International Convention of Asia Scholars (ICAS)

At the end of the 1970s some Asian governments started denying the universality of human rights on the ground that human rights as understood in the West did not fit the Asian specific and cultural conditions. Hence, the Asian interpretation of human rights - Asian values – was launched, in opposition to the universality of human rights.

The need to sustain an Asian interpretation of human rights - Asian values - was presented and supported during the Regional Meeting for Asia of the World Conference on Human Rights and translated into the Bangkok Declaration (1993). Since then, a highly politicised debate on the contra-position between the universality of human rights and Asian values has been going on, also involving third-party States, UN human rights bodies, as well as international and domestic human rights groups.

The discourse on Asian values exhibits and exemplifies two tendencies which have defined the features of international politics during the transition to a new millennium: globalisation and fragmentation. In its historical origin and philosophical milieu as Western idea, the concept of human rights has become an international language of emancipation. One of the effects of describing human rights as a universal language is to reinforce the belief in a universal moral order. Such a moral order is often taken to be that which is articulated by the language of human rights itself. The question of diversity within the unity of the human rights discourse, however, presents many difficulties, some of which are seen to threaten the coherence of the idea of universal human rights. In this research, I argue that an understanding of human rights which is able to encompass both the fragmented and the global nature of the discourse of human rights is needed together with a model which allows for diversity and unity without reducing the moral force for emancipation that lies behind the adjective ‘universal’. Many scholars have concluded that the debate on Asian values came to an end after the financial crisis that affected some countries belonging to Asia-Pacific in 1997.¹ The sudden arrest of economic growth had in fact removed the raison d’être of Asian values.

This thesis aims at to exploring the reactions of certain Asian governments to international human rights norms and ascertain which kind of pressures have had any impact on the States’ human rights practices over the time, whether some changes can be observed on the regional level. And whether regional integration processes in Asia will improve the promotion and the protection of international human rights norms in the area, eventually fostering the creation of regional mechanism in the field of human rights.

Debates and discussions about the viability of, and necessity for, such a mechanism have been described as ‘a long and winding road’ (Mutarbhorn 1993), characterised by regional meetings and deliberations over a sustained period of time.

The strongest international call for the establishment of regional mechanisms² came in June 1993 at the United Nations World Conference on Human Rights. The Vienna Declaration and Programme of Action, drafted during the Conference, called for the establishment of ‘regional and subregional arrangements for the promotion and protection of human rights where they do not already exist’.³ More precisely, Article 1(37) of the Vienna Declaration and Programme of Action states: ‘Regional arrangements play a fundamental role in promoting and protecting human rights. They should reinforce universal human rights standards, as contained in international human rights instruments, and their protection. The World Conference on Human Rights endorses efforts under way to strengthen these arrangements and to increase their effectiveness, while at the same time stressing the importance of cooperation with the United Nations human rights activities. [...]’.

Within the framework of the international system, ‘the importance of a regional mechanism lies in the fact that it is designed to articulate a common approach to a complex problem, an approach that will assist States, from a position of shared regional values, to address shortcomings in their national frameworks so as to allow individuals the means to enjoy their rights in full, and to obtain effective redress when those rights are denied’ (Arbour 2005). Moreover, a State ‘is more likely to give greater powers to a regional organisation of restricted membership, of which the other members are its friends and neighbours, than to a world-wide organ in which it (and its allies) play a proportionally smaller part’ (Weston, Luke and Hnatt 1987: 590).

For the creation of a regional human rights mechanism, therefore, the fundamental assumptions are the existence of a group of States, which are already linked by agreed cooperation, membership and shared regional values while participating in the international system.

Asian values discourse created an Asian ideological regionalism with its attempts to create a specific identity, designed to resist globalising processes, from its point of view embodied especially by the the human rights agenda. The interesting thing here is to see whether the Asian ideological regionalism has been reflected in a regional integrational mechanism. Hence, the thesis will first define the geographical area where the debate on Asian values vs. human rights has been conducted the most, making reference to the States that have contributed to the definition of the concept of Asian values. This will lead to the definition of ‘South-East Asia as a region’, which corresponds to the ASEAN,⁴ from a regional integration point of view. ASEAN will constitute the geographical scope and the political realm of this research, in particular to find out the extent to which it has contributed to the Asian values debate, providing member States with a common ground for a regional human rights agenda.

