The following piece was selected as the winner of the Harvard Human Rights Journal’s Winter 2022 Essay Contest.
Applying Historical Institutionalism to the Analysis of Regional Organizations: The Case of ASEAN
February 1, 2022 marked the one-year anniversary of the Myanmar coup, which saw the military violently wresting power from the civilian government and initiating a crackdown that has since expunged more than fifteen-hundred lives. Against such flagrant disregard for human rights, we might expect the regional organization, the Association for Southeast Asian Nations (ASEAN), to have reacted strongly, but ASEAN has only oscillated between accommodation and soft critique, without committing significant resources to alleviating the humanitarian crisis.
Indeed, an allergy towards human rights characterizes ASEAN’s entire history, infamously known as “the ASEAN way.” Its primary human rights body, the ASEAN Intergovernmental Commission on Human Rights (AICHR), lacks teeth in its treaty provisions. In contrast to other regional constellations like Europe (through the European Union and the European Court of Human Rights) or West Africa (through the Economic Community of West African States, ECOWAS), ASEAN has a love affair with restraint, only acting when unanimity attains.  Why?
I argue that historical institutionalism can explain why ASEAN, and regional organizations generally, develop entrenched attitudes to human rights. In ASEAN’s case, early military and economic decisions in periods of heightened uncertainty (critical junctures) triggered path-dependent, self-reinforcing mechanisms that make inaction increasingly attractive, progressively neutering the organization’s human rights capacities.
With ties to political economy, historical institutionalism interrogates how institutions like human rights law mutually constitute their social reality by embracing two concepts, “path dependence” and “critical junctures.”
Path-dependence describes how early events exert causal force on events further in the sequence. Many possibilities exist initially, but once a certain path succeeds, future options become constrained, leading to institutional entrenchment over time. Given the importance of temporal variables like sequence (because future possibilities depend on past events) and duration (because an institution’s pervasiveness depends on the length of its existence), deep historical understanding is necessary.
Critical junctures are periods where multiple possibilities exist, “moments in which uncertainty … allows for political agency and choice to play a decisive causal role.” Often, these arise from exogenous events that unpick institutionalized practices from their current trajectory, enabling agency and contingency to change its direction.
Origins of Southeast Asian Reticence
ASEAN formed on 8 August 1967 via the Bangkok Declaration, comprising five states: Indonesia, The Philippines, Singapore, Thailand, and Malaysia. Brunei joined in 1984, Vietnam in 1995, Laos and Myanmar in 1997, and Cambodia in 1999.
Understanding ASEAN’s non-interventionism requires understanding the security conditions of its founding. The impending American withdrawal from Vietnam, British withdrawal from former colonies, and Sino-U.S. rapprochement induced pervasive uncertainty in the late 1960s and early 1970s. Meanwhile, communist threats remained through domestic insurgencies, civil wars and conflict in Vietnam and Cambodia, and material infusions from China and the USSR. ASEAN needed a buffer against these security threats.
This first manifested in the Zone of Peace, Freedom, and Neutrality (ZOPFAN), which committed member states to “stability and security from external interference in any form or manifestation.” Following the Khmer Rouge victory in Cambodia and the fall of Saigon in Vietnam, both in 1975, ASEAN sought to bolster its institutional matrix via the Treaty of Amity and Cooperation (TAC), legally enshrining “non-interference in the internal affairs of one another,” “settlement of differences or disputes by peaceful means,” and “cooperation … through consultation and consensus.” ASEAN needed to embrace non-interference internally to deter external suspicions that they were a military alliance, thus deterring communist encroachment.
These treaties also triggered a path-dependent process: ASEAN incurred substantial sunk costs by committing to non-interference, devoting political capital to negotiating and adhering to the TAC. Because switching to alternative institutions would incur extremely high fixed costs, continuing down the same trajectory was cheaper, as we will see.
Early Hegemonic Decisions
The late 1970s continued to present high uncertainty. Vietnam’s intervention in Cambodia in 1978 to unseat the Khmer Rouge alarmed ASEAN, while Vietnam’s ties to the USSR, alongside Cambodia’s ties to China, brought the Sino-Soviet quarrel to the organization’s doorstep.
