Rethinking law in ASEAN’s rules-based order by Dr Tan Hsien-Li

28/04/2021 with [734 views] no comments

Rethinking law in ASEAN’s rules-based order

by Dr Tan Hsien-Li

 By the end of 2021, the ASEAN Charter would have been in force for 13 years pursuant to Indonesia’s ratification in 2008. Yet what is supposed to be ASEAN’s ‘constitutional’ breakthrough has been to many, in the years since, underwhelming when compared to the initial lofty ambitions of the member states. As neatly summarized on the ASEAN website, the Charter is ‘a firm foundation in achieving the ASEAN Community by providing legal status [to] and [is the] institutional framework for ASEAN. It also codifies ASEAN norms, rules and values; sets clear targets for ASEAN; and presents accountability and compliance’.

While the ASEAN Community managed to be formally launched within its 2015 deadline, it was concomitantly acknowledged that Community-building would continue evolving. Unmet goals in the Roadmap for an ASEAN Community (2009-2015) continue to be worked on as part of ASEAN 2025: Forging Ahead Together (2016-2025). Leaving aside commitments with more open-ended operational modalities and timelines in the political-security and socio-cultural pillars, even the ASEAN Economic Community on which tremendous expectations were laid has not become the envisioned ‘single market and production base’ – a free trade area with seamless supply chains exporting to the rest of the world. Regional leaders exhort perseverance in integration while analysts warn that integration needs to be accelerated and intensified if ASEAN wants to achieve its goal and be globally competitive.

Undoubtedly a lot of effort has been expended and much is achieved, but considerable work remains to fully realize ASEAN’s rules-based Community. It is curious, however, that these discussions often omit the vehicle – Law – that underpins ASEAN’s post-2007 integration and cooperation. It is uncertain why such an integral part of the Charter Community-building avowals has been largely overlooked by those who work on and in ASEAN, both practitioners and scholars. While the reasons may never be truly known, this essay attempts to elucidate the role and rule of law in the narrative of ASEAN Community-building.

One reason may be normative and ideological – the ASEAN Way is ‘non-legalistic’, hence there is resistance to using the law. (The sceptical subset that ASEAN legal integration is window-dressing should be rejected because the facts show otherwise.) Another could be path dependency – it is not easy to change operational modality, especially if institutions may not be fully equipped and personnel have not been specifically trained. It could also be that the language of the law is somewhat alien and what the rules-based ASEAN requires is unclear, and circumspection arises from a lack of full understanding of what legal integration entails. Yet another reason could be that, despite the net benefit ultimately to each member state and the region collectively, the short-term transitional costs of integration are simply too high – there may be capacity and resource limitations; or freer markets could mean domestic products become less competitive and unemployment could rise.

Whatever the reasons for the lukewarm reception to legal integration, it is worth recalling what the member states seek to achieve through the Charter and how they expect to do it. As spelt out in the Eminent Persons Group Report on the ASEAN Charter (2007), the members’ main objective is unchanged since ASEAN’s 1967 establishment – a collective quest for regional peace and security and economic prosperity. By signing the Charter, ASEAN members introduced formally the modality of law in how they would increasingly interact within the grouping and with the rest of the world, and thus be more effective and reliable in their collective commitments, doing better than the pre-2007 implementation rate of thirty percent.

The Charter undertaking is not a reactive one. Instead, it is the culmination of increasing procedures, institutions, and laws (both hard binding treaties and soft declaratory instruments) in ASEAN relations, signalling the organizational transformation from one using politically flexible, diplomatic modalities for forty years, to one that henceforth adheres to the rule of law and institutions. Substantively, member states desire ASEAN to be an economically integrated bloc attractive to foreign investors and linked up to global export markets, thus competing effectively with China and India. Institutionally, they envision a stronger, more institutionalized ASEAN with legal personality – but still remaining intergovernmental (and never supranational) – and comparable to other international organizations in the contemporary world order. The culmination of this metamorphosis is the formation of a tri-pillar (political-security, economic, and socio-cultural) rules-based ASEAN Community by 2015.

It is important to highlight that imbuing ASEAN with a strong legal identity is to enrich the organization and not to change it into something radically different from what it is not. Hence, the Charter’s opening provisions on ASEAN’s purposes and principles codify a swathe of longstanding strategic interests and values like security, sovereign independence, non-use of force, non-interference, peaceful dispute settlement, socio-economic development, integration into a single market and production base, and ASEAN centrality in foreign relations. To compel compliance to this new paradigm, ASEAN members instituted mechanisms to resolve any dispute across all three communities. Article 24 of the Charter provides that economic disputes ‘shall be settled in accordance with the ASEAN Protocol on Enhanced Dispute Settlement Mechanism’ while disputes that do not concern the interpretation or application of any ASEAN instrument ‘shall be resolved peacefully in accordance with the Treaty of Amity and Cooperation’. Most prominently and in departure from ASEAN’s erstwhile ‘litigation-averse’ culture, the ‘catch-all’ Article 25 stipulates ‘appropriate dispute settlement mechanisms, including arbitration, be established’ for disputes involving any ASEAN instrument’.