Here, regionalism is considered as a ‘fragment’ of globalisation: not only as an economic phenomenon, but also as a multidimensional and political process, able to strengthen interdependences across States, at the same time and weakening State prerogatives. ASEAN is the most successful example of regionalism in Southeast Asia, which has been based on two shared convictions: the common socio-political core values of States and the principle that cooperation has to benefit all members in a mutual and equal manner.

What is a crucial issue for the research purposes is to analyse the socialisation States within the framework of ASEAN to international human rights norms and its possible influence on member States. For doing so, this thesis will test the five-phase spiral model elaborated by Risse, Ropp and Sikkink (1999).

The spiral model seeks to explain the phases a State may progress through as it brings about domestic human rights improvements in response to pressures from a transnational human rights or advocacy networks. Each phase of the spiral model highlights how a network of domestic and international human rights civil society organisations, UN bodies and States promoting international human rights norms may be able to influence a target State’s identity, interests and behaviours through particular socialisation processes. A State’s identity is how it defines itself compared with other States, and this definition consequently provides ‘guidance for how [the State] should behave in a given context’ (Thomas 2001: 13). In other terms, the socialisation processes a target State may experience are explanations of how actors ‘understand, process, interpret and act upon lessons that are taught by particular agents’ (Johnston 2001: 492). The domestic and international actors promoting international human rights norms are described by Risse et al. as a transnational human rights network. Such a network is issue-specific and comprised of a diverse range of actors that share common values and a common identity, share resources and exchange information. The range of actors may include non-state entities such as domestic and international civil society organisations, religious groups, private institutions and UN bodies, as well as State actors and their government agencies. The network’s actors are primarily motivated by their shared values rather than by material interests. A transnational network carries out its activities at the international and domestic level (Risse and Sikkink 1999; Burgeman 1998; Keck and Sikkink 1998). The human rights spiral model does not assume evolutionary progress toward norm implementation but explains the variation in socialisation of the target institution to international human rights norms.

In this research, the spiral model will be upgraded to a group of States – ASEAN - in order to observe their common reaction to internal and external pressures in matter of human rights. The spiral model adopts a constructivist approach and thus assumes intersubjective ideas as well as material factors have a significant influence on human interaction. Constructivists are concerned with the social construction of such intersubjective ideas or structures. In International Relations, this includes a focus on the social construction of a State’s identities and interests and their mutually constitutive relationship with international norms, those ‘collective understandings that make behavioural claims on actors’ (Checkel 1998: 327). Consistent with this, the spiral model examines the constitutive relationship between international human rights norms and identities and interests of the target group of States.

Transnational human rights networks are fundamental actors which are assumed to have been able to influence the identity, interests and practices of ASEAN in matter of human rights and to some extent contributed to the creation of a regional human rights mechanism.

Many scholars have contributed to definition of civil society in Southeast Asian (Alagappa, 2004; Coronel-Ferrer 1997; Yamamoto 1995; Serrano 1994). In this thesis, the term ‘civil society organisations’ will include non-governmental organisations, universities, think tanks, research centres. The analysis of the role of civil society in ASEAN can be placed in the broader scholarly context, which supports the ability of civil society to bring political and social transformation in different geographical contexts (Alagappa, 2004). Therefore, transnational human rights networks operating in Southeast Asian mainly include civil society groups organised in intra-regional advocacy networks as well as National Institutions on Human Rights; example is the Working-Group on ASEAN Human Rights Mechanism and the Asian. The participation of civil society in transnational networks has been motivated by concern of civil society organisations for those suffering from human rights abuses within ASEAN member States and civil society activities serve to promote international human rights standards in Southeast Asia. Examples of activities of the transnational human rights network at the international level include disseminating reports on human rights abuses in Southeast Asia through the international media and publications, and the lobbying of UN bodies and States. Domestic examples include the protests of local human rights activists and civil society organisations as well as the support provided to domestic actors by international actors of the transnational human rights network.