The decisions made during this critical juncture by ASEAN’s most powerful state, Indonesia, were crucial in setting ASEAN’s future trajectory. Indonesia’s army sought to avoid endowing ASEAN with the image of a military alliance, which would have courted security threats from communist states. Non-interference would also shroud Indonesia’s own military cooperation with the U.S., especially in its incursions into East Timor. While states like Singapore and Malaysia sought to aid the Khmer Rouge, and while Thailand had already mobilized forces along its Cambodian border, Indonesia rejected. Without Indonesian opposition, a more explosive path may have evolved.
Again, path-dependence played a role. ASEAN had already embraced non-interference through the TAC and ZOPFAN that Indonesia saw was beneficial. It refused to appeal “to a right of counter-intervention … since this would openly compromise ASEAN’s ‘offended bystander’ routine.” It preferred not to violate non-interventionism, because credibility was difficult to build yet easy to destroy.
Electing non-intervention, ASEAN instead pursued diplomacy through the UN and the Jakarta Informal Meetings, which from 1988 onwards eased rapprochement, until the UN Transitional Authority in Cambodia (UNTAC) was established in 1991. This approach gave credibility to ASEAN’s crisis management playbook, perpetuating normative self-entrenchment, which will contribute to its eventual restraint regarding human rights promotion.
The ASEAN Way
Indeed, this playbook tided them through subsequent conflicts. In September 1988, the Burmese military committed a coup, initiating a period rife with torture, massacre, and the imprisonment of Aung San Suu Kyi. In Cambodia, instability erupted again in 1997 when Hun Sen and his Cambodian People’s Party ousted the elected incumbent, Prince Ranariddh.
ASEAN again refrained from intrusion. With the end of the Cold War removing ideological cleavages, new economic logics of bloc-forming dominated. Access to natural resources and a lucrative arms industry led Thailand and Singapore to support the Myanmar junta, while Singapore and Indonesia became two of Cambodia’s top three trading partners. From here, two path-dependent mechanisms strengthened the non-interference principle.
First, as an institution possesses widespread buy-in, additional subscription becomes cheaper. Indochinese states sought a new organizing principle for regional stability. Naturally, it was more attractive to join existing institutions rather than create their own, given that ASEAN had already built relationships with the EU, Japan, and China. Thus, the rest of Indochina signed the TAC by 1995.
Second, ASEAN’s informal mediation attempts changed expectations of proper behavior. When ASEAN attempted to mediate between Hun Sen and Prince Ranariddh to keep the latter in power in Cambodia, Hun Sen successfully held to his position by framing ASEAN’s attempted mediation as interference. Already, ASEAN’s reputation of non-interference backfired against them, perpetuating the very same norm.
Normative entrenchment continued when Thailand and the Philippines campaigned for “flexible engagement” to regional security issues in light of their democratic aspirations. Indonesian Foreign Minister, Ali Alatas, however criticized “flexible engagement,” warning that “We will return to the situation before ASEAN was born, with a lot of suspicion, a lot of tension.” ASEAN’s past pattern of action enhanced the discursive justification for preserving it. Path-dependence has crystallized the “ASEAN Way” into a cultural disposition against even tame interference.
Institutionalizing Human Rights
Indonesia’s own democratization in 1998 heightened hopes of human rights efflorescence in ASEAN. Even Foreign Minister Alatas, who staunchly defended the “ASEAN Way,” remarked in 2006, “we can no longer take decisions using the ASEAN way, which is very slow, consensual and inflexible.” However, the institutional and cultural structure that Indonesia helped erect would soon dampen such aspirations.
Indeed, the march towards a regional human rights mechanism proceeded slowly. In 2007, the bloc signed the ASEAN charter, committing to establish a human rights body. This manifested in 2009 in the form of the ASEAN Intergovernmental Commission on Human Rights (AICHR). Although a remarkable achievement, the tension between its activist members, (Malaysia, Indonesia, Thailand, and the Philippines) with newer states (Myanmar, Laos, Vietnam, and Cambodia), buoyed by a long tradition of non-interference, ensured a toothless mechanism.
Although the AICHR avows to “promote and protect human rights and fundamental freedoms,” it lacked flexibility, legally confined to “dialogue and consultation,” obtaining information, and decision-making through consensus. The Commission also explicitly emphasized “non-interference in the internal affairs of ASEAN member states.”