While all this might sound ‘overly legalistic’ and antithetical to regional modalities, it is normatively not that difficult to square with the ASEAN Way if we think of ASEAN’s legal turn in integration and cooperation as being rules-based. Compliance notwithstanding, laws and institutions became increasingly part of ASEAN’s pre-2007 development and prominent after the Asian Financial Crisis of 1997 and surrounding the Bali Concord II (2003). The Charter merely entrenches and makes explicit the ‘new’ norm of the rule of law. In other words, the rules-based order or the rule of law now becomes part of the ASEAN Way.

Furthermore, law does not undermine member autonomy but facilitates state and collective interests. The Charter crystallizes the ASEAN’s intergovernmental and state-centric priorities – sovereignty is given utmost respect in collective decision-making. This is clear in how ASEAN operations are overseen by the Summit of the heads of state or government and ministerial-level councils, and how decision-making at all levels must adhere to the norm of consultation and consensus. As ASEAN dispute settlement procedures have not been activated – this should not be deemed a failure of the rules-based system since it is the member states’ prerogative to choose whether to litigate – fears that ASEAN could become overly legalistic or litigious or that supranationalism might creep in via tribunal decisions are unfounded.

Against this backdrop, it would be disingenuous to disregard the role of law in ASEAN integration and imagine that states may still reserve the right to flexible action (read: potentially breaching commitments) in the name of sovereignty. Sovereignty has already been exercised in adopting the Charter – to renege on express obligations would be a breach of the basic international principle of pacta sunt servanda and acting in bad faith. For ASEAN to be a credible international person respected in the world order, members must uphold commitments and stick to agreed-upon timelines, not only for external agreements but intra-ASEAN treaties. As importantly, while ASEAN does possess many treaties (especially in the economic pillar), its legal landscape includes many soft laws like declarations, concords, blueprints, and programmes of action that although not binding still exert commitment pressures through deadlines and mutual expectations upon adoption. Even in the political-security and socio-cultural communities where instruments tend to be non-binding, there is the expectation that these collective goals should be met. After all, implementation and compliance underscore the Eminent Persons Group’s conclusions and the member states’ objectives in adopting the ASEAN Charter.

Despite a slow start, there are positive signs that evince the ASEAN Community’s sui generis rules-based order is taking shape. This goes beyond the basic requirement of promulgating ASEAN treaties into national legislation or, where relevant, the formation of domestic policies in respect of ASEAN directives. (The beauty of policy is it does not require the lengthier and more complex legislative process. Set by the executive, it becomes a rule that can be used by national agencies.) To attain compliance, given that arbitral tribunals continue to be avoided, the better way to ensure member states implement ASEAN’s rules is by monitoring. For economic integration, since 2016, the ASEAN Secretariat has taken firm steps to improve national implementation through the Monitoring and Evaluation Framework with its the three steps of compliance monitoring (checking for implementation), outcomes monitoring (measuring the results of compliance), and impact evaluation (assessing if the community and local enterprises have benefited from integration). While currently quite nascent, it is encouraging that monitoring of the political-security and socio-cultural pillars is also being carried out. Closer monitoring, more intraregional accountability, and more transparent public data should be provided as monitoring protocols strengthen, thereby strengthening integration and cooperation with the Community.

As a further impetus to rules-based Community-building, members may be more resolute in regional integration if there is data on the net benefit of closer cooperation. Studies estimating the gains and challenges for each member state pursuant to a fully-functioning ASEAN free trade area that attracts regional and foreign investment – and able to compete with China and India – could be the catalyst Community-building needs. Of course, members would still contend with the pressures of capacity and resource limitations, the demands and expectations of domestic constituencies, as well as their own foreign policies on bilateralism and multilateralism. 

To ensure the ASEAN rules-based order flourishes, it is necessary to have professionals able to work within the regional ecosystem. This does not mean only lawyers are required. Instead, it is the recognition that policymakers, practitioners, and executives in the ASEAN Community, regardless of their disciplinary training and field of work, can use its laws and policies effectively and beneficially. (For instance, businesspeople could enjoy lower costs from improved trade facilitation and litigate neutrally under national administrative law for errors or obstruction of ASEAN laws done in the day-to-day work of domestic officials.) It is very encouraging that increasing numbers of national and regional bureaucrats are familiar and adept with ASEAN rules (and not just its norms), and they recognize their importance. The task now is disseminating the knowledge of ASEAN rules and how they can be used to those who work within the ASEAN Community. For the longer term, teaching the rules-based ASEAN could be introduced in university or tertiary-level curricula, thus educating generations of ASEAN citizens on how to live and work within our Community. With discipline and determination, ASEAN Community-building will realize the developmental aspirations of every ASEAN member and every ASEAN citizen can enjoy the socio-economic fruits of regional integration.

Note: This piece was first published as “Rethinking Law in ASEAN’s Rules-based Order”, ASEANFocus 1/2021, 1 April 2021