The research is divided in two parts. The first part includes Chapter 1, Chapter 2 and Chapter 3 and consists of a theoretical contribution to the discourse on human rights, the debate on Asian values, the new regionalism and ASEAN, the socialisation to international human rights norms through the spiral model. The second part of the research, including Chapter 4 and Chapter 5, is takes an applied perspective and presents the results of the adaptation of the spiral human rights model to ASEAN as well as the analysis of the recently created ASEAN Intergovernmental Commission on Human Rights.

Chapter 1 opens with a discussion of the positions presented by the proponents of a set of distinctly Asian values, represented by Malaysia, Indonesia and Singapore, with particular attention being paid to the implications of Asian values for the human rights discourse. Having allowed these voices to speak for themselves, I explore the critiques that have been levelled against the arguments and practices of the Southeast Asian State elites. The first pertains to arguments from cultures, which form the bulk of the Asian values debate. A particular stress is laid on the dichotomisation of Western and Asian culture, which along with the general use and conceptualisation of culture is demonstrably flawed. Secondly, I will discuss motions against the claim that authoritarian governmental practices are justified on the basis that economic development comes before civil and political rights is shown to be fallacious. The third line of critique is directed against attempts to use the doctrines of the international system of States in the defence of authoritarian practices. Finally, it is argued that inasmuch as they might be legitimately said to exist, Asian values are not simply to be confined to those values espoused by the ruling state elites. This is clearly exemplified in that it is the citizens of the region who condemn the authoritarian practices of the region’s government in the name of human rights. Thus, regional activists so do not necessarily identify fully with the Western human rights discourse.

Chapter 2 will then define the geographical area where the analysis of human rights practices will be done. The aim is to clarify the geopolitical meaning of Southeast Asia, identifying it with a polity: in this case, ASEAN, a regional cooperation mechanism, whose relevance is growing among Southeast Asian States.

ASEAN will be analysed in its fundamental characteristics, including institutions, practices and policies. This analysis will cover forty-year existence of the Association from its establishment on 1967 to the entry onto force of the ASEAN Charter (December 2008), emphasising the peculiarities of intra-regional relations among its member States. The regionalism of the Association of the Southeast Asian Nations can be expressed in terms of formalised regional cooperation with agreed membership but without a form of pooling and sharing of sovereignty. Asian regionalism has often been criticised to be lose. From some points of view, this might reflect the prejudice from some scholarly, based on the assumption that progress on regional organisation is defined in terms of European Union-style institutionalisation. Conversely, ASEAN proposes a regional integration model completely different from the normative institutionalism of the European Union (EU), characterised by the devolution of part of member States’ sovereignty to regional institutions (close to the creation of supranational politico-institutional order), but not for this less relevant than the EU. Though the EU remains a workshop of institutional innovation, this research will not approach ASEAN regional arrangement from the EU point of view. Notwithstanding the fact that ASEAN member States have agreed not to transfer to ASEAN any authority above the State’s one, ASEAN has played an important role in intra-state relations by defining common standards and policies amongst its member States. The principles of sovereignty, non-interference and consensus are the characteristics of ASEAN regionalism.

Chapter 3 will present each of the five phases of the human rights spiral model, including the model’s constructivist assumption that ideational as well as material factors can influence the human rights practices of target states. The spiral model predicts that a target’s identity, interests and behaviours will become increasingly influenced by international human rights norms as it progresses through the model’s phases. Instrumental adaptation, argumentative discourses, internalisation and habitualisation are the socialisation processes that underpin the influence of international human rights norms on the target polity.

This Chapter will clarify the adjustments required for the human rights spiral model to be adapted to the regional polity, at the same time providing definition on civil society organisations, with emphasis on those that have been developed in Southeast Asian and that have contributed to the human rights discourse in the region.

