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.

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.

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.

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:

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.

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.

ASEAN's agenda for developing environmental policy and law began in 1978 (ASEAN Sub-Regional Environment Programme, Phase I) not long after the Stockholm Conference on the Human Environment ushered in the modern era of international environmental law in 1972. The journey from 1978 culminating in the Cha-Am Hua Hin Declaration on the ASEAN Roadmap for an ASEAN Community 2009–2015 established the interlocking ASEAN Political-Security Community (APSC), ASEAN Economic Community (AEC) and ASEAN Socio-Cultural Community (ASCC), and the Initiative for ASEAN Integration Strategic Framework and IAI Work Plan 2 (2009–2015) intended to bring Cambodia, Lao PDR, Myanmar and Vietnam to a level where they are able to implement the Roadmap. The ASCC Council oversees the overall implementation of the ASCC and ensures coordination and cooperation across all other communities.

It is not possible to survey all the areas of work envisaged in the ASCC and other Communities on environmental sustainability. This chapter traces the cooperation and collaboration within ASEAN itself, as well as with organizations outside ASEAN. These measures complemented and helped to reinforce or even to stimulate the establishment of national environmental law and programs in the various ASEAN member states, described above in Chapter 4. In assessing the various levels of environmental integration, this chapter evaluates the gaps and obstacles along ASEAN's path toward building an integrated environmental sustainability system. A significant approach that underpins all decisions is the ASEAN Way, which has its origin in the Treaty of Amity and Cooperation in Southeast Asia of 1976. The Treaty provides a set of norms for promoting cooperation in furtherance of peace, harmony and stability.

Regional security has become more complex than appeared to be the case in 1976. Concerns for traditional military security, as evidenced in the Indochinese and Vietnam Wars, is matched by non-traditional concerns.

After comparing the AEC and NAFTA with respect to design (in section 2.4), the elaborate analysis of the expected and realised substance of the AEC until mid-2013 in this chapter provides a basis for a comparison with NAFTA on the substance of implementation. The AEC and NAFTA share several characteristics when it comes to substance, although this is rarely emphasised. Put differently, the substance of NAFTA does not seem overly ambitious for ASEAN when assessed against the backdrop of the emerging AEC. The most important difference is, of course, that NAFTA does not pretend to form a single market. However, if one studies the substantive building blocks, the two regional integration attempts are fairly similar. In order to clarify this point, Table 5.1 sums up the substance of NAFTA in the first two columns, with some comments in the third. The fourth column indicates whether the AEC has, or may have, similar provisions, and the fifth column stylises the EU regime in the same domain merely for comparison.

Table 5.1 summarises practically all the substantive provisions of NAFTA in fifteen horizontal or vertical domains (and the two side agreements on labour and environment). It is recommended that NAFTA should be evaluated against the backdrop of the Uruguay Round and the resulting Marrakesh Agreements of GATT/WTO, which six ASEAN countries have signed. NAFTA was negotiated before Marrakesh (1994), but the drafting of NAFTA's substance was simultaneous with the deliberations in Geneva on draft texts in, say, 1991–1993. NAFTA was also greatly influenced by the FTA between Canada and the United States concluded in 1989. Seen in this light, NAFTA is not a sensationally ‘deep’ FTA. As one can quickly derive from Table 5.1, NAFTA is a kind of ‘regionalised WTO-plus’.

This regionalised WTO-plus is characterised by both deepening of WTO commitments and some widening (beyond the scope of WTO disciplines). Deepening is found in tariff removal of the FTA in agriculture (where GATT/WTO does not yet go very far); in selective harmonisation (modest, now that the SPS agreement works); and in services (where GATS has similar principles, but with more remaining discretion for national governments and open-ended – in actual practice, disappointing – lists of commitments to open up; whereas in NAFTA the specifics are technical, yet, on the whole as well as in the sectors specified, they go further and are pre-committed, hence, give legal certainty for competitive strategies).