Indeed, the AICHR failed to change ASEAN’s reticence. When the Myanmar military attacked Rohingya communities in October, 2016, Malaysian Prime Minister Najib Razak condemned it as genocide and proposed an ASEAN fact-finding mission. However, although a UN fact-finding mission existed, the AICHR “continues to be blocked from collaborating.” Even in its relatively un-intrusive core competence, the AICHR has lacked strength, and as bullets continue to rain on Myanmar’s citizens following the 2021 coup, it remains unclear whether the AICHR will play a more active role, if any, given ASEAN’s continued reluctance.
Indonesia’s commitment collided with a regional organization entrenched in non-interference. President Widodo officially condemned the violence in Myanmar, saying it was “unacceptable and [could not] be allowed to continue.” Moreover, he called on the military to refrain from killing citizens. However, the ASEAN Leader’s Meeting did not attribute responsibility to the junta, and instead promised, “constructive dialogue among all parties concerned.” Because the AICHR was bound to decisions made by ASEAN leaders, it could only express “its readiness to assist Myanmar in any tasks as may be assigned by the ASEAN Foreign Ministers’ Meeting.”
Thus, the interests of Indonesia and other powerful states like Malaysia and the Philippines failed to achieve concerted condemnation. Institutional and discursive self-entrenchment extended ASEAN’s non-interference principle to human rights, with requisite normative force to constrain its states.
Ultimately, historical institutionalism illuminates how, in ASEAN’s case, security and economic logics contributed to an overriding norm of non-interference that later prevented a strong human rights posture. Although strong states like Indonesia had agency to set ASEAN’s direction, path-dependent processes ossified the non-interference norm to eventually constrain the entire organization, leaving victims of human rights atrocities, like the citizens of Myanmar today, at the mercy of ambitious militaries that sit comfortably untouched. For future research, comparisons with other organizations like ECOWAS and MERCOSUR can refine these insights to excavate more general theories of regional human rights approaches.
[*] Ariq Hatibie is a J.D. candidate, class of 2024, at Harvard Law School, from Hong Kong and Indonesia. Ariq serves as an Article Editor, Print Journal, for Volume 35 of the Harvard Human Rights Journal. He has a B.A. from Yale University in Global Affairs and an MSc from Oxford University in Global Governance and Diplomacy. He is interested in public international law, with a view towards reforming global institutions to better protect human rights in an age of increasing fragmentation. Aside from his involvement in the Harvard Human Rights Journal, Ariq is also involved with the Harvard International Law Journal, Advocates for Human Rights, Muslim Law Students Association, and the Program in Islamic Law where he researches comparative statutory interpretation and free speech issues. During the summer of 2022, he will research international criminal law with TRIAL International in Bosnia, funded by a Chayes Fellowship.
 Myanmar Death Toll Exceeds 1,500 with Nearly 8,800 in Custody – UN, Reuters (Feb. 1, 2022), https://www.reuters.com/world/asia-pacific/myanmar-death-toll-exceeds-1500-with-nearly-8800-custody-un-2022-02-01/ [https://perma.cc/Z6FT-FKLB].
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 Kay Möller, The ASEAN Way Ends Here, 38 Asian Survey 1087, 1104 (1998).
 The ECOWAS court adjudicates human rights cases, e.g., judging against Nigeria for impeding free basic education for children. See Karen Alter et al., A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice, 107 Am. J. Int’l L. 737-779 (2013).
 The Court of Justice of the European Union routinely rules against domestic regulations, while the European Court of Human Rights rules on human rights issues. See Verica Trstenjak and Erwin Beysen, The Growing Overlap of Fundamental Freedoms and Fundamental Rights in the Case Law of the CJEU, 3 Eur. Law Rev. 293-315 (2013); Janneke Gerards, General Principles Of The European Convention On Human Rights (2019).
 Kathleen Thelen, Historical Institutionalism in Comparative Politics. 2 Ann. Rev. Pol. Sci 369, 387 (1999).
 Paul Pierson, Increasing Returns, Path Dependence, and the Study of Politics, 94 Am. Pol. Sci. Rev. 251, 252-53 (2000).
 Kathleen Thelen and James Mahoney, Comparative Historical Analysis in Contemporary Political Science, in Advances in Comparative Historical Analysis 3 (James Mahoney and Kathleen Thelen, eds. 2015).