Chapters 4 will discuss the adaptation of the five-phase spiral model to ASEAN and explain the related results. The history of the Association from its foundation in 1967 to 2009 will be divided in five phases (1967-1989; 1990-1997; 1998-2003; 2004-2007; 2008-2009), corresponding to different degrees of socialisation of the Association to international human rights norms. Before doing this, the Chapter will analysis the human rights situation in each of the ASEAN member States. This will be useful in interpreting the positions on human rights held by ASEAN countries in the intra-regional fora. Each phase of the spiral model highlights how a network of civil society organisations promoting human rights norms may be able to influence the ASEAN identity, interests and behaviours through particular socialisation processes. The Chapter will emphasise the role of transnational human rights networks, which have advocated in favour of a more society-centred vision of community by supporting human rights as a new area of competence for the Association and counterbalancing the debate on Asian values. They are playing essential roles in providing the rationale for regionalism, finding a consensus among policy elites for moving regionalism forward, and shaping the governmental institutions that aim at making regionalism effective. The analysis will use ASEAN legal documents, action plans and political statements, media articles and civil society organisations reports, diplomatic records, authoritative sources of literature, interviews with activists and officials from governments, ASEAN and international organisations.

Chapter 5 will conclude the research with the most recent development within ASEAN institutional asset: the ASEAN Intergovernmental Commission on Human Rights. The Chapter will present an in-depth analysis of the Terms of Reference of the Commission, in order to verify whether the establishment of such Commission might be considered the result of the socialisation of ASEAN to international human rights norms and advocacy of translational human rights networks as well as whether the new Commission reproduces the rhetoric of Asian values or proposes a new approach to human rights in Southeast Asia according to the international human rights norms.

The particular approach of this research lies in the blend of philosophical, International Relations and regionalism theories, as well as of theoretical and empirical dimensions. The literature dealing with the single components of this research (Asian, values, human rights, ASEAN, norm diffusion) is rich, but the current research represents a first attempt to combine the existing theories to explain norms diffusion and behaviour changes in ASEAN in relation to Asian values and human rights.

Rejecting realist explanations of State behaviour rooted solely in responses to the distribution of power in the international system of States, and refraining from liberal explanations that consider norms to be coordinators of behaviour through their definitions of behaviour standards (Katzenstein 1996), social constructivists argue that norms can influence a States’ behaviour through their impact on that States’ identity and interests.⁵ Social constructivism does not deny the impact that material factors can have on State behaviour, but argues that ideational as well as material factors can have a major influence over human interactions. Therefore, constructivist approach considers that State identities and interests cannot be fully explained by reference to material factors alone; and therefore argues that the social construction of these identities and interests need to be explored. In particular, intersubjective ideas are considered to have strong influence over human interactions (Finnemore and Sikkink 2001). In addition, social constructivists maintain that there is a constitutive relationship between actors and intersubjective ideas, which implies that the identity and interests of a State are both influenced by as well as have an influence over the nature of these intersubjective ideas. This constitutive relationship provides restrictions on that State’s behaviour (Zehfuss 2001). The literature on the Asian values debate by reducing the issue to a dispute between defenders of human rights versus authoritarian governments does not do justice to the problems at stake. In this research, non-governmental actors will be considered as they have been part of the debate. The people’s understanding of the source and nature of human rights are dependent on the human traditions – religious, philosophical, political – which form their worldview. A political model of human rights serves to ensure justice in a way which the traditional legal-rational model cannot. The latter model, with its roots in natural law and rights, ascertained by the proper use of right reason and enshrined in positive law, is the model which underlines most contemporary thought on human rights theory. It presupposes a fixed body of normative and universal principles which enlightened individuals and societies can discern and organise around. This account is found to encounter severe difficulties with respect to its philosophical defence on its own terms and with respect to its correlation to the diversity of the world as we observe it. The alternative political model advocated does not rule out the possibility of there being what the legal-rational model is premised upon: a fixed set of universal normative principles.

