (Articles 48 & 50). 252 order’ (148-9). They regard the processes and procedures of ASEAN, and the appearance of unity, as more important to member states than the achievement of substantive goals. Elsewhere, Jones (2008) laments the ‘doctrine of normative convergence’ as a widespread problem in ASEAN scholarship (739). According to Jones (2008), this doctrine ‘assumes that illiberal states are unsustainable and must either transform themselves or be transformed by internal or external forces’. He is concerned that the ‘normative predilection to substitute what ought to be for what is in world politics’ (739) leads analysts to assume that the ASEAN Charter will precipitate political transformation among member states, when this transformation is actually ‘not feasible without dissolving the original basis of the association and fragmenting rather than unifying the region’ (738). This is somewhat misguided; the process of formulating the Charter yields a normative convergence around procedural norms (particularly consensus) which operate against fragmentation. Analysts of ASEAN should remain cognizant of the risks of teleological perspectives. However, it is possible that the Charter will be regarded retrospectively as representing some genesis of change within ASEAN. Different visions of ASEAN among officials, observers and analysts are reflected in the varied expectations of the Charter, and what it can or should ‘achieve’. While the reaffirmation of procedural norms and the pragmatism that underscores the incremental pace of change in ASEAN suggest that observers should not expect a ‘normative transformation’ in ASEAN, we cannot dismiss the possibility of institutional or normative change. For example, particular security and humanitarian challenges discussed in the dissertation (such as the human rights crises in Myanmar) provoke both instrumental and normative motivations to at least ‘open 253 space’ for debate about the possibility of a new ‘Way’ for ASEAN. As Helen Nesadurai notes, ‘the Charter is a sort of compromise document, but it does open up space’ (interview, 2008). The processes of ratification of the Charter by the ASEAN member states demonstrated the political diversity of those states, and their varying positions in the regional institutional context. For example, as discussed in Chapter 4, there was lengthy debate in the Indonesian parliament about whether to ratify the Charter (Budianto, 2008). Then-Philippines President Gloria Macapagal-Arroyo initially asserted that the Philippines would not ratify until Myanmar released Aung San Suu Kyi (although it did later ratify, even though Suu Kyi remained under house arrest) (Dodd, 2007). In contrast, Singaporean officials – as they were particularly keen that the Charter would be signed during Singapore’s time as Chair of ASEAN – wanted the Charter to be ratified by all states, and thus come into force, on a timely basis. As Emmerson (2008a) notes, Singapore was the first ASEAN state to ratify (in January 2008). Singapore’s parliament was not consulted; ‘its prime minister simply declared his government’s endorsement’ (35). (However, ratification was not so simple in other states, namely Indonesia, the Philippines and Thailand). In fact, Raymond Lim, Singapore’s Second Minister for Foreign Affairs, suggested in January 2008 (only two months after the Charter had been signed) that ASEAN consider an ‘ASEAN Minus X’ approach for ratification, such that the Charter could come into force before all members had ratified it. This is curious given the importance of consensus during the Charter process itself. Lim was concerned that the events in Myanmar might delay ratification by some members – and, at least in regard to the Philippines, he was correct. He stated that ‘We should not and will not let the Myanmar issue slow down the integration of our region’, and that 254 ASEAN should consider using the ‘ASEAN Minus X’ principle ‘should some countries be unable to ratify the Charter in time, so that the rest of us are not held back’ (quoted in Yong, 2008). It is unclear whether this suggestion was seriously considered by ASEAN; in any case, of course, the Charter was fully ratified and came into force in December 2008. Thus, the ratification process also demonstrated, again, members’ different interpretations of ASEAN norms. Despite this, they ultimately ratified the Charter, a set of statements of norms to which they had agreed by consensus. The role of Secretariat officials In any study, there may be other factors, or ‘omitted variables’ (King, Keohane & Verba, 1994: 168-82), which shape the outcome under consideration. In this study, the role and influence of ASEAN Secretariat officials in the Charter process were not examined in detail, because the locus of decision-making in ASEAN is traditionally with the member states. However, it is pertinent to further explore the Secretariat officials’ positions and perspectives, in part because they played a mediating role at times in the drafting process, attempting to facilitate consensus decision-making. Moreover, the Secretariat influences the interplay of norms – and in the Charter process, the reinforcement of the consensus norm. The officials directly involved in the Charter drafting process (particularly Ong Keng Yong, the then-Secretary General and Termsak Chalermpalanupap, the Secretariat’s Research Director and Special Assistant to the Secretary-General) sought to facilitate a smooth and timely drafting process. Ong notes that the Secretariat had to issue ‘frequent reminders on keeping to the agreed 255 language from previous agreements, declarations and treaties instead of “reinventing the wheel” for each formulation in the Charter’. These reminders ‘enabled the HLTF to compromise and proceed, after the interested members had made their respective grandstanding statements’ (Ong, 2009: 114). Moreover, Ong reports that he had to consult with each sectoral body, and ‘get them to give [the Charter] a chance’. In fact, he ‘had to personally lobby them’. He presented the Charter to each sectoral body (such as the Defence Ministers and the Finance Ministers) as ‘agency-neutral’, because ‘we had to be careful not to give the impression that the Foreign Ministers would be predominant’ (interview, 2008).193 Thus, the Secretariat officials had an influence in the process of forming normative statements. They attempted to balance different interests and obtain a resolution. Ong was certainly keen for all states to sign the Charter at the Thirteenth Summit in Singapore. In October 2007, he expressed concern about the potential delays in signing the Charter given that Thailand’s then- new Constitution required its Parliament to ratify any new regional agreement before the Thai head of state could sign it. He also acknowledged the question of whether Myanmar would attend the Summit, following the ASEAN foreign ministers’ statement about their ‘revulsion’ in response to the junta’s crackdown on protesters. Ong told The Straits Times that We don’t want to delay the signing. If we delay the signing, I am afraid the momentum for the charter will be lost…We are determined to keep our schedule. At the moment all the ASEAN countries know that the summit is on, we expect everyone to turn up and we expect the signing to take place (quoted in Rekhi, 2007). 193 Interestingly, Ong notes that ‘the Finance Ministers were the most difficult, because they see themselves as ‘first among equals’ – they oversee the treasuries which finance the other sectors’ (interview, 2008). 256 It is possible that Ong’s perspective was influenced by his background in Singapore’s Ministry of Foreign Affairs (MFA). Before becoming Secretary-General of ASEAN in 2003, he was a diplomat (with stints as Spokesman for the MFA and High Commissioner to India) and also an aide to then-Prime Minister Goh Chok Tong. 194 ASEAN Secretaries-General are, of course, representatives of the Secretariat rather than their own states, but their perspectives are inevitably influenced by their backgrounds, which are usually diplomatic. 195 Ong worked to overcome differences between member state representatives – particularly in regard to the AHRB, as discussed in Chapter 5 – in order to achieve a completed draft for signature by the scheduled deadline of November 2007. Thus, he effectively reaffirmed the procedural norm of decision-making by consensus, and the ASEAN Way of presenting a ‘united front’. Ong downplays the divisiveness within the HLTF, arguing that that the inclusion of Article 14 was not as contentious an issue among the HLTF delegates as has been portrayed. Rather, he argues, the media was to blame for causing ‘frequent distractions in the work of the HLTF’ (Ong, 2009: 112). In fact, the media’s overplay on the human rights issue, and the consequent public discourse generated in some capital cities of ASEAN member states on how this matter should be addressed in the Charter, threatened to unravel the delicate balance by the HLTF to seal an early consensus on the draft Charter (114-5). 194 After Ong’s term as Secretary-General ended, he rejoined the MFA as an Ambassador-At-Large for ASEAN Affairs, and at the time of writing is Singapore’s High Commissioner to Malaysia (as of July 2011). 195 The Secretary-General at the time of writing, Surin Pitsuwan, is an exception, as the first Secretary-General with a significant political background; he is a former Foreign Minister of Thailand (1997-2001) and was first elected to Parliament in 1986. 257 Secretariat officials would not wish to portray the HLTF proceedings as overly divisive, in the interests of promoting the ‘ASEAN Way’ of consensus and unity among members. (This contrasts with accounts from other HLTF participants, such as Tommy Koh (2009), Kim Kao Hourn (2009) and Aung Bwa (2009), who refer to significant divisions within the HLTF in regard to the AHRB, but do not depict the media as part of the cause.) In the year the Charter was drafted, Termsak emphasized the gradualism of ASEAN – the procedural norm of ‘moving at a pace comfortable to all’ (Termsak, 2007b: 5). Thus, Secretariat officials prioritized the preservation or reinforcement of ASEAN’s procedural norms, rather than seeking to advance particular constitutive norms. Further examination of the role of the Secretariat in the evolution of ASEAN norms may contribute to the growing research on regional and international bureaucracies. This literature explores how such bureaucracies work, whether and how they assert influence, and under what conditions they may become dysfunctional. Scholars have tended to focus on UN bodies, 196 but there is growing attention to regional bureaucracies. In the case of ASEAN, the limited research tends to focus on the Secretariat’s constrained funding (e.g. Bower, 2010), and the question of influence is therefore assumed to be moot. However, the case study of the Charter demonstrates that Secretariat officials can indeed play a role in shaping regional norms. 