South-East Asian government, politics and policy

Summary

It gives me pleasure to write the foreword to this important monograph by three good friends.

Emeritus Professor Koh Kheng-Lian, Emeritus Professor Nicholas A. Robinson and Associate Professor Lye Lin-Heng are three outstanding scholars of environmental law. Both Koh and Robinson have won the Elizabeth Haub Prize for Environmental Law. Koh was former IUCN–WCEL (International Union for Conservation of Nature-World Commission on Environmental Law) Regional Vice-Chair for South and East Asia and a member of its Governing Board, and Robinson was former Chair of IUCN-WCEL and its Governing Board.

Koh initiated a course on ASEAN Environmental Law, Policy and Governance at the Faculty of Law, National University of Singapore (NUS), and has given extensive lectures on the subject in the University of Mexico, the William Richardson School of Law of the University of Hawaii, USA and also a number of law schools in the ASEAN countries.

Robinson and Lye co-teach Comparative Environmental Law at the School of Forestry at Yale University. Lye is the co-founder of the highly successful Master's program on Environmental Management at NUS, and teaches environmental law at NUS, Yale University and the University of Sydney. She is a member of the Board of Governors of the IUCN Academy of Environmental Law.

ASEAN is undergoing a historic transition, from an association to a community by 2015. The adoption of the ASEAN Charter in 2008 was a turning point. ASEAN's ambition is to be a rule-based organization and to take its commitments seriously. It is in this context that the Centre for International Law, NUS and New York University's Law School have jointly launched a major research project on ASEAN integration and the role that law plays in this process.

This monograph is one of a series covering different aspects of ASEAN integration.

I am glad that environment has been included as one book in this series. As the authors have pointed out, over the past thirty-five years, ASEAN has enacted a large corpus of declarations, principles and treaties relating to the environment. My impression is that, in some cases, not all the ASEAN countries have ratified the agreements or implemented other instruments. In other cases, even if all ASEAN countries have ratified an agreement, the implementation has been less than satisfactory. This could be due to a lack of capacity or lack of political will or simply to bad governance.

Summary

From the ASEAN web page: www.asean.org/asean/about-asean/history

On August 8, 1967, five leaders – the Foreign Ministers of Indonesia, Malaysia, the Philippines, Singapore and Thailand – sat down together in the main hall of the Department of Foreign Affairs building in Bangkok, Thailand and signed a document. By virtue of that document, the Association of Southeast Asian Nations (ASEAN) was born. The five Foreign Mini sters who signed it – Adam Malik of Indonesia, Narciso R. Ramos of the Philippines, Tun Abdul Razak of Malaysia, S. Rajaratnam of Singapore and Thanat Khoman of Thailand – would subsequently be hailed as the Founding Fathers of probably the most successful intergovernmental organization in the developing world today. And the document that they signed would be known as the ASEAN Declaration.

It was a short, simply-worded document containing just five articles. It declared the establishment of an Association for Regional Cooperation among the Countries of Southeast Asia to be known as the Association of Southeast Asian Nations (ASEAN) and spelled out the aims and purposes of that Association. These aims and purposes were about cooperation in the economic, social, cultural, technical, educational and other fields, and in the promotion of regional peace and stability through abiding respect for justice and the rule of law and adherence to the principles of the United Nations Charter. It stipulated that the Association would be open for participation by all States in the Southeast Asian region subscribing to its aims, principles and purposes. It proclaimed ASEAN as representing “the collective will of the nations of Southeast Asia to bind themselves together in friendship and cooperation and, through joint efforts and sacrifices, secure for their peoples and for posterity the blessings of peace, freedom and prosperity.”

It was while Thailand was brokering reconciliation among Indonesia, the Philippines and Malaysia over certain disputes that it dawned on the four countries that the moment for regional cooperation had come or the future of the region would remain uncertain. Recalls one of the two surviving protagonists of that historic process, Thanat Khoman of Thailand: “At the banquet marking the reconciliation between the three disputants, I broached the idea of forming another organization for regional cooperation with Adam Malik. Malik agreed without hesitation but asked for time to talk with his government and also to normalize relations with Malaysia now that the confrontation was over.

Summary

The economic, political, strategic and cultural dynamism in Southeast Asia has gained added relevance in recent years with the spectacular rise of giant economies in East and South Asia. This has drawn greater attention to the region and to the enhanced role it now plays in international relations and global economics.

