Stuck In the Future: Stock Taking ASEAN Charter Development and Implementation

Discussions of ASEAN can often attract vastly different perspectives. On the one hand there are those who are convinced that ASEAN is the Southeast Asian answer to regional order, while on the other hand there are those who dismissed ASEAN as an ineffective talkshop that has more meetings than concrete outcomes. However, while ASEAN is certainly not an answer to all of the region’s governance challenges, it has delivered a number of important outcomes. Among these the ASEAN Charter stands out.

This Charter is often considered an important milestone in the consolidation of ASEAN as a regional organization. In this context, the Charter can be seen as the document that ushers ASEAN into its next phase—a “new ASEAN”—where ASEAN becomes a meaningful community for its members. Even so, it is worth noting that the Charter was only ratified 40 years after ASEAN was established. During this period ASEAN arguably developed a shared identity among its member states with a discernible set of core norms.

This article will chart the codification of long existing norms in ASEAN within the ASEAN Charter, and examine their implementation through brief illustrations. It will highlight that although ASEAN moves forward to face new challenges, in practice it still clings to old ways.

From ASEAN Way to ASEAN Charter

When the ASEAN Charter came into force on December 15, 2008, the Ministers of Foreign Affairs from the ten ASEAN Member States gathered at the Jakarta-based ASEAN Secretariat. After experiencing multiple challenges posed by issues such as a global economic crisis, terrorist attacks, and ongoing territorial disputes, the countries in the region opted for more regionalism. Through a number of declarations and after years of deliberation spearheaded by a Southeast Asian-based Eminent Person Groups (EPG) and High Level Task Force (HLTF), the ten Southeast Asian countries signed the ASEAN Charter.

The Charter aims to “transform ASEAN from a loose political association to an international organisation with a strong legal personality, clear rules, as well as comprising of effective and efficient organisational structure.”[1] To do this the Charter, “codifies ASEAN norms, rules and values; sets clear targets for ASEAN; and presents accountability and compliance.”[2] With the establishment of an ASEAN legal personality the region also created a community of permanent representatives to ASEAN with member states appointing permanent representative to ASEAN, subsequently followed by dialogue partners also appointing permanent representative to ASEAN.

In terms of norms codification, it is theorized that the ASEAN Member States operate on a collective understanding and interpretation of its norms in the so-called ‘ASEAN way’. Haacke[3] identifies six norms that constitute the core of this ‘normative terrain’:

  1. Sovereign equality;
  2. Non-recourse to the use of force and the peaceful settlement of conflict;
  3. Non-interference and non-intervention;
  4. Non-involvement of ASEAN to address unresolved bilateral conflict between members;
  5. Quiet diplomacy; and
  6. Mutual respect and tolerance.

These core norms have been in practice in ASEAN prior to the ratification of ASEAN Charter. Indeed, the practice of these norms has been important for ASEAN Member States as a guidance for diplomatic activities in their pursuit of development and stability. While no claims have been made that ASEAN has been a complete success, both in the past or recent times—disputes over Preah Vihear and in the South China Sea comes into mind on this point—a lot has been said about how ASEAN has managed to create a region where an unlikely cooperation took place among former rivals, and how it managed to create a relatively peaceful and stable region through the years.

In this connection, the words of former ASEAN Secretary General Dato’ Ajit Singh is worth quoting in length:

“[The ASEAN Way]…  is that undefinable expression that readily comes to mind when we want to explain how and why we do the [sic] things the way we do. Although the expression seems instinctive and intuitive, yet it is based on some very firm principles and practices. We respect each other’s sovereignty and independence and do not interfere in each other’s internal affairs. Bilateral issues are avoided. We treat each other as equals. Decisions are taken only when all are comfortable with them. Close consultations precede these decisions. Consensus is the rule. The question of face is very important and every effort is made to ensure that no party feels hurt in an argument or a discussion. This does not mean that we do not have disagreements. We often do, but we do not, as a rule, air them in public. It also means that knowing each other as well as we do, we can disagree strongly and yet, at the end of the day, play golf together, eat Durians and do the Karaoke. And ASEAN is none the worse for it.”[4]

Prior to the ASEAN Charter, its Member States had developed a tacit understanding on how to behave among each other through the ASEAN Way. Not only were these norms distinctive enough that it could be acknowledged by the Member States, it could also be used to distinguish ASEAN from other regional organizations.

