The perils of incoherence: ASEAN, Myanmar and the avoidable failures of human rights socialization?

• Author: Davies, Mathew
• Position: Report

In 2006 the ASEAN Eminent Persons Group reported that the problem with ASEAN was "not one of a lack of vision, ideas or action plans. The problem is one of ensuring compliance." (1) ASEAN's seeming inability to develop pro-compliance pressure to breathe life into the emerging regional standards it continues to develop is never more evident than in its dealings with Myanmar. Despite framing and then implementing the ASEAN Communities, the ASEAN Charter and now the ASEAN Intergovernmental Commission on Human Rights (AICHR), Myanmar has resisted calls for enhanced good governance and democracy. Recent reforms in Myanmar are attributed to internal dynamics and the desire for the new government to win the next election rather than a product of ASEAN engagement. (2) Seeking to explain this enduring failure, scholars have argued either that ASEAN is doing nothing to exert pressure on Myanmar or that its attempts to develop some leverage is doomed to failure. (3) This article takes issue with such arguments and posits that ASEAN has been very active in trying to exert pressure on Myanmar, especially considering the longstanding commitment to non-intervention that ASEAN has displayed. These efforts have not, however, manifested themselves in ways that resemble the approach to enforcement often displayed by other regional organizations, notably the European Union (EU). Instead of courts and commissions sitting in judgement over members, for the past decade ASEAN's efforts have rested on the use of language and public pronouncements aimed at making Myanmar modify its behaviour. Drawing on work which analyses compliance from a conceptual angle, it is possible to understand ASEAN's socialization efforts as resembling rhetorical action within the definition of that term provided by Thomas Risse and utilized by scholars such as Frank Schimmelfennig. (4)

Understanding ASEAN through this conceptual lens promotes new thinking about the organization's ineffectiveness to influence Myanmar. It suggests that ASEAN's adoption of an incoherent set of policies towards Myanmar, simultaneously criticizing and protecting it, has undermined its ability to promote change in Myanmar. This undermining has occurred because ASEAN has failed to critically engage with a key motive behind Myanmar's original desire for membership, namely political cover from external pressures. Further it suggests that ASEAN can correct this shortcoming and become a more effective influence on Myanmar within existing ASEAN and member state preferences to managing regional affairs. Too often it is thought that for ASEAN to become effective there must be a break with the so-called "ASEAN Way" even in its renegotiated form and a commitment to clear regional oversight and some form of court-based enforcement mechanism. This is a deeply impractical suggestion, one that emerges from an all too common interest in contrasting Southeast Asian regionalism negatively with Europe. The conceptual literature on compliance suggests that ASEAN can become a more successful socializing agent by honing its ability to use rhetorical action through a more coherent and integrated political response to Myanmar. This quest for coherence, while clearly difficult, is imaginable within existing ASEAN governance frameworks in a way a full-blown court system is not.

This article begins by examining the way existing literature has framed the failure of ASEAN to act as a socializing agent, both generally and with specific reference to Myanmar. From there the narrative of ASEAN's efforts to influence Myanmar is discussed and framed through the lens of rhetorical action. This provides a platform to discuss the question of incoherence by examining the conflicting messages that ASEAN and its members have presented Myanmar over time. The article closes with a discussion on the possibility and desirability of making ASEAN more coherent and thus a more effective socialization agent.