196 For example, Barnett and Finnemore (2001) explore these issues in regard to the UN High Commissioner for Refugees and the UN Secretariat, as well as the IMF. Contributors to Biermann’s and Siebenhüner’s (2009) volume examine international environmental bureaucracies, including the UN Environment Programme Secretariat. Biermann and Siebenhüner seek to map out the mechanisms (such as persuasion and socialization) through which international bureaucracies exercise influence, and the types of influence they exert. 258 The ASEAN Intergovernmental Commission on Human Rights This study focuses on a period leading to the adoption of the ASEAN Charter in November 2007. As such, its scope does not include the establishment of the body for which Article 14 of the Charter provides. Thus, we briefly review it here. After the Charter was signed, a High Level Panel (HLP) was convened to draft the Terms of Reference (TOR) for a human rights body during 2008 and 2009. The ASEAN Intergovernmental Commission on Human Rights (AICHR) – not a ‘body’, in the end – was launched on October 24, 2009 (ASEAN, 2009a). The name was intended to indicate that each member states would provide a representative. The TOR (ASEAN, 2009b) do not give the AICHR the power to receive complaints or conduct investigations; rather, the Commission focuses on awareness and promotion of human rights. The HLP comprised one representative of each member state; these were sitting officials, primarily from the member states’ respective foreign affairs ministries (ASEAN, 2009b). Thus, its structure was similar to the HLTF. Moreover, analogous member state positions led to restrictions on the mandate of the AICHR. The late Hadi Soesastro claimed that the CLMV states were primarily responsible for the AICHR being given a mandate by the HLP only to ‘educate’ the public about human rights, but not to conduct investigations (interview, 2008). The HLP created a human rights body that is explicitly intergovernmental. Among the AICHR’s ‘Mandate and Functions’ (Article 4) are to ‘develop strategies for the promotion and protection of human rights’; ‘to enhance public awareness of human rights’; ‘to encourage member states to sign and ratify international human rights instruments’; to promote 259 the implementation of ASEAN human rights instruments; and ‘to consult with national, regional and international institutions and entities concerned with the promotion and protection of human rights’ (ASEAN, 2009b: 6-7). The TOR also stated that the AICHR would ‘develop an ASEAN Human Rights Declaration’, as part of a framework for human rights cooperation through various ASEAN conventions and other instruments dealing with human rights (6). However, the TOR also reaffirms some core ASEAN norms. Article 2 asserts the AICHR’s ‘respect for ASEAN principles’ such as sovereignty, non-interference and the right of member states to be free from external interference (4). The AICHR does not, therefore, appear to pose a significant threat to the sovereignty of member states in which human rights violations may be occurring. There has been some disgruntlement about perceived lack of transparency in the AICHR’s operation. It submitted its first report to the ASEAN Foreign Ministers in July 2011, but this was not made publicly available – a source of criticism by groups such as the Bangkok-based rights group Forum-Asia, and the Working Group for an ASEAN Human Rights Mechanism (Ismira Lutfia, 2011). Forum-Asia has since published a long report titled ‘A Commission Shrouded in Secrecy’ which expresses the group’s view that the AICHR has failed to adequately to involve civil society organisations (CSOs) in its proceedings (Forum-Asia, 2012a). The AICHR did consult with a selection of CSOs in June 2012 in regard to the ASEAN Human Rights Declaration, which was welcomed by CSO representatives. However, Forum-Asia stated in a subsequent press release that ‘the Consultation was short, late, without a draft to comment on and with civil society only partially represented and some organizations rejected’. The group also reported that in the consultation, the CSOs collectively ‘urged the AICHR to ensure that the Declaration provides at least the same level of human rights protections as that enshrined in 260 universal human rights standards’ (Forum-Asia, 2012b). Such demands, however, come into tension with the intergovernmental nature of the Commission. There are also some member state representatives who would like a more ‘meaningful’ human rights body – in particular, a more extensive mandate (as discussed in Chapter 6). However, the norms of sovereign equality and consensus provides grounds for the resistance of other states. Surin explains the arrangement thus: I think it will take some time for the member [states] to feel comfortable about sharing issues that they have discussed because AICHR is still an intergovernmental organization. Some people may have wished for an independent organization or a human rights court to conduct a review, but that’s not what this is (quoted in Ismira Lutfia, 2011). Surin notes that the AICHR is still in its formative years and is concentrating on the ‘promotion and protection’ of human rights in the region. The emphasis is, however, on ‘promotion’. Surin acknowledges that some member states wants more emphasis on human rights protections and mitigating human rights violations, but he argues that the AICHR is ‘not there yet’ (quoted in Ismira Lutfia, 2011). Skeptics may, of course, speculate that the AICHR is unlikely to get ‘there’ in the foreseeable future, given the reaffirmation of the core ASEAN norms of sovereignty and non-interference and Surin’s assertion that the Commission is ‘still an intergovernmental organization’. At the time of writing, however, it is too early to evaluate the significance of the AICHR. It certainly 261 seems, thus far, to be upholding the norm of refraining from public criticism and scrutiny of member states’ domestic political situations (i.e. the norm of non-interference). Nevertheless, one could argue that its very existence is significant, considering the history and norms of ASEAN. It is not unfathomable that the mandate and role of the AICHR could become more far- reaching in the future and have a significant impact on its member states’ human rights records. We can consider other regions in this regard. For example, Thomas (2001) examines the experience of the Soviet Union and its allies in signing the 1975 Helsinki Final Act, and asks why the Soviet Union signed the Act, given that it included human rights clauses. He finds that the Soviet delegation interpreted the Act as an ‘empty commitment’. However, over time civil society groups were able to hold the Soviet Union to account in regard to this commitment – and this, Thomas argues, ultimately contributed to the downfall of the Soviet Union. Thus, he argues, a seemingly ‘empty’ commitment to be bound by human rights norms may have later ramifications for repressive regimes. From this perspective, regional agreements and institutions ‘matter’, even where the content of a text may seem of limited significance in regard to regional norms. The ASEAN Human Rights Declaration was adopted by the ASEAN Heads of State and Government at the 21 st ASEAN Summit on November 18, 2012. It recognises several of civil and political rights; economic, social and cultural rights; the right to development; and the right to peace. The leaders state that they ‘affirm’ the rights in the Universal Declaration of Human Rights, and that ‘all human rights are universal, indivisible, interdependent and interrelated’. However, they also declare that ‘At the same time, the realisation of human rights must be 262 considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds’ (ASEAN, 2012b). This clause has been criticised by human rights groups (e.g. Amnesty International, 2012) and the UN High Commissioner for Human Rights, Navi Pillay (OHCHR, 2012a). The day after the adoption of the ASEAN Human Rights Declaration, Navi Pillay said in a press release that the international human rights mechanisms will continue to hold ASEAN member states to their international obligations…Looking ahead, it is essential that ASEAN ensures that any language inconsistent with international human rights standards does not become a part of any binding regional human rights convention’ (quoted in OHCHR, 2012a). It is difficult, at the time of writing, to envisage a ‘binding regional human rights convention’ for ASEAN in the foreseeable future. Nevertheless, Navi Pillay’s comments highlight the notions that the significance of agreed-upon text can change over time, and that a seemingly ‘empty commitment’ may have later ramifications for states. Events in Myanmar The political circumstances in Myanmar have changed since the Charter was signed, and are briefly reviewed here. In January 2008, soon after the Charter was signed, the junta’s then leader Senior General Than Shwe stated that Myanmar was still on the way to becoming a ‘discipline- flourishing democratic state’ (quoted in BBC News, 2008). A new Constitution was adopted in 2009, which ensures a continuing dominant role for the military in Myanmar politics. As 263 Pederson (2010) noted, ‘Although it formally establishes a multi-party democracy, with regular elections and associated civil and political rights, key elements of a meaningful democratic system are lacking’ (18). The military controls the National Defence and Security Council, all security-related ministries and committees, and 25 per cent of the members of the national and regional parliaments. It remains fully autonomous, and democratic rights are subject (according to the Constitution) to ‘laws enacted for national security’ and ‘the prevalence of law and order’ (cited in Pederson, 2010: 18). Elections were held on 7 November 2010, and nearly forty political parties participated. However, the elections did not result in a significant reconfiguration of power. The military junta was officially disbanded, but Myanmar’s parliament is dominated by the junta’s proxy party, the Union Solidarity and Development Party (Kyaw San Wei, 2011). Many observers at the time dismissed ‘reforms’ in Myanmar as cosmetic (Tin Maung Maung Than, 2012: 68). However, more recently progress has been made. In March 2011, Myanmar’s first nominally civilian government was inaugurated, with Thein Sein as President. In April 2012, Aung San Suu Kyi (who had been released from house arrest in November 2010) was elected into Parliament in a by-election, a significant and symbolic event which led to the lifting of several sanctions by the EU and states including the US, Canada, and Australia (Lowrey, 2012). At the time of writing, several