In this sense the ASEAN Way, for Member States at least, is special. Other countries in other parts of the world might have other ways: they can be more direct during deliberations, or goal-oriented instead of consensus-oriented. But those approaches would simply not work in ASEAN. In this region, one must be mindful of others’ face or dignity and the mantra that one should chant is stability.

For some, this approach might seem counter-productive. The practice of diplomacy in ASEAN can seem overly convoluted, hence the oft-repeated criticisms that ASEAN is a mere talkshop and, more harshly, a toothless tiger. While there are certainly some validity to the claims, through this practice ASEAN has nevertheless managed to develop a sense of shared identity. The ASEAN Way was collectively developed, shared, and understood by Member States as a regional way to address regional challenges.[5]

In this context, some parts of the ASEAN Charter are formalizing the ASEAN Way.[6] This is not to say that there are no attempts to deliberate upon the core norms and altering them during the drafting of the Charter. Attempts to challenge norms of non-interference and sovereign equality have been made on the basis that it hampers meaningful decision making process. However, these attempts did not succeed as there are no feasible alternatives that can be unanimously accepted by all Member States.[7] Furthermore, as the ASEAN Charter is a point of reference in regional deliberations, this will ensure that long existing norms within ASEAN continue to be adopted by old and new member states alike.

A new ASEAN?

The recommendations report for the draft ASEAN Charter by the EPG takes the title “A New ASEAN”, hoping that the embryonic charter will help ASEAN address its contemporary challenges. This includes updating ASEAN to explicitly adopt the following objectives: the strengthening of democratic values, ensuring good governance, upholding the rule of law, developing the promotion of human rights and achieving sustainable development.[8] While not all of EPG’s recommendations were utilized in the final draft of the Charter, all of those objectives are codified in the charter.[9]

The adoption of these objectives should be appreciated. In particular, the adoption of strengthening democracy and protection of human rights as the purposes of ASEAN is an important step forward. The region hosts vastly different views on democracy and human rights that are not only based on country positions but also by regime positions. As recent developments in the region show, democratic and human rights progress in the region should not be taken for granted as regime change can push them backward.[10] With this consideration, it seems that the ASEAN Charter intends to grab the bull by its horn by acknowledging that the region does face challenges in terms of democracy and protection of human rights and choose to promote them in a regional document instead of circling around this issue.

Not all new things are welcomed with open arms in ASEAN. During the drafting process, Indonesia proposed that on top of adopting the protection of human rights, the Charter should also establish a more powerful ASEAN Human Rights Body which can concretely implement this norm at the national level in each Member State. However, this view is strongly opposed by the newer Member States (Cambodia, Lao PDR, Myanmar and Viet Nam/CMLV).[11] This opposition is understandable as the existence of strong human rights body will constitute domestic interference which violates the ASEAN Way.

While the CMLV countries understand the parts and parcels of the ASEAN that they were joining, they might not yet be comfortable with all the proposed packages of the new ASEAN. It is quite a big leap from chasing development and stability to promoting democracy and human rights. This was the barrier that blocked the establishment of a strong human rights body in ASEAN.

The persistence of old ways in this brave new ASEAN is also visible in some recent cases. The principle of non-interference has made it difficult to address significant setbacks in the promotion of democracy and human rights in the region meaningfully. For example, in its attempt to address the violations of human rights in Rakhine State, Myanmar, ASEAN managed to convene a Foreign Ministers Retreat in Yangon, in late 2016. However, it is unclear what this meeting achieved as there are no concrete outcome documents. This suggests that the ASEAN Way takes priority over the new norms.

