Governance Transfer by Regional Organizations

Since the end of the Cold War, international organizations and states have developed programs to promote ‘good’ governance in member states and third countries. Regional organizations have gained an important role in governance transfer. They constitute an intermediate level of agency between the nation-state and global institutions. Their broad mandate allows them to promote legitimate governance institutions in their member states and, in some cases, also non-member states. Today, almost every regional organization prescribes, promotes, and protects some standards for governance at the national level, irrespective of its original purpose — including simple free trade agreements. Thereby, they do not only foster the evolution of regional but also induce the transformation of national order.

Studies on governance transfer by regional organizations (ROs) are on the rise. The extant literature has mainly focused on democracy and human rights (for an overview see Pevehouse forthcoming; McMahon and Baker 2006). Meanwhile, the promotion of other governance standards, such as the rule of law and the fight against corruption, have received far less attention (but see Jakobi 2013a; Zürn et al. 2012) and a systematic comparison of the general patterns of governance transfer by ROs across time, space, and issue areas is still missing.

For decades, non-interference in state affairs had characterized politics in the Organization of African Unity (OAU) and was a cornerstone of inter-African relations (Williams 2007). Against this historical backdrop it is remarkable that the obligation to reject unconstitutional change of government (UCG) in member states of the OAU’s successor, the African Union (AU), has become part of the AU’s identity by integrating it in its Constitutive Act (CA) in 2002 (African Union 2000).³ Moreover, member states have embedded UCG in a discourse on democratic governance and perceive it as an obstacle to democratic progress on the continent. By referring to its member states’ constitutional order and demanding democratic governance, the Charter of the AU touches African political regimes at their core.

In 1999, the Economic Community of West African States (ECOWAS) adopted an innovative protocol. The ECOWAS Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping, and Security (Protocol-Mechanism) established a nine-member state Mediation and Security Council (MSC) deciding with majority rule upon military interventions in member states against the will of target countries in cases of, among other things, violation of human rights, the rule of law, or democratic principles. Up until then the United Nations Security Council (UNSC) had been the sole organization to have this right, and so far no other regional organization had followed suit. An additional Protocol on Democracy and Good Governance from 2001 complemented the first protocol by providing a more explicit framework of reference for appropriate governance standards within member states. In a region mostly known for countries with weak statehood and military coup d’états, the protocols of 1999 and 2001 represent a strong commitment to liberal democracy combined with a mandate by the regional organization to defend these principles by force if necessary.

The Southern African Development Community (SADC), an intergovernmental regional organization, in 2005 established a regional tribunal with supranational features, only to suspend it some years later after it produced an undesirable ruling. This represents a unique and puzzling case of governance transfer ‘roll-back’. We argue that intrinsic demand for the establishment of the Tribunal at the level of the Summit — SADC’s ultimate authority — was never high to begin with, and that it was adopted mainly as a donor-pleasing accessory. When the Tribunal overstepped its mandate relatively early in its life, not only granting itself jurisdiction in the realm of human rights but also ruling against the Zimbabwean government in a politically sensitive case, it was dismantled by the Summit. But, if donor incentives played a role in establishing the Tribunal, they cannot explain its suspension. Furthermore, institutionalist approaches would claim that a ‘lock-in’ effect should prevent institutionalized commitments at the regional level from being undone. We explain this in terms of ‘reading from the donor script’, which results in poorly embedded institutions lacking real commitment at the executive level. Developing states are only willing to read from the donor script as long as it does not threaten their core interests, which, in the case of SADC, are deeply embedded in the region’s history and political culture.

On 18 November 2012, members of the Association of Southeast Asian Nations (ASEAN) took the historical step of issuing an ASEAN Declaration of Human Rights. The declaration is only the last of a number of steps expressing ASEAN’s commitment to human rights. This commitment first became visible in the ASEAN Charter of 2007 and promised that the regional grouping would establish its own human rights mechanism. The mechanism was eventually set up in October 2009 as the ASEAN Intergovernmental Commission on Human Rights (AICHR). The development towards greater commitment has surprised many observers, as ASEAN and individual members were quite active in the so-called Asian values debate in the early 1990s, in which they promoted a relativist position on human rights, emphasizing economic development to the detriment of civil and political rights (Emmerson 1995; Kausikan 1994). Moreover, ASEAN’s earlier constitutional documents never mentioned human rights or democracy. The new policy also appears to weaken the support for constructivist explanations of ASEAN as a regional organization, which have emphasized deeply embedded norms of non-interference, state sovereignty, and non-intervention into domestic affairs (Narine 2002, 2012). The policy does not fit with the organization’s earlier record on human rights and its principled stance towards non-interference in domestic affairs.

