ISSN 2502-0722 Issue 22/ April 2017 · 2017-08-24 · simply provide a state’s understanding (or...

ISSN 2502-0722Issue 22/ April 2017

Taking Stock of 10 Years of ASEAN Charter:

Human Rights Perspective

Stuck In the Future: Stock Taking ASEAN

Charter Development and Implementation

The ASEAN Charter from the Law of Treaties’

Perspective

+ASEAN +3 INTERVIEW

INFOGRAPHICASEAN ROUND-UP

A Note From the Editor

Articles

Taking Stock of 10 Years of ASEAN Charter: Human Rights Perspective

Stuck In the Future: Stock Taking ASEAN Charter Development and Implementation

The ASEAN Charter from the Law of Treaties’ Perspective

The Interview

H.E. Ambassador Xu Bu, Mission of China to ASEAN

H.E. Kazuo Sunaga, Mission of Japan to ASEAN

H.E. Ambassador Suh Jeong-in, Mission of the Republic of Korea to ASEAN

ASEAN Round-Up

Can the Amazon of Southeast Asia Be Saved?

Thailand’s new king is moving the country away from being a constitutional monarchy

Infographic

A Brief Story of ASEAN Charter

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A note from the editorDear readers: Welcome to the April 2017 issue of the monthly Thinking ASEAN!

This month we take a special look at the ASEAN Charter that provides a firm foundation for the Association and grants it legal status and an institutional framework. Introduced in 2007 and entering into force a year later, the ASEAN Charter was widely hailed as a landmark document that significantly transformed the loose gathering of ten Southeast Asian countries into a formalized structure with codified norms, rules and values.

Ten years on, however, it is clear that many issues surrounding the Charter remain. Our lead article by Ms. Yuyun Wahyuningrum, PhD Researcher at the International Institute of Social Studies of the Erasmus University Rotterdam is entitled, ‘Taking Stock of 10 Years of ASEAN Charter: Human Rights Perspective.’ In it she charts the long-running discomfort among ASEAN Member States with the concept of human rights and the struggles to have it included in the ASEAN Charter. The continued reluctance of some Member States have meant ASEAN has failed the litmus test to evolve into an international organisation that is subjected to international human rights laws.

The second article is from Mr. Wirya Adiwena, Head of International Relations, The Habibie Center and is entitled, ‘Stuck in the Future: Stock Taking ASEAN Charter Development and Implementation.’ His article attempts to chart the codification of long existing norms in ASEAN within the ASEAN Charter as well as to examine their implementions through a number of brief case studies. He argues that although ASEAN has been able to move forward to face the new challenges it is confronted with, in reality it still clings to its old much-criticized ways.

Lastly, in her article entitled ‘The ASEAN Charter from the Law of Treaties’ Perspective’, Ms. Vierna Tasya Wensatama, Researcher, The Habibie Center provides a deeper analysis of a number of possible issues that the ASEAN Charter does not signficantly address: namely in terms of its interpretation, expressions of reservations and/or declarations by Member States, as well as the possiblity of withdrawing from the Charter or even in a worst case scenario: the termination of the Charter itself.

This month’s issue of Thinking ASEAN also see us follow up on last month’s look at the ASEAN Plus Three where we present special interviews with the respective ambassadors of China, Japan and South Korea to ASEAN. In the special interviews, we learn about their thoughts and views about the ASEAN Plus Three’s past achievements and prospects for the future.

As usual, we present a short infographic, this time looking at the ASEAN Charter, and a summary of the goings-on in selected countries from around Southeast Asia including Indonesia, the Mekong River, and passage of Thailand’s new constitution.

Don’t hesitate to drop me a line at [email protected] if you have comments, input, or prospective submissions.

Happy reading! Best regards from Jakarta

The Habibie Center was founded by Bacharuddin Jusuf Habibie and family in 1999 as an independent, non-governmental, non-profit organisation. The vision of The Habibie Center is to create a structurally democratic society founded on the morality and integrity of cultural and religious values.

The missions of The Habibie Center are first, to establish a structurally and culturally democratic society that recognizes, respects, and promotes human rights by undertaking study and advocacy of issues related to democratization and human rights, and second, to increase the effectiveness of the management of human resources and the spread of technology.

Project Supervisors Rahimah AbdulrahimExecutive Director, The Habibie Center

Hadi KuntjaraDeputy Director for Operations,The Habibie Center

Editor in ChiefA. Ibrahim Almuttaqi

Thinking ASEAN Team Agustha Lumban TobingAskabea FadhillaFina AstrianaMuhamad ArifHana Hanifah BastamanRahma SimamoraTongki Ari WibowoVierna Tasya WensatamaWirya Adiwena

Thinking ASEAN is a monthly publication that aims to provide insightful, cogent and engaging perspectives on issues central to contemporary Southeast Asia and the ASEAN member states. It is a product of The Habibie Center, with the generous support of the Republic of Korea’s Mission to ASEAN.

The content of Thinking ASEAN does not reflect the official opinion of The Habibie Center or institutions related to the publication. The Habibie Center was founded by Indonesian President Bacharuddin Jusuf Habibie in 1999 as an independent, non-governmental and non-profit organization to promote the democratization and modernization of the country.

Responsibility for the information and views expressed in Thinking ASEAN lies entirely with the author(s). For comments, suggestions and prospective contributions, the Managing Editor of Thinking ASEAN can be reached at [email protected].

2Issue 22/ April 2017

Taking Stock of 10 Years of ASEAN Charter:

Human Rights Perspective

Yuyun Wahyuningrum is PhD Researcher at the International Institute of Social Studies (ISS) of the Erasmus University Rotterdam, the Netherlands

Kecak DanceSource: Wikimedia Commons

No Chemistry

T he relationship between human rights and ASEAN has never been easy; this was true in the forty years before the ASEAN Charter

and has not improved in the ten years after the Charter. The chemistry between human rights and ASEAN is still a work in progress, and unfortunately it has been a very slow progress. To say the least, there is no chemistry between the two.

Established as a political and economic entity in 1967, human rights was not on the list of priority issues nor aspirations for cooperation in ASEAN. Prior to the ASEAN Charter, ASEAN was simply an “association for regional cooperation” with its primary constitutive legal instruments of ASEAN being the 1976 Treaty of Amity and Cooperation (TAC) in Southeast Asia and the 1967 ASEAN (Bangkok) Declaration. It was not until the ASEAN Charter was launched that human rights was included as part of the aspiration, principles, purposes and goals of the regionalisation. The inclusion of human rights in the Charter submits the idea that ASEAN - as a distinct international organisation - should bear the duty of observing core international human rights norms and ensuring compliance by its Member States.

Currently, all ASEAN Member States have recognised human rights norms, expressedly (by signature, treaty ratification, accession) or in individual or collective practice, particularly to the UN Convention on the Elimination of the Violence and Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the Convention on The Rights of Person with Disabilities (CRPD). It is worthwhile to note that despite the difficulties in integrating human rights as the values and practices in ASEAN, its members’ respective Constitutions guarantee human rights protection for the people, although at different levels and coverage.1

The term “human rights” first appeared in ASEAN in the 1990s with an extent of disinclination to the concept as reflected in its official documents2. The first reservation was expressed in the relation that human rights may challenge the sovereignty of the State, as conveyed in the Joint Communiqué of the 24th ASEAN Ministerial Meeting, 19-20 July 1991, Para 15,

“While human rights is universal in character, implementation in the national context should remain within the competence and responsibility of each country, having regard for the complex variety of economic, social and cultural realities. They emphasized that the international application of human rights be narrow and selective nor should it violate the sovereignty of nations”3.

The second hesitation was that human rights has been politicised by using it as a pre-requisite to obtain development aid and cooperation as reflected in the Joint Communiqué of the 25th ASEAN Ministerial Meeting, 21-22 July 1992, Para 18,

“…human rights concerns should not be made as conditionality in economic and development cooperation. They noted that basic human rights, while universal in character, are governed by the distinct culture and history of, and socioeconomic conditions in each country and that their expression and application in the national context are within the competence and responsibility of each country”4.

The third aversion was on the fact that human rights has potential to disrespect territorial integrity and non-interference in the internal affairs of states as echoed in the Joint Communiqué of the 26th ASEAN Ministerial Meeting, 23-24 July 1993,

“the protection and promotion of human rights in the international community should take cognizance of the principles of respect for national sovereignty, territorial integrity and non-interference in the internal affairs of states”5.