 Giovanni Capoccia, Critical Junctures and Institutional Change in Advances In Comparative Historical Analysis 148 (James Mahoney and Kathleen Thelen, eds. 2015).
 Kei Koga, Reinventing Regional Security Institutions In Asia And Africa: Power Shifts, Ideas, And Institutional Change 34 (2017).
 Lee Jones, ASEAN Intervention in Cambodia: From Cold War to Conditionality, 20 Pacific Rev. 523, 525 (2007).
 Koga, supra note 11, at 34.
 Treaty of Amity and Cooperation in Southeast Asia, art. 2, Feb. 24, 1976, ASEAN, https://asean.org/our-communities/asean-political-security-community/outward-looking-community/treaty-of-amity-and-cooperation-in-southeast-asia-tac/#:~:text=The%20Treaty%20of%20Amity%20and,in%20the%20region%20and%20beyond [https://perma.cc/82YP-PNNN].
 Kusuma Snitwongse, ASEAN’s Security Cooperation: Searching for a Regional Order, 8 Pacific Rev. 518, 521 (1995).
 See Robert Keohane, After Hegemony: Cooperation And Discord In The World Political Economy 102, 259 (1984).
 Id. at 159.
 Dewi Fortuna Anwar, Indonesia In Asean 184 (1994).
 Jones, supra note 12, at 532.
 Shaun Narine, ASEAN and the ARF: The Limits of the ‘ASEAN Way.’ 37 Asian Survey 961, 970 (1997).
 Sebastian Krapohl, Games Regional Actors Play: Dependency, Regionalism, and Integration Theory for the Global South. 23 J. Int’l Rel. and Dev. 840, 853 (2020).
 Kay Möller, Cambodia and Burma: The ASEAN Way Ends Here, 38 Asian Survey 1087, 1089 (1998).
 Vu Tung Nguyen, Vietnam’s Membership of ASEAN: A Constructivist Interpretation, 29 Contemp. S.E. Asia 483, 485 (2007).
 Jürgen Haacke, The Concept of Flexible Engagement and the Practice of Enhanced Interaction: Intramural Challenges to the ‘ASEAN Way’, 12 Pac. Rev. 581, 589 (1999).
 Id. at 586.
 Taku Yukawa, Analyzing the Institutional and Normative Architecture of ASEAN, 162 東洋文化研究所 (Inst. Adv. Studies on Asia) 342, 311 (2012).
 Charter of the Association for Southeast Asian Nations, art. 14, Nov. 20 2007, 2624 U.N.T.S. 223.
 Hao Duy Phan, Promotional Versus Protective Design: The Case of the ASEAN Intergovernmental Commission on Human Rights, 23 Int’l J. Hum. Rts. 915, 917 (2019).
 ASEAN Intergovernmental Commission on Human Rights (Terms of Reference), arts. 1.1, 4.8, 4.10, Jul. 20, 2009, ASEAN, https://www.refworld.org/docid/4a6d87f22.html [https://perma.cc/T8LD-EP3L].
 Id. at art. 2.1(b).
 Sanae Suzuki, Why is ASEAN Not Intrusive? Non-Interference Meets State Strength, 8 J. Contemp. E. Asia Studies 157, 171 (2019).
 Id. at 172.
 Sekretariat Kabinet Republic Indonesia, ASEAN Leader’s Meeting, 24 April 2021, di Sekretariat ASEAN, Provinsi DKI, https://setkab.go.id/asean-leaders-meeting-24-april-2021-di-sekretariat-asean-provinsi-dki-jakarta/.
 ASEAN, Chairman’s Statement on the ASEAN Leaders’ Meeting, 24 April 2021, Apr. 24 2021, https://asean.org/wp-content/uploads/Chairmans-Statement-on-ALM-Five-Point-Consensus-24-April-2021-FINAL-a-1.pdf [https://perma.cc/36SB-PTM6].
 ASEAN, 33rd Meeting of the ASEAN Intergovernmental Commission on Human Rights, Apr. 6, 2021, https://asean.org/33rd-meeting-of-the-asean-intergovernmental-commission-on-human-rights/ [https://perma.cc/2XHD-9S2S].
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