South-East Asian government, politics and policy

Summary

Introduction

As the Association of Southeast Asian Nations (ASEAN) approached its 40th anniversary, calls were made to strengthen it and make it more rules-based. In 2005, an Eminent Persons Group (EPG) consisting of ten former leaders and ministers of ASEAN states was established to make recommendations on the promulgation of a charter for ASEAN. The EPG Report was issued in December 2006 and it was endorsed by the Heads of ASEAN member states at the 12th ASEAN Summit in Cebu in January 2007.

The EPG Report stated that ASEAN's problem was not one of lack of vision, ideas or action plans. Rather, ASEAN's real problem was one of ensuring compliance and effective implementation of its decisions and agreements. It further stated that ASEAN must establish a culture of honouring and implementing its decisions and agreements, and must do so on time, since delays and non-compliance are counter-productive, undermine ASEAN's credibility, and disrupt its efforts in building the ASEAN Community. The EPG therefore pushed for the institutionalisation of effective monitoring and dispute settlement mechanisms. It recommended that dispute settlement mechanisms (DSMs) be established in all fields of ASEAN cooperation. Failure to comply with decisions of the DSMs should be referred to the ASEAN Summit for possible measures to address non-compliance; and the Secretary-General should be entrusted with the role of monitoring compliance and reporting cases of non-compliance. It is significant that the adherence to the rule of law and institutions is deemed so crucial to ASEAN's transformation that although not all of the EPG recommendations are incorporated in the ASEAN Charter, most of the recommendations pertaining to compliance monitoring and dispute settlement are.

This book aims to investigate whether ASEAN's faith in dispute settlement and monitoring mechanisms as means to better compliance is justified and the extent to which they can facilitate this process. First, it examines all ASEAN DSMs and inquires whether these DSMs can be effective in promoting compliance. Second, it maps out and dissects ASEAN's compliance mechanisms so that their strengths and weaknesses, as well as overlaps and lacunae, can be more easily comprehended and systematic improvements can be made. Third, it makes various recommendations on what steps should be taken to strengthen DSMs and establish effective compliance monitoring mechanisms in ASEAN.

Summary

Revisiting the question propelling our study – whether dispute settlement mechanisms can improve regional compliance with ASEAN instruments – the answer is: it depends. Dispute settlement mechanisms may give greater credibility to commitments, and the possibility of punitive measures can act as a deterrent against non-compliance. However, as demonstrated in the previous Chapters, both theory and practice in ASEAN show that dispute settlement mechanisms may not compel adherence as effectively as do compliance monitoring mechanisms. Another point to note is that ASEAN dispute settlement mechanisms currently appear not to fulfil their primary function of resolving conflicts. However, recourse to such regional mechanisms cannot be ruled out as ASEAN evolves. Just like it was quite unimaginable for ASEAN member states in a ‘spirit of brotherhood’ to litigate against one another in the past, they are increasingly bringing their contentions before international tribunals for peaceful resolution. In addition, while ASEAN has taken measures to increase compliance monitoring mechanisms, serious lacunae in their substantive functions exist. In sum, the dispute settlement and compliance monitoring mechanisms in ASEAN are presently not very effective – they are simply not being used. This may be because of the practice, entrenched throughout the ASEAN region, that formal dispute settlement should be avoided. Alternatively, structural flaws in the mechanisms could be deterring member states from using them.

As seen in Chapter 1, experts on dispute settlement have suggested that diplomatic engagement yields better results than does litigation, because the adversarial nature of litigation might exacerbate the tense relations in political-security disputes. For instance, the TAC was designed to deal with disputes that threaten the peace and security of the region. From what we have seen of ASEAN member state behaviour, unless disputes escalate to the point of armed conflict, they do not seem to warrant the invocation of the TAC. For example, Singapore avoided recourse to the High Council to resolve its dispute with the Philippines over Flor Contemplacion since it was a bilateral dispute which was nowhere close to affecting regional peace and stability. In the dispute over Sipadan and Ligitan, Malaysia declined Indonesia's suggestion to use the TAC for resolution because, in Malaysia's opinion, the members of the High Council could not be expected to be neutral, since Malaysia had other territorial issues with other ASEAN member states.

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.

Summary

CIL's second observation focused on compliance monitoring (including implementation, review and supervision) clauses in ASEAN instruments. The observation aimed to: (1) confirm whether ASEAN has a standard practice of including compliance monitoring clauses in all of its instruments (from 1967 to 2012); (2) confirm the role of the ASEAN Secretariat in compliance monitoring (as mandated under the 1976 ASEAN Agreement on the Establishment of the ASEAN Secretariat and, later, under the ASEAN Charter); (3) identify the ASEAN organs responsible for compliance monitoring, where the ASEAN Secretariat is not acting as compliance monitoring authority; and (4) identify issues vis-à-vis ASEAN practice in prescribing compliance monitoring clauses in its instruments.

The observation on ASEAN compliance monitoring clauses was limited to 148 instruments adopted between August 1967 and August 2012 (the time of the establishment of ASEAN and the time of this observation). Similar to our observation of ASEAN DSCs, the observation was limited to main and stand-alone instruments. It did not include protocols or other instruments of amendment, or implementing protocols or instruments unless those instruments contain different compliance monitoring clauses.