At the same time, ASEAN Foreign Ministers affirmed ASEAN’s commitment to and respect for human rights and fundamental freedoms as set out in the Vienna Declaration of 25 June 1993 and the fact that human rights are interrelated and indivisible comprising civil, political, economic, social and cultural rights6 as well as considered the establishment of a regional mechanism on human rights7.

In 1997, ASEAN Leaders adopted the regional commitment to create an ASEAN caring and sharing community, which was later called the ASEAN Vision 2020 during the Second ASEAN Informal Summit in Kuala Lumpur. It was followed by the adoption of the Hanoi Plan of

Action (HPA) detailing on the ASEAN Vision 2020 by developing lines of action. In the meantime, human rights debates were intensified as appeared in a number of ASEAN official documents, such as the 2003 Bali Concord II, the 2004 Vientiane Action Program (VAP), and the 2007 Political Security and in Social-Cultural Blueprint, where ASEAN put forward a much more concrete agenda on human rights.

Its’ a Complicated Relationship

Human rights has been the most sensitive and controversial8 issue during the process of formulating the ASEAN Charter. It goes with the acknowledgement that the inclusion of human rights offers an introduction to the “new” ASEAN’s identity that allows the transformation of identity into a more rule-based regional organisation with the respect and compliance to universal values such as human rights, democracy and good governance.

Particularly, the inclusion of human rights in the ASEAN Charter indicates that the Association is not about economic growth and development only but also signifies the reassessment to the urgency of the long debate regarding ASEAN’s global participation to “universalise” the core of human rights in the region. The universalisation of the core human rights in ASEAN is not irreconcilable with the duties of ASEAN Member States as parties to the Charter of the United Nations, and as members of the international community. In fact, the new status of ASEAN as an international organisation surfaces various questions on its separate responsibilities on human rights as an international organisation on the one hand, and the imitative responsibilities of its Member States on the other.

While all differences in position and interests over human rights continued to exist among ASEAN Member States, the Charter was adopted in 2008 along with Article 14 which guarantees the establishment of a ASEAN human rights body.

A year after the adoption of the Charter, the Terms of Reference (TOR) of the ASEAN Intergovernmental Commission on Human Rights (AICHR) – the name that was agreed then - was announced to the public with “maximum consensus”9 reached by all ASEAN Member States in that time. The TOR of the AICHR limits the mandates of the ten appointed/

selected Representatives to conduct more promotion functions rather than protection on human rights. Interestingly, the Chair’s press statement indicates the work on AICHR was far from finish, as it reads, “It is important to make this human rights body credible and take into account the real situation in ASEAN member countries. So, this TOR is the beginning of an evolving process”10.

The journey of human rights socialisation, norms-setting and institutionalisation after the adoption of the ASEAN Charter is not without challenges. In fact, its process has been the site of contestation and power dynamic; the interplay between national interests and regional aspirations; the negotiations among participating actors, and between universalist ideas and particularism as well as the avenue for further nation-building and identity formation in the development of an “imagined”11ASEAN Community. It is worth noting that ASEAN is the home to a range of ethnic, cultural, religious and belief diversity as well as government, political and legal systems.

I have argued elsewhere that AICHR, among other things, should be able to develop a common position as the “moral voice” to a complex problem in the region.This idea was also appreciated as one of the functions of AICHR as stated in the Article 4.11 of the TOR, “To develop common approaches and positions on human rights matters of interest to ASEAN”. Nevertheless, AICHR continues to hide behind its limitation to address human rights challenges in the region, by arguing that the body has no mandate to address human rights issues. In fact, the last two consecutive ASEAN Foreign Ministers Meetings, however, have seen the Joint Communiques repeatedly call for AICHR to “engage more on human rights in the region”.12 It is necessary to mention that some initiatives were proposed in AICHR, such as providing space for ASEAN human rights dialogue by Indonesia in 2013, the development of AICHR protection mandate for women and children by the Philippines, and development of complaint mechanisms by Malaysia. However, these initiatives have been questioned internally using the procedural compliances. Some progressive and committed AICHR Representatives are required to be rigorous in their diplomacy work but at the same time have to be creative and pragmatic yet principled in putting the TOR into implementation.

As a Charter-based and overarching

body in ASEAN on human rights, AICHR still cannot fulfil the expectations of the people, eight years after its establishment. It has no grievance mechanisms to receive and respond to complaints from the population. The citizens of Indonesia, Malaysia, Myanmar, Philippines, and Thailand can go to their National Human Rights Institutions (NHRIs) to seek justice, while the rest of the population in ASEAN has no mechanisms to go to.

The TOR of the AICHR was supposed to be reviewed in 2014.13 The review, as stated in the Cha-Am Hua Hin Declaration (2009)14, aims at strengthening the AICHR’s mandate to promote and protect human rights. The process, however, stuck in the hand of the Foreign Ministers. While recognising that the Foreign Ministers should review the TOR of AICHR, the 47th

Joint Communique (2014) was not clear on how the review should be done15. The 48th Joint Communique (2015) acknowledged the submission on AICHR self-assessment on its five-year work performance and recommendation, but still did not indicate whether the review will take place anytime soon as it reads, “We further welcomed the AICHR’s submission on the Assessment and Recommendations on the Review of the TOR and took note of the assessment and recommendations provided therein”.16 The 49th Joint Communique (2016) suggested that the review of the TOR will be conducted when necessary and if appropriate, as it reads, “We welcomed the outcomes of the Interface between the AMM and AICHR Representatives and took note of the recommendation for the AMM to consider, when and as appropriate, the review of the TOR of the AICHR as provided for in the TOR…”17.

There were two explanations provided by the Indonesia’s Foreign Minister at that time, Marty Natalegawa, during the interface meeting between the representatives of civil society from ten ASEAN countries,18 as the reasons behind ASEAN’s ambiguity to proceed with the review of the TOR of the AICHR19. First, not all mandates in the TOR have been executed by AICHR in the last five years, therefore, AICHR should wait for a couple of years to implement them effectively. Second, there was a fear that the review process will re-open heated debates on AICHR’s mandates and functions and become the avenue to further weaken AICHR. Natalegawa also warned civil society that the changes in AICHR, if any, as a result of the review of the TOR, will not be radical as expected20. Nonetheless, civil society came up with the submission

of recommendations to improve AICHR’s mandates and functions.

Currently, AICHR has approved 16 applications for accreditation from Non-Governmental Organisations (NGOs) in Southeast Asia, but it does not mean that AICHR has changed its attitude toward civil society, the space for their engagement and the right to participation. AICHR continues to refuse to engage with organisations that are critical of the human rights record of the ASEAN Member States and the work of AICHR. Moreover, those who were affiliated with AICHR did not equally gain the facilities as provided by the Guideline on Accreditation for Civil Society Organizations (CSOs)21, which raised a question on the advantages of being affiliated.

Difficult Engagement

AICHR developed the ASEAN Human Rights Declaration (AHRD) as mandated by the TOR Article 4.1 in two steps which include the setting up of a drafting team consisted of nine government representatives and one practicing lawyer (from Thailand) appointed by each AICHR representative, and followed by the negotiation process among AICHR representatives.22 The meetings and negotiations were intensified until September 2012.

The consultation with stakeholders was organised in the second step process, involving civil society and ASEAN sectoral organs such as the ASEAN Commission for the Promotion and Protection of the Rights of Women and Children (ACWC). However, civil society considered the drafting process of AHRD was not equally participatory23 as some individual AICHR representatives held national consultations with civil society groups, but the rest had no consultations at all24. Moreover, AICHR did not share the draft of the AHRD, which made it difficult to comment and provide inputs.

AHRD provides many of the universal human rights guaranteed to include freedom and equality in dignity and rights, prohibition of discrimination; the preservation of human life, the protection of one’s honour, family, and property; and affirmation to human right to education, medical and social care and protection, and a clean environment25. It also upholds that development is an inalienable part of human rights and encourages the right of peace for everyone26. The last-minute addition of the Phnom Penh Declaration


upon adopting AHRD27, reaffirming ASEAN member governments’ commitment to the Universal Declaration of Human Rights and other human rights instruments in the implementation of AHRD, does not sufficiently address the fundamental problem as presented in the “General Principles” because it provides evidences that international human rights obligations in ASEAN region may be circumvented28.

