How regional organizations respond to human rights: ASEAN’s ritualism in comparative perspective

Abstract

This article builds a framework comparing how different regional organizations respond to human rights. Moving beyond Eurocentric beliefs that organizations either reject or unambiguously adopt rights, I present four categories of response: antagonism, ritualism, supportive, and embracing. I examine these categories conceptually and empirically, providing examples of how different regional organizations exemplify these categories. Next I detail how ASEAN’s approach to rights represents ritualism, combining support for human rights institutions without agreement on the moral worth of human rights. ASEAN’s ritualism is a product of the requirement to retain traditional commitments to nonintervention while responding to pressure to institutionalize human rights. Ritualism both legitimates human rights and normalizes their violation. Drawing on a comparison with the Inter-American system, I suggest three developments to ASEAN’s system that offer a plausible path for improving human rights governance in Southeast Asian regionalism without falling foul of political reality.

Notes

1 In regulatory theory, these insights have been used in a variety of ways. Ritualism has been investigated by Charlesworth (2010) in her research on human rights. In her work on taxation, Braithwaite (2009: 89) develops Merton’s ideas to capture different “motivational postures” (disengagement, resistance, capitulation, commitment) to explain responses to standards. Merton’s original work includes a fifth category: ignorance. Ignorance is distinguished from antagonism because it rests on a lack of knowledge, rather than on active opposition. Today, all regional organizations display some sort of engagement with human rights (Pevehouse 2016: 488), even if that engagement is oppositional. Reasons for this include the presumptive legitimacy that surrounds engagement with human rights. While conceptually we can envisage regional organizations with no human rights commitments, today this is not a substantive category of analysis, so it is excluded from this analysis.

2 The SCO expanded in 2017 to include democratic India (alongside Pakistan), although it remains to be seen whether the diversification of the SCO leads to any relenting of its antidemocratic credentials.

3 Varieties of Asian values-inspired arguments either rejected civil and political rights entirely, or resisted their immediate adoption in favor of more fundamental economic and development rights. Both versions failed politically in the short term. However, the debate has echoes in contemporary ASEAN and in particular the human rights declaration, which has wording that also talks about respecting national circumstances.

4 For the purposes of this article, I distinguish ritualism (underpinned by Merton’s account of responding to prevailing standards) from the anthropological and sociological academic discussions of rituals. The regulatory account of ritualism discussed here emphasizes the way in which actors position themselves against dominant cultural values while the anthropological/sociological account focuses on the role that rituals play in both expressing values and instigating some form of social solidarity (see Moore and Myerhoff 1977; Seligman, Weller, Puett, and Simon 2008; Davies 2018b and Driver 2019 on rituals).

5 Collins’s work uses the spiral model of Risse, Ropp and Sikkink (1999) to interrogate the ASEAN position. Innovatively he disconnects the reality of human rights within ASEAN countries from the activities of (some) AICHR members, finding that the more “independently minded” AICHR members seek to develop “best practice” standards to push back against both the “ASEAN way” and human rights minimalism (Collins 2019: 389). It is this disconnect between member states and the regional organization, the underlying values of a system, and the range of activities of individuals within that system that I understand as ritualism.

6 Ritualism is also a characteristic of the global governance of human rights, as explored by Charlesworth and Larking when discussing human rights at the UN (Charlesworth and Larking 2014; Larking 2017).

7 The work of drafting the charter was passed to the Arab Commission on Human Rights, which is a regional nongovernmental organization led by political elites (League of Arab States 2005).

8 The statute is at https://acihl.org/texts.htm?article_id=44&lang=ar-SA.

9 Detailed histories of the OAS human rights system are provided in Goldman (2009), Davies (2014a: chapter 5), and Engstrom (2019b). Neither the United States nor Canada has ratified the convention and they are not bound by it or the jurisdiction of the court.

10 At the time of writing, this included indigenous peoples, women, migrants, freedom of expression, children, human rights defenders, persons deprived of liberty, African-descended citizens and against racial discrimination, LGTBI persons, and economic, social, cultural, and environmental. There are plans for memory, truth, and justice, and for older persons and persons with disabilities (Organization of American States, nd-a).

11 See http://www.oas.org/en/iachr/decisions/precautionary.asp for a list of precautionary measures (Organization of American States nd-b).

12 Excellent histories are provided in Goh (2003), Ba (2009), and Katsumata, Jones, and Smith (2008). ASEAN’s commitments to sovereignty and nonintervention have always been absolute “on paper,” yet simultaneously widely violated in practice, if for no other reason than that the most quintessential of state rights is the right to intervene in others’ affairs. See Cook (2012), Jones (2010), and Emmers (2017).

13 Disciplinary international relations would refer to these people as norm entrepreneurs. See Tan (2011) and Davies (2013) on the role of the Working Group for an ASEAN Human Rights Mechanism.

14 Why were ASEAN’s more progressive states sufficiently placated to accept such a system? There are two reasons. First, the engagement with human rights was not conducted in the abstract. It was a balance regarding the value attached to ASEAN as a regional body promoting peace, security, and sovereignty, in which all members found value. The question was never “do we want human rights in ASEAN?” Instead, it was “how much do we want to jeopardize the value of ASEAN’s commitments to national sovereignty in the name of human rights?” Second, ASEAN’s more democratic members are less wedded to strong regional oversight of human rights and democracy than their European peers. Wahyuningrum (2014: 273) notes that Indonesia’s reluctance to discuss its domestic politics, particularly in relation to the Universal Periodic Review, suggests an “unwillingness to genuinely accept that its national human rights situation is a legitimate concern of the international community.”

15 The issues were diverse—the rights of the child, human trafficking, advancing regional human rights instruments, legal aid, safe drinking water/sanitation, environmental impact assessments, the right to education, business and human rights, persons with disabilities, and freedom of expression.

16 This parallels Charlesworth and Larking’s (2014: 18–19) suggestion that a regulatory approach to studying rights governance identifies ways to progress human rights “that go beyond the standard prescriptions of institutional reform or tougher enforcement mechanisms.”

17 A complete set of ideas is provided in Duxbury and Tan (2019), although they approach the issue within a legal framework and with an explicit interest in compliance. Broadly similar is Muntarbhorn (2013: chapter 5).

18 For example, the commitment to freedom of expression started life as a single short clause in the declaration, changed to a substantive and detailed paragraph in the convention, received considerable attention in the Inter-American Democratic Charter, and now has its own Declaration of Principles.

19 With a different point of emphasis, this conclusion parallels Jetschke and Theiner’s (2019) argument that ASEAN is not exceptional when compared with other regional organizations.

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Notes on contributors

Mathew Davies

Dr. Mathew Davies is Senior Lecturer and Head of the Department of International Relations at the Coral Bell School of Asia Pacific Affairs, ANU College of Asia and the Pacific, the Australian National University. He is the author of Ritual and Region: The Invention of ASEAN (Cambridge University Press 2018b) and Realising Rights (Routledge 2014).