states have established diplomatic ties with Myanmar, and prominent companies such as Coca-Cola and General Electric have expressed enthusiasm about investment opportunities (BBC, 2012). Barack Obama became the first sitting US President to visit Myanmar in November 2012, holding talks with Thein Sein and Aung San Suu Kyi (Poole, 264 2012). Some observers have criticised this visit, and the diplomatic and economic engagement of Myanmar in general, as premature. For example, David Scott Mathieson of Human Rights Watch expresses concern that ‘optimistic engagement of the US, European Union and other governments – and their business communities’ will risk ‘inadvertently emboldening further bad behaviour by extant forces within Myanmar's military-parliamentary complex’ (Mathieson, 2012). The military still dominates the political scene, albeit more indirectly than in the past; as such, Mathieson worries that perceptions that the international community is ‘embracing’ the Myanmar government may backfire. Moreover, observers are also concerned about the plight of ethnic minorities in Myanmar; in particular, the Rohingya Muslims (at the time of writing) lack Burmese citizenship and are suffering displacement within Myanmar as a result of violent clashes with Buddhists in the southwestern Rakhine state. Human rights groups and other analysts argue that Obama and other heads of state must ensure that Myanmar’s human rights record is not overlooked in the rush to ‘reward’ the regime’s reforms. Indeed, Obama reportedly raised the issue of Rohingya Muslims with Thein Sein during his visit (Poole, 2012). Thus, while the external image of Myanmar has undoubtedly improved – bolstering perceptions of ERL – such progress is gradual, and may backslide. Broader implications and future research This leads us to directions for future research. There are several possibilities for further research of ASEAN specifically, as well as for research into the evolution of norms in ROs generally. 265 First, this study will be helpful for future studies of the AICHR because it provides an analysis of its genesis. The perceptions and intentions of member states in regard to the inclusion in the Charter of the provision to establish an ASEAN human rights body may be important for future research into the role, functions and significance of the AICHR, and into human rights norms in ASEAN. In an interview in June 2009, Jusuf Wanandi lamented that ‘the ASEAN human rights body doesn’t look like it’s going to mean anything’ (interview, 2009). Future studies could test this assertion, about how the role, mandate and actions of the AICHR evolve over time. More specifically, one could examine the interpretations of human rights norms by ASEAN member states, and whether the AICHR affects these understandings. Ultimately, the question will be whether or not the AICHR ‘matters’. At the time of writing, the AICHR remains limited in mandate, but is under pressure – including from international figures such as Navi Pillay – to ‘hold meaningful consultations with people from all walks of life’, as ‘this will help to ensure that the ASEAN Human Rights Declaration will have the distinction of embedding international human rights standards in the local context’ (Navi Pillay, quoted in OHCHR, 2012b). An open letter to the ASEAN foreign ministers from Amnesty International, Human Rights Watch, the International Federation for Human Rights, the International Commission of Jurists and other bodies, expressing ‘grave concerns regarding the process of drafting the ASEAN Human Rights Declaration’, also highlights the international attention to the AICHR (Amnesty International, 2012). Future research could explore the effects of this, particularly the development of perceptions of ERL over time and how this may (or may not) shape the evolution of ASEAN norms. 266 Second, it would be useful to explore the questions of whether, and how, regional norms shape decisions and/or behaviour. This can be studied in regard to the ASEAN Charter, by exploring whether and how the adoption of the text of the Charter – which came into force in December 2008 – has shaped the decisions and/or behaviour of member states. In other words, did the adoption of normative statements by ASEAN members represent normative change (i.e. change in normative standards)? One could, for example, focus on the references to democracy (and/or the ‘Principles’ of good governance, rule of law and constitutional government: ASEAN, 2007a) in the Charter, and examine the decisions and behaviour of member states in regard to regime type and domestic political circumstances since the Charter came into force. Has this ‘statement of norms’ influenced member states’ behaviour? Have their interpretations of ‘democracy’ in an ASEAN context changed over time? Do member states refer to these norms in ASEAN dialogue, for example by using them to support particular arguments? Similar questions could be explored in regard to the human rights references in the Charter (presumably as part of the study of the AICHR, as discussed above). Relatedly, future studies could explore the interaction of evolving democracy and human rights norms in ASEAN. How are democracy and human rights norms related, and how do interpretations of one affect the other? Third, future research could explore the impact of changing domestic political regimes. For example, one could ask: how do developments such as democratic transition or, conversely, strengthening authoritarianism affect interpretations of human rights in the ASEAN context? There has not yet been much attention to these questions. Jawhar Hassan seems to put more weight on political diversity than other analysts as a primary obstacle to an effective human rights body. He said in 2009 that 267 there will be constraints on establishing a credible, effective ASEAN human rights body – i.e. with the authority to monitor, investigate human rights abuse cases. It seems impossible. It may make progress reports etcetera, but without individual countries submitting human rights cases. When we are all democracies, no problem (Jawhar Hassan, interview, 2009). Thus, he makes a clear link between human rights and democracy in ASEAN states. Thitinan Pongsudhirak (2009) also draws a direct link between democracy and human rights, pointing out what he sees as an ‘inherent contradiction’ in the Charter. From his perspective, the protection of human rights requires ‘democratisation gaps’ to be ‘bridged’. Thus, he acknowledges the link between democracy and human rights, and raises questions about the significance of the Charter and the AICHR in the future. In contrast, much other debate regarding the AHRB seems to omit or overlook the issue of whether democratic rule in ASEAN member states is necessary for an AHRB with greater ‘substance’. Thus, there is scope for interesting and important research into the relationship between regime types and human rights norms in ASEAN, and indeed other ROs. Fourth, future studies could focus on the role of civil society in the emergence and evolution of regional norms. There is some evidence that the agendas of domestic civil society groups are gaining in resonance, particularly in democratizing states. Jawhar Hassan (2008) notes that ‘significant levels of opposition and criticism among civil society groups…exist in Indonesia, Thailand and Malaysia,’ in regard to regional approaches to democracy and human rights. They have gained a greater ‘voice’, but are often frustrated by what they regarded as limitations on their involvement in the Charter process (SAPA, 2007). As mentioned, some CSOs have 268 expressed dissatisfaction about their limited involvement in the discussions regarding an ASEAN Human Rights Declaration. Future research could explore whether this situation evolves and whether CSOs gain greater traction. At present, however, ASEAN is not yet about to fully embrace what Acharya (2003) calls ‘participatory regionalism’. While ASEAN purports to be engaging with non-government groups, this is likely to be a slow process. Kavi Chongkittavorn (2008) claims that ‘citizens’ initiatives and views in more democratic ASEAN members are embraced by senior officials, but a conservative element within ASEAN has more persistence and often dilutes the final result’. Moreover, the significance and role of an ASEAN regional human rights body is in question, given that only some member states – Indonesia, Malaysia, the Philippines, Thailand – have such a body at the national level. As Jawhar Hassan asks, ‘if less than half of the member states have national bodies, what kind of regional human rights body could we have?’ (interview, 2009). Nevertheless, a ‘space’ has been opened by the Charter process to at least discuss sensitive matters more openly. Questions remain as to whether the declaratory gestures about involving civil society groups in ASEAN dialogue can be used as leverage to widen this space over time. Conclusion: contributions This study contributes to the future study of norms, particularly in a regional institutional context. It advances the body of scholarship investigating why and how norms emerge and evolve among states in a regional institutional context. For example, in situations of normative contestation in a region, what factors determine why some norms emerge and others do not? In 269 exploring this question, we must identify the relevant actors; some may act as norm entrepreneurs, while others may seek to reaffirm or reinforce existing norms and in so doing resists to the emergence of new norms. We must also examine the relevant institutional structures and the influence of domestic, regional and international institutions that shape the context in which norms emerge and evolve. For example, so-called ‘global’ and ‘local’ norms can both influence the emergence of regional norms. Processes of ‘emulation’ and ‘norm localization’ have, as discussed, been proposed in regard to ASEAN. Future research could explore these factors and processes in regard to other ROs, and thus develop our broader understanding of regional norms. Relatedly, this study raises the question of whether the adoption of normative statements by members of a RO represents normative change (i.e. change in normative standards). As discussed above, the analysis of the processes through which certain normative statements were debated, negotiated and drafted naturally points to subsequent studies of the evolution of normative standards. As discussed in Chapter 2, the literature on norms continues to grapple with how norms (i.e. normative standards) can identified, and how they emerge and evolve. The analysis of how (and under what conditions) official regional text comprising sets of normative statements precipitates the evolution of normative standards in a regional institutional context is important; it