As a response, sixty-four civil society groups in the region denounced the adoption of AHRD as it “undermines, rather than affirms, international human rights law and standards”29.The section on “General Principles” hosts the most contentious notions of human rights in AHRD, which as the title suggests, serve as ready-made justifications for human rights violations of people within the jurisdiction of ASEAN governments30. These include balancing the enjoyment of fundamental rights with government-imposed duties on individuals (Article 6), subjecting the realisation of human rights to regional and national contexts (Article 7), and broad and all-encompassing limitations on rights in the Declaration, including rights that should never be restricted (Article 8). There are problematic texts in AHRD that condition the enjoyment of human rights to be the subject of the national laws, such as the right to participate in the government through elections (Article 25.1) and right to vote in periodic and

genuine elections (Article 25.2), which not all ASEAN Member States’ laws are supportive of these rights. Moreover, AHRD fails to guarantee the right to freedom of association and the right to be free from enforced disappearance.

The ASEAN Member States’ diversity in the political, economic, social, cultural and legal systems have been often used to justify the lack of consistency with the international human rights laws in the AHRD. I argue that ASEAN’s diversity cannot operate as a normative “exception” as would modify the obligatory character of “core” and non-derogable human rights norms. It is paramount that core human rights norms are non-derogable and binding on all states as “norms accepted and recognised by the international community of states as a whole”, and “which can be modified only by a subsequent norm of general international law having the same character”.31 Privileging the core and non-derogable rights draws from its proximity to the individual’s human dignity and “personhood”. Torture, genocide, slavery and various forms of crimes against humanity and war crimes directly threaten the individual’s bodily integrity and subordinate the inherent dignity as a human person. Similarly, the basic civil and political rights of freedom of thought, religion, association, opinion, speech, and guarantees of substantive and procedural due process are critical.

Business as Usual

The ASEAN Charter marks the ASEAN’s evolution from cooperation to integration promises for the realisation of a rational consensus on democratic, rule of law and human rights commitments. The relatively widespread involvement of different actors such as diplomats, scholars, lawyers, bureaucrats, and civil society groups in the creation of the integrated ASEAN Community is itself an achievement of liberal internationalism in the region. Nevertheless, after the adoption of the Charter, when civil society groups assert Article 1.13 of the Charter which encourages all society to “participate in, and benefit from, the process of ASEAN integration and community building”, AICHR instead undermines it by putting some barriers for participation.

While mindful that the inclusion of human rights in the ASEAN Charter can be considered as a regional ‘game changer’, ASEAN maintains its ‘business as usual’ approach on human rights issues during the last ten years. ASEAN has also been relatively silent in dealing with human rights violence against the Rohingya, or the trafficking case in Benjina,32Indonesia. ASEAN has frequently missed the boats to be relevant to the people in the region. In addition, despite the fact that human rights were located in different sections of the Charter, it did not guarantee that its norm-

The ASEAN Member States’ diversity in the political, economic, social, cultural and legal systems have been often used to justify the lack of consistency with the

international human rights laws in the AHRD.

setting exercise could escape from the old polarised debate between the “Asian values versus Western imperialism.”

The ASEAN Charter was the litmus test for the capacity of ASEAN Member States to adapt to a new role as an international organisation that is subjected to international human rights laws. In the last ten years however, ASEAN has not behaved as a credible international organisation that respects human rights, rule of law, good governance and democracy. Apparently, the optimism towards structural and institutional progress as promised by the Charter must be curbed with realistic concerns that ASEAN is far away from being a model for international human rights observance ad compliance among the various regional organisations throughout the world.

Endnotes1 The Constitutions of ASEAN member countries can be

categorized into: a) an extensive guarantee of human rights (the Philippines, Thailand, Cambodia, Indonesia, and Lao PDR), b) protection for human rights with various restrictions (Malaysia, Singapore, Vietnam and Myanmar), and c) few guarantee on human rights protection (Brunei Darussalam).

2 Such as Joint Communiqué or Joint Declaration or Statements

3 See Joint Communiqué of the 24th ASEAN Ministers Meeting, 19-20 July 1991, Para 15, at www.asean.org/communities/asean-political-security-community/item/joint-communique-of-the-twenty-fourth-asean-ministerial-meeting-kuala-lumpur-19-20-july-1991

4 See, Joint Communiqué of the 25th ASEAN Ministerial Meeting, Manila, 21-22 July 1992, Para 18, http://www.asean.org/communities/asean-political-security-community/item/joint-communique-25th-asean-ministerial-meeting-manila-philippines-21-22-july-1992

5 See Joint Communiqué of the 26th ASEAN Ministerial

Meeting, Singapore 23-24 July 1993, Paras. 17, at http://www.asean.org/news/item/joint-communique-of-the-twenty-sixth-asean-ministerial-meeting-singapore-23-24-july-1993

6 See Joint Communiqué of the 26th ASEAN Ministerial Meeting, Singapore 23-24 July 1993, Paras. 16, at http://www.asean.org/news/item/joint-communique-of-the-twenty-sixth-asean-ministerial-meeting-singapore-23-24-july-1993

7 See Joint Communiqué of the 26th ASEAN Ministerial Meeting, Singapore 23-24 July 1993, Paras. 18, at http://www.asean.org/news/item/joint-communique-of-the-twenty-sixth-asean-ministerial-meeting-singapore-23-24-july-1993

8 Koh, Tommy, Rosario G. Manalo and Walter Woon (2009). The Making of ASEAN Charter, World Scientific Publishing Co. Pte. Ltd., Singapore.

9 Please see the Thailand’s Government Statement on 20 July 2009 when TOR AICHR was finally adopted by ASEAN Foreign Ministers in Phuket, Thailand, http://thailand.prd.go.th/ewt_news.php?nid=833&filename=index

10 http://thailand.prd.go.th/ewt_news.php?nid=833&filename=index

11 I borrow this term from Benedict Anderson in his book with the same title to portray the process of regionalization formation in ASEAN. Anderson depicts a nation-building in Indonesia after 1965 as a socially constructed community, imagined by the people who perceive themselves as part of that group.

12 See paragraph 16 of the Joint Communiqué of the 49th ASEAN Foreign Ministers’ Meeting (AMM) held on 24 July 2016 in Vientianeand Paragraph 18 of the Joint Communique of the 48th ASEAN Foreign Ministers’ Meeting (AMM) on 4th August 2015 in Kuala Lumpur.

13 Article 9.6 of the TOR of AICHR provides that it shall be reviewed five years after its entry into force. ASEAN Foreign Ministers are the one who have authority to review the TOR but AICHR can provide recommendations for the review.

14 Please see, https://cil.nus.edu.sg/2009/2009-cha-am-hua-hin-declaration-on-the-intergovernmental-commission-on-human-rights/

15 Please see paragraph 20, http://asean.org/joint-communique-47th-asean-foreign-ministers-meeting

16 Please see paragraph 20, http://asean.org/joint-communique-48th-asean-foreign-ministers-meeting-kuala-lumpur-malaysia-4th-august-2015-2/?category_id=26

17 Please see paragraph 19, http://asean.org/storage/2016/07/Joint-Communique-of-the-49th-AMM-

ADOPTED.pdf

18 Please see, http://newsdesk.ph/2014/07/17/amendments-sought-tor-asean-rights-commission/

19 The explanations were given to civil society during the interface meeting with him in July 2014 organised by Human Rights Working Group (HRWG), where the author served as one of the organisers of the event.

20 The author was one of the organizers of the interface meeting between civil society and the Indonesian Foreign Ministers. The author was affiliated with Human Rights Worker Group (HRWG) as its Senior Advisor on ASEAN and Human Rights.