The aim of the present monograph is to make the ASEAN economic integration model intelligible by applying a conceptual approach. The AEC combines two concepts: the ASEAN single market (which is likely to grow into its own sui generis notion of deeper market integration); and ASEAN as a production base for world multinationals, as well as more and more for ASEAN business itself (and which is ill-defined or not defined at all, not even when carefully checking the ASEAN Blueprint/Roadmap with some 300 items of concrete measures and milestones). The underlying strategic economic aim, which unites all ASEAN countries, is rapid and steady development, underpinned by long-term economic growth and an acceptance of gradual but secure structural change. The AEC can neither be understood conceptually nor practically without this overriding development and growth perspective in mind or, better, in the minds of the ASEAN political leaders.

The monograph takes a systematic look at these ‘concepts’, starting from the fundamentals of economic integration – which also matter for ASEAN – the Bali ‘vision’, and a scrutiny of the five instrumental instrumental objectives (free flows, single ASEAN market, ASEAN as production base, equitable development and its economic competitiveness), followed by a careful summary of the entire AEC Roadmap. This analysis is deepened for the first three of these five instrumental objectives by scrutinising implementation, that is, the substance of the commitments in the Roadmap in considerable depth, including progress to date. Interestingly, with the Roadmap only publicly available for less than seven years, one can already discern many instances where ASEAN has deepened its commitments and/or has made progress beyond what was originally drafted. The AEC has clearly inspired and stimulated strategic thinking in ASEAN Member States, and has prompted policy action over a wide front of policy domains. We show in several domains that ASEAN has improved its understanding of the full implications of such an ambitious strategy. However, in a conceptual approach, such ‘good news’ is less important than the verification of whether ASEAN is living up to the conceptual requirements of what a single market and/or ASEAN as a production base is or will be.

Having identified the strategic choices for a credible and effective AEC, and having made the economic case both for ASEAN as the ‘production base’ and for the AEC as a quasi-single market, the question is what are the options for the AEC? Three stylised options will be discussed. The purpose is to stimulate coherence in the AEC design and to identify priorities and trade-offs. Unlike Chapter 4, most details will be avoided. The three options are:

1. (1) a single-market-minus;

2. (2) ASEAN as a regional ‘production base’; and

3. (3) AECasa‘living’ regional market and development compact.

The AEC as a single-market-minus

Understanding the AEC as a deeper and wider form of market integration is an obvious first option. Name and instruments like ‘single market’ (and its ‘free flows’) do suggest this forcefully. Our analysis of the Roadmap and its implementation (in Chapter 4) yields confusing signals. The Roadmap itself would seem to incorporate the right direction with respect to many chapters, but once one zooms in on the details, one finds numerous loose ends, occasional shallowness of cross-border liberalisation and a lack of commitment in several important components. However, its implementation does demonstrate a good deal of progress, too, expressed in new (binding) Agreements (such as ATIGA, ACIA, movements of natural persons, various on air transport, MRAs for professional services, etc.) – which is a significant turn for ASEAN given its traditions – and steady advances in sequential packages of implementation under AFAS, the customs programme and step-wise increasing market access for investment. There is criticism and some mistrust on the part of observers (including in the present project) because the AEC Scoreboard provides only superficial detail, whereas in deeper market integration what counts is precisely unconditional and transparent market access as well as effective implementation in the Member States.

Nevertheless, even here one should not draw hasty conclusions merely by comparing methods of implementation with those of the EU. There is indeed no doubt that implementation methods – including the indispensable surveillance (monitoring) of those national measures and a regime ensuring corrections in the AEC interest – in ASEAN are too weak for the purpose. It is far from easy, and perhaps even impossible, to combine extreme forms of intergovernmentalism (resulting from sensitivities about ‘sovereignty’) with effective regimes of implementation serving the common AEC interest properly.

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 realisation 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.