Summary

Introduction

Foreign analysts may be forgiven for pausing briefly over a translated passage relating to foreign policy in a state-of-the-nation address delivered by Myanmar's then-President U Thein Sein in early January 2015. Following the President's Office's website, Myanmar seemed to have suddenly opted for what would be a significant shift in relation to its foreign policy principle. Specifically, the text suggested that Myanmar might be surrendering the principle of non-alignment. According to the President's Office, U Thein Sein said that “We [Myanmar] are … on the path of a much more dynamic and multi-aligned foreign policy.” Such a move towardsmulti-alignment would certainly have represented discontinuity with the country's longstanding foreign policy. After all, newly independent Burma committed early to non-alignment, and — as suggested by Myanmar's Foreign Ministry — this foreign policy principle, has since been pursued by all subsequent governments. The 2008 Constitution, drafted under the watchful eyes of the last military government under Senior General Than Shwe, identifies Myanmar foreign policy principles as being non-aligned, independent and active. In his own presidential inaugural address, U Thein Sein had also clearly formulated his high regard for non-alignment as he also emphasized the fact that Myanmar has never allowed foreign military bases in the country.

In the event, suspicions that the use of the word “multi-aligned” fell into the category of translation errors were quickly confirmed. The Myanmar language version of the same speech did not in fact include the terminology of “multi-aligned”. Instead, the term used in the original Burmese version is arguably better translated as “dynamic and multi-partner” foreign policy. In other words, what at first sight, at least for foreign consumers of presidential news, could easily have appeared to be a noteworthy if not significant shift in declared foreign policy thus represents only an apparent moment of carelessness, a seeming oversight in editing, as well as — in all probability — an instance of insufficient coordination in internal bureaucratic processes. That said, the translation issue does invite us to raise an important question, namely as to whether or not the Republic of the Union of Myanmar has been as committed to the non-alignment principle in practice as it has been in rhetorical terms.

Summary

EXECUTIVE SUMMARY

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 word “integration” means different things in different contexts. As this monograph is part of a series entitled Integration through Law: The Role of Law and the Rule of Law in ASEAN Integration (ITL) (see General Editors’ Preface), it examines the extent ASEAN environmental law contributes to ASEAN regional integration as an ASEAN community. ASEAN's historic transition, from an association in 1967 to its development into a community by December 31, 2015, has seen an evolution in various sectors, not least in environment.

The Introduction to the volume sets the scene, providing an overview of ASEAN and its efforts at regionalism. The history of colonization is noted, which explains the strong emphasis on Westphalian concepts of sovereignty and non-interference with domestic affairs. The efforts at regional integration in the context of the environment closely follow the global environmental movement, from the Stockholm Conference in 1972, to the Rio Conference in 1992 and Agenda 21, which prompted ASEAN's Strategic Plan of Action on the Environment and other initiatives. The ASEAN Way, which involves consensus, respect for the principle of sovereignty and non-intervention, and its challenges and evolution in the context of rapid economic and climatic changes and their deleterious impacts on the environment, are the subject of the chapters that follow.

Chapter 1, ASEAN and environmental sustainability, elaborates on the ASEAN vision of “One Caring and Sharing Community,” aspiring toward sustainable development as a common, uniting goal. It examines the difficulties of achieving the five-year plans of action, making the point that the ASEAN Way “makes for informality, quiet diplomacy, face saving and avoidance of legal instruments i.e. hard law.” However, some successes in hard law are mentioned, particularly the coming into effect of the ASEAN Transboundary Haze Agreement, with ratification by Indonesia, the last state to do so.

Chapter 2, Integrating sustainability into ASEAN state practice, discusses the importance of environmental governance and environmental management systems. The study finds that national environmental law regimes and governance are uneven across the ASEAN member states, and considerable capacity building is required. The issue of “integration through law” is examined from two perspectives – institutional integration and integration of laws and policies. It lauds the success in the stewardship of the region's terrestrial biological resources while noting the lack of concerted policies to safeguard marine natural resources.

Summary

Evergreen tropical forests, mountain forests, monsoon forests, limestone and karst formations, wetlands, marine and coastal waters – these are among the major habitats or ecosystems found in Southeast Asia that store the world's largest collection of plant and animal life. These are life-giving resources for over half a billion people of the region and millions more around the world.

Dr. Surin Pitsuwan, ASEAN Secretary-General

3.1 Evaluating bio-geographic trends in the ASEAN region

Members of ASEAN share a common appreciation of nature in their customs, religious beliefs and social values. They also share the experiences of rapid urbanization and growing national populations. From 450 million in 1990, more than 622 million people live in ASEAN's ten countries in 2012, soon to be an estimated 650 million by 2020. Human population growth is most rapid in Indonesia (40 percent), the Philippines (17 percent) and Vietnam (16 percent), and the demands on environmental resources grow commensurately. All people among member states rely on the environment for their livelihoods, whether directly or indirectly. Despite disparities in levels of socio-economic development, with gross domestic product per person ranging from US$59,937 to US$1,327, member states collaborate to identify what is needed for environmental protection and the attainment of sustainable development. They cooperate through five-year planning cycles to build their capacity to provide environmental protection as a pillar for socio-economic development. Member states have made significant gains in building their capacity to be stewards of nature and natural resources, and to implement regionally their national obligations under multilateral environmental agreements and other environmental treaties. Nonetheless, as ASEAN's Secretary-General acknowledges:

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.

Law provides both a significant foundation and an effective procedure for ASEAN member states as they pursue intergovernmental environmental cooperation. The ASEAN Way encourages the sharing of goals and agreement by consensus on a phased pacing of capacity building for environmental stewardship, as discussed in Chapter 5 of this study.

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 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.

South-East Asian government, politics and policy

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Executive summary

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4 - Recommendations

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Contents

General editors’ preface

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Appendix 2 - List of ASEAN instruments' provisions related to treaty compliance

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Bibliography

Myanmar's Foreign Policy under President U Thein Sein: Non-aligned and Diversified

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Myanmar's Foreign Policy under President U Thein Sein: Non-aligned and Diversified

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Frontmatter

Foreword

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Executive summary

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3 - The environment in the ASEAN region

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Frontmatter

Contents

Foreword – Professor Tommy

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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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