Saturday: Current Affairs
How significant is the ASEAN Charter?
While the entry into force of the Association of Southeast Asian Nations (ASEAN) Charter in 2008 has created a legally binding document which has generated some political momentum for ASEAN’s objectives, there seems to be a tension between the need to integrate and the reluctance to yield national sovereignty. This tension might affect the effective furthering of the integration process. ASEAN seems to have taken much inspiration from the European Union’s (EU) example, but there are several characteristics within the EU, particularly in terms of institutionalization, which should also be applied to ASEAN if it wants to develop into a true international organization. The are three main shortcomings within the ASEAN Charter: firstly, ASEAN would need an “ASEAN Community Law” on the model of the EU’s acquis communautaire; secondly, there is a lack of supranationalism and institution building; thirdly, there needs to be established a review mechanism for dispute resolution. While the last point is in strict opposition to the “principle of non-interference”, it is hard to vision a credible ASEAN without such review mechanism. The ASEAN Charter however also carries three main positive features: firstly, the ASEAN Charter has given more purpose to the Association and defined the commonalities of the Member States; secondly, the Charter has given a legal personality to the ASEAN and thirdly, it has encouraged a political momentum within ASEAN and enhanced the “spillover” effect. In order to analyze the significance of the ASEAN Charter, this essay will first look at the three positive features of the Charter, and then move into an analysis of the shortcomings still present within ASEAN.
The positive features of the ASEAN Charter
I. Historically, Southeast Asia has been a very fragmented region as it has been confronted with many internal conflicts and still today peace and security have been challenged by issues such as the Cambodia-Thailand border dispute, Thailand’s bloody political demonstrations, the 2010 elections of Myanmar as well as the natural disasters in the Philippines and the repercussions from the Japanese earthquake of 2011 (Desierto, Diane A., 2011:272). There is also a strong political, legal and ideological diversity in the region and numerous different political systems, from democracies, monarchies to communist parties and military governments, are present. Notwithstanding such differences, ASEAN was founded in 1967 with the aim to cooperate actively towards peace, stability, progress and prosperity in the region, but it took almost 50 years for the Member States to agree to a legally binding Charter.
The ASEAN Charter gives more purpose to regional identity. It creates a solid block where Member States recognize common standards of conduct and basic principles to adhere to as well as develop a common sense of identity (Suryadinata, Leo, 2005:41-44). While common values were previously mentioned in various declarations, never before had all the common values and objectives been embodied in a single authoritative ASEAN document. Without such a document, ASEAN would have risked to neither be externally credible, nor domestically accountable (Lin, Chun Hung, 2010:823).
The preamble of the ASEAN Charter also widens ASEAN’s orientation from a purely political and economic cooperation towards an ‘adherence to the principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms’. (ASEAN Charter, 2008, Preamble, Seventh clause.) Such clause is essential in giving ASEAN’s values credibility and in developing a common stance on which the ASEAN Member States can stand together.
II. Perhaps the most important characteristic deriving from the entry into force of the Charter, is the establishment of ASEAN with a juridical personality and a legal entity (Lin, Chun Hung, 2010). By acting as a constitutional document, the ASEAN Charter can transform ASEAN from a regional cooperation to a rules-based organization with a legal personality which can sue and be sued (Arendshorst, John, 2009).
Under international law, legal personality confers several rights to an international organization, including the ability to participate in proceedings as an entity and to bring matters before the United Nations (UN) organs (Hsu, Locknie, 2005). The legal personality conferred to ASEAN by its recently signed Charter, gives those rights to ASEAN and it makes it possible for ASEAN to for example sue in national courts, purchase property, enjoy tax benefits and enter into an agreement with a host country (Lin, Chun Hung, 2010).
Just like the EU stands as a single entity in the World Trade Organization (WTO) both in regards to negotiations and in dispute settlement, also the ASEAN Charter conferred to its Association a legal personality through which the Member States affirm adherence to the rules of the international legal order and are a step closer to potentially drafting an “ASEAN Community Law” (Lin, Chun Hung, 2010). As will be explained further on however, merely conferring ASEAN with a legal personality, while being a step forward, is not enough to guarantee the success of the ASEAN integration process.
III. In face of the many challenges, the adoption of the ASEAN Charter might not be seen so significant, but it is clear that the ASEAN leaders have adopted the Charter with the intention to move closer to an EU-style community and achieve deeper integration (Lim, Hank Giokhay, 2008). Even with its shortcomings, the Charter, as a legally binding document, has generated some kind of political momentum.
The decision of the Members States to take this initiative should be seen with admiration as the governments of such diverse countries have been able to come together and give a “legal” voice to their common concerns and commit themselves to ‘take all necessary measures to effectively implement the provisions of this Charter’ (ASEAN Charter, 2008. Article 5(2)). While the principle of non-interference and the importance given to decision-making through consensus are still cornerstones of ASEAN, the Member States seem to have been slightly more flexible than previous times in exposing their total sovereign rights.
