08 May 2017
Framing Session by Ambassador Ong Keng Yong, Executive Deputy Chairman of RSIS, at the US-ASEAN Conference on Legal Issues of Regional Importance: Key Legal Issues Affecting ASEAN
8 May 2017
Marina Mandarin Singapore
- Distinguished guests, colleagues and friends, it gives me great pleasure to welcome you to this conference, which is jointly organised by the U.S Department of State, the S. Rajaratnam School of International Studies (RSIS) at Nanyang Technological University and the Asia Foundation.
- From the time of its establishment in 1967 under the Bangkok Declaration, ASEAN has relied more on diplomacy rather than law. Political relations within the region were managed by consultation and consensus and declaratory statements, while treaties denoting binding legal obligations were few.
- However, upon the 40th anniversary of ASEAN in 2007, the ten member states in the grouping signed the ASEAN Charter stating that: “We, the Peoples of the member states of the Association of South East Asian Nations … [h]ereby decide to establish, through this Charter, the legal and institutional framework for ASEAN.” For the first time in its history of over four decades, the Legal and the Institutional were brought to the forefront of ASEAN discourse.
- ASEAN Leaders envisioned the ASEAN Community to be established by the end of 2015. Blueprints for each of the three pillars in the ASEAN Community, namely, the Political-Security Community, the Economic Community and the Socio-Cultural Community have been formulated and adopted as well as numerous new treaties and protocols often with detailed obligations and dispute settlement procedures.
- By 1 January 2016, the ASEAN Community is officially in business. The ASEAN Community was formally born with the signing of the Kuala Lumpur Declaration on the establishment of the ASEAN Community. Setting up the ASEAN Community was a historic development and major milestone in the regional integration agenda of ASEAN.
- Distinguished guests, colleagues and friends, ASEAN is a dynamic organisation made up of countries that have unique strategic ideas, economic policies and varying threat assessments. Hence, community-building is essential for the region to cooperate in its dealings with countries outside the region in elevating ASEAN’s global political, economic and social standing. As Malaysian Defence Minister put it succinctly during the 30th Asia-Pacific Roundtable on 31 May 2016, constructing the ASEAN Community is an economic necessity and a strategic imperative.
- There are imperfections. Several elements in the community-building plans have not been fully implemented. Yet, it cannot be denied that there is a degree of group awareness among the policy makers, business people and the educated population in member states of ASEAN. ASEAN has become part of the regional development and progress.
- Therefore, we have an ASEAN which should strengthen peace and security in Southeast Asia and integrate the 10 respective economies in a systematic way. What ASEAN member states need is investment and economic development which will bring prosperity and progress. This is important for realizing socio-cultural goals as well. Member states should undertake whatever necessary to achieve a strong foundation for ASEAN to grow according to the plans laid down. The more economic development, the more corporate successes. When companies are doing well, we can get more private sector players to contribute to CSR and the well-being of ASEAN.
- While ASEAN has achieved good results in community building, there is still a great deal of uncertainty about what would come next in consolidating the ASEAN Community, especially as new contending challenges in the region have emerged. These are not merely in the traditional security arena but more and more in the non-traditional security field.
- It is a paradox of the current international order that Asia — the most populous and economically dynamic region on the planet — arguably benefits most from the security and economic dividends provided by international law and institutions and yet is the wariest about embracing those rules and structures.
- Currently, the ASEAN Way involves member states making regional decisions based on consensus. This is derived from informal procedures. To move forward to become a more Rules-based ASEAN, it is important to see the ASEAN Way as having a symbiotic relationship with a Rules-based ASEAN. Achieving consensus and adhering to international law are both critical aspects of maintaining regional cooperation.
- In addition to ASEAN Institution-building, legalisation is another important cornerstone for ASEAN Integration. For deeper regional integration to take place, it also is important to enhance coordination among new and existing ASEAN institutions and to facilitate the interpretation and enforcement of ASEAN decisions.
- It is also true that international legal sources are no longer confined to treaty, custom, or general principles but include a welter of soft law whose content and legal effects involve the discourse of law. As such, to look only at hard legal institutions for the rule of law in ASEAN may be reductive.
