Yet the declaration constitutes another failure on the part of the Association to provide protective human rights measures to its citizens. A previous opportunity existed in 2009 when the mandate for the ASEAN Intergovernmental Commission on Human Rights (AICHR) was drafted. At that time the 10-member Association chose to focus on education and the promotion of human rights rather than provide the Commission with protective functions such as those advocated by civil society organisations in the region.
ASEAN’s inability to draft a binding document stipulating and institutionalising the protection of human rights within the ASEAN region derives in large part from a democracy deficit within the Association’s members. An environment conducive to strengthening the mandate of the AICHR will not exist until there is further democratisation in ASEAN’s more un-democratic members. A strong mandate would give the AICHR investigative and enforcing functions and the authority to enact sanctions in cases of non-compliance with the human rights declaration.
Past experiences show the importance of a general consensus among drafting states regarding the norm that is being prescribed. In Europe the old and established democracies initially opposed the binding and enforcing commitments proposed by the newly established democracies at the negotiations for the European Commission on Human Rights (ECHR) at the end of the 1940s. Where the newly established democracies of Europe saw an opportunity to ‘lock in’ domestic policies abroad and stave off threats to their newly won democracy, old and established democracies were hesitant because of a lack of said threats, and instead perceived the commitments as too costly in terms of sovereignty.
Yet the costs associated with the delegation of power to a third party were eventually seen as inconsequential because the leaders of the established democracies faced the risk of losing power through the electoral system anyway. A strong and independent human rights commission did not constitute any new direct threat to their power base. The general consensus on liberal democratic norms throughout Europe helped entrench the ECHR. Today the institution and its Court are regarded as the world’s most advanced multilateral initiative to protect human rights.
In authoritarian regimes and dictatorships the situation is different. A strong and independent human rights commission with a mandate allowing for investigative, enforcing and sanctioning measures constitutes a threat to the incumbent’s position of power. It is therefore not desirable for regimes in less democratic nations to endorse such initiatives.
ASEAN serves as a perfect case study. During the negotiations for the ASEAN Charter — the document supposed to transform ASEAN into a rules-based legal entity — the (new) democratic members proposed the inclusion of a paragraph stipulating the creation of a future human rights mechanism. The authoritarian and less democratic members initially opposed the measure but eventually agreed to it after the proposal was watered down to a point where it posed no cost to sovereignty.
The same pattern can be seen in the negotiation of the Terms of Reference for the AICHR. As the democratic members of ASEAN proposed protective functions, such as investigative, enforcing and sanctioning mechanisms, opposition grew among the less democratic members. At this point, the semi-democratic ‘swing voters’ who initially supported the democratic camp’s tougher stance on the new human rights body changed sides as they realised the real cost to sovereignty a strong and independent human rights commission would represent.
Facilitated by the sacrosanct ASEAN principle of seeking consensus in decision making, the opposing, and less democratic, camp managed to make the final draft of the Terms of Reference express the sentiments of their side to a much larger extent than those of the democratic camp. The same pattern is likely to have occurred in the negotiations over the ASEAN Human Rights Declaration.
Unless ASEAN suddenly decides to abolish its principle of consensus in decision making, protective functions for the intergovernmental human rights commission will be hard to attain so long as there are un-democratic regimes within ASEAN. An independent and strong AICHR would pose a threat to any un-democratic incumbent ruler’s power base and so they would naturally vote against such an initiative. Democratisation of ASEAN members where not yet taking place, and further consolidation of democracy where the process is on its way, is imperative if a stronger mandate for the AICHR and the institutionalisation of human rights protection in the region is to come about.
André Asplund is a MEXT scholar and a PhD candidate at the Graduate School of Asia Pacific Studies, Waseda University.