21 Please see http://asean.org/storage/2016/07/18.-September-2016-ASEAN-Engagement-with-Entities-1st-Reprint.pdf

22 Sriprapha Petchamesree. (2013). The ASEAN Human Rights Architecture: Its Development and Challenges in The EqualRights Review, Vol. Eleven, available at http://www.equalrightstrust.org/ertdocumentbank/Sriprapha%20Petcharamesree%20ERR11.pdf

23 The AICHR consulted civil society twice only towards the very end of the process without sharing the text of the draft, and ignored most of their recommendations. Please see, http://www.forum-asia.org/?p=15601

24 Sriprapha. (2013). Op. cit,

25 Please see, http://aichr.org/documents/

26 Ibid.

27 Ibid.

28 Please see, http://www.amnesty.org/en/library/asset/IOR64/005/2012/en/cd2af858-753e-477a-9bad-9b9d863dd3bd/ior640052012en.html

29 Please see, http://www.hrw.org/news/2012/11/19/civil-society-denounces-adoption-flawed-asean-human-rights-declaration

30 Ibid.

31 Please see Vienna Convention on the Law of Treaties, Article 53

32 In May 2015, the police in Thailand and Malaysia found the graves of the hundreds of the abandoned bodies of the migrants and victims of human trafficking. In May 2015, Myanmar workers were trafficked by Thailand companies and worked under slavery in fishery project in Benjina, http://www.theage.com.au/victoria/the-slaves-of-benjina-ghastliness-on-our-doorstep-unseen-20150521-gh6p0c.html


Stuck In the Future: Stock Taking ASEAN

Charter Development and Implementation

Wirya Adiwena is the Head of International Relations and a Researcher at the Habibie Center

20th ASEAN Summit opening ceremoniesSource: Official Gazette of the Republic of the Philippines

D iscussions of ASEAN can often attract vastly different perspectives. On the one hand there are those who are convinced

that ASEAN is the Southeast Asian answer to regional order, while on the other hand there are those who dismissed ASEAN as an ineffective talkshop that has more meetings than concrete outcomes. However, while ASEAN is certainly not an answer to all of the region’s governance challenges, it has delivered a number of important outcomes. Among these the ASEAN Charter stands out.

This Charter is often considered an important milestone in the consolidation of ASEAN as a regional organization. In this context, the Charter can be seen as the document that ushers ASEAN into its next phase—a “new ASEAN”—where ASEAN becomes a meaningful community for its members. Even so, it is worth noting that the Charter was only ratified 40 years after ASEAN was established. During this period ASEAN arguably developed a shared identity among its member states with a discernible set of core norms.

This article will chart the codification of long existing norms in ASEAN within the ASEAN Charter, and examine their implementation through brief illustrations. It will highlight that although ASEAN moves forward to face new challenges, in practice it still clings to old ways.

From ASEAN Way to ASEAN Charter

When the ASEAN Charter came into force on December 15, 2008, the Ministers of Foreign Affairs from the ten ASEAN Member States gathered at the Jakarta-based ASEAN Secretariat. After experiencing multiple challenges posed by issues such as a global economic crisis, terrorist attacks, and ongoing territorial disputes, the countries in the region opted for more regionalism. Through a number of declarations and after years of deliberation spearheaded by a Southeast Asian-based Eminent Person Groups (EPG) and High Level Task Force (HLTF), the ten Southeast Asian countries signed the ASEAN Charter.

The Charter aims to “transform ASEAN from a loose political association to an international organisation with a strong legal personality, clear rules, as well as comprising of effective and efficient organisational structure.”1 To do this the Charter, “codifies ASEAN norms, rules and

values; sets clear targets for ASEAN; and presents accountability and compliance.”2 With the establishment of an ASEAN legal personality the region also created a community of permanent representatives to ASEAN with member states appointing permanent representative to ASEAN, subsequently followed by dialogue partners also appointing permanent representative to ASEAN.

In terms of norms codification, it is theorized that the ASEAN Member States operate on a collective understanding and interpretation of its norms in the so-called ‘ASEAN way’. Haacke3 identifies six norms that constitute the core of this ‘normative terrain’:

1. Sovereign equality;2. Non-recourse to the use of force and

the peaceful settlement of conflict;3. Non-interference and non-intervention;4. Non-involvement of ASEAN to address

unresolved bilateral conflict between members;

5. Quiet diplomacy; and6. Mutual respect and tolerance.

These core norms have been in practice in ASEAN prior to the ratification of ASEAN Charter. Indeed, the practice of these norms has been important for ASEAN Member States as a guidance for diplomatic activities in their pursuit of development and stability. While no claims have been made that ASEAN has been a complete success, both in the past or recent times—disputes over Preah Vihear and in the South China Sea comes into mind on this point—a lot has been said about how ASEAN has managed to create a region where an unlikely cooperation took place among former rivals, and how it managed to create a relatively peaceful and stable region through the years.

In this connection, the words of former ASEAN Secretary General Dato’ Ajit Singh is worth quoting in length:

“[The ASEAN Way]… is that undefinable expression that readily comes to mind when we want to explain how and why we do the [sic] things the way we do. Although the expression seems instinctive and intuitive, yet it is based on some very firm principles and practices. We respect each other’s sovereignty and independence and do not interfere in each other’s internal affairs. Bilateral issues are avoided. We treat each other as equals. Decisions are taken only when all are comfortable with them. Close consultations precede these decisions. Consensus is the rule.

The question of face is very important and every effort is made to ensure that no party feels hurt in an argument or a discussion. This does not mean that we do not have disagreements. We often do, but we do not, as a rule, air them in public. It also means that knowing each other as well as we do, we can disagree strongly and yet, at the end of the day, play golf together, eat Durians and do the Karaoke. And ASEAN is none the worse for it.”4

Prior to the ASEAN Charter, its Member States had developed a tacit understanding on how to behave among each other through the ASEAN Way. Not only were these norms distinctive enough that it could be acknowledged by the Member States, it could also be used to distinguish ASEAN from other regional organizations.

In this sense the ASEAN Way, for Member States at least, is special. Other countries in other parts of the world might have other ways: they can be more direct during deliberations, or goal-oriented instead of consensus-oriented. But those approaches would simply not work in ASEAN. In this region, one must be mindful of others’ face or dignity and the mantra that one should chant is stability.

For some, this approach might seem counter-productive. The practice of diplomacy in ASEAN can seem overly convoluted, hence the oft-repeated criticisms that ASEAN is a mere talkshop and, more harshly, a toothless tiger. While there are certainly some validity to the claims, through this practice ASEAN has nevertheless managed to develop a sense of shared identity. The ASEAN Way was collectively developed, shared, and understood by Member States as a regional way to address regional challenges.5

In this context, some parts of the ASEAN Charter are formalizing the ASEAN Way.6 This is not to say that there are no attempts to deliberate upon the core norms and altering them during the drafting of the Charter. Attempts to challenge norms of non-interference and sovereign equality have been made on the basis that it hampers meaningful decision making process. However, these attempts did not succeed as there are no feasible alternatives that can be unanimously accepted by all Member States.7 Furthermore, as the ASEAN Charter is a point of reference in regional deliberations, this will ensure that long existing norms within ASEAN continue to be adopted by old and new member states alike.


A new ASEAN?

The recommendations report for the draft ASEAN Charter by the EPG takes the title “A New ASEAN”, hoping that the embryonic charter will help ASEAN address its contemporary challenges. This includes updating ASEAN to explicitly adopt the following objectives: the strengthening of democratic values, ensuring good governance, upholding the rule of law, developing the promotion of human rights and achieving sustainable development.8 While not all of EPG’s recommendations were utilized in the final draft of the Charter, all of those objectives are codified in the charter.9

The adoption of these objectives should be appreciated. In particular, the adoption of strengthening democracy and protection of human rights as the purposes of ASEAN is an important step forward. The region hosts vastly different views on democracy and human rights that are not only based on country positions but also by regime positions. As recent developments in the region show, democratic and human rights progress in the region should not be taken for granted as regime change can push them backward.10 With this consideration, it seems that the ASEAN Charter intends to grab the bull by its horn by acknowledging that the region does face challenges in terms of democracy and protection of human rights and choose to promote them in a regional document instead of circling around this issue.

Not all new things are welcomed with open arms in ASEAN. During the drafting process, Indonesia proposed that on top of adopting the protection of human rights, the Charter should also establish a more powerful ASEAN Human Rights Body which can concretely implement this norm at the national level in each Member State. However, this view is strongly opposed by the newer Member States (Cambodia, Lao PDR, Myanmar and Viet Nam/CMLV).11 This opposition is understandable as the existence of strong human rights body will constitute domestic interference which violates the ASEAN Way.

While the CMLV countries understand the parts and parcels of the ASEAN that they were joining, they might not yet be comfortable with all the proposed packages of the new ASEAN. It is quite a big leap from chasing development and stability to promoting democracy and human rights. This was one of the barrier that blocked the establishment of a strong human rights body in ASEAN.

The persistence of old ways in this brave new ASEAN is also visible in some recent cases. The principle of non-interference has made it difficult to address significant setbacks in the promotion of democracy and human rights in the region meaningfully. For example, in its attempt to address the violations of human rights in Rakhine State, Myanmar, ASEAN managed to convene a Foreign Ministers Retreat in Yangon, in late 2016. However, it is unclear what this meeting achieved as there are no concrete outcome documents. This suggests that the ASEAN Way takes priority over the new norms.

