Human Rights and Participatory Politics in Southeast Asia

Catherine Renshaw

• Publisher: University of Pennsylvania Press
• Year: 2019
• ISBN:
  9780812295764
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

In Human Rights and Participatory Politics in Southeast Asia, Catherine Renshaw recounts an extraordinary period of human rights institution-building in Southeast Asia. She begins her account in 2007, when the ten members of the Association of Southeast Asian Nations (ASEAN) signed the ASEAN charter, committing members for the first time to principles of human rights, democracy, and the rule of law. In 2009, the ASEAN Intergovernmental Commission on Human Rights was established with a mandate to uphold internationally recognized human rights standards. In 2013, the ASEAN Human Rights Declaration was adopted as a framework for human rights cooperation in the region and a mechanisim for ASEAN community building. Renshaw explains why these developments emerged when they did and assesses the impact of these institutions in the first decade of their existence.In her examination of ASEAN, Renshaw asks how human rights can be implemented in and between states that are politically diverse—Vietnam and Laos are Communist; Brunei Darussalam is an Islamic sultanate; Myanmar is in transition from a military dictatorship; the Philippines and Indonesia are established multiparty democracies; while the remaining members are less easily defined. Renshaw cautions that ASEAN is limited in its ability to shape the practices of its members because it lacks a preponderance of democratic states. However, she concludes that, in the absence of a global legalized human rights order, the most significant practical advancements in the promotion of human rights have emerged from regional institutions such as the ASEAN.

PART I

FOUNDATIONS:

LEGITIMACY OF A REGIONAL HUMAN RIGHTS REGIME IN THE ABSENCE OF LIBERAL DEMOCRACY

THE FIRST THREE chapters of this book show how the political character of a majority of ASEAN states limited the possibility that a robust regional system for the protection of human rights would emerge in Southeast Asia. The first chapter explains the relationship between democracy and human rights and why there is resistance, at the regional level, to principles of liberal democracy. The second chapter shows how ASEAN’s reservations about democracy played out in the drafting processes for the ASEAN Charter, the ASEAN Intergovernmental Commission on Human Rights, and the ASEAN Human Rights Declaration (AHRD). The third chapter pulls apart the text of the AHRD, revealing the way different conceptions of religion, politics, and culture manifested themselves in the form of the text. The chapter demonstrates how the legitimacy and potential of the region’s primary human rights instrument were weakened by the absence of democratic processes for deliberating about conflicting views on rights.

The democratic deficit in Southeast Asia is the reason why many people were deeply skeptical about ASEAN’s potential to change the human rights behavior of member states through the institutionalization of human rights. Since the fall of the Berlin Wall and the end of communism, Western states have generally assumed that “internationally recognized human rights require a liberal regime,”¹ that liberal democracy and human rights are “two sides of the same coin,”² that “human rights, equal rights and government under law are important attributes of democracy,”³ and that liberal democracy is a necessary precondition for realizing human rights.⁴ Much of the literature on both democracy and human rights—and many of the statements emanating from the United Nations—considers liberal democracy and human rights codependent.⁵

In 2002 and 2005, for example, the UN Commission on Human Rights requested that the High Commissioner for Human Rights convene an “expert seminar on democracy and the rule of law.”⁶ The first seminar noted the inseparable and interdependent character of democracy and human rights as concepts that had spread around the globe but emphasized that there was no single universal model of democracy. The second seminar stated that free, fair, and periodic multiparty elections were a key component of democracy, the rule of law, and the protection of human rights and that “elections also had an autonomous value as a means of self-realization and recognition of human dignity.”⁷

In the following chapters, we see how the absence of democracy affected the form and structure of ASEAN’s nascent human rights system. First, at the regional level, ASEAN was not a community of democratic nations that identified as liberal, rights-respecting states belonging to a community of similar nations. For this reason, more progressive states, such as Indonesia and the Philippines, possessed very limited ability to shame, encourage, or coerce ASEAN’s nondemocratic members into forging a more robust human rights system based on principles that conform to international human rights standards.⁸ Most ASEAN members cared, to an extent, about the reputational costs that would follow from establishing an ineffectual regional human rights body. But among a group of nondemocratic peers, they did not care enough to relinquish long-standing and important ASEAN norms like sovereignty and noninterference.