In a more traditional security issue, the South China Sea dispute remains a critical test. The dispute shows that the new ASEAN is still struggling to address traditional security issues to the extent that it challenges one of the established practice in ASEAN as its Member States failed to reach a consensus and produce a joint communique during the 2012 ASEAN Foreign Ministers Meeting under Cambodia’s chairmanship.

Experts have criticized the lack of decisiveness on ASEAN’s part in resolving this issue. Some of them argued that this is due to restrictions set in the ASEAN Charter, particularly the one that codified the ASEAN Way.[12] The need to pursue consensus is also considered detrimental from within ASEAN as it can create an impasse. Indeed, the EPG proposed to explore alternatives to consensus-based decision making, considering the possibility of adopting an ASEAN-minus-X or vote-based mechanism for the new ASEAN.[13]

Revising ASEAN Charter?

This article does not aim to judge the success or failure of the ASEAN Charter as the article assumes the position that ASEAN is a work in progress. With its shortcomings, the Charter is still an important step forward in a region where progress happens in steps and not big leaps. Nevertheless it would seem that recent developments in the region call for reconsideration of how ASEAN should operate, especially in terms of reaching concrete outcomes. This is possible as it is also regulated in the Charter.[14]

However, while this would be ideal it might not be feasible in the near future. As this article highlights, the decision making process in ASEAN is based on long standing norms that are accepted as core norms by all Member States. These norms have weathered challenges from within ASEAN due to the lack of feasible alternatives that can be accepted by all Member States. In this connection, the consensus-based decision making process also poses challenge in any attempts to revise the Charter. While amendments can be proposed by any Member State, it will still need to be accepted by all of them before it can come into force.

A unilateral move by an influential member may be able to forcefully circumvent this. However, it will mean contradicting the core norms of ‘quiet diplomacy’ and ‘mutual respect’. It will take a country that is not only influential in ASEAN but also possesses strong political will and clear sense of foreign policy direction in regard to the future of the region for this to happen.  One that understands that regional peace and stability is a responsibility and should not be taken for granted.

 



[1] Indonesian Ministry of Foreign Affairs. 2009. “Piagam ASEAN”. Rerieved from http://www.kemlu.go.id/id/kebijakan/asean/Pages/Piagam-ASEAN.aspx

[2] ASEAN. 2009.“ASEAN Charter”. Retrieved from http://asean.org/asean/asean-charter/

[3]Jurgen Haacke. 2003. “ASEAN’s Diplomatic and Security Culture: Origins, Developments, and Prospects”. London: Routledge

[4] A. Singh in Haacke.Ibid.

[5] See Rizal Sukma. 2010. “ASEAN and Regional Security in East Asia”. Panorama 2: 109-120

[6] See, especially, Article 2 of the ASEAN Charter

[7] Kasira Cheeppensook. 2013. “The Development of the ASEAN Charter: Origins and Norm Codification”. (Unpublished doctoral thesis). London School of Economics

[8] ASEAN. 2007. “A New ASEAN by ASEAN Secretariat”. Retrieved from http://asean.org/?static_post=a-new-asean-by-asean-secretariat-3

[9] Article 2 of the ASEAN Charter

[10] Three contemporary developments can serve as important case: the recurring coup in Thailand, impeded democratic reform in Myanmar, and extra judicial killing in the Philippines.

[11]Donald Weatherbee. 2013. “Indonesia in ASEAN: Vision and Reality”. Singapore: Institute of Southeast Asian Studies

[12] See Linh Tong. 2016. “The ASEAN Crisis Part 2: Why Can’t ASEAN Agree on the South China Sea”. Retrieved from http://thediplomat.com/2016/12/the-asean-crisis-part-2-why-cant-asean-agree-on-the-south-china-sea/ and Nivell Rayda. 2016. “South China Sea: ASEAN Charter Reform Urged after ‘Weak’ Statement”. Retrieved from http://www.theaustralian.com.au/news/world/south-china-sea-asean-charter-reform-urged-after-weak-statement/news-story/2dcb2ee22046a39810609204f19f63cb

[13]ASEAN. 2007. Op. cit.

[14] Article 48 of the ASEAN Charter

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