- Implementation is key when we talk about successful regional integration and the legalization of ASEAN. Merely signing on to legal instruments is not the key to successful regional integration and adherence to international law. We must recognize that implementing these obligations in a way that respects these obligations is as important as merely being able to say that we have signed on to as many instruments as possible.
- It is also necessary to streamline the large body of agreements that ASEAN has, by reviewing existing treaties and dispute settlement mechanisms in order to prioritise and activate them accordingly.
- ASEAN also needs to develop a more comprehensive way to resolve disputes.
- The ASEAN Charter provides for the establishment of dispute settlement mechanisms in all areas of ASEAN cooperation. Disputes concerning ASEAN economic agreements shall be settled in accordance with the 2004 Protocol on Enhanced Dispute Settlement Mechanisms (EDSM). Disputes concerning the ASEAN Charter or other ASEAN non-economic instruments that do not have specific provisions on dispute settlement shall be settled in accordance with the 2010 Protocol to the ASEAN Charter on Dispute Settlement Mechanisms (2010 Protocol). Disputes which do not concern any ASEAN instrument shall be resolved in accordance with the 1976 Treaty on Amity and Cooperation.
- As a matter of fact, the EDSM has not been invoked. One reason is the limitations in its institutional design. For example, the time allowed for consultation, deliberation, decision and reports has been viewed by many experts as being too short. There is a need to review and make recommendations to improve the EDSM to make it more attractive to ASEAN member states.
- For non-economic disputes, to further encourage the use of ASEAN dispute settlement mechanisms, all future instruments should provide that, if a dispute arises, the 2010 Protocol would apply. The 2010 Protocol should also apply to all existing ASEAN non-economic instruments that have no dispute settlement clause or provide that disputes shall be settled merely by consultation or negotiation.
- To facilitate the implementation of ASEAN instruments, procedures should be established to clarify the role of the ASEAN Secretariat and the sectoral bodies in monitoring and promoting ASEAN member states’ compliance with ASEAN instruments, and even international treaties, including human rights treaties.
- On human rights, to integrate them into the ASEAN Community, ASEAN must clarify what it desires to achieve through the ASEAN Intergovernmental Commission on Human Rights (AICHR) and be committed to such goals. If the human rights priority for now is ASEAN’s traditional emphasis on social justice and development, e.g. human trafficking, migrant labour, and the rights of women and children, then the requisite resources should be allocated.
- In terms of law, we should see the firming of human rights provisions and for the ASEAN Human Rights Declaration to uphold international human rights norms, especially beginning with CEDAW and CRC. This would come within the wider rule of law framework that ASEAN is currently undertaking as it moves in the direction of coalescing into an ASEAN Community.
- It is also important, that through forums like this that we engage with crucial stakeholders amongst ASEAN’s business sectors, civil service, law enforcement authorities and civil society. Engagement also requires reconciling the diverse conditions in member states and finding the lowest common denominator to start the process for consolidation.
- Distinguished guests, colleagues and friends, ASEAN has gone beyond the ad hoc cooperation and confidence building exercises of its early years. Therefore while integration may be difficult to define positively, integration may be defined by what it is not. It is not ad hoc, it is systemic and progressive, it is not time limited, it is open-ended and future oriented, and it is not only defined in terms of self-interest but also defined by a sense of commonality and common interests. A rules-based regime is an essential part of building the ASEAN Community.
- In closing, I wish to reiterate 3 points:
- ASEAN is not perfect and community-building is an on-going learning process.
- Implementing regional obligations is as crucial as signing on to them, embracing what is realistic for the ASEAN region with sincerity and respect.
- In this pursuit, we need law, rules and systems to strengthen ASEAN as an open, inclusive and peaceful region to ensure a secure and prosperous future.
- Before I step down, I wish to express the deepest appreciation of the RSIS team to the sponsors of this consultation and dialogue. I am confident that this is a valuable opportunity to build on a successful ASEAN integration rooted in the rule of law.
- Thank you for your kind attention.
Last updated on 07/05/2019