Human Rights and the ASEAN Way
Will Shafferman Friday, 18 September 2009
Revered internationally for fostering successful regional cooperation among a diverse set of states, the Association of Southeast Asian Nations (ASEAN) is taking an unprecedented step forward as it forges the region's first intergovernmental human rights commission. In 2005 the ASEAN Secretariat asked an independent think tank, the Working Group for an ASEAN Human Rights Mechanism, to assist in the development of a system to protect human rights. In February 2009, ASEAN reached an initial agreement on the creation of the ASEAN Intergovernmental Commission on Human Rights (AICHR) to take force in October 2009. Due to ASEAN's traditional intergovernmental, non-intervention philosophy, many academics and international political experts doubt the effectiveness of such a mechanism. Related policy decisions are inevitably watered down by more unscrupulous members, making effective policy implementation systemically impossible. When compared to European Union's (EU) supranational integration, ASEAN's intergovernmental approach appears to lack cohesion. ASEAN could avoid futile policymaking by learning from the EU's example of practical institution-building.
The "ASEAN Way"
ASEAN was founded in 1961 as the Association of Southeast Asia, a tripartite agreement between the Philippines, Malaysia, and Thailand. Prompted by mutual angst toward nearby communist threats, suspicion of external authorities, and a desire for common economic prosperity, the original three joined with Indonesia and Singapore to establish what is now referred to as ASEAN. By 1997, the body had grown to its current list of ten members following the accession of Brunei Darussalam, Vietnam, Burma, Laos, and Cambodia. Since then, ASEAN has grown at an impressive rate, striking economic agreements among its members and extended economic alliance (ASEAN+3, which includes China, Japan, and South Korea), devising an internationally recognized nuclear weapons ban,[1] and contributing to the solution of the global climate challenge by enacting treaties such as the Cebu Declaration on East Asian Energy Security.[2]
Despite ASEAN's internationally recognized achievements in the economic, nuclear, and environmental spheres, its human rights body has drawn much criticism. Most of this is directed at ASEAN's self-identifying catch phrase the "ASEAN Way," a staunch non-interference and absolute state sovereignty policy. Many critics have noted that the ASEAN tends to render acutely attenuated human rights policy decisions and that it does not have the capacity to regulate the implementation of human rights agreements between member countries. Associated Press writer Jim Gomez notes, "[T]he body will have limited effectiveness unless it can impose sanctions or expel countries that violate the rights of their own citizens."[3]
Such criticism is validated by on-the-ground evidence. Aung Zaw, former expert on Burma at the International Institute for Democracy and Electoral Assistance, a think tank based in Stockholm, noted that, "The level of oppression of the opposition and people in Burma has increased, rather than abated, since its admission to ASEAN, contrary to ASEAN's wishful thinking."[4] This is not to say ASEAN is to blame for Burma's spike in human rights abuse, but rather to indicate that whatever desire ASEAN has to hold Burma in check has not evolved into effective action. As Zaw notes, "ASEAN initiatives to modify the regime's behavior have gone unheeded, revealing a major flaw in the ASEAN approach—namely, its inability to deal with an obstinate member."[5]
Other ASEAN members also have lackluster human rights records. In its annual report on Cambodia in 2007, the State Department's Bureau of Democracy, Human Rights, and Labor noted, "The government's human rights record remained poor... [t]here was little political will to address the failure by government authorities to adhere to the rule of law."[6] Indonesia and Laos continue to reveal major human rights violations; organizations like the United States Commission on International Religious Freedom have threatened to label them as Countries of Particular Concern. Vietnam is currently under increased scrutiny from the Commission for religious freedom violations.[7]
While many voices within ASEAN are pushing for an effective human rights body, countries like Burma inhibit progress and reveal the underlying inadequacies of the ASEAN Way, namely, that all members have absolute veto power. One of the Working Group for an ASEAN Human Rights Mechanism's mission points is to "ensure that international human rights laws are observed and implemented by ASEAN countries who have agreed to them."[8] If Burma disagrees with a human rights provision, it is dropped, with no questions asked. This demonstrates the complete inefficacy of ASEAN as a serious human rights protectorate. Why bother to invest time, capital, and effort if policy implementation is optional?
If ASEAN wishes to take the task of protecting human rights seriously, the current ASEAN Way must be revamped. ASEAN must see its current philosophy as problematic and take note of how other organizations—for example, the EU—have found solutions to similar roadblocks.
The European Example
Ernst B. Hass, the father of European integration,[9] prescribed a radically different approach to interstate relations for Europe. Because its intended effect was the creation of an authority higher than that of each individual state, Haas dubbed the approach "supranationalization." The European integration experience serves as a helpful model for ASEAN member states.