In a more traditional security issue, the South China Sea dispute remains a critical test. The dispute shows that the new ASEAN is still struggling to address traditional security issues to the extent that it challenges one of the established practice in ASEAN as its Member States failed to reach a consensus and produce a joint communique during the 2012 ASEAN Foreign Ministers Meeting under Cambodia’s chairmanship.

Experts have criticized the lack of decisiveness on ASEAN’s part in resolving this issue. Some of them argued that this is due to restrictions set in the ASEAN Charter, particularly the one that codified the ASEAN Way.12 The need to pursue consensus is also considered detrimental from within ASEAN as it can create an impasse. Indeed, the EPG proposed to explore alternatives to consensus-based decision making, considering the possibility of adopting an ASEAN-minus-X or vote-based mechanism for the new ASEAN.13

Revising ASEAN Charter?

This article does not aim to judge the success or failure of the ASEAN Charter as the article assumes the position that ASEAN is a work in progress. With its shortcomings, the Charter is still an important step forward in a region where progress happens in steps and not big leaps. Nevertheless it would seem that recent developments in the region call for reconsideration of how ASEAN should operate, especially in terms of reaching concrete outcomes. This is possible as it is also regulated in the Charter.14

However, while this would be ideal it might not be feasible in the near future. As this article highlights, the decision making process in ASEAN is based on long standing norms that are accepted as core norms by all Member States. These norms have weathered challenges from

within ASEAN due to the lack of feasible alternatives that can be accepted by all Member States. In this connection, the consensus-based decision making process also poses challenge in any attempts to revise the Charter. While amendments can be proposed by any Member State, it will still need to be accepted by all of them before it can come into force.

A unilateral move by an influential member may be able to forcefully circumvent this. However, it will mean contradicting the core norms of ‘quiet diplomacy’ and ‘mutual respect’. It will take a country that is not only influential in ASEAN but also possesses strong political will and clear sense of foreign policy direction in regard to the future of the region for this to happen. One that understands that regional peace and stability is a responsibility and should not be taken for granted.

Endnotes1 Indonesian Ministry of Foreign Affairs. 2009. “Piagam

ASEAN”. Rerieved from http://www.kemlu.go.id/id/kebijakan/asean/Pages/Piagam-ASEAN.aspx

2 ASEAN. 2009.“ASEAN Charter”. Retrieved from http://asean.org/asean/asean-charter/

3 Jurgen Haacke. 2003. “ASEAN’s Diplomatic and Security Culture: Origins, Developments, and Prospects”. London: Routledge

4 A. Singh in Haacke.Ibid.

5 See Rizal Sukma. 2010. “ASEAN and Regional Security in East Asia”. Panorama 2: 109-120

6 See, especially, Article 2 of the ASEAN Charter

7 Kasira Cheeppensook. 2013. “The Development of the ASEAN Charter: Origins and Norm Codification”. (Unpublished doctoral thesis). London School of Economics

8 ASEAN. 2007. “A New ASEAN by ASEAN Secretariat”. Retrieved from http://asean.org/?static_post=a-new-asean-by-asean-secretariat-3

9 Article 2 of the ASEAN Charter

10 Three contemporary developments can serve as important case: the recurring coup in Thailand, impeded democratic reform in Myanmar, and extra judicial killing in the Philippines.

11 Donald Weatherbee. 2013. “Indonesia in ASEAN: Vision and Reality”. Singapore: Institute of Southeast Asian Studies

12 See Linh Tong. 2016. “The ASEAN Crisis Part 2: Why Can’t ASEAN Agree on the South China Sea”. Retrieved from http://thediplomat.com/2016/12/the-asean-crisis-part-2-why-cant-asean-agree-on-the-south-china-sea/ and Nivell Rayda. 2016. “South China Sea: ASEAN Charter Reform Urged after ‘Weak’ Statement”. Retrieved from http://www.theaustralian.com.au/news/world/south-china-sea-asean-charter-reform-urged-after-weak-statement/news-story/2dcb2ee22046a39810609204f19f63cb

13 ASEAN. 2007. Op. cit.

14 Article 48 of the ASEAN Charter

The ASEAN Charter from the Law of Treaties’

Perspective

Vierna Tasya Wensatama is a researcher at The Habibie Center’s ASEAN Studies Program

Map of ASEAN CountriesSource: vidiani.com


“The constituent instruments of international organizations are also treaties of a particular type; their object is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing common goals.”1

I t was not until its fortieth anniversary when ASEAN was formally transformed into an international organisation by the Charter of the Association of

Southeast Asian Nations – also known as the ASEAN Charter. Concluded in November 2007 and entered into force less than a month afterward, the ASEAN Charter serves as the constituent instrument of ASEAN as an intergovernmental organisation, through Article 3, giving it the necessary international legal personality. It also “codifies ASEAN norms, rules and values; sets clear targets for ASEAN; and presents accountability and compliance.”2

The idea of creating a charter arose into talks at a time when it was fairly a convenient group of Southeast Asian states. Until the initiative emerged, ASEAN had always relied greatly upon the Bangkok Declaration of 1967 and had managed to preserve peace and cooperation through resilient efforts of consultation and consensus, which approaches are embodied as part of ASEAN’s characteristics to the present day. Admittedly, taking a step forward to formalise ASEAN was a huge step for the regional grouping to realise the goals its member states have in common.

As the constituent instrument, the ASEAN Charter’s role is pivotal in serving as the fundamental rules of the game in the region. It sets, among others, the mutual aims of the organisation to be understood and referred upon by ASEAN countries in carrying out their activities as state parties to it. Constitutions are usually assumed at the beginning to be applicable over an indefinite amount of time, hence the more ‘general’ tone commonly found in such documents – intended to give room for developments in the future. However, several have mentioned, including the ASEAN Secretary-General Le Luong Minh, that a review for the ASEAN Charter – mandated in its Article 50 – is ‘long overdue’.3 Concerns have been raised on how improvements to it could be made, including from the viewpoint of the Philippines as the current ASEAN Chair.4 In this case, the ASEAN Charter may have a few things to talk about, one of them are

issues viewed through the lens of the law of treaties. International law recognises the Vienna Convention on the Law of Treaties (VCLT) that entered into force in 1969. The ASEAN Charter was concluded many years after VCLT; ergo, the rules in VCLT apply to the ASEAN Charter as a binding international set of rules rather than customary international law. VCLT, which governs international agreements concluded by states, also applies to constituent instruments of international organisations, as well as any treaties adopted within such organisations.5This article will briefly discuss several possible issues member states may have upon the ASEAN Charter: interpretation, reservation and declaration, as well as withdrawal and termination.

TREATY INTERPRETATION: Giving the Words a ‘New’ Meaning

Treaties can get confusing to a certain extent, as all legal documents naturally do. It is not an easy task to translate the intentions of numerous state parties taking part in the making of one. Language development plays its part – some words now may mean slightly different than at the time such word was used in the treaty. More importantly, what a state’s priorities were at the time of a treaty’s conclusion will most likely be in contrast with the direction of such state’s current administration, influenced by numerous factors of national interests.

The ASEAN Charter, however, is not just another international treaty. As a constituent instrument, highly careful measures are to be taken when it is about to be interpreted. The initial vision and aims of ASEAN must be preserved in order to avoid misunderstanding of what ASEAN was initially intended to become.

VCLT envisages a general rule of interpretation – that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”6

As a general rule, this specific clause is inseparable and therefore explains the obligation to look into the treaty as a whole, inclusive of its preparatory works and annexes, instead of only looking at a single document of treaty.

Correspondingly, interpreting a constituent instrument becomes a more complicated job to be done. Constituent instruments, as how the International Court of Justice puts it:

“[…]can raise specific problems of interpretation owing, inter alia, to their character which is conventional and at the same time institutional; the very nature of the organization created, the objectives which have been assigned to it by its founders, the imperatives associated with the effective performance of its functions, as well as its own practice, are all elements which may deserve special attention when the time comes to interpret these constituent treaties.”7

The ASEAN Charter is one ambiguous treaty – it entertains a fairly vague means for the interpretation of itself. Article 25 of the Charter regulates that “[w]here not otherwise specifically provided, appropriate dispute settlement mechanisms, including arbitration, shall be established for disputes which concern the interpretation or application of this Charter and other ASEAN instruments.” Interpretations on its own does not need an underlying dispute to be issued, and member states are normally allowed to ask for the treaty to be interpreted at any given time. Nonetheless, even when a dispute arises, establishing a dispute settlement mechanism, reasonably, requires a long period of time, especially in ASEAN where everything is subject to unanimous consensus – let alone the time needed to actually settle the dispute. Therefore ASEAN may consider the option of issuing advisory opinions as a more effective and efficient procedure for the ASEAN Charter’s interpretation, although the Charter provides no such means of advisory opinion issuance – or at least not explicitly. This practice of interpretation is similar to what state parties of the United Nations Convention on the Law of the Sea (UNCLOS) have to go through. Advisory opinions issued by the International Tribunal on the Law of the Sea (ITLOS) are often sought by the Convention’s state parties for a further explanation on a part of the Convention, regardless of what the advisory opinion is used for. This stops the Tribunal from having to ‘establish appropriate dispute settlement mechanisms’, as how the ASEAN Charter puts it, so that the Tribunal can work straight on the requested subject matter for interpretation.