contributes a nuanced analysis to the literature on norms. This study also contributes to the emerging literature on the role of legitimacy in the emergence and evolution of regional norms. Future studies could continue to explore the role that legitimacy plays in shaping the emergence and evolution of norms. For example, which norms of a RO are 270 regarded by member states and other groups (such as non-government groups and individuals) as ‘legitimate’, and why? It is particularly interesting to ask this question in ‘thin’ institutional contexts, because perceptions and beliefs of relevant actors (such as member states in a RO) are particularly important in the relative absence of formal, explicit rules. Studying legitimacy allows us to gain a more complex understanding of, say, member states’ perceptions of the importance of the RO vis-à-vis their own domestic political circumstances, and their visions of the RO’s role in the future. Gauging perceptions of legitimacy helps us to understand which norms ‘matter’. Future research into perceptions of legitimacy in other ROs would contribute to efforts to theorize the emergence and evolution of regional norms. More broadly, considering these questions in relation to various regions would contribute to the relatively nascent scholarship engaging in comparative regional analysis, in order to explore the questions: Can the study of ROs be comparative? What does comparative regional analysis tell us about ROs, regional norms and institutions, and relations between member states in a regional institutional context? This dissertation contributes to these areas of inquiry in the following ways: first, it argues that the interplay of perceptions of legitimacy at different levels (domestic, regional, and external) affects the emergence and evolution of regional norms. It suggests that positive links between perceptions of DPL and IRL lead to support for the advancement of regional democracy norms, while negative links lead to resistance. It also suggests that perceptions of ERL are crucial in the advancement of human rights norms. Thus, this study makes the case that perceptions of legitimacy helps to explain the emergence and evolution of norms in ROs. By engaging in comparative regional analysis – exploring the role of perceptions 271 of legitimacy in other ROs – we can test this assertion more broadly, and gain a greater understanding of why regional norms emerge and evolve. 272 Bibliography Abdul Khalik (2008) ‘House divided over ASEAN Charter’, The Jakarta Post, February 6. 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Zaid Ibrahim (2007) ‘ASEAN must push Myanmar’, New Straits Times, January 14. 304 Appendix A Chronology of the ASEAN Charter January 1984 Brunei Darussalam is admitted to ASEAN. July 1993 The 26 th ASEAN Ministerial Meeting (AMM) is held in Singapore. The Foreign Ministers state in their Joint Communiqué that they ‘welcomed the international consensus achieved’ during the World Conference on Human Rights in Vienna. They ‘reaffirmed ASEAN’s commitment to and respect for human rights and fundamental freedoms as set out in the Vienna Declaration of 25 June 1993’, and stated that human rights should be ‘protected and promoted with due regard for specific cultural, social, economic and political circumstances’. Further, the Foreign Ministers ‘emphasized that the protection and promotion of human rights in the international community should take cognizance of the principles of respect for national sovereignty, territorial integrity and non-interference in the internal affairs of states’. There should be a ‘balance between the rights of the individual and those of the community’. The Foreign Ministers also agreed that ‘in support of the Vienna Declaration...ASEAN should also consider the establishment of an appropriate regional mechanism on human rights’. July 1995 Vietnam is admitted to ASEAN. July 1997 Laos and Myanmar are admitted to ASEAN. December 1997 The ASEAN Vision 2020 is signed at the Second Informal Summit in Kuala Lumpur, Malaysia. It states that ‘ASEAN shall have, by the year 2020, have established a peaceful and stable Southeast Asia’. July 1998 At the 31 st AMM in Manila (the Philippines is ASEAN Chair), the existence of the Working Group for an ASEAN Human Rights Mechanism is acknowledged by the Foreign Ministers. The Working Group submits a ‘Synopsis of a Policy Initiative for the Establishment of an ASEAN Human Rights Mechanism’ to ASEAN. The Working Group begins to meet with the Senior Officials Meeting (SOM) at the AMM each year December 1998 The Hanoi Plan of Action (HPA) is signed at the Sixth ASEAN Summit in Hanoi, Vietnam. It sets out a six-year timeframe of initiatives to implement the Vision 2020. As part of its initiatives to ‘hasten economic recovery and address the social impact of the global economic and financial crisis’, it asserts that ASEAN plans to ‘Enhance exchange of information in the field of human rights among ASEAN Countries in order to promote and protect all human rights and fundamental freedoms of all 305 peoples in accordance with the Charter of the United Nations, the Universal Declaration of Human Rights and the Vienna Declaration and Programme of Action’. April 1999 Cambodia is admitted to ASEAN. July 2000 At the 33 rd AMM in Thailand, the Working Group for an ASEAN Human Rights Mechanism submits a Draft Agreement for the Establishment of an ASEAN Human Rights Mechanism, suggesting a ‘mandate, structure, powers, and functions of a proposed ASEAN Human Rights Commission’. The Foreign Ministers noted the consultations between the ASEAN Senior Officials and the Working Group. June 2003 Indonesia presents a ‘non-paper’ in regard to the idea of a Security Community to the ASEAN SOM in Phnom Penh, Cambodia. Five key tasks are proposed: political development, norms-setting, preventing conflict, resolving conflict, and building peace after conflict. By political development, Indonesia meant that member states should ‘promote people’s participation, particularly through the conduct of general elections’; ‘implement good governance’; ‘strengthen judicial institutions and legal reforms’; and ‘promote human rights and obligations through the establishment of the ASEAN Commission on Human Rights’. October 2003 The Declaration of ASEAN Concord II, better known as the Bali Concord II, is signed by member states at the Ninth ASEAN Summit in Bali, Indonesia. It sets out ASEAN’s plans to create an ASEAN Community with three pillars: political and security cooperation, economic cooperation, and socio-cultural cooperation. These are to be known as the ASEAN Security Community, ASEAN Economic Community, and ASEAN Socio-Cultural Community. May 2004 Malaysia proposes that ASEAN create a Charter, in a concept paper entitled ‘Review of ASEAN Institutional Framework: Proposals for Change’. It argues that creating a Charter would help to pursue ASEAN’s goal of becoming a ‘Community’, by making important changes to its institutional framework. November 2004 The Vientiane Action Programme (VAP) is adopted at the Tenth ASEAN Summit in Vientiane, Laos. It replaces the HPA and introduces a new six- year timeframe (2004-2010). It sets out five ‘strategic thrusts’ including ‘political development’. It also states that the member states ‘shall work towards the development of an ASEAN Charter’. November 2004 The ASEAN Security Community Plan of Action (ASCPA) is adopted at the Tenth ASEAN Summit. It states that ASEAN member states ‘shall promote political development in support of the ASEAN Leaders’ shared 306 vision and common values to achieve peace, stability, democracy and prosperity in the region’. July 2005 At the 38 th AMM in Vientiane, the foreign ministers ‘recalled the decision by ASEAN Leaders, through the adoption of the ASC Plan of Action and the VAP, to strengthen our efforts in promoting human rights in ASEAN. We also recalled decision at the 26th AMM to consider the establishment of an appropriate mechanism on human rights. We noted the work carried out by the non-governmental Working Group for an ASEAN Human Rights Mechanism, including the meeting between the open-ended ASEAN SOM troika and the Working Group at the sideline of the 38th AMM’. December 2005 The Kuala Lumpur Declaration on the Establishment of the ASEAN Charter is signed at the Eleventh ASEAN Summit in Kuala Lumpur, Malaysia. It sets out ASEAN’s plans to adopt its first Charter, which will reaffirm ‘principles, goals and ideals’ including the ‘promotion of democracy, human rights and obligations, transparency and good governance and strengthening democratic institutions’. The Kuala Lumpur Declaration also establishes the Eminent Persons Group (EPG) ‘to examine and provide practical recommendations on the directions and nature of the ASEAN Charter’, and ‘task[s] our ministers to establish, as necessary, a High Level Task Force (HLTF) to carry out the drafting of the ASEAN Charter’. December 2005 First meeting of the EPG in Kuala Lumpur. April 2006 On the eve of Third Meeting of the EPG on the ASEAN Charter in Bali, the EPG holds consultations with civil society groups to seek their input on the ASEAN Charter. These groups include ASEAN-ISIS, the Working Group for an ASEAN Human Rights Mechanism Working Group, Solidarity for Asian People’s Advocacy, the Third World Network, the Migrant Forum in Asia, and the ASEAN Inter-Parliamentary Organization. Topics include the promotion and protection of human rights. July 2006 The EPG undertakes a trip to Brussels to study the integration experiences of the EU. January 2007 The EPG submits its report of recommendations on the Charter to ASEAN at the 12 th Summit in Cebu, Philippines. It argues that ASEAN’s ‘Fundamental Principles and Objectives’ should include the ‘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’. The EPG also reports that it had ‘discussed the 307 possibility of setting up an ASEAN Human Rights Mechanism, and noted that this worthy idea should be pursued further, especially in clarifying how such a regional mechanism can contribute to ensuring the respect for and promotion of human rights of every individual in every Member State’ (22). January 2007 The ministers sign the Cebu Declaration on the Blueprint of the ASEAN Charter at the Twelfth Summit in Cebu, Philippines. The Declaration endorses the EPG report and agrees that the HLTF should commence drafting the Charter. The HLTF has an Informal Meeting. March 2007 The HLTF tasked with drafting the Charter submits its first progress report to the Foreign Ministers at second meeting in Siem Reap, Cambodia. This report does not mention a human rights mechanism. However, in providing the requested ‘guidance’, the Foreign Ministers direct the HLTF to include a provision for a human rights commission in the draft of the Charter. HLTF Chairperson Rosario Manalo of the Philippines