In this research, I seek to contribute to the literature on norms in two ways. First, the research proposes a framework for investigating norm diffusion that stresses the agency role of transnational human rights networks and norm-takers through a dynamic congruence-building process. Second, it uses this framework to study how international human rights norms have shaped a regional institution – ASEAN - and its role in international human rights norm diffusion. Empirically, this research focuses on how international human rights norms have produced institutional change in ASEAN.

Institutions are interesting because they change the behaviour of States: they are the rules of the game that permit, prescribe, or prohibit certain actions and by doing so they inevitably raise the challenge of democratic legitimacy. The kind of regional and inter-regional institutionalization can vary of course, in terms of its depth, solidity and formalisation. Contrary to the State, international institutionalisation can work without organisation. Regional and global multilateral institutions, far beyond their instrumental functions, may strengthen and deepen States’ cooperation: they limit uncertainty and risks of defection by providing member States with information about the preferences and intentions of partners; they encourage participants to adopt strategies that overcome collective action dilemmas; institutions increase mutual trust and credibility of commitments; once established, institutional dynamics and organisations matter in fostering critical transnational public opinion, and in some cases institutions (including regional entities) become to some extent autonomous as far as their life is concerned, towards political actors in their own right.

Risse et al.’s study has attempted to meet these theoretical challenges by including a wide range of States as case studies and by structuring the spiral model in five phases, which specify the nature of the impact of international human rights norms on a State, given particular actions of the transnational human rights network. By testing the spiral model in the case of ASEAN, this research seeks to enhance the understanding of the impact of human rights norms in a regional context.

In order to assess whether the spiral model is a useful explanation of the ASEAN’s human rights practices from 1999 to 2009, the process tracing method will be used in this research. This method seeks to establish whether there is a causal relationship between an independent (transnational human rights network) and a dependent variable (ASEAN socialisation to human rights) based on a selection of cases where it appears that such a relationship is likely, and the processes through which such causality is established. To establish whether there is a causal link between the transnational human rights network’s promotion of international human rights norms and the ASEAN human rights practices, evidence on the rhetoric and behaviours of network actors and the Southeast Asian governments and ASEAN will be collected. Such evidence includes documented sources, such ASEAN legal documents, reports and political statements, media articles and civil society organisations reports, diplomatic records, authoritative sources of literature, interviews with activists and officials from government, ASEAN and international organisations, which will be organised in a dialectical and constructive way in order to seek for indications that international human rights norms have influenced ASEAN human rights practices and diplomacy.

Finally, taking into account the role of human rights norms and the significance and possibilities of constructing regional identities, this research on the one hand offers an opportunity to reassess the state of regionalism in a world currently preoccupied by the behaviour of the sole superpowers; on the other hand to show how human rights mediate between cultures and inter-state relations, by providing a vehicle for the exercise of power within inter-state relations.

1 Thailand, Malaysia, Indonesia, Republic of Korea and Taiwan.

2 The Council of Europe drafted the European Convention for the Protection of Human Rights and Fundamental Freedoms, which entered into force on 3 September 1954. The Convention protects a wide range of political and civil rights through the work of the Commission of Human Rights, the European Court of Human Rights and the Committee of Ministers. The Convention has an optional protocol to allow for individual petition that all parties have signed.

The Organization of America States (OAS) drafted the American Declaration on the Rights and Duties of Man in 1945 (revised in 1965). The Declaration was a formal statement by member States concerning human rights principles. In 1959, the OAS created the Inter-American Commission on Human Rights to investigate alleged violations in the Americas.

The Organization of African Unity (now African Union) drafted the African Charter on Human and People’s Rights in the 1980s. The Charter entered into force on 21 October 1986. Protection of human rights according to the Charter is to be carried out by the African Commission on Human Rights , which has endeavoured to promote human rights in the region.

3 Vienna Declaration and Programme of Action, UN Doc A/CONF.157/23 (1993).

4 ASEAN member States are Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, Vietnam.

5 Such social constructivists include Finnemore and Sikkink (2001), Hopf (1998), Ruggie (1998), Finnemore (1996), Katzenstein (1996), Klotz (1995).