The lack of court existence can indeed be a burden for ASEAN should it wish to issue advisory opinions, as courts are found to be the common issuers of advisory opinions, as evident in ITLOS and the International Court of Justice. Such practice is understandable as treaties are

legal documents and judges are the ones most credible to give out opinions on them; however, ASEAN may push its future agenda on discussing ASEAN Charter issues, should there be any, at the ASEAN Summit. If we look carefully through the articles, quite a number of important roles are held by the ASEAN Summit, namely decision-making powers and as the final means of dispute settlement. It is possible that inferring to the ASEAN Summit for an official interpretation document on the ASEAN Charter may be a way out of situations requiring further explanation of a clause or two from the Charter. However a question remains: can the limited amount of time in ASEAN Summits address all the issues adequately?

RESERVATION AND DECLARATION: We Want In, But…

A treaty generally contains a lot of clauses covering a broad range of areas, and states may not agree to some of them even though they approve of the treaty’s general aim. Law of treaty recognises the practice of reservation and its similar (but different) form in interpretative declaration. The difference of the two lies within the intention of making them – where

reservations intend to “exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”, and interpretative declaration simply provide a state’s understanding (or its own take of perspective) on a usually general clause. The ASEAN Charter does not have any reservation clause, but this fact does not necessarily mean that the Charter prohibits any reservation and declaration.

Article 20(3) of VCLT provides that a reservation to a constituent instrument will require the acceptance of the competent organ of the organisation – in this case, the ASEAN Summit. Although the ASEAN Charter is indeed lacking of explicit consent of member states on reservation that should have been agreed prior to the Charter’s entry into force, circumstances at the time of the Charter’s conclusion must be taken into account. It is possible that due to the peaceful nature of the organisation and the generally neutral views its member states decided to take, member states might not sense any urgency to regulate such reservation at that time, but it is also possible that some member states may have the urgency to do so now or in the

future. Situations in which a state decides to issue its declaration to a certain treaty after ratifying it are considered as ‘late’ reservations, which is applicable to all ten member states of ASEAN. This issue is not mentioned at all in the VCLT, but no clear prohibition of it is found as well. Instead, the practices done by United Nations show that such reservation will only need to be circulated for approximately ninety days before the Secretary-General puts the reservation document into deposit, shall there be no objections raised upon it and no explicit prohibition of reservation evident in the treaty itself.8 Potential new members of an international organisations, such as East Timor to ASEAN, will then be subject to more general terms of reservations, given that they provide their documents of reservation before their accession to the constituent instrument is formalised. Declarations, on the other hand, lie in between reservation and interpretation. Just how a similar rule with reservation applies to ‘late’ declarations, potential new members are benefited from the possibility to declare an interpretative statement toward a clause in the Charter.

One thing to remember from making reservations is that it modifies legal rights

The ASEAN Charter does not have any reservation clause, but

this fact does not necessarily mean that the Charter prohibits any reservation and declaration.


and obligations a member state has out of the treaty. The ASEAN Charter, among others, regulates significant issues such as the roles of its organs and dispute settlement mechanisms. The ASEAN Summit, as well as all member states, must act in a thoughtful manner whenever a member state issues a reservation on an indispensable matter, that will only cause difficulty to the organisation’s expected smooth sailing in the future.

WITHDRAWAL AND TERMINATION: Worst Case Scenarios

The dynamics of an international organisation is always ever-changing. Understandably, what the state parties desire at the time of drafting or signing can be different with what they want at the moment due to numerous factors. The direction of an organisation can also drift away from what the members once agreed together, as what is written in their constituent instrument. One then may question: what does ASEAN do when a member state wants out?

Law of treaties normally does not allow for a state party to an international treaty to withdraw from it, out of respect to the pacta sunt servanda (‘agreements must be kept’) principle as embodied in VCLT.9

The absence of a withdrawal clause in the Charter of the United Nations was planned carefully to avoid states abusing such clause as a threat to peace and security of the global community – and the organisation simply cannot afford for that to happen. Similarly, withdrawal from ASEAN is also not made possible – or at least easy – through the ASEAN Charter, as the treaty provides no clause on it. As withdrawal from a constituent instrument would mean membership withdrawal, the ASEAN Charter then challenges the valid reason when a state wants to call it quits. However, VCLT regulates that a treaty can be terminated or subject to a state party’s withdrawal when there is a fundamental change of circumstances unforeseen by the state parties at the time of its making, under the principle of rebus sic stantibus (‘things thus standing’). The rapid advancement of member states’ endeavours in the international community may give rise to issues considered as fundamental change, particularly when political actions contradict, thus increasing the (still) slight possibility of future withdrawals.

The ASEAN Charter is indeed silent on how it feels about member states’ possibility of withdrawal, but VCLT is not –

Article 56 explains that such silence means that the treaty in concern is not subject to member states’ withdrawal, unless “(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty.”

An even worse possibility that can happen to the ASEAN Charter is termination, where – to put it bluntly – ASEAN is about to be dismissed or disbanded. VCLT provides that termination, as well as withdrawal of a state party, “may take place: (a) in conformity with the provisions of the treaty; or(b) at any time by consent of all the parties after consultation with the other contracting States.” Again, the important role of the ASEAN Summit as the highest governing body of ASEAN is evident here, but in a possibly more crucial way: terminations and withdrawals affect not only the state parties, but also other contracting states who have made commitments with either the organisation or a state in its capacity as a member. Disputes may arise, and the ASEAN Summit may be most overwhelmed – even more than ever.

CONCLUSION

The issues that the ASEAN Charter has, with regards to the law of treaty and the rights member states may have out of it, may for now seem less likely to drift the regional organisation apart in a way that would put its very existence under threat. The continually added benefits of the ASEAN Economic Community that is currently undergoing its second year keeps every member state ahead of its own game, making use of the fairly cooperative region to satisfy their interests. However, the absence of a strong, reliable mechanism to address issues with the ASEAN Charter must be taken care of, in case one of the worst possible scenarios takes place in the future.

The ASEAN Summit as the supreme policy-making body of ASEAN is mandated by the Charter with central responsibilities to respond to various issues, including on the Charter itself. Despite ASEAN Summits being held twice annually as mandated by the Charter, to cram numerous topics to be covered in such a tight schedule can result in little to no progress yielded. As discussed above, delegable matters such as advisory opinion shall come as an option for ASEAN to slowly decrease the workload at the ASEAN Summit and increase the effectiveness of their results

instead.

As constituent instruments of an organisation are essential for the integrity of itself, any issues or changes about to be made upon the ASEAN Charter needs to be done wisely. Despite a dedicated chapter for it, the amendment rule in the ASEAN Charter would ideally need amending – much of an inception itself – as it is not written as comprehensive as it probably should have been, considering its constituent status. The UN puts forward a noteworthy example on this, as evident in Article 108 of its Charter that amendments enter into force only after “they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council”. Bearing in mind the importance of member states’ deliberate consultation in decision-making processes, sensitive issues raised against the ASEAN Charter may never come to a resolution if no strict rules are available for recourse. This hindrance, by all means, must be avoided, in order to respect what ASEAN has always aimed for, reaching “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.”10

Endnotes1 Legality of the Use by a State of Nuclear Weapons in Armed

Conflict (Advisory Opinion) 1996 <http://www.icj-cij.org/docket/files/93/7407.pdf> accessed 29 March 2017 [19]

2 ASEAN, ‘ASEAN Charter’ <http://asean.org/asean/asean-charter/> accessed 29 March 2017

3 Tan Qiuyi, ‘ASEAN Charter under review: ASEAN Secretary-General’ (Channel NewsAsia, 7 September 2016) <http://www.channelnewsasia.com/news/asiapacific/asean-charter-under-review-asean-secretary-general/3108772.html> accessed 11 April 2017

4 Albert Wai, ‘Manila will be a neutral, honest Asean chair: Philippine diplomat’ (Today Online, 24 November 2016) <http://www.todayonline.com/world/asia/manila-will-be-neutral-honest-asean-chair-philippine-diplomat> accessed 11 April 2017

5 Vienna Convention on the Law of Treaties 1969 (“VCLT”), art 5

6 VCLT art 31(1)

7 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) 1996 <http://www.icj-cij.org/docket/files/93/7407.pdf> accessed 29 March 2017 [19]

8 Anthony Aust, Modern Treaty Law and Practice (2nd edn, Cambridge University Press 2007) 158-159

9 VCLT art 26

10 ASEAN Declaration 1967

Two decades after its inception, ASEAN Plus Three has become an

important part to ASEAN regional political and

economic architecture. In this edition, we invite Ambassadors of China,

Japan, and South Korea to ASEAN to provide their views on the challenges

and opportunities of the region within the APT

framework.