announces that the foreign ministers have rejected the EPG’s proposal for sanctions. June 2007 The seventh meeting of the HLTF is held in Bali, and involves a two-hour long consultation with the four heads of the National Human Rights Institutions (NHRIs) from Indonesia, Malaysia, Philippines and Thailand, and the Chairman of the Working Group for an ASEAN Human Rights Mechanism. July 2007 During the 40 th AMM in Manila, the HLTF holds its second meeting with the Foreign Ministers, submitting its second progress report, a first draft of the Charter, and a ‘request for guidance’. The HLTF reports that its delegates are divided over the human rights body. However, the Foreign Ministers reassert the decision to include such a body, and ‘reaffirmed our commitment to the protection and promotion of human rights under the Vientiane Action Programme (VAP)’. Sept 2007 At the tenth HLTF meeting in Chiang Mai, Thailand, the delegates disagree over the function of the human rights body, whether the Ministers had instructed the HLTF to draft the terms of reference (TOR), and whether the TOR should be completed before the signing of the Charter. The Philippines, Indonesia, Malaysia and Thailand want the TOR to be discussed after the Charter is signed, while the CLMV states want the TOR to be included in the Charter and for the human rights body to only have consultative status (Koh, 17). Singapore and Brunei occupy the ‘middle ground’. Following several hours of deadlock and negotiations over two days, the delegates agree to a text that states that the TOR shall be determined by the Foreign Ministers. November 2007 The ASEAN Charter is signed at the Thirteenth ASEAN Summit in Singapore. Among ASEAN’s ‘Purposes’ in Article 1 is ‘To strengthen 308 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’. Among the ‘Principles’ listed in Article 2 are ‘adherence to the rule of law, good governance, the principles of democracy and constitutional government’, and ‘respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice’. Article 14 states that ‘1. In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body; and 2. This ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting’. 309 Appendix B Members of the Eminent Persons Group on the ASEAN Charter Brunei Darussalam Pehin Dato Lim Jock Seng Minister of Foreign Affairs and Trade II Cambodia Dr Aun Porn Moniroth Advisor to the Prime Minister and Chairman of the Supreme National Economic Council of Cambodia Indonesia Mr Ali Alatas Former Minister of Foreign Affairs Lao PDR Mr Khamphan Simmalavong Former Deputy Minister of Commerce Malaysia Tun Musa Hitam Former Deputy Prime Minister Myanmar Dr Than Nyun Chairman of the Civil Service Selection and Training Board The Philippines Mr Fidel V. Ramos Former President of the Philippines Singapore Professor S. Jayakumar Deputy Prime Minister, Coordinating Minister for National Security and Minister for Law Thailand M.R. Kasemsamosorn Kasemsri Former Deputy Prime Minister and Minister of Foreign Affairs Vietnam Mr. Nguyen Manh Cam Former Deputy Prime Minister and Minister of Foreign Affairs (Source: ASEAN, 2006c) 310 Appendix C Members of the High Level Task Force on the Drafting of the ASEAN Charter Brunei Darussalam H.E. Pengiran Dato Paduka Osman Patra Permanent Secretary, ASEAN SOM leader Ministry of Foreign Affairs and Trade Cambodia H.E. Dr Kao Kim Hourn Secretary of State, ASEAN SOM leader Ministry of Foreign Affairs and International Cooperation Indonesia H.E. Dian Triansyah Djani Director-General, ASEAN-Indonesia Department of Foreign Affairs Lao PDR H.E. Bounkeut Sangsomsak Deputy Minister, ASEAN SOM leader Ministry of Foreign Affairs Malaysia H.E. Tan Sri Ahmad Fuzi Haji Abdul Razak Ambassador-At-Large Ministry of Foreign Affairs Myanmar H.E. Aung Bwa Director-General, ASEAN-Myanmar Ministry of Foreign Affairs The Philippines H.E. Rosario Manalo (Chairperson of the HLTF, Jan – Jul 2007) Special Envoy Department of Foreign Affairs Singapore H.E. Tommy Koh (Chairperson of the HLTF, Aug – Nov 2007) Ambassador-At-Large Ministry of Foreign Affairs Thailand H.E. Sihasak Phuangketkeow (Jan – Mar 2007) Deputy Permanent Secretary, ASEAN SOM leader Ministry of Foreign Affairs H.E. Pradap Pibulsonggram (Apr – Nov 2007) Deputy Permanent Secretary Ministry of Foreign Affairs 311 Vietnam H.E. Nguyen Trung Thanh Assistant Minister, ASEAN SOM leader Ministry of Foreign Affairs Resource Person H.E. Ong Keng Yong Secretary-General of ASEAN (Source: ASEAN, 2007h) 312 Appendix D Interviews Interviews were conducted mostly in official or formal settings – in most cases, in the interviewee’s own office. Some interviews were held on the sidelines of Track Two meetings such as the CSCAP or Asia-Pacific Roundtable meetings, and one was held in a coffee shop (at the interviewee’s own request). All interviewees were willing to be named in the dissertation and for interviews to be ‘on the record’ (the option was offered to remain anonymous, or to designate certain comments as ‘off the record’). Interviews were conducted during two research trips, during the periods August to December 2008 and May to June 2009. Email correspondence took place during and after these periods, sometimes to follow up on certain matters arising during the interview, or in lieu of a face-to-face interview (as the subject was unavailable). Interviewees often supplied me with copies of their own research articles or articles, and/or referred me to certain documents. The interview process faced certain limitations; it was not possible to secure interviews with several individuals. In particular, it was very difficult to obtain interviews with foreign ministry officials. In addition, a scheduled trip to Bangkok (to meet with academics, researchers and a journalist) was necessarily cancelled in November 2008 when the Bangkok airport was shut down, due to demonstrations associated with the changes of government in Thailand during 2006-08. My attempts to replace these interviews with email correspondence were unsuccessful, given the (unsurprising) preoccupation of my potential interviewees with domestic political events. Interviewees Tan Sri Mohamed Jawhar Hassan, Chairman and CEO, Institute of Strategic and International Studies (ISIS) (Malaysia), May 28, 2009 in Kuala Lumpur, Malaysia. Tan Sri Ahmad Fuzi Hj Abdul Razak, Ambassador-At-Large, Malaysian Department of Foreign Affairs and Malaysia’s representative to the High Level Task Force (HLTF) on the Drafting of the ASEAN Charter, October 7, 2008 in Kuala Lumpur, Malaysia. Tunku Datuk Nazihah Tunku Mohamed Rus, Commissioner, Human Rights Commission of Malaysia (SUHAKAM), May 28, 2009 in Kuala Lumpur, Malaysia. Ambassador Ong Keng Yong, former ASEAN Secretary-General; current Ambassador-At-Large in Singapore’s Ministry of Foreign Affairs and Director of Institute of Policy Studies, Lee Kuan Yew School of Public Policy, National University of Singapore, October 16, 2008 in Singapore. Dr Termsak Chalermpalanupap, Director and Head of Research and Special Assistant to the Secretary-General, The ASEAN Secretariat, November 10, 2008 in Jakarta, Indonesia. Mr Rodolfo Severino, former ASEAN Secretary-General, current Head of ASEAN Studies Centre, Institute of Southeast Asian Studies (ISEAS) (Singapore), September 9, 2008 in Singapore. 313 Dr Edy Prasetyono, Vice Executive Director, Institute of Defense and Security Studies (IODAS) (Indonesia) and Lecturer at University of Indonesia, November 12, 2008 in Jakarta, Indonesia. Dr Tim Huxley, Executive Director, International Institute for Strategic Studies Asia office (IISS-Asia) (Singapore), October 10, 2008 in Singapore. Dr Helen Nesadurai, Senior Lecturer, Monash University, Sunway Campus (Malaysia), October 3, 2008 in Kuala Lumpur, Malaysia. Dr Chandra Muzaffar, President, International Movement for a Just World (JUST) (Malaysia), May 29, 2009 in Petaling Jaya, Malaysia. Dr Rizal Sukma, Executive Director, Centre for Strategic and International Studies (CSIS) (Indonesia), June 3, 2009 in Kuala Lumpur, Malaysia. Dr Hadi Soesastro, Senior Fellow, CSIS, November 10, 2008, in Jakarta, Indonesia. Mr Jusuf Wanandi, Vice Chairman, Board of Trustees, CSIS, June 4, 2009 in Kuala Lumpur, Malaysia. Ms Alexandra Retno Wulan, Researcher, CSIS, November 7, 2008, in Depok, Indonesia. Ms Lina Alexandra, Researcher, CSIS, November 11, 2008 in Jakarta, Indonesia. Ms Shafiah Fifi Muhibat, Researcher, CSIS, November 11, 2008 in Jakarta, Indonesia. Dr Makmur Keliat, Department of International Relations, University of Indonesia, November 7, 2008, in Depok, Indonesia. Mr Herman Kraft, Executive Director, Institute for Strategic and Development Studies (ISDS) (the Philippines), June 3, 2009 in Kuala Lumpur, Malaysia. Dr Mely Caballero-Anthony, Associate Professor, S. Rajaratnam School of International Studies (RSIS) (Singapore), September 3, 2008 in Singapore. 314 Appendix E The ASEAN Charter CHARTER OF THE ASSOCIATION OF SOUTHEAST ASIAN NATIONS PREAMBLE WE, THE PEOPLES of the Member States of the Association of Southeast Asian Nations (ASEAN), as represented by the Heads of State or Government of Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam: NOTING with satisfaction the significant achievements and expansion of ASEAN since its establishment in Bangkok through the promulgation of The ASEAN Declaration; RECALLING the decisions to establish an ASEAN Charter in the Vientiane Action Programme, the Kuala Lumpur Declaration on the Establishment of the ASEAN Charter and the Cebu Declaration on the Blueprint of the ASEAN Charter; MINDFUL of the existence of mutual interests and interdependence among the peoples and Member States of ASEAN which are bound by geography, common objectives and shared destiny; INSPIRED by and united under One Vision, One Identity and One Caring and Sharing Community; 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; RESPECTING the fundamental importance of amity and cooperation, and the principles of sovereignty, equality, territorial integrity, non-interference, consensus and unity in diversity; ADHERING to the principles of democracy, the rule of law and good governance, respect for and promotion of human rights and fundamental freedoms; RESOLVED to ensure sustainable development for the benefit of present and future generations and to place the well-being, livelihood and welfare of the peoples at the centre of the ASEAN community building process; CONVINCED of the need to strengthen existing bonds of regional solidarity to realise an ASEAN Community that is politically cohesive, economically integrated and socially responsible in order to effectively respond to current and future challenges and opportunities; COMMITTED to intensifying community building through enhanced regional cooperation and integration, in particular by establishing an ASEAN Community comprising the ASEAN Security Community, the ASEAN Economic Community and the ASEAN Socio-Cultural Community, as provided for in the Bali Declaration of ASEAN Concord II; 315 HEREBY DECIDE to establish, through this Charter, the legal and institutional framework for ASEAN, AND TO THIS END, the Heads of State or Government of the Member States of ASEAN, assembled in Singapore on the historic occasion of the 40 th anniversary of the founding of ASEAN, have agreed to this Charter. CHAPTER 1 PURPOSES AND PRINCIPLES ARTICLE 1 PURPOSES The Purposes of ASEAN are: 1. To maintain and enhance peace, security and stability and further strengthen peace- oriented values in the region; 2. To enhance regional resilience by promoting greater political, security, economic and socio-cultural cooperation; 3. To preserve Southeast Asia as a Nuclear Weapon-Free Zone and free of all other weapons of mass destruction; 4. To ensure that the peoples and Member States of ASEAN live in peace with the world at large in a just, democratic and harmonious environment; 5. To create a single market and production base which is stable, prosperous, highly competitive and economically integrated with effective facilitation for trade and investment in which there is free flow of goods, services and investment; facilitated movement of business persons, professionals, talents and labour; and freer flow of capital; 6. To alleviate poverty and narrow the development gap within ASEAN through mutual assistance and cooperation; 7. 