The sustained effort made by Southeast Asian nations since 1967 towards a peaceful and gradual integration of their economies has had indubitable success, and perhaps as a consequence of this, most of these countries are undergoing deep political and social changes domestically and are constructing innovative solutions to meet new international challenges. Big Power tensions continue to be played out in the neighbourhood despite the tradition of neutrality exercised by the Association of Southeast Asian Nations (ASEAN).

The Trends in Southeast Asia series acts as a platform for serious analyses by selected authors who are experts in their fields. It is aimed at encouraging policy makers and scholars to contemplate the diversity and dynamism of this exciting region.

Summary

The Association of Southeast Asian Nations (ASEAN) aspires to be a neighborhood where richly diverse nations can attain common purposes by cooperating together in consensual and graduated steps. It proposes and posits “One Vision, One Identity, and One Caring and Sharing Community” as the uniting common ground. Composed of ten sovereign states, ASEAN has at its core an international legal framework, through which it shapes its steps toward a shared vision. The goal of sustainable development, as articulated through the UN Conference on Environment and Development, is a central vision shared by each ASEAN member state.

ASEAN cooperation on common policies and laws for the environment and development emerged through agreeing on topics of common concern, preparing draft programs that include capacity-building measures to ensure that each member state is ready to collaborate further, followed by the preparation of draft “soft law” policy declarations vetted through the appropriate governmental levels (civil service, ministers or heads of state). The soft law provides the basis for adopting congruent national laws and regulations to further a common ASEAN approach. In the environmental arena, this is well illustrated by the ASEAN biodiversity programs and the system of protected natural heritage areas.

The ASEAN Way builds confidence and avoids conflict among the member states. These goals are fundamental. War in Indochina raged through much of the twentieth century. As Principles 25 and 26 of the 1992 Rio Declaration on Environment and Development proclaim, “Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary … Peace, development and environmental protection are interdependent and indivisible.” ASEAN member states have identified cooperation in the field of environmental protection to be a common priority. Each has acknowledged the objective of sustainable development, as formulated by Agenda 21. Each is at a different point along the pathway to making development sustainable.

ASEAN perspectives on environmental sustainability cannot be separated from the history of each member state. Except for Thailand, each was colonized by states from outside the region. This left a legacy of civil law (with the Dutch, French or Spanish variants) and common law (with the British or American variants) and a legacy of Islamic legal principles and more recently socialist law principles, in the various states comprising ASEAN.

Summary

The environmental performance of most ASEAN Member States, as assessed by reputable studies, is above the world average, and the ecological footprint is much lower than that of many nations. However, ASEAN will continue to face growing environmental challenges given the need to lift a third of its population earning less than $2 a day out of poverty, and the many other pressures exerted on the environment such as population growth, urbanization and industrialization.

Dr. Surin Pitsuwan, ASEAN Secretary-General

Environment is sans frontières. Many of the current or emerging environmental problems are transnational and transboundary, necessitating legal integration, whether in the form of hard or soft laws, programs, policies or governance innnovations, such as ASEAN Dialogue Partners, or the United Nations Environment Programme consultations. All these are crucial to ASEAN.

ASEAN is part of the global order for environmental sustainability. It is a partner of the United Nations in the field of development. As the 1971 Stockholm Conference on the Human Environment and the 1992 “Earth Summit” at Rio De Janiero have made clear, we the peoples of the United Nations and of ASEAN alike, share one world, one atmosphere, one stratosphere. ASEAN's economic pillar requires integration to move Southeast Asia forward, and environment must move in tandem to prevent degradation of ecosystems for development to be sustainable regionally and globally.

This monograph examines the phenomenon of “integration through law” (ITL), or more particularly how the member states of ASEAN employ law as a means of regional integration, focusing in particular on how this process functions in the context of environmental conservation and sustainable development. The several chapters trace ASEAN's struggles to integrate environment within its own community and also with the global community. There are many concerns, not only in terms of the lack of institutional capacity and funding, but in the very nature of environmental problems. The environmental sciences have taught nations how complicated and interrelated human impacts are on the climate or ecosystems. States are left grappling with solutions. The search for environmentally sustainable progress is an ongoing, adaptive process, often without clear, immediate answers. This complexity is compounded by too many inputs that national sectors receive from diverse interdisciplinary studies, without any governance system to connect them.