Is the ASEAN Plus Three still a necessity for the region, why?

The ASEAN plus Three (APT) was born in the wake of the Asian financial crisis in 1997. There was a shared aspiration in the region to unite for strength. And the rationale is no less solid today, given the more recent world financial crisis and the growing uncertainties and rising protectionist tendencies in the western world, in particular.

The fact that 13 countries of both developed and developing economies sitting together, coordinating and discussing cooperation is itself a political achievement. Together, we account for 57% of the Asian population, 88% of regional GDP, and over 50% of all trade in Asia. We also contribute to two thirds of the global rice output and half of the world’s rice export. The weight of this mechanism can never be underestimated.

It is also important to note the full-fledged infrastructure it encompasses and fruitful cooperation across the board. Such an infrastructure is led by the leaders’ summit and supported by over 60 sectoral dialogue frameworks at different levels from ministerial to the working groups. Just between 2014 and 2015, about 230 projects have been conducted by APT

member states in the areas of finance, food, connectivity, trade and economy, energy, culture, and etc. The “East Asia Cultural City”, for example, has become a flagship project to promote greater appreciation for each other’s culture among the member states.

We are confident that the APT will continue to be an effective platform that binds us together, as we work towards building an East Asian community, as the leaders declared as the long-term goal for East Asian cooperation.

What is the greatest challenge in the region and how can the APT contribute to providing constructive solutions toward addressing it?

Instability is perhaps the answer, be it in the economic or political landscape. The memory of conflict and chaos is still fresh, and it is not hard to imagine how much political will and efforts it may require to bring the region onto the track of stable and steady growth, which we should all hold very dear. It is fortunate to live in a peaceful region, but we should not take it for granted, nor shall we worry free.

The recovery of the world economy is far from being solid amid financial turbulences

and sluggish global trade. Sporadic conflicts intertwined with regional hot-spot issues, terror attacks and refugee crises, just to name a few, have posed a major security threat to the region.

It is a part of the world that has a long history. We are neighbors that are here to stay. No matter what the differences, it is necessary to be reminded of the bigger picture. Trouble is bad for business especially when it is in the neighborhood. In this context, the APT comprising of most [countries in the region] has a role to play by forging consensus to maintain stability and boost prosperity. It has served this purpose well in its first 20 years, and should continue to do so in the future.

ASEAN Plus three started from economic cooperation. After 20 years of the APT what progress has it contributed in this area for the region?

APT was tasked to solve practical issues right from the beginning, and economic and financial cooperation is its priority. Over the past two decades, a number of initiatives have come into fruition.

The Chiang Mai Initiative Multilateralisation (CMIM), with 24 million USD committed in

i n t e r v i e w w i t hH . E . A m b a s s a d o r X u B u,M i s s i o n o f C h i n at o A S E A N

total, will serve as an essential part of the regional financial safety net. The ASEAN+3 Macroeconomic Research Office (ARMO) has been upgraded into an international organization as the independent surveillance unit to support CMIM implementation and further contribute to macroeconomic and financial stability of the region.

Trade and investment within the region remain strong. In 2015, intra-trade volume topped USD 1.3 trillion, and ASEAN total trade with the Plus Three registered USD 708.6 billion. The RCEP negotiations are moving ahead towards achieving a comprehensive, high-quality, and mutually beneficial economic partnership agreement, and China will continue to support ASEAN’s leading role in that process.

Furthermore, with respective strength in manufacturing, infrastructure building, capital and human resources, the Plus Three countries have worked closely with ASEAN to advance its industrialization process. In February, China hosted an APT seminar on production capacity cooperation in Shenzhen, where officials, experts and businesses of the member states gathered to explore synergies for higher level of growth.

With the entrusted goal towards the creation of an East Asia Economic Community by 2020, APT will continue to be an important and effective driver to growth and prosperity in the region.

How can APT contribute to the non-traditional security cooperation in the region?

The APT is better equipped to address non-traditional security challenges, since efforts to tackle many of them, like terrorism, extremism, food shortages or financial turmoil do call for transnational coordination.

Economically the CMIM and ARMO mentioned above are major efforts to firewall the region from financial turmoil that could potentially undermine regional stability and rob us of wealth earned from decades of hard work. On food security, APTERR signed in 2011 provides an anti-shock to emergency needs for rice in case of natural disasters and humanitarian contingencies.

China is an active participant in relevant cooperation. We have contributed USD 200 million to CGIF to provide guarantee for the issuance of local currency bonds by APT countries. We are also moving ahead with the building of a modern agriculture pioneering platform and a regional exchange for agro-food in China, and hosted a number of workshops with a focus on agro-food market distribution, technology training, and capacity building in related areas. More efforts are underway and many more will be done.

ASEAN places lot of emphasis on community building. In what way can the ASEAN Plus Three contribute to this effort?

APT, as a part and parcel of the ASEAN-led regional architecture, has all along been doing [community building] right from the beginning.

Politically, APT builds on ASEAN Centrality,

which is crucial to ASEAN’s outreach at the core of regional cooperation. The APT process, as stressed by leaders of the member states, is a driving force for enhanced peace, security and prosperity in the East Asian region, which will naturally contribute to ASEAN community building.

Economically, China, Japan and ROK combined are responsible for 31.1% of ASEAN’s trade in 2015. That is more than inter-ASEAN trade which accounted for 23.9%. In other words, over half of ASEAN’s trade is done in the APT framework. Such is the gravity of APT to the ASEAN community.

Among other things, APT-enabled regional economic and financial cooperation platform is designed to serve ASEAN and its members. The agro-food cooperation and poverty-alleviation projects under the APT framework are tailor-made to ASEAN’s need to fill development gaps. The implementation of the MPAC 2025, as ASEAN’s connectivity blueprint, has a lot to benefit from the capabilities and possibilities that APT as a regional grouping has to offer.

To sum up, APT is a bridge and platform for East Asia to forge ahead in its path to greater prosperity. A lot has been accomplished and yet still many promises deserve continued commitment. China is a staunch supporter of APT as the main channel of East Asia integration. The future of an East Asia powered by more trade, more investment, an East Asia that enjoys peace, stability and harmony is worth us all working hard for.

APT is a bridge and platform for East Asia to forge ahead in its path to

greater prosperity.


Is the ASEAN Plus Three still a necessity for the region, why?

The ASEAN Plus Three cooperation started in 1997 when Asia faced a financial crisis. The ASEAN Plus Three cooperation has been broadened and deepened over the past twenty years. Now for the following reasons, few would question the necessity of the ASEAN Plus Three cooperation for the region.

First is the catalytic role for regional cooperation in East Asia. The ASEAN Plus Three process has influenced on the evolving regional architecture in East Asia. The First Japan-China-ROK Trilateral Summit Meeting was held on the sidelines of the ASEAN Plus Three Summit Meeting in 1999. The East Asia Summit (EAS) Meeting was established in 2005, whose membership was formed based on the ASEAN Plus Three countries plus Australia, India and New Zealand. The Regional Comprehensive Economic Partnership (RCEP) has been negotiated by these ASEAN Plus Six countries.