Second, because ASEAN did not possess a homogeneous, liberal, rule-of-law culture, the character of transnational relations between governmental elites and bureaucrats within ASEAN did not support or reinforce liberal norms. Government negotiators involved in drafting and deliberations were broadly divided into two camps. The first was the “CLMV” group (Cambodia, Laos, Myanmar, and Vietnam), whose representatives were firmly opposed to the adoption of a European-style system of human rights oversight. The second was composed of Thailand, the Philippines, and Indonesia, whose representatives pressed for a stronger human rights mechanism and whose internal political systems provided space for engagement with local stakeholders, civil society actors, and human rights activists. A third group, from Brunei and Malaysia, raised persistent concerns about conflict between fundamental human rights principles such as freedom of religion and principles of Sharia law. In sum, decisions were not based on a shared set of assumptions about the importance and value of human rights and liberal democracy. ASEAN was not a “transnational society” capable of socializing members to liberal norms. The drafting processes for the ASEAN Charter, the Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights, and the AHRD lacked transparency and inclusiveness, and the final texts reflect the interests of states, not the interests of rights-holders. The result of this is that at the outset, the legitimacy and potential of ASEAN’s nascent human rights system were severely constrained.

CHAPTER 1

Democracy and Human Rights in Southeast Asia

The 1967 Bangkok Declaration, which ASEAN’s five original members drafted and signed, makes no connection between peace, democracy, and human rights. In contrast, other regional and international instruments make the connection between these principles explicit. The Preamble to the 1945 constitution of the United Nations Educational, Scientific and Cultural Organization (UNESCO), drafted in the aftermath of World War II, states: “The great and terrible war which has now ended was a war made possible by the denial of democratic principle.”¹ The Preamble to the European Convention on Human Rights (ECHR), which came into force in 1953, affirms a “profound belief in those Fundamental Freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend.”² The Charter of the Organization of American States (1948) declares that “democracy is an indispensable condition for the stability, peace and development of the region.”³

If we adopt a very broad definition of democracy—for example, that democracy is political representation that functions with a maximum level of inclusiveness in the systems of power⁴—we can readily see how basic civil rights (for example, the rights of freedom of expression, peaceful assembly, and freedom to form and join associations) are necessary preconditions for democracy. But is democracy necessary for the realization of human rights? Three lines of argument suggest that it is.

First, a long line of liberal thinkers have argued that developed democratic states rarely if ever make war upon each other.⁵ As conditions of war inevitably lead to human rights violations, it follows that democracy is necessary to preserve peace and protect human rights.⁶

At the end of World War II, the situation in Southeast Asia was significantly different from that in the West. Departing colonial powers left behind unresolved territorial disputes, civil conflict, and communist insurgencies.⁷ But it was not clear that democracy was the remedy for these problems. At the time of ASEAN’s birth, Southeast Asia had no consolidated democracy that could take the lead in promoting a “democratic peace” at the regional level, and democratization did not begin there until some twenty years later.⁸ In these circumstances, other means for peaceful coexistence needed to be found. Noninterference and mutual respect for sovereignty emerged as Southeast Asia’s pragmatic response to the problem of creating and maintaining regional peace. The Philippines president, Ferdinand Marcos, exhorted Asians to “work together as brothers, not at cross-purposes but for each other’s prosperity and happiness.”⁹ “Working together” meant suspending suspicion and hostility, respecting the internal governance of other states, and subordinating “dogmatic theories to practical issues.”¹⁰ Respect, not political like-mindedness, became the key to peace. In the first two decades of its existence, ASEAN contributed to ending Indonesia’s period of konfrontasi and Vietnam’s invasion of Cambodia, and it defused other latent conflicts among member states.¹¹