According to Haas, supranationalization is "the process whereby political actors in several distinct national settings are persuaded to shift their loyalties, expectations, and political activities toward a new centre, whose institutions possess or demand jurisdiction over the pre-existing national states. The end result of a process of political integration is a new political community." While the general trajectory of the EU is toward supranationalization, ASEAN is reluctant to taking such steps.
The European Commission, one of the central institutions within the EU, was created as the supreme supranational body and was endowed with substantial power. This includes the power to initiate legislation, to regulate the implementation of policy decisions, and to penalize those states that have failed to properly implement policy decisions. When it becomes necessary, the Commission may defer to the European Court of Justice, a supranational body established to, among other functions, sanction states in violation of policy. In the immediate future, ASEAN may not be in a position to establish such institutions; however, Europe's ability to overcome significant challenges regarding diversity of member-states demonstrates the strength of the supranational approach. ASEAN may not currently be able to establish a judicial body, but it should commit to moving in this direction.
Europe has become highly integrated, even on sensitive issues regarding human rights and religious freedom. However, European integration has never been a given. The EU struggled in the 1970s and 1980s—during the first enlargement stage——to create a verifiable solution to policy implementation disagreement between member states. In 1993, the EU ratified the Maastricht Treaty, an impressive device that allowed each member state to integrate policy decisions through its own legislative process. Policy became adaptable and versatile without forfeiting strong and effective agreements. The process reassured skeptical members who feared integration meant sacrificing sovereignty. ASEAN should note that the EU's desire to govern effectively was not achieved through idealism alone, but by remaining realistic about its challenges.
A New "Way" Forward
Military juntas such as the one governing Burma are not apt to recognize fundamental human rights—much less agree to protect them when there is no effective accountability structure. Yet supranationalization cannot exist in its absolute form since this would mean the dissolution of the state. Just as there is no perfect democracy, there is no absolute supranational organization. Successful integration only works when uncompromised visions meet pragmatic solutions. If ASEAN can acknowledge this, supranationalization will be perceived less as a threat and more as a vehicle to prosperous cooperation on human rights.
Some experts have noted that the EU model appears unfit for ASEAN. ASEAN, however, can learn from the EU's experience without mirroring it exactly. Ideally, ASEAN would set up two supranational bodies like the European Commission and the ECJ to hold member states legally accountable to policy decisions. Given Southeast Asia's traditional policies of non-interference and state sovereignty, it will be some time before ASEAN recognizes the benefit of independent supranational bodies. Therefore, ASEAN must combine its desire for international recognition regarding human rights with a realistic understanding of its current problems. For ASEAN, this may mean nothing less than rethinking its charter or revising its veto structure.
Though a solution could take many forms, it is imperative that ASEAN recognize that the current ASEAN Way is paralysis not progress. Its hyper-emphasis on state sovereignty inhibits strong policy creation, and its ideology of non-interference prevents its ability to regulate policy implementation. If ASEAN can learn from the European experience by striving for ideals while remaining pragmatic, an effective human rights body will emerge. If ASEAN continues to ignore other examples of success, there is little hope for an effective human rights body.
[1] The Bangkok Treaty was ratified on December 15, 1995. Available at: http://www.fas.org/nuke/control/seanwfz/text/asean.htm
[2] Cebu Declaration on East Asian Energy Security, January 15, 2007, http://www.aseansec.org/19319.htm
[3] Asean Human Rights Body Lacks Power to Punish, The Irrawaddy, February 27, 2009, http://www.irrawaddy.org/article.php?art_id=15201.
[4] Aung Zaw, "ASEAN-Burma relations," in Challenges to democratization in Burma: Perspectives on multilateral and bilateral responses, Gillian Stanbridge, ed. (Stockholm, International IDEA, 2001), 53.
[5] Ibid.
[6] U.S. Department of State. Bureau of Democracy, Human Rights & Labor, Cambodia Report, 2007, http://www.state.gov/g/drl/rls/hrrpt/2007/100516.htm.
[7] Michael Cromartie, testimony before the Tom Lantos Human Rights Commission, July 23, 2009, http://www.uscirf.gov/images/vietnamtestimony.pdf.
[8] "About Us," Working Group for an ASEAN Human Rights Mechanism, http://www.aseanhrmech.org/aboutus.html Accessed June 15, 2009.
[9] Ernst B. Hass, The Uniting of Europe (Stanford: Stanford Univ. Press, 1958), 16.