Second is the progress in practical cooperation. The ASEAN Plus Three cooperation mechanism is unique and advanced. There exist seventeen Ministerial Meetings and twenty four cooperation

frameworks. A vision for mid- to long-term cooperation under the ASEAN Plus Three was drawn up by the East Asia Vision Group (EAVG) I and II in 2001 and 2012, respectively. Indeed, these reports, which were made by eminent representatives of the ASEAN Plus Three countries, have been reflected in actual policies. Since 2007, the ASEAN Plus Three Cooperation Work Plan has served as a comprehensive roadmap to enhance ASEAN Plus Three Cooperation, and implementation of the Work Plan is financially supported by the ASEAN Plus Three Cooperation Fund (APTCF).

ASEAN Plus Three started from economic cooperation. After 20 years of the ASEAN Plus Three what progress has it contributed in this area for the region.

The achievements made by the ASEAN Plus Three cooperation are also substantial and tangible, especially in the field of finance, food, agriculture and forestry, education and people-to-people exchanges. The Asian Financial Crisis in 1997 prompted the leaders to establish the Chiang Mai Initiative Multilateralization (CMIM), which serves as a regional financial safety net. In 2011, the ASEAN Plus Three Macroeconomic Research Office (AMRO)

was established as a regional surveillance institution to support the CMIM. In order to enhance food security in the region, the ASEAN Plus Three Emergency Rice Reserve (APTERR) and the ASEAN Food Security Information System (AFSIS) were established, and they have been operated effectively thus far. The ASEAN Plus Three countries have also taken a series of initiatives to promote the development of higher education and student exchanges.

ASEAN places lot of emphasis on community building. In what way can the ASEAN Plus Three contribute to this effort.

The ASEAN Plus Three cooperation will remain as an indispensable part of the regional architecture. Since the ASEAN Plus Three Cooperation Work Plan is well designed to support the ASEAN Community Blueprints, the ASEAN Plus Three cooperation will contribute to deeper regional integration in ASEAN as well as in East Asia. As in the past 20 years, Japan will continue to lead practical and substantial cooperative efforts under the ASEAN Plus Three process.

i n t e r v i e w w i t hH . E . A M B A S S A D O R K a z u o S u n a g a , M i s s i o n o f J a pa n t o A S E A N

Is the APT still a necessity for the region, why?

APT is not only a necessary mechanism but also a very crucial one in the East Asian sphere. ASEAN and Plus Three countries—the Republic of Korea, China and Japan—marked a historic 20th anniversary in 2017. Over two decades, APT has achieved a lot based on practicality and functionalism. This has indeed contributed to raising awareness of community in the East Asia.

To understand today’s APT, we have to trail back to the time when it was born. Back in 1997-98, the region was swept by the Asian Economic Crisis. This unpredictable tragedy geared up the leaders of ASEAN and North East Asian countries to cooperate under the framework of a new regional architecture: ASEAN Plus Three. In that period, APT economy was shaken by overloaded bubble. What made it even worse was the unprecedented austerity measures under the SAP (Structural Adjustment Programme) demanded by IMF. Under this pressure, our leaders started building the financial cooperation mechanism such as CMI (Chiang Mai Initiative) which was later developed into CMIM (Chiang Mai Initiative Multilateralism), ABMI (Asian Bond Market Initiative) and CGIF (Credit Guarantee

and Investment Facility). Once the financial mechanisms has reached the plateau, the leaders’ interests expanded to other areas of cooperation which is closely related to our daily lives such as food security. Under this theme, APTERR (APT Emergency Rice Reserve) was created to provide subsidies to tackle the food shortage.

The fairly recent example demonstrates that strengthened APT could counter the international economic crisis in 2008 and it has grown very strong to counter economic uncertainties which we all should embrace today. Today’s APT indeed fits to Aesop, which I quote, ‘United we stand, divided we fall’.

What are the greatest challenges in the region and how can the APT contribute to providing constructive solutions toward addressing it?

I can point out two challenges. One is the political challenge and another is for practical challenge. First, speaking of political challenge, we often blind ourselves on purpose to avoid the situation of ‘hot-headedness’, especially in diplomatic corps. In the context of the East Asian region, however, we are destined to admit what we inherit ‘Asia paradox’ which disconnects growing economic interdependence on

the one hand with backward political security cooperation on the other.

One of the key achievements of the APT is to organise ‘Trilateral Summit’ in 2008. The gesture signalled the effort of reconciliation of the three countries in the northern hemisphere. Unfortunately, this mechanism lames somewhat due to sore political difficulties at the moment. However, there is no doubt that a robust Trilateral Summit is prerequisite to operate APT mechanisms even more actively and soundly.

Another challenge is elevating deliverables made from APT Summits. For example, ASEAN Plus Three Macroeconomic Research Office (AMRO) was established to monitor the regional macro-economy as well as to utilise CMIM, the regional currency swap in case of emergency. As of February 9th 2016, AMRO was accredited as an international organisation. We see that AMRO has been strengthened and now secured its position to suggest guideline for the regional economy to adhere to. But we still need to think how we can strengthen its organisation to deal with the recurrence of economic shocks in the future while being compatible including by increasing the size of its capital ratio of delink with IMF. I think it is

i n t e r v i e w w i t hH . E . S u h j e o n g - i n ,M i s s i o n o f t h e r e p u b l i c o f ko r e a t o A S E A N


vital for the AMRO to envision its medium and long-term plan.

APT started from economic cooperation. After 20 years of the APT what progress has it contributed in this area for the region?

As I mentioned, AMRO and APTERR can be picked as the most outstanding success stories. These two mechanisms indeed inspired the region to gain our stability and confidence to our strong resilience to any financial crisis we may face. It may sound redundant but I cannot stop reiterating AMRO’s roles and goals which has tremendously contributed to our region.

In 2009, APT Finance Ministers agreed to establish an independent regional surveillance unit to promote objective economic monitoring. Three years later in 2011, AMRO was established in Singapore. AMRO conducts macroeconomic surveillance, supports the implementation of CMIM and provide technical assistance to members. AMRO can assure the financial stability of the region in overall.

APT has 24 sectoral bodies to discuss and issue regional initiatives to drive the regional integration at large. Under APT, the sectoral bodies and ministers meet under the areas of transnational crime, administration, economy, finance, SMEs, energy, environment, public health, culture and art, social welfare, poverty reduction and rural development, disaster management, information and so on. As you can notice, a number of discussions under economic and socio-cultural pillars are made since 1997. As mentioned earlier, APT Finance Ministers meet every year together with chiefs of central banks. This is one of the robust mechanisms within the framework of APT. At the moment, the APT finance ministers and chiefs of central banks focus on active operation of AMRO and guiding implementation of CMIM. Another robust mechanism like APT Economic Ministers’ Meeting focuses on liberalisation of free trade, RCEP and capacity building to counter external economic crisis. Tourism has been also robust and at the APT Tourism Ministers meeting also invites three Secretary-Generals from ASEAN-Korea Centre, ASEAN-China Centre and ASEAN-Japan Centre. They discussed to promote tourism attractions and organised a number occasions to invite private tourism sectors to share marketing knowledge and tools to enamour tourists in and out of the region.

APT has lately been trying to address non-traditional security issues such as food security and disaster management. What are the primary non-traditional security issues in the region? How should the APT respond to it?

If I choose one, I think it would be disaster management. ASEAN as whole is prone to natural disasters like the Indian Ocean Tsunami in 2003-4 and Typhoon Haiyan in 2013. These tragedies took countless valuable lives in which we all bear our sorrows until today. In this connection, Korea has implemented 2 year-long cooperation programme; ‘ASEAN Science-Based Disaster Management Platform’. Together with AHA Centre (ASEAN Humanitarian Assistance Centre), this programme is running to the finish line by the end of this year. I hope once the system, portal website, is constructed, we could save millions of lives from unpredictable natural disasters.

At the moment, disaster management is cooperated under ASEAN Plus One mechanisms mostly. However, this can be bridged to work together in the future as the disaster management requires APT cooperation.

Another issue can be climate change. As the sea-level has risen year by year and the global warming has startled us with different climate paradigm, we have to be on alert as to the environmental change. Korea, as one of the forefront runners, has established GCF (Green Climate Fund) and GGGI (Global Green Growth Institution). I think APT should actively participate into these two fundamental institutions to make one voice to tackle the issues which isolation cannot help.

ASEAN places lot of emphasis on community building. In what way can the APT contribute to this effort?

Without respecting ASEAN Centrality, APT could not have been possible. This is the fundamental rationale for APT to support ASEAN Community building process. To answer the question, I should answer we have to utilise on-going implementing mechanisms within APT framework such as EAVG II (East Asian Vision Group II). In 1998, the Korean government initiated the East Asian Vision Group I by inviting top tier academics of 13 countries to research and suggest policy