Summary

EXECUTIVE SUMMARY

Daw Aung San Suu Kyi has said that peace is the first priority of the National League for Democracy (NLD) when it comes to power in April 2016. Both her remarks at the Union Peace Conference in January and the NLD election manifesto point to ethnicity and federalism being linked. This is a position similar to that taken by the outgoing Thein Sein government and the army. Now that the word "federalism" is accepted as useful in the debate over how to establish an end to Myanmar's persistent civil wars with ethnically designated armed groups, it was hoped that some meeting of minds might take place. But as revealed at the Union Peace Conference, that is yet to have happened. Rather, spokespersons for the ethnic armed groups continue to speak the language of ethnic rights and a federal army, while the government talks about reaching material and administrative agreements and the army insists that there can only be one army. These debates echo the past, going back to the formation of Myanmar in the late 1940s. In order to break the apparently endless debate about federalism, ethnicity, states and divisions in the Union of Myanmar, perhaps a new approach might be considered -- taking federalism a step further to the seventy-four district levels of administration. As the ethnically designated armed groups operate in relatively small and localized areas, a solution that squares the circle between ethnicity and territory might have appeal.

Summary

ASEAN is not only a well-functioning indispensable reality in the region. It is a real force to be reckoned with far beyond the region. It is also a trusted partner of the United Nations in the field of development.

Kofi Annan, former Secretary-General of the United Nations (February 16, 2000)

Since the United Nations General Assembly accepted the Report from the World Commission on Environment and Development, entitled Our Common Future (1987), environmentally sustainable development has evolved to become a central theme for ASEAN. The documentation of this evolutionary progress appears in ASEAN Environmental Law, Policy and Governance: Selected Documents compiled by Koh Kheng-Lian. This body of state practice is substantial. The key measures that illustrate patterns of integration through law (ITL) have been usefully analyzed and collected into two readily available compendia – the first volume, Part I, “Setting the Stage for ASEAN Environmental Cooperation, Harmonization, and Integration” and Part II, “General Legal Frameworks on the Environment,” which contains ASEAN documents on environmental law. These environmental legal instruments appear not only in the ASEAN Socio-Cultural Community Blueprint (also known as the Third Pillar) but across the ASEAN Political Security Community Blueprint (also known as the First Pillar). Volume I also includes documents setting forth ASEAN's environmental Programmes, Strategies, Plans of Action and Blueprints, as well as Declarations, Resolutions and Accords. The second volume focuses on specific sectors such as terrestrial ecosystems – natural resources and biodiversity; coastal and marine environment; water resources management; health and environment; energy and climate change; disaster management; environmental education; and ASEAN environmental governance. Both volumes should be considered companions to the commentaries in this monograph.

It is beyond the scope of this study to address each of the many ASEAN environmental decision-making processes that constitute environmental law, policy and governance in ASEAN. This monograph will selectively reference ASEAN decision-making documents where relevant to an analysis of the rule of law in ASEAN integration, from an environmental law perspective. It should be noted that not all areas that need environmental integration are as yet amenable to integration for reasons of politics, sensitivity of issues, lack of knowledge and capacity, or other reasons.

Evaluating how environmental law functions in the context of ASEAN “integration” can be challenging because the realm of the environment is all encompassing.

Summary

A review of the national environmental legislation in each ASEAN member state illustrates that ASEAN displays both centrifugal and disparate tendencies in legal integration. ASEAN cooperation seeks harmonization and integration to facilitate steps toward region-wide environmental sustainability. However, individual states are driven by their historical and developmental legacies; priorities for ASEAN's sustainability are not always the same for national leaders. Most have not attained the recommended actions described in Agenda 21 to be considered sustainable societies, much less a model for sustainable development. Because of limitations in development state economies, problems with corruption and insufficient expertise, among other challenges, it may be unrealistic to assess legal integration in ASEAN solely from a classical model of international law. Conversely, if ASEAN member states chose to do so, the international environmental law agreements to which they are members provide them with many cooperative tools and legal frameworks for resolving environmental problems and attaining sustainable development. ASEAN could collaborate with its member states to avail themselves of such opportunities.

As sovereign states, international law regards each as equal, but as geographic countries, each has unique ecological challenges that differ substantially from state to state. Hence, national and sub-national environmental laws, and implementation of those laws, can be expected to vary greatly. Like all nations, the ASEAN member states may have enacted comparable bodies of environmental legislation through national law, and each may be a member of the various international treaties and multinational environmental agreements, but their capacity to implement treaty obligations also varies greatly. This reality is illustrated by a selective survey of some of the environmental legal issues in different ASEAN member states.

