September 4, 2017
Throughout its 50-year history of regional cooperation, legalisation and institutionalisation have not featured all that prominently in ASEAN’s diplomatic repertoire. Especially in its formative years, ASEAN relied on political flexibility and institutional informality, eschewing binding legal relations. Even as laws and institutions were developed in ASEAN, adherence to them remained underwhelming.
While ASEAN regionalism has often been lauded for achieving relative regional security, it has simultaneously been derided as weak and ineffective due to the lack of adequate implementation of its collective vision. But there are clear signs that the organisation has been adapting itself to have stronger laws and institutions since the ASEAN Charter was adopted in 2007.
d to the very successful WEF-ASEAN Open Forum, May 10- 12, 2017. Since joining ASEAN in 1999, the Kingdom under the leadership of Prime Minister Samdech Techo Hun Sen has been a very active contributor to ASEAN regionalism.
Alongside political flexibility, ASEAN’s ongoing legalisation and institutionalisation process is a conscious diplomatic strategy that is intended to, and will, have permanence. It is not a collective whim or reaction but a set of long-term cooperation and integration measures that member states have adopted to deal with significant geopolitical exigencies.
ASEAN’s initial foray into legalisation and institutionalisation was tentative as diplomacy and flexibility were prioritised. The five founding members expressly chose to establish the organisation through the ASEAN Declaration (1967), a non-binding instrument. It was only after about a decade of cooperation that ASEAN adopted its first legally binding treaty, the Treaty of Amity and Cooperation (1976), at the first ASEAN Summit. At that Summit, the member states established the ASEAN Secretariat and expanded the scope of regional cooperation beyond security to include economic development. They also developed ASEAN’s institutional capacities to attain these goals.
Through the years, as ASEAN grew with the membership of Brunei, Cambodia, Laos, Myanmar and Vietnam, and the fields of cooperation intensified, regional decision-making modalities remained staunchly politically flexible and non-legalistic. There was a marked preference for consultation and consensus rather than actual compliance with the organisation’s ever-growing body of laws and institutions, especially regarding economic integration. Only an estimated one-third of ASEAN instruments of cooperation were actually complied with in the organisation’s first 40 years.
By the mid-2000s it was recognised that continuing this situation would be a grave strategic error for ASEAN’s reputation and competitiveness. An appointed group of eminent persons tasked with assessing the organisation’s new directions through the ASEAN Charter made three recommendations.
They first advised that for ASEAN to fully realise its primary goal of economic, socio-cultural and political–security cooperation, the informal association needed to become a reliable and ‘structured intergovernmental organisation’ with legal obligations. ASEAN needed to be an entity comparable to other international organisations in an intensely legalised global order. This included taking on legal personality and pursuing legal endorsement of the fundamental values of the international community, human rights and democracy.
Second, they advised that ASEAN should be more actively visible in the international order to take advantage of the economic opportunities brought about by regional economic integration. A coherent economic bloc would attract more foreign investment and enable the region to compete against China and India.
Third, they noted that the overt lack of respect for rule of law and institutions not only tarnished ASEAN’s reputation but also prevented member states from reaping the expected rewards of cooperative endeavours.
Since ASEAN already possessed adequate hard and soft laws, member states simply needed to work on implementing and complying with these commitments in a timely fashion. Further, monitoring and dispute-settlement mechanisms needed to be established across all areas of regional cooperation. In particular, the ASEAN secretary-general and the secretariat were to monitor regional legal and institutional compliance.
These strategies formed the core of the ASEAN Charter as it mapped out the trajectory for the tri-pillared (political-security, economic and socio-cultural) ASEAN Community. In the first decade of this transition, there has been an unsurprising tendency to backslide due to path dependencies. Monitoring oversight has not been exercised by the ASEAN secretary-general or the secretariat, and none of the ASEAN dispute settlement mechanisms have yet been used.
In particular, enthusiasm for legalisation and institutionalisation has not yet emerged in national or ASEAN Secretariat departments that deal less directly with law or handle sensitive issues such as internal economic policies, forestry and agriculture. These departments are understandably more protectionist and are reluctant to move to a structure of rules and institutions. It is unsurprising therefore that the launch of the ASEAN Community was fraught with defensive justifications that the full attainment of community goals needed more time and resources beyond the formal deadline of 31 December 2015.
But ASEAN’s strategic legalisation and institutionalisation is not slated for failure — there are procedural and reputational safeguards that compel progress.
For one, the charter is ASEAN’s first constituent treaty that lays a strong foundation for compliance with regional laws and institutions. It is a permanent fixture in ASEAN regionalism unless it is superseded by a subsequent constituent treaty, which is unlikely due to the grave credibility costs in a highly legalised contemporary international order. The cornerstone ASEAN Community Vision 2025 document reinforces the norms articulated by the Charter.
If they default on the charter and other ASEAN laws, and fail to comply with regional agreements, ASEAN states will be unable to attain the economic profit promised by cooperation. This is in addition to the loss of goodwill and potential retaliatory action when such commitments are broken. Recalling that economic disputes are increasingly resolved through adjudicatory mechanisms, ASEAN’s economic partners would likely use the settlement mechanisms stipulated in ASEAN treaties rather than pursue lengthy diplomatic negotiations to resolve disagreements.
Today, network governance plays a central role in intra-ASEAN relations. A genuine reformative effort can be seen among the officers who work on ASEAN issues in the national ministries and the ASEAN Secretariat. For example, in customs procedures, officers are keen to regularise procedures in line with the rule of law and institutions. Networks of shared experiences among regional counterparts are increasingly built through capacity-building initiatives jointly organised by regional and external stakeholders. Even more encouraging has been the recent establishment of dedicated monitoring units in the ASEAN Secretariat to build each of the three pillars of the ASEAN Community.
The officers of ASEAN and its member states are demonstrating an increasing adherence to the rule of law despite considerable obstacles. Slow as the progress might be, the transformative power of law and institutions once they are set in motion cannot be ignored. Greater familiarity and usage will reinforce and bring more uniformity to regional legalisation and institutionalisation. As this strategy evolves, its particular characteristics will go on to define a unique new model of ASEAN regionalism in the global order.
Tan Hsien-Li is an Assistant Professor at the Centre for International Law, National University of Singapore.
This article appeared in the most recent edition of East Asia Forum Quarterly, ‘Strategic diplomacy in Asia’.