"The world is outraged": legitimacy in the making of the ASEAN human rights body.

• Author: Poole, Avery

The Association of Southeast Asian Nations (ASEAN) established its first human rights body in 2009: the ASEAN Intergovernmental Commission on Human Rights (AICHR). Given the traditional interpretations of ASEAN norms such as sovereignty, non-interference, equality and independence, this was a curious development. In particular, the norms of sovereignty and "non-interference in the internal affairs of one another" have been central to the code of conduct among ASEAN member states since the organization was established in 1967, and are reiterated in ASEAN agreements and declarations. (1) The non-interference norm means that domestic governance issues, including member states' human rights records, traditionally have been "off the table" in official ASEAN dialogue. It also means that member governments have refrained from publicly criticizing each other's actions. Moreover, only five of the ten member states have national human rights bodies (with varying mandates and degrees of independence from their respective governments). (2) Why, then, did ASEAN create a regional human rights body?

The references to human rights and the creation of a human rights body raise the question of whether traditional interpretations of ASEAN norms are under challenge. The case study also raises a more fundamental question: why and how do norms emerge and evolve among states in a regional institutional context? This puzzle has implications for the study of regional organizations. ASEAN is a particularly interesting case in this regard because of its environment of "normative contestation". Norms are dynamic and evolve over time, and there may be tensions between norms in a regional institutional environment. Moreover, member states have diverse understandings of ASEAN norms. This article takes a consciously Constructivist approach in its recognition of ideational factors and sociological dynamics in international relations.

This article traces the negotiations leading to the adoption of the ASEAN Charter, focusing on the processes through which ten member states with significantly diverse identities, interests and practices accepted references to human rights as "principles" and "purposes" of ASEAN, and agreed to create a human rights body. After a period of debate, negotiation and drafting from January to November 2007, ASEAN member states agreed to make a normative statement about human rights in the Charter. In this article, a "normative statement" represents rhetorical adoption of a norm in an official text, even if that norm has not been "internalized". In contrast, the term "normative standard" is used to denote the common understanding of a "norm": a "standard of appropriate behaviour for actors with a given identity". (3) The article traces the processes through which ideas are initially proposed and advanced, and eventually emerge in agreed-upon text. As such, it provides a case study of the emergence and evolution of norms in a regional institutional context.

This article argues that regional norms are shaped by competing perceptions of legitimacy. Legitimacy refers here to the social judgements of an entity as appropriate, proper or desirable, within a particular institutional environment. Member states' interpretations of the legitimacy of ASEAN and its norms as perceived by those outside the region--external regional legitimacy--were crucial in shaping the decision to establish a regional human rights body. In particular, the international outrage over the Myanmar regime's crackdown on protesting monks in September 2007 brought ASEAN's legitimacy concerns into sharp relief. ASEAN officials were concerned about the impact of this event, and of Myanmar's membership generally, on ASEAN's reputation and credibility. They believed that creating a human rights body was an important mechanism to improve the legitimacy of ASEAN and its norms, as perceived by extra-regional actors. Thus, member states--even those who generally resist increased interference in internal affairs, and those with poor human rights records--accepted the need to adopt references in the Charter to provide a role for ASEAN vis-a-vis human rights.

This article argues that more attention should be paid to legitimacy in the study of regional norms. While there has been some study of the role of legitimacy in certain regions, this has primarily focused on the European Union (EU). (4) However, in contrast to the more highly institutionalized and legalized European region, ASEAN has consciously eschewed formal rules and practices, and the "legalistic" style of Western institutional structures more generally. Moreover, the growing literature on comparative regional institutions (5) has devoted little attention to the role of legitimacy in a regional institutional context.