4.1 Southeast Asian legal systems and constitutions

With the establishment of colonies and protectorates in the region by Great Britain during the late eighteenth and nineteenth centuries, Brunei, Malaysia, Myanmar and Singapore came to inherit common law from the British legal system during their colonial rule. From their French colonial rule, the Indochinese countries (Vietnam, Lao PDR and Cambodia) acceded to a civil law system, though administered with socialist law since gaining their independence. Indonesia practices a civil law system based on a Roman-Dutch model influenced by customary (adat) law, while the legal system in the Philippines is a blend of civil law and common law from its Spanish and American rule, though common law is dominant.

Summary

Climate change may be one issue in which bottom-up demands and initiatives could force reluctant governments to act. In any case, the problem cannot be solved unless each one of us is willing to take ownership of the problem and do our little bit to reduce our carbon footprint. Therefore, we should not allow the elusive post-Kyoto agreement to stop us from doing the right thing. The future of the Earth and of human civilization depends upon each of us.

Ambassador and Professor Tommy Koh

Climate disruption will complicate ASEAN's efforts to build sustainable development across all its member states. The impacts will either be a force for strengthening environmental safeguards needed to cope with climate change and thus enhance legal integration through ASEAN, or the disruptions will have a disintegration effect, reducing states to reliance on their own internal systems, however lacking they may be. The case studies in Chapter 5 suggest that it will be through cooperation and greater integration that the region can best cope. Whether integration through law (ITL) will in fact advance remains to be seen. The dynamics affecting decisions about ITL in the context of responding to climate change can be examined through examining how climate change will affect natural biological resources of Southeast Asia.

According to the Intergovernmental Panel on Climate Change, the impacts of climate change for biodiversity resources in the ASEAN region are projected to be serious. Climate change will exacerbate the many factors that are already endangering biodiversity in the region. A significant number of the region's population remains in poverty, many subsisting mainly on the uninterrupted use of biological natural resources, the losses of which are increasing progressively. Climate change impacts buttress one another: climate change exacerbates poverty and accelerates biodiversity loss; poverty sequentially compels the poor to exploit the environment unsustainably. Degraded environments, in return, intensify poverty and hasten climate change. The bottom line is that if deforestation in the region continues at its current rate, Southeast Asia stands to lose up to three-quarters of its forests and up to 42 percent of its biodiversity by 2100.

How each ASEAN member state responds to the challenges of climate change will measure the success or failure of its socio-economic development. Previously agreed objectives for sustainable development must be recast in light of the changing physical conditions across Southeast Asia.

Summary

Introduction

Daw Aung San Suu Kyi, the leader of the victorious National League for Democracy (NLD) in the November 2015 general elections in Myanmar, announced in her Independence Day address, her first major post-election speech, that “the peace process is the first thing the new government will work on” when it takes office on 1 April 2016. She added, “We can do nothing without peace in our country.”

The NLD leader, having not attended the ceremonial signing of a “Nationwide Ceasefire Agreement” between the government of President Thein Sein, the Myanmar army, and eight ethnically designated armed insurgent groups in October, rather disparaged the Union Peace Conference convened on 12 January, saying in an interview two days into the conference that it was merely a meeting acknowledging the ceasefire agreement, and that the real peace conference would be convened by the next government.3 However, having initially said she would not attend the Peace Conference, she did, showing up and becoming one of the opening ceremony speakers, which prompted President Thein Sein to depart after making his initial remarks.4 The five-day conference was agreed upon at the signing of the ceasefire agreement as the first step in a long political dialogue to resolve the country's persistent civil war. The fact that only a minority of Myanmar's myriad ethnically designated armed groups signed the ceasefire agreement and attended the Union Peace Conference underscored the huge challenge the new government faces in trying to achieve an enduring cessation of armed conflict in Myanmar.

In her remarks at the Peace Conference, Daw Aung San Suu Kyi is reported to have said the following:

Now is the time we are poised to make an effort to bring about eternal peace based on the authority granted by the citizens, including ethnic minorities, to the NLD.

Negotiations will bring about fruitful results, and the peace dream the ethnic minority groups long for will come true. Our country gained the independence through the united efforts of all ethnic groups. We reached the destination we longed for. The participation of all ethnic communities proved an effective symbol. Inclusiveness of ethnicities is of great importance in reaching our destination.