The political momentum built by the Charter could potentially also have a “spillover” effect, whereby if there are economic gains, the ASEAN leaders would be more open to the idea of liberalizing politically and integrating their economies. Comparing ASEAN to the EU, it is important to note that even though the European countries have a stronger sense of identity due to history and the latin culture, it took half a Century for the European Countries to move from the 1957 Treaty of Rome to the 1992 Maastricht Treaty and the most recent establishment of the common currency and adoption of the Lisbon Treaty. Most of the progress has been gradual due the neo-functional argument in favour of the “spillover effect” whereby gradual integration leads to further and further integration. If the differences among the ASEAN Member States are taken into consideration, it might take ASEAN double the time that it took the EU to achieve a system similar to the European one. Hence, the signing of the ASEAN Charter is definitely a step forward.
I. The shortcomings in regards to the significance of the ASEAN Charter mainly center around the tension between the need to integrate and the reluctance to yield to national sovereignty. The Member States reluctance to surrender to some levels of sovereignty makes ASEAN integration difficult to envision.
Acceptance of an “ASEAN Community law” to govern ASEAN, whether binding or just as a guidance, would help the Association with further integration (Lin, Chun Hung, 2010). It is in fact the EU acquis communautaire which makes the EU so credible and strong in front of other international bodies. Imposing a definite legal structure and instituting more formalized rules, would give ASEAN strength to face the many challenges affecting the area. However there is no evidence to show that the ASEAN Member States are willing and ready to move towards a Community law and change their national law in favour of deeper integration.
One of the main challenges to the adoption of a Community law within ASEAN is also the too different political systems of the Member States. While for example common law forms the basis for the legal systems of Malaysia and Singapore, Indonesia follows the construct of the Dutch legal system and the Philippines’s legal system is rooted in strong influence from US laws (Deborah A. Haas, 1994:809). Drafting a Common law suitable for all those diverse political systems is, at least for the time being, highly unlikely.
II. The need for more supranationalism should be a pressing issue, however as security and stability are still ASEAN’s core issues, Member States have hardly separated themselves from their national sovereignty and continue to regard the rule of non-intervention as fundamentally important to their national interests (McGoldrick, Dominic, 2009:199). Some scholars like David Martin Jones note in fact that it has been the sovereignty of the Member States as well as the regional order built contingently upon the pragmatic decisions of state elites that has paved the way for ASEAN’s successful and growth-oriented order (Martin Jones, David, 2008:756). Martin Jones states that supranationalism as envisioned by the EU might not be suitable for the ASEAN countries and might actually bring instability (Martin Jones, David, 2008:756).
Other scholars such as Lin Chun Hung instead regard the establishment of a stronger institutional structure as a fundamental feature for achieving better integration (Lin, Chun Hung, 2010:829). While it seems to be a viable argument that the EU democratic values might not necessarily be the most suitable values for ASEAN to adopt, there are many characteristics within the EU, primarily in terms of institution building, which could be adopted also by the ASEAN.
Consultation and consensus are still the preferred decision-making means. Unlike what the Treaty of Rome did for the European Commission, the ASEAN Charter did not assign any coercive authority to the ASEAN Secretariat or Secretary-General (Lin, Chun Hung, 2010:831). As ASEAN leaders have repeatedly rejected the idea of supranationality, even after the Charter, there is no institution that can act as a de facto supranational decision-making organ within the Association. A lack of this kind of power in the decision-making body highly hinders the possibility for further integration.
III. As a consequence of the lack of a Common law and of higher supranationalism, the ASEAN Charter also provides no recourse for the ASEAN Secretariat should a member of government be unable or unwilling to implement agreements. ASEAN not only lacks a supranational decision-making or law-making organ, but also lacks a review mechanism for dispute resolution.
Although many of ASEAN’s agreements are technically binding, ASEAN has no central institution to uphold compliance with them. ASEAN Member States in fact depend on their voluntary compliance rather than on a legitimate body of law-enforcement. Traditionally, disputes among ASEAN Member States have been managed and contained by diplomatic means rather than legal processes (McGoldrick, Dominic, 2009). However, the fact that Member States bypass ASEAN to solve their disputes by themselves, highly hinders the credibility, purpose and effectiveness of the Association.
While the Charter has mandated that unresolved disputes be referred to the ASEAN Summit for resolution, the Summit, functioning as the supreme policy-making body, is still subject to the will and interests of each of the national governments (ASEAN Charter, 2008, Art. 7 and 20). The ASEAN Member States seem still very far from being able to allow for majority approval of dispute resolution decisions, rather than consensus, even though such way would be highly beneficial for a future long life of ASEAN.
Through this analysis it is possible to stress that deeper integration within ASEAN is impossible to achieve unless there is the establishment of a stronger institutional structure with a better enforcement mechanism. While the ASEAN Charter is significant as it undoubtedly helps ASEAN develop a political momentum and strengthen the Member States purposes, ASEAN would still need to make further steps in terms of institution building so as to create favorable ground for deeper integration. While the Charter’s significance is a step forward, there are still many steps that ASEAN has to make to increase ASEAN’s own significance.
London School of Economics, February 2012 – by Roberta Cucchiaro
The piece has not been published and cannot be quoted. If interested in obtaining further information contact the author at roberta.cucchiaro [at] gmail.com
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