ASEAN is a forum for interstate dialogue in a "thin" institutional context which emphasizes norms rather than formal rules. As such, it is a useful case study for exploring the role of legitimacy. Norms are complex objects of study, and several fundamental questions remain difficult to answer: how does one identify norms, how do they evolve, and which norms "matter"? While the norm "life cycle" model proposed by Martha Finnemore and Kathryn Sikkink (6) has been very useful to scholars exploring these questions, it lends itself to a view of norms as emerging and evolving in a linear process. (7) Given its emphasis on perceptions, the concept of legitimacy helps us to analyse situations of normative contestation; in such contexts, we need to understand the perceptions and intentions of relevant actors who drafted, negotiated or otherwise influenced normative statements, in order to understand their significance. This would, for example, help to ascertain whether or not the adoption of references to human rights (in a normative statement) signals a change in regional norms (i.e. normative standards). The case study of ASEAN enables us to focus on the actors who shape norms.

The article proceeds as follows: first, it explores the inclusion in the Charter of references to human rights and the creation of an ASEAN human rights body. Second, it examines the positions of particular member states in regard to human rights as a "regional" concern. Third, it argues that the crucial factor in member states accepting the creation of a human rights body was their collective perception of external regional legitimacy. It also considers some alternative explanations: the mimetic adoption of norms; emulation of other regional organizations; and global "scripts" on good governance. It finds that these do not adequately explain why ASEAN decided to create a human rights body. This article makes the case that understanding perceptions of legitimacy helps us to explore important questions about the emergence and evolution of norms in regional organizations.

The ASEAN Charter and Human Rights

ASEAN adopted its first Charter on 20 November 2007. The Charter was intended to herald a "new era" for the Association, and ASEAN leaders hailed it as a "milestone" for regional cooperation. (8) Particularly after the 1997-98 Asian Financial Crisis, several leaders and ASEAN officials (particularly from Malaysia, Indonesia, the Philippines and Singapore) were keen to "reinvigorate" ASEAN and make it more relevant and cohesive. (9) The Charter was seen by many as an opportunity to elevate both ASEAN's international (extra-regional) standing and its significance to its own members. It was designed to provide the "legal and institutional framework" for ASEAN, and to "codify all ASEAN norms, rules and values" and be "legally binding". (10)

There was, however, a juxtaposition of competing norms and ideas in the discourse leading up to the Charter. Member states had agreed to "bring ASEAN's political and security cooperation to a higher plane" in the Bali Concord II in 2003, which set out plans to create an ASEAN Community. (11) In 2004, Malaysia proposed that ASEAN create a Charter, which would help the organization to pursue its goal of becoming a Community by making important changes to its institutional framework. (12) While the Bali Concord II does not mention human rights, it provided the basis for consideration of liberal norms by envisioning an ASEAN Security Community in which member states would live in a "just, democratic and harmonious environment". (13) Declarations at subsequent ASEAN summits referred to democracy as part of ASEAN's principles and objectives, (14) leading Donald Emmerson to claim that democracy had become a "standard reference in ASEAN rhetoric". (15) These declarations also mentioned the promotion of human rights in broad terms--but not the idea of a human rights body or commission--while also reaffirming the importance of sovereignty and non-interference.

A High Level Task Force (HLTF], comprising officials from ASEAN states' foreign ministries, drafted the Charter during 2007. Gloria Macapagal-Arroyo, then President of the Philippines (which chaired ASEAN in 2007), insisted on the inclusion of a human rights body provision in the draft Charter. (16) However, some other ASEAN leaders had reservations. Indeed, this became the most contentious matter during the drafting of the Charter. According to Singapore's HLTF representative Tommy Koh, at one point the HLTF members were divided into three camps: Indonesia and Thailand supported the creation of an ASEAN human rights body; Cambodia, Laos, Myanmar and Vietnam (often referred to as the CLMV states) opposed it; and Brunei, Malaysia, the Philippines and Singapore "occupied the middle ground". (17) Heated debate on this issue dominated the HLTF meetings despite the fact that assurances were made that the human rights body would be "intergovernmental in composition"; "would not be a finger-pointing body"; and "would define human rights in an ASEAN context". (18)

By September 2007, the HLTF members had accepted (under direction from the...