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; 8. To respond effectively, in accordance with the principle of comprehensive security, to all forms of threats, transnational crimes and transboundary challenges; 9. To promote sustainable development so as to ensure the protection of the region’s environment, the sustainability of its natural resources, the preservation of its cultural heritage and the high quality of life of its peoples; 10. To develop human resources through closer cooperation in education and life-long learning, and in science and technology, for the empowerment of the peoples of ASEAN and for the strengthening of the ASEAN Community; 316 11. To enhance the well-being and livelihood of the peoples of ASEAN by providing them with equitable access to opportunities for human development, social welfare and justice; 12. To strengthen cooperation in building a safe, secure and drug-free environment for the peoples of ASEAN; 13. To promote a people-oriented ASEAN in which all sectors of society are encouraged to participate in, and benefit from, the process of ASEAN integration and community building; 14. To promote an ASEAN identity through the fostering of greater awareness of the diverse culture and heritage of the region; and 15. To maintain the centrality and proactive role of ASEAN as the primary driving force in its relations and cooperation with its external partners in a regional architecture that is open, transparent and inclusive. ARTICLE 2 PRINCIPLES 1. In pursuit of the Purposes stated in Article 1, ASEAN and its Member States reaffirm and adhere to the fundamental principles contained in the declarations, agreements, conventions, concords, treaties and other instruments of ASEAN. 2. ASEAN and its Member States shall act in accordance with the following Principles; (a) respect for the independence, sovereignty, equality, territorial integrity and national identity of all ASEAN Member States; (b) shared commitment and collective responsibility in enhancing regional peace, security and prosperity; (c) renunciation of aggression and of the threat or use of force or other actions in a manner inconsistent with international law; (d) reliance on peaceful settlement of disputes; (e) non-interference in the internal affairs of ASEAN Member States; (f) respect for the right of every Member State to lead its national existence free from external interference, subversion and coercion; (g) enhanced consultations on matters seriously affecting the common interest of ASEAN; (h) adherence to the rule of law, good governance, the principles of democracy and constitutional government; (i) respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice; 317 (j) upholding the United Nations Charter and international law, including international humanitarian law, subscribed to by ASEAN Member States; (k) abstention from participation in any policy or activity, including the use of its territory, pursued by any ASEAN Member State or non-ASEAN State or any non- State actor, which threatens the sovereignty, territorial integrity or political and economic stability of ASEAN Member States; (l) respect for the different cultures, languages and religions of the peoples of ASEAN, while emphasising their common values in the spirit of unity in diversity; (m) the centrality of ASEAN in external political, economic, social and cultural relations while remaining actively engaged, outward-looking, inclusive and non- discriminatory; and (n) adherence to multilateral trade rules and ASEAN’s rules-based regimes for effective implementation of economic commitments and progressive reduction towards elimination of all barriers to regional economic integration, in a market- driven economy. CHAPTER II LEGAL PERSONALITY ARTICLE 3 LEGAL PERSONALITY OF ASEAN ASEAN, as an inter-governmental organisation, is hereby conferred legal personality. CHAPTER III MEMBERSHIP ARTICLE 4 MEMBER STATES The Member States of ASEAN are Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam. ARTICLE 5 RIGHTS AND OBLIGATIONS 1. Member States shall have equal rights and obligations under this Charter. 2. Member States shall take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of this Charter and to comply with all obligations of membership. 318 3. In the case of a serious breach of the Charter or non-compliance, the matter shall be referred to Article 20. ARTICLE 6 ADMISSION OF NEW MEMBERS 1. The procedure for application and admission to ASEAN shall be prescribed by the ASEAN Coordinating Council. 2. Admission shall be based on the following criteria: (a) location in the recognised geographical region of Southeast Asia; (b) recognition by all ASEAN Member States; (c) agreement to be bound and to abide by the Charter; and (d) ability and willingness to carry out the obligations of Membership. 3. Admission shall be decided by consensus by the ASEAM Summit, upon the recommendation of the ASEAN Coordinating Council. 4. An applicant State shall be admitted to ASEAN upon signing an Instrument of Accession to the Charter. CHAPTER IV ORGANS ARTICLE 7 ASEAN SUMMIT 1. The ASEAN Summit shall comprise the Heads of State or Government of the Member States. 2. The ASEAN Summit shall: (a) be the supreme policy-making body of ASEAN; (b) deliberate, provide policy guidance and take decisions on key issues pertaining to the realisation of the objectives of ASEAN, important matters of interest to Member States and all issues referred to it by the ASEAN Coordinating Council, the ASEAN Community Councils and ASEAN Sectoral Ministerial Bodies; (c) instruct the relevant Ministers in each of the Councils concerned to hold ad hoc inter-Ministerial meetings, and address important issues concerning ASEAN that cut across the Community Councils. Rules of procedure for such meetings shall be adopted by the ASEAN Coordinating Council; 319 (d) address emergency situations affecting ASEAN by taking appropriate actions; (e) decide on matters referred to it under Chapters VII and VIII; (f) authorise the establishment and the dissolution of Sectoral Ministerial Bodies and other ASEAN institutions; and (g) appoint the Secretary-General of ASEAN, with the rank and status of Minister, who will serve with the confidence and at the pleasure of the Heads of State or Government upon the recommendation of the ASEAN Foreign Ministers Meeting. 3. ASEAN Summit Meetings shall be: (a) held twice annually, and be hosted by the Member State holding the ASEAN Chairmanship; and (b) convened, whenever necessary, as special or ad hoc meetings to be chaired by the Member State holding the ASEAN Chairmanship, at venues to be agreed upon by ASEAN Member States. ARTICLE 8 ASEAN COORDINATING COUNCIL 1. The ASEAN Coordinating Council shall comprise the ASEAN Foreign Ministers and meet at least twice a year. 2. The ASEAN Coordinating Council shall: (a) prepare the meetings of the ASEAN Summit; (b) coordinate the implementation of agreements and decisions of the ASEAN Summit; (c) coordinate with the ASEAN Community Councils to enhance policy coherence, efficiency and cooperation among them; (d) coordinate the reports of the ASEAN Community Councils to the ASEAN Summit; (e) consider the annual report of the Secretary-General on the work of ASEAN; (f) consider the report of the Secretary-General on the functions and operations of the ASEAN Secretariat and other relevant bodies; (g) approve the appointment and termination of the Deputy Secretaries-General upon the recommendation of the Secretary-General; and (h) undertake other tasks provided for in this Charter or such other functions as may be assigned by the ASEAN Summit. 320 3. The ASEAN Coordinating Council shall be supported by the relevant senior officials. ARTICLE 9 ASEAN COMMUNITY COUNCILS 1. The ASEAN Community Councils shall comprise the ASEAN Political-Security Community Council, ASEAN Economic Community Council, and ASEAN Socio-Cultural Community Council. 2. Each ASEAN Community Council shall have under its purview the relevant ASEAN Sectoral Ministerial Bodies. 3. Each Member State shall designate its national representation for each ASEAN Community Council meeting. 4. In order to realise the objectives of the three pillars of the ASEAN Community, each ASEAN Community shall: (a) ensure the implementation of the relevant decisions of the ASEAN Summit; (b) coordinate the work of the different sectors under its purview, and on issues which cut across the other Community Councils; and (c) submit reports and recommendations to the ASEAN Summit on matters under its purview. 5. Each ASEAN Community Council shall meet at least twice a year and shall be chaired by the appropriate Minister from the Member State holding the ASEAN Chairmanship. 6. Each ASEAN Community Council shall be supported by the relevant senior officials. ARTICLE 10 ASEAN SECTORAL MINISTERIAL BODIES 1. ASEAN Sectoral Ministerial Bodies shall: (a) function in accordance with their respective established mandates; (b) implement the agreements and decisions of the ASEAN Summit under their respective purview; (c) strengthen cooperation in their respective fields in support of ASEAN integration and community building; and (d) submit reports and recommendations to their respective Community Councils. 