Summary

In a region as vast and diverse as ASEAN is in its political, legal, cultural and social systems, it is not surprising that national interests often take precedence over regional interests. It must be recognized that national priorities for the alleviation of poverty in member states take precedence over what many still perceive to be lofty ideals of environmental sustainability. Most political and economic leaders do not yet accept “sustainable development,” however short-sighted that may be. Many new and emerging environmental problems have left policy makers in ASEAN, like the rest of the world, wrestling with how best to tackle these issues. These uncertainties are compounded by other factors that come into play, such as the repeated financial crises that may prevent environment-related decisions from moving forward. It also takes time to change deep-seated mindsets of policy makers and other stakeholders in regard to environmental issues.

While ASEAN has progressed at a pace that is comfortable for all states in the region, in an organic, evolutionary way, the environment lacks such luxury of time. Environmental disruption is growing across ASEAN, and climate change and other environmental disasters call into question the gradualist approach that has characterized ASEAN's past patterns of integration through law.

A more integrated, cohesive ASEAN can emerge from ASEAN's people-to-people approach of those who “think ASEAN.” This evolved ASEAN Way would reflect consensus in favor of rapid development of action plans and collaboration. It would recognize that the region has a need to care for ASEAN as an integrated community, with shared values and a common vision.

At present this vision is not a reality, but a long-term goal, and ASEAN continues to reiterate the importance of environmental cooperation (as in other areas) to achieve its vision as it does in the Bangkok Resolution on ASEAN Environmental Cooperation 2012. While it has not been achieved much hope lies in ASEAN young people. ASEAN is actively engaging youth in the region to promote ASEAN identity through cultural heritage and other methods such as environmental education to impart knowledge and awareness. To that end, ASEAN has adopted an ASEAN Environmental Education Action Plan. For ASEAN to realize its vision, there must be a change of mindset that no longer considers integration as interference in internal affairs, in the traditional sense.

Summary

This monograph is published within the context of a wide-ranging research project entitled Integration Through Law: The Role of Law and the Rule of Law in ASEAN Integration (ITL), undertaken by the Centre for International Law at the National University of Singapore and directed by J. H. H. Weiler and Tan Hsien-Li.

The Preamble to the ASEAN Charter concludes with a single decision: “We, the Peoples of the Member States of the Association of Southeast 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.

The gravitas of the medium, a Charter: the substantive ambition of its content, the creation of three interlocking Communities, and the turn to law and institutions as instruments for realization provide ample justification for this wide-ranging project, to which this monograph is one contribution, examining ASEAN in a comparative context.

That same substantive and, indeed, political ambition means that any single study, illuminating as it may be, will cover but a fraction of the phenomena. Our modus operandi in this project was to create teams of researchers from Asia and elsewhere who would contribute individual monographs within an overall framework which we had designed. The project framework, involving several thematic clusters within each monograph, is thus determined by the framework and the place of each monograph within it.

As regards the specific content, however, the authors were free, indeed encouraged, to define their own understanding of the problem and their own methodology and reach their own conclusions. The thematic structure of the entire project may be found at the end of this Preface.

The project as a whole, and each monograph within it, display several methodological sensibilities.

First, law, in our view, can only be understood and evaluated when situated in its political and economic context. Thus, the first studies in the overall project design are intended to provide the political, economic, cultural and historical context against which one must understand ASEAN and are written by specialists in these respective disciplines. This context, to a greater or lesser degree, also informs the sensibility of each monograph.

South-East Asian government, politics and policy

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Frontmatter

Contents

Foreword – Professor Tommy

Summary

Index

Appendix B - Founding of ASEAN – a short history

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Foreword

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1 - ASEAN and environmental sustainability

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List of tables

Introduction: exploring environmental law in Southeast Asia

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Can Myanmar's NLD Government Undo the Gordian Knot of Federalism and Ethnicity?

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Frontmatter

Can Myanmar's NLD Government Undo the Gordian Knot of Federalism and Ethnicity?

2 - Integrating sustainability into ASEAN state practice

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4 - Environmental sustainability laws in the ASEAN member states

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Acknowledgments

6 - ASEAN and climate disruption

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Can Myanmar's NLD Government Undo the Gordian Knot of Federalism and Ethnicity?

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Appendix A - ASEAN organizational structure relevant to the environment – the ASEAN Charter

7 - Conclusions: ASEAN's challenging way forward

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General editors’ preface

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Can Myanmar's NLD Government Undo the Gordian Knot of Federalism and Ethnicity?

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