Thus, instead of references to “democracy” as the essential ingredient of peace and prosperity, ASEAN’s founding declaration refers to the importance of economic and social cooperation in “an increasingly interdependent world.”¹² “Democracy” is not mentioned in the 1971 Zone of Peace, Freedom and Neutrality (ZOPFAN) Declaration, which notes the “right of every country to lead its national existence free from outside interference in its internal affairs as this interference will adversely affect its freedom, independence and integrity,”¹³ or in the 1976 Declaration of ASEAN Concord, which notes, “The stability of each member state and that of the ASEAN region is an essential contribution to international peace and security” and that “the elimination of poverty, hunger, disease and illiteracy is a primary concern of member states. They shall therefore intensify cooperation in economic and social development.”¹⁴ The 1976 Treaty of Amity and Cooperation underscores commitment to sovereignty and noninterference as the hallmarks of peaceful relations.¹⁵ ASEAN’s modus operandi for creating and maintaining peace was not encouraging (let alone forcing) members of the regional association to adopt democratic political systems. It was, above all else, a policy of noninterference between states, few of which could be called “democratic.”

Part of the argument underpinning the liberal peace thesis is the notion that economic interdependence among democratic nations leads to a preference against wars with fellow democracies by creating transnational ties that encourage accommodation rather than conflict. This idea has become a central tenet of liberal thinking.¹⁶

The first article of the 1967 Bangkok Declaration appears to reference this idea, when it proclaims ASEAN’s purpose to be “to accelerate the economic growth, social progress and cultural development in the region through joint endeavours in the spirit of equality and partnership in order to strengthen the foundation for a prosperous and peaceful community of South-East Asian Nations.” The 1976 Declaration of ASEAN Concord also provides that “the stability of each member state and of the ASEAN region is an essential contribution to international peace and security. Each member state resolves to eliminate threats posed by subversion to its stability, thus strengthening national and ASEAN resilience.” The ASEAN Vision 2020, the Hanoi Plan of Action (1999–2004) and succeeding Plans of Action, the Initiative for ASEAN Integration (IAI), and the Roadmap for the Integration of ASEAN (RIA), as well as ASEAN’s many other statements and declarations, all pronounce an imperative for ASEAN to deepen and broaden economic integration in order to promote regional peace and stability, security, development, and prosperity.¹⁷ For example, part of the ASEAN Vision 2020 is the creation of an “ASEAN Economic Community” in which there is a “free flow of goods, services, investment and a freer flow of capital, equitable economic development and reduced poverty and socio-economic disparities.”¹⁸ The “ASEAN Economic Community” envisions a single market and production base, created through initiatives such as the ASEAN Free Trade Area (AFTA), ASEAN Framework Agreement on Services (AFAS), and ASEAN Investment Area (AIA). Central to the idea of an “ASEAN Economic Community” is addressing the “development divide” between ASEAN’s original members and Cambodia, Laos, Myanmar, and Vietnam.

But respect for economic sovereignty and the lack of regional institutions to implement and enforce compliance with AFTA, AFAS, and AIA have proven to be major impediments to achieving an integrated market in Southeast Asia. ASEAN states remain in competition with one another for access to outside markets, and Southeast Asia continues to lack a strong regional economy to act as a foundation for regional trade. Consequently, the region’s medium- to small-sized nations continue to value trade and investment links with the outside world (recently with China, Japan, and South Korea) more than intraregional economic integration.¹⁹ Thus ASEAN’s economic interdependence has not significantly grown, despite the association’s many declarations of increasing common interests.²⁰ In 1967, the year of ASEAN’s birth, 23 percent of ...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Contents
• List of Abbreviations
• Introduction
• Part I. Foundations: Legitimacy of A Regional Human Rights Regime in the Absence of Liberal Democracy
• Part II. Applications: Assessing the Regional Dynamics of Human Rights Commitment and Compliance
• Conclusion
• Notes
• Index
• Acknowledgments