2. Each ASEAN Sectoral Ministerial body may have under its purview the relevant senior officials and subsidiary bodies to undertake its functions as contained in Annex 1. The Annex may be updated by the Secretary-General of ASEAN upon the recommendation of 321 the Committee of Permanent Representatives without recourse to the provision on Amendments under this Charter. ARTICLE 11 SECRETARY-GENERAL OF ASEAN AND ASEAN SECRETARIAT 1. The Secretary-General of ASEAN shall 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, with due consideration to integrity, capability and professional experience, and gender equality. 2. The Secretary-General shall: (a) carry out the duties and responsibilities of this high office in accordance with the provisions of this Charter and relevant ASEAN instruments, protocols and established practices; (b) facilitate and monitor progress in the implementation of ASEAN agreements and decisions, and submit an annual report on the work of ASEAN to the ASEAN Summit; (c) participate in meetings of the ASEAN Summit, the ASEAN Community Councils, the ASEAN Coordinating Council, and ASEAN Sectoral Ministerial Bodies and other relevant ASEAN meetings; (d) present the views of ASEAN and participate in meetings with external parties in accordance with approved policy guidelines and mandate given to the Secretary- General; and (e) recommend the appointment and termination of the Deputy Secretaries-General to the ASEAN Coordinating Council for approval. 3. The Secretary-General shall also be the Chief Administrative Officer of ASEAN. 4. The Secretary-General shall be assisted by four Deputy Secretaries-General with the rank and status of Deputy Ministers. The Deputy Secretaries-General shall be accountable to the Secretary-General in carrying out their functions. 5. The four Deputy Secretaries-General shall be of different nationalities from the Secretary- General and shall come from four different ASEAN Member States. 6. The four Deputy Secretaries-General shall comprise: (a) two Deputy Secretaries-General who will serve a non-renewable term of three years, selected from among nationals of the ASEAN Member States based on alphabetical rotation, with due consideration to integrity, qualifications, competence, experience and gender equality; and 322 (b) two Deputy Secretaries-General who will serve a term of three years, which may be renewed for another three years. These two Deputy Secretaries-General shall be openly recruited based on merit. 7. The ASEAN Secretariat shall comprise the Secretary-General and such staff as may be required. 8. The Secretary-General and the staff shall: (a) uphold the highest standards of integrity, efficiency, and competence in the performance of their duties; (b) not seek or receive instructions from any government or external party outside of ASEAN; and (c) refrain from any action which might reflect on their position as ASEAN Secretariat officials responsible only to ASEAN. 9. Each ASEAN Member State undertakes to respect the exclusively ASEAN character of the responsibilities of the Secretary-General and the staff, and not to seek to influence them in the discharge of their responsibilities. ARTICLE 12 COMMITTEE OF PERMANENT REPRESENTATIVES TO ASEAN 1. Each ASEAN Member State shall appoint a Permanent Representative to ASEAN with the rank of Ambassador based in Jakarta. 2. The Permanent Representatives collectively constitute a Committee of Permanent Representatives, which shall: (a) support the work of the ASEAN Community Councils and ASEAN Sectoral Ministerial Bodies; (b) coordinate with ASEAN National Secretariats and other ASEAN Sectoral Ministerial Bodies; (c) liaise with the Secretary-General of ASEAN and the ASEAN Secretariat on all subjects relevant to its work; (d) facilitate ASEAN cooperation with external partners; and (e) perform such other functions as may be determined by the ASEAN Coordinating Council. ARTICLE 13 ASEAN NATIONAL SECRETARIATS Each ASEAN Member State shall establish an ASEAN National Secretariat which shall: 323 (a) serve as the national focal point; (b) be the repository of information on all ASEAN matters at the national level; (c) coordinate the implementation of ASEAN decisions at the national level; (d) coordinate and support the national preparations of ASEAN meetings; (e) promote ASEAN identity and awareness at the national level; and (f) contribute to ASEAN community building. ARTICLE 14 ASEAN HUMAN RIGHTS BODY 1. In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body. 2. This ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting. ARTICLE 15 ASEAN FOUNDATION 1. The ASEAN Foundation shall support the Secretary-General of ASEAN and collaborate with the relevant ASEAN bodies to support ASEAN community building by promoting greater awareness of the ASEAN identity, people-to-people interaction, and close collaboration among the business sector, civil society, academia and other stakeholders in ASEAN. 2. The ASEAN Foundation shall be accountable to the Secretary-General of ASEAN, who shall submit its report to the ASEAN Summit through the ASEAN Coordinating Council. CHAPTER V ENTITIES ASSOCIATED WITH ASEAN ARTICLE 16 ENTITIES ASSOCIATED WITH ASEAN 1. ASEAN may engage with entities which support the ASEAN Charter, in particular its purposes and principles. These associated entities are listed in Annex 2. 2. Rules of procedure and criteria for engagement shall be prescribed by the Committee of Permanent Representatives upon the recommendation of the Secretary-General of ASEAN. 3. Annex 2 may be updated by the Secretary-General of ASEAN upon the recommendation of the Committee of Permanent Representatives without recourse to the provision on Amendments under this Charter. 324 CHAPTER VI IMMUNITIES AND PRIVILEGES ARTICLE 17 IMMUNITIES AND PRIVILEGES OF ASEAN 1. ASEAN shall enjoy in the territories of the Member States such immunities and privileges as are necessary for the fulfilment of its purposes. 2. The immunities and privileges shall be laid down in separate agreements between ASEAN and the host Member State. ARTICLE 18 IMMUNITIES AND PRIVILEGES OF THE SECRETARY- GENERAL OF ASEAN AND STAFF OF THE ASEAN SECRETARIAT 1. The Secretary-General of ASEAN and staff of the ASEAN Secretariat participating in official ASEAN activities or representing ASEAN in the Member States shall enjoy such immunities and privileges as are necessary for the independent exercise of their functions. 2. The immunities and privileges under this Article shall be laid down in a separate ASEAN agreement. ARTICLE 19 IMMUNITIES AND PRIVILEGES OF THE PERMANENT REPRESENTATIVES AND OFFICIALS ON ASEAN DUTIES 1. The Permanent Representatives of the Member States to ASEAN and officials of the Member States participating in official ASEAN activities or representing ASEAN in the Member States shall enjoy such immunities and privileges as are necessary for the exercise of their functions. 2. The immunities and privileges of the Permanent Representatives and officials on ASEAN duties shall be governed by the 1961 Vienna Convention on Diplomatic Relations or in accordance with the national law of the ASEAN Member State concerned. CHAPTER VII DECISION-MAKING ARTICLE 20 CONSULTATION AND CONSENSUS 1. As a basic principle, decision-making in ASEAN shall be based on consultation and consensus. 2. Where consensus cannot be achieved, the ASEAN Summit may decide how a specific decision can be made. 325 3. Nothing in paragraphs 1 and 2 of this Article shall affect the modes of decision-making as contained in the relevant ASEAN legal instruments. 4. In the case of a serious breach of the Charter or non-compliance, the matter shall be referred to the ASEAN Summit for decision. ARTICLE 21 IMPLEMENTATION AND PROCEDURE 1. Each ASEAN Community Council shall prescribe its own rules of procedure. 2. In the implementation of economic commitments, a formula for flexible participation, including the ASEAN Minus X formula, may be applied where there is a consensus to do so. CHAPTER VIII SETTLEMENT OF DISPUTES ARTICLE 22 GENERAL PRINCIPLES 1. Member States shall endeavour to resolve peacefully all disputes in a timely manner through dialogue, consultation and negotiation. 2. ASEAN shall maintain and establish dispute settlement mechanisms in all fields of ASEAN cooperation. ARTICLE 23 GOOD OFFICES, CONCILIATION AND MEDIATION 1. Member States which are parties to a dispute may at any time agree to resort to good offices, conciliation or mediation in order to resolve the dispute within an agreed time limit. 2. Parties to the dispute may request the Chairman of ASEAN or the Secretary-General of ASEAN, acting in an ex-officio capacity, to provide good offices, conciliation or mediation. ARTICLE 24 DISPUTE SETTLEMENT MECHANISMS IN SPECIFIC INSTRUMENTS 1. Disputes relating to specific ASEAN instruments shall be settled through the mechanisms and procedures provided for in such instruments. 2. Disputes which do not concern the interpretation or application of any ASEAN instrument shall be resolved peacefully in accordance with the Treaty of Amity and Cooperation in Southeast Asia and its rules of procedure. 326 3. Where not otherwise specifically provided, disputes which concern the interpretation or application of ASEAN economic agreements shall be settled in accordance with the ASEAN Protocol on Enhanced Dispute Settlement Mechanism. ARTICLE 25 ESTABLISHMENT OF DISPUTE SETTLEMENT MECHANISMS Where not otherwise specifically provided, appropriate dispute settlement mechanisms, including arbitration, shall be established for disputes which concern the interpretation or application of this Charter and other ASEAN instruments. ARTICLE 26 UNRESOLVED DISPUTES When a dispute remains unresolved, after the application of the preceding provisions of this Chapter, this dispute shall be referred to the ASEAN Summit, for its decision. ARTICLE 27 COMPLIANCE 1. The Secretary-General of ASEAN, assisted by the ASEAN Secretariat or any other designated ASEAN body, shall monitor the compliance with the findings, recommendations or decisions resulting from an ASEAN dispute settlement mechanism, and submit a report to the ASEAN Summit. 2. Any Member State affected by non-compliance with the findings, recommendations or decisions resulting from an ASEAN dispute settlement mechanism, may refer the matter to the ASEAN Summit for a decision. ARTICLE 28 UNITED NATIONS CHARTER PROVISIONS AND OTHER RELEVANT INTERNATIONAL PROCEDURES Unless otherwise provided for in this Charter, Member States have the right of recourse to the modes of peaceful settlement contained in Article 33(1) of the Charter of the United Nations or any other international legal instruments to which the disputing Member States are parties. CHAPTER IX BUDGET AND FINANCE ARTICLE 29 GENERAL PRINCIPLES 1. ASEAN shall establish financial rules and procedures in accordance with international standards. 2. ASEAN shall observe sounds financial management policies and practices and budgetary discipline. 