Existing Approaches to ASEAN as a Socializing Agent

While ASEAN is lauded for helping cement regional peace and security, when it comes to the issue of human rights socialization it is widely considered to be a failure. Recent scholarship has moved away from the conclusion that ASEAN and its members have attempted nothing to the more nuanced position which focuses on the ineffectual nature of ASEAN's efforts. Evidence for this failure of will is found by examining the weakness of ASEAN human rights mechanisms which, it is claimed, are designed more for show than efficacy. ASEAN's continued eschewal of an institution identity with strong oversight power has led many to provide a negative assessment of the potential utility of the emerging human rights mechanisms within ASEAN. (5) For instance, James Munro has argued that the newly formed ASEAN Intergovernmental Committee on Human Rights (AICHR) is little more than a "thinly veiled instrument to avoid international inquiries into human rights cases in the region". Were ASEAN and its members genuine about generating compliance pressures with regards to human rights then there would be stronger regional mechanisms equipped to enforce "punitive measures for non-compliance with human rights norms, such as sanctions". (6) Due to the absence of such entities it is often claimed that ASEAN is little more than a facade (7) or an "imitation community". (8) Shaun Narine echoes this sentiment: "efforts to reform the organization and make it more effective and its members more accountable seem doomed to failure". (9) What links these arguments, and provides the window of analysis for the coming discussion, is the idea of socialization. These arguments all assert, albeit in differing ways, that ASEAN is an ineffective socializing agent. It is unable to influence the actions of its members and move them away from old practices into adopting new standards. This in turn suggests that ASEAN is unable to develop meaningful compliance pressure around its standards and institutions.

Explaining why ASEAN is a weak socializing agent can be achieved by an awareness of the history and development of regional cooperation in Southeast Asia. Emerging in the wake of two failed regional initiatives--the Association of Southeast Asia and Malaya-Philippines-Indonesia initiatives of 1961 and 1963 respectively--ASEAN started as a tentative initiative to enhance the security of its founding members. (10) Given these roots it is unsurprising that the fledging organization was strongly wedded to the norms of non-intervention and sovereign equality. Permeating this institutional context was a set of procedural norms known as the "ASEAN Way". Most clearly outlined in the Treaty of Amity and Cooperation, the ASEAN Way focused on mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations. As a result, the right of freedom from external interference for member states was at the very heart of the regional body. (11)

This framework indicates a clear preference towards musyawarah (consultation) and musfakat (consensus-based decision making) between members resulting in a strong preference for informality and "quiet diplomacy". (12) While this may have cemented interstate peace, it creates significant obstacles to developing regional oversight on issues such as human rights, where non-intervention runs against the enforcement of norms within the domestic political sphere of member states. This set of understandings has undergone some considerable discussion over the last decade. (13) The ASEAN Charter process represents a move towards greater comfort with some degree of regional discussion on previously sensitive issues. Discussing issues such as human rights does not, however, presuppose the way in which these issues are addressed. An examination of the creation of the AICHR substantiates the claim that ASEAN has not converted to some radical new system of protecting and promoting rights. The Terms of Reference (TOR) for the AICHR are intentionally vague and belie its essentially conservative nature. (14) The TOR calls for the promotion and protection of human rights (TOR Article 1.1) but also clearly states that the AICHR remains wedded to the independence of member states and non-intervention within their internal affairs (TOR Article 2.1). There is a commitment to further progress towards creating an ASEAN Declaration on Human Rights (TOR Article 4.1), the first time the regional body will have indicated its own understandings of what rights actually mean, but there is a parallel and perhaps even contradictory commitment to a "constructive and non-confrontational approach" (TOR Article 2.4) with an affirmation of an intergovernmental and consultative role for the AICHR. (15) The AICHR can be understood as a quintessential ASEAN creation. (16)

Arguments about the weakness of ASEAN are simultaneously correct and incomplete. It is true, as just discussed, that ASEAN continues to lack clear enforcement mechanisms where one body or state sits in adjudication of another, and the reforms of the Charter and the AICHR have not moved ASEAN any significant way towards this end. We must ask, however, whether the fact that ASEAN has no "punitive" enforcement mechanisms means it has no mechanisms at all for generating compliance. The continued focus on the absence of certain types of enforcement procedures within ASEAN has two detrimental effects. First, it ignores the wider range of compliance actions that are possible and that ASEAN may be attempting. Second, it leads to the counterproductive suggestion that to improve compliance with its standards ASEAN must establish clear courts and hierarchical governance strategies that are both politically implausible as well as historically insensitive. Much analysis seems to come from an implicit comparison between the European regional organizations, most obviously the EU itself, and the "lesser" version of...