Compared with a global trend towards governance transfer by regional organizations, the League of Arab States is clearly a latecomer in prescribing and promoting governance standards in its member states — and its efforts are more limited and weaker than in many other regional organizations (Börzel and Stapel in this volume). While the Arab League started to deal with selected human rights issues in the late 1960s, an Arab Charter on Human Rights as the cornerstone of a regional human rights regime only entered into force in 2008 — much later than its American, European, and African counterparts. Continental organizations like the Organization of American States (OAS), the Council of Europe (CoE), and the Organization for African Unity (OAU), the predecessor of the African Union (AU), had developed regional human rights regimes early on. Moreover, many regional organizations worldwide turned to more actively prescribing and promoting standards related to human rights, democracy, the rule of law, and good governance in the 1990s. By contrast, only in the 21st century has the Arab League begun to step up its efforts at governance transfer. It focuses on human rights as compared with democracy, the rule of law, or good governance, but even the catalogue of human rights adopted in 2004 falls short of international standards, and the Arab Human Rights Committee has only a limited mandate for its promotion and protection.

This chapter casts light on the creative and selective use of governance transfer by the Commonwealth of Independent States (CIS) — a mechanism initially conceived to manage the negative fallout of the collapse of the Soviet Union. While being composed of mostly non-democratic countries, the CIS does prescribe and promote standards for the establishment of governance institutions in its member states. The early engagement of the CIS with governance transfer can be explained by transition regimes seeking to achieve international legitimacy, curb negative externalities, and lock in democratic reforms. Continued commitment in the 2000s, by contrast, constitutes a puzzle. While the democratic performance of CIS member states has stalled or declined over the past decade and the Central Asian countries have moved towards authoritarian forms of governance, the CIS has not dismissed its declaratory engagements with governance transfer. Rather, it has extended its commitments precisely to the field of democracy, through not only standard-setting but also employing monitoring tools.

Among international and regional organizations, the Organization of American States (OAS) was the first to adopt a binding treaty dedicated to anti-corruption. In 1996, it passed the Inter-American Convention Against Corruption (IACAC), which was subsequently signed and ratified by the vast majority of member states. The document established a definition of corruption and committed states in the Americas to preventing and punishing it. Moreover, it provided the starting point for a mechanism of regional cooperation (MESICIC), which was established in 2001.

The North American Free Trade Agreement (NAFTA) entered into force in 1994. Building on the foundations of the Canadian-US Free Trade Agreement of 1988, it brought together Canada, Mexico, and the US into the world’s second largest (by nominal GDP) trade area. Like many other post-Cold War trade agreements, NAFTA aimed at the elimination of a variety of tariff and non-tariff barriers to the circulation of goods, capital, and selected services. There was nothing especially unique, therefore, about NAFTA aside from its size.

Mercosur (Mercado Común del Sur, Common Market of the South) started to develop a system of human rights governance transfer more than 15 years after its inception. Until the mid-2000s, Mercosur had no agenda for human rights; only a few non-binding documents referred to specific human rights, such as the Presidential Declaration on the Zone of Peace (1996) and the Socio-Laboral Declaration (1998). That has changed in the last decade, as Mercosur has introduced binding and precise norms such as the Protocol of Human Rights (2005), established bodies which have created programs and instruments to protect and promote a broad range of human rights, and fostered dialogue with civil society, such as the Mercosur Meeting of High-level Authorities on Human Rights (2004) and the Mercosur Human Rights Public Policy Institute (2009).

The Council of Europe (CoE) has created a broad framework of governance-related norms since its foundation in 1949. Today, the CoE’s more than 200 treaties cover a broad variety of policy fields. The most important documents deal with democracy, human rights, rule of law, and good governance. Consequently, these areas are at the center of the CoE’s governance transfer. Since the end of the Cold War, the CoE’s key challenge has become governance transfer to its new Central Eastern, South Eastern, and Eastern European post-socialist member states. However, unlike the European Union (EU), the CoE has a comparatively small budget and only soft accession conditionality.

The European Union (EU) is a promoter and protector of ‘good governance’ par excellence. The Europeanization of its member states and attempts at external governance transfer towards third countries have earned the EU the name of a ‘transformative’ or ‘normative’ power (cf. Börzel and Risse 2009b; Manners 2006). Yet, in comparison with other regional organizations, the EU has focused on the transformation of domestic governance institutions beyond rather than within its borders. Only recently has the EU begun to develop policies and instruments that explicitly aim at protecting the very norms and values within its own member states that it has sought to transfer to accession candidates, neighborhood countries, and third states. Not only has the emergence of a comprehensive policy for internal governance transfer lagged behind the establishment of the EU’s external policy by ten years; it is also much weaker than the EU’s rhetoric and its practice of external governance transfer would suggest. This is all the more puzzling since problems with democratic pluralism, the independence of the judiciary, or minority rights, in both old and new member states, question the extent to which the EU has been effective in promoting and protecting governance standards internally.