327 3. Financial accounts shall be subject to internal and external audits. ARTICLE 30 OPERATIONAL BUDGET AND FINANCES OF THE ASEAN SECRETARIAT 1. The ASEAN Secretariat shall be provided with the necessary financial resources to perform its functions effectively. 2. The operational budget of the ASEAN Secretariat shall be met by ASEAN Member States through equal annual contributions which shall be remitted in a timely manner. 3. The Secretary-General shall prepare the annual operational budget of the ASEAN Secretariat for approval by the ASEAN Coordinating Council upon the recommendation of the Committee of Permanent Representatives. 4. The ASEAN Secretariat shall operate in accordance with the financial rules and procedures determined by the ASEAN Coordinating Council upon the recommendation of the Committee of Permanent Representatives. CHAPTER X ADMINISTRATION AND PROCEDURE ARTICLE 31 CHAIRMAN OF ASEAN 1. The Chairmanship of ASEAN shall rotate annually, based on the alphabetical order of the English names of Member States. 2. ASEAN shall have, in a calendar year, a single Chairmanship by which the Member State assuming the Chairmanship shall chair: (a) the ASEAN Summit and related summits; (b) the ASEAN Coordinating Council; (c) the three ASEAN Community Councils; (d) where appropriate, the relevant ASEAN Sectoral Ministerial Bodies and senior officials; and (e) the Committee of Permanent Representatives. ARTICLE 32 ROLE OF THE CHAIRMAN OF ASEAN The Member State holding the Chairmanship of ASEAN shall: 328 (a) actively promote and enhance the interests and well-being of ASEAN, including efforts to build an ASEAN Community through policy initiatives, coordination, consensus and cooperation; (b) ensure the centrality of ASEAN; (c) ensure the effective and timely response to urgent issues or crisis situations affecting ASEAN, including providing its good offices and such other arrangements to immediately address these concerns; (d) represent ASEAN in strengthening and promoting closer relations with external partners; and (e) carry out such other tasks and functions as may be mandated. ARTICLE 33 DIPLOMATIC PROTOCOL AND PRACTICES ASEAN and its Member States shall adhere to existing diplomatic protocol and practices in the conduct of all activities relating to ASEAN. Any changes shall be approved by the ASEAN Coordinating Council upon the recommendation of the Committee of Permanent Representatives. ARTICLE 34 WORKING LANGUAGE OF ASEAN The working language of ASEAN shall be English. CHAPTER XI IDENTITY AND SYMBOLS ARTICLE 35 ASEAN IDENTITY ASEAN shall promote is common ASEAN identity and a sense of belonging among its peoples in order to achieve its shared destiny, goals and values. ARTICLE 36 ASEAN MOTTO The ASEAN motto shall be: “One Vision, One Identity, One Community” ARTICLE 37 ASEAN FLAG The ASEAN flag shall be as shown in Annex 3. ARTICLE 38 ASEAN EMBLEM 329 The ASEAN emblem shall be as shown in Annex 4. ASEAN 39 ASEAN DAY The eighth of August shall be observed as ASEAN Day. ARTICLE 40 ASEAN ANTHEM ASEAN shall have an anthem. CHAPTER XII EXTERNAL RELATIONS ARTICLE 41 CONDUCT OF EXTERNAL RELATIONS 1. ASEAN shall develop friendly relations and mutually beneficial dialogue, cooperation and partnerships with countries and sub-regional, regional and international organisations and institutions. 2. The external relations of ASEAN shall adhere to the purposes and principles set forth in this Charter. 3. ASEAN shall be the primary driving force in regional arrangements that it initiaties and maintain its centrality in regional cooperation and community building. 4. In the conduct of external relations of ASEAN, Member States shall, on the basis of unity and solidarity, coordinate and endeavour to develop common positions and pursue joint actions. 5. The strategy policy directions of ASEAN’s external relations shall be set by the ASEAN Summit upon the recommendation of the ASEAN Foreign Ministers Meeting. 6. The ASEAN Foreign Ministers Meeting shall ensure consistency and coherence in the conduct of ASEAN’s external relations. 7. ASEAN may conclude agreements with countries or sub-regional, regional and international organisations and institutions. The procedures for concluding such agreements shall be prescribed by the ASEAN Coordinating Council in consultation with the ASEAN Community Councils. ARTICLE 42 DIALOGUE COORDINATOR 330 1. Member States, acting as Country Coordinators, shall take turns to take overall responsibility in coordinating and promoting the interests of ASEAN in its relations with the relevant Dialogue Partners, regional and international organisations and institutions. 2. In relations with the external partners, the Country Coordinators shall, inter alia: (a) represent ASEAN and enhance relations on the basis of mutual respect and equality, in conformity with ASEAN’s principles; (b) co-chair relevant meetings between ASEAN and external partners; and (c) be supported by the relevant ASEAN Committees in Third Countries and International Organisations. ARTICLE 43 ASEAN COMMITTEES IN THIRD COUNTRIES AND INTERNATIONAL ORGANISATIONS 1. ASEAN Committees in Third Countries may be established in non-ASEAN countries comprising heads of diplomatic missions of ASEAN Member States. Similar Committees may be established relating to international organisations. Such Committees shall promote ASEAN’s interests and identity in the host countries and international organisations. 2. The ASEAN Foreign Ministers Meeting shall determine the rules of procedure of such Committees. ARTICLE 44 STATUS OF EXTERNAL PARTIES 1. 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 that may be established henceforth. 2. External parties may be invited to ASEAN meetings or cooperative activities without being conferred any formal status, in accordance with the rules of procedure. ARTICLE 45 RELATIONS WITH THE UNITED NATIONS SYSTEM AND OTHER INTERNATIONAL ORGANISATIONS AND INSTITUTIONS 1. ASEAN may seek an appropriate status with the United Nations system as well as with other sub-regional, regional, international organisations and institutions. 2. The ASEAN Coordinating Council shall decide on the participation of ASEAN in other sub-regional, international organisations and institutions. 331 ARTICLE 46 ACCREDITATION OF NON-ASEAN MEMBER STATES TO ASEAN Non-ASEAN Member States and relevant inter-governmental organisations may appoint and accredit Ambassadors to ASEAN. The ASEAN Foreign Ministers Meeting shall decide on such accreditation. CHAPTER XIII GENERAL AND FINAL PROVISIONS ARTICLE 47 SIGNATURE, RATIFICATION, DEPOSITORY AND ENTRY INTO FORCE 1. This Charter shall be signed by all ASEAN Member States. 2. This Charter shall be subject to ratification by all ASEAN Member States in accordance with their respective internal procedures. 3. Instruments of ratification shall be deposited with the Secretary-General of ASEAN who shall promptly notify all Member States of each deposit. 4. This Charter shall enter into force on the thirtieth day following the date of deposit of the tenth instrument of ratification with the Secretary-General of ASEAN. ARTICLE 48 AMENDMENTS 1. Any Member State may propose amendments to the Charter. 2. Proposed amendments to the Charter shall be submitted by the ASEAN Coordinating Council by consensus to the ASEAN Summit for its decision. 3. Amendments to the Charter agreed to by consensus by the ASEAN Summit shall be ratified by all Member States in accordance with Article 47. 4. An amendment shall enter into force on the thirtieth day following the date of deposit of the last instrument of ratification with the Secretary-General of ASEAN. ARTICLE 49 TERMS OF REFERENCE AND RULES OF PROCEDURE Unless otherwise provided for in this Charter, the ASEAN Coordinating Council shall determine the terms of reference and rules of procedure and shall ensure their consistency. ARTICLE 50 REVIEW This Charter may be reviewed five years after its entry into force or as otherwise determined by the ASEAN Summit. 332 ARTICLE 51 INTERPRETATION OF THE CHARTER 1. Upon the request of any Member State, the interpretation of the Charter shall be undertaken by the ASEAN Secretariat in accordance with the rules of procedure determined by the ASEAN Coordinating Council. 2. Any dispute arising from the interpretation of the Charter shall be settled in accordance with the relevant provisions in Chapter VIII. 3. Headings and titles used throughout the Charter shall only be for the purpose of reference. ARTICLE 52 LEGAL CONTINUITY 1. All treaties, conventions, agreements, concords, declarations, protocols and other ASEAN instruments which have been in effect before the entry into force of this Charter shall continue to be valid. 2. In case of inconsistency between the rights and obligations of ASEAN Member States under such instruments and this Charter, the Charter shall prevail. ARTICLE 53 ORIGINAL TEXT The signed original text of this Charter in English shall be deposited with the Secretary-General of ASEAN, who shall provide a certified copy to each Member State. ARTICLE 54 REGISTRATION OF THE ASEAN CHARTER This Charter shall be registered by the Secretary-General of ASEAN with the Secretariat of the United Nations, pursuant to Article 102, paragraph 1 of the Charter of the United Nations. ARTICLE 55 ASEAN ASSETS The assets and funds of the Organisation shall be vested in the name of ASEAN. Done in Singapore on the Twentieth Day of November in the Year Two Thousand and Seven, in a single original in the English language. 333 For Brunei Darussalam: HAJI HASSANAL BOLKIAH Sultan of Brunei Darussalam For the Kingdom of Cambodia: SAMDECH HUN SEN Prime Minister For the Republic of Indonesia: DR. SUSILO BAMBANG YUDHOYONO President For the Lao People’s Democratic Republic: BOUASONE BOUPHAVANH Prime Minister For Malaysia: DATO’ SERI ABDULLAH AHMAD BADAWI Prime Minister For the Union of Myanmar: 334 GENERAL THEIN SEIN Prime Minister For the Republic of the Philippines: GLORIA MACAPAGAL-ARROYO President For the Republic of Singapore: LEE HSIEN LOONG Prime Minister For the Kingdom of Thailand: GENERAL SURAYUD CHULANONT (RET.) Prime Minister For the Socialist Republic of Viet Name: NGUYEN TAN DUNG Prime Minister (Source: 2007a)"@en ; edm:hasType "Thesis/Dissertation"@en ; vivo:dateIssued "2013-11"@en ; edm:isShownAt "10.14288/1.0071990"@en ; dcterms:language "eng"@en ; ns0:degreeDiscipline "Political Science"@en ; edm:provider "Vancouver : University of British Columbia Library"@en ; dcterms:publisher "University of British Columbia"@en ; dcterms:rights "Attribution-NonCommercial-NoDerivatives 4.0 International"@en ; ns0:rightsURI "http://creativecommons.org/licenses/by-nc-nd/4.0/"@en ; ns0:scholarLevel "Graduate"@en ; dcterms:title "Institutional change in regional organizations : the emergence and evolution of ASEAN norms"@en ; dcterms:type "Text"@en ; ns0:identifierURI "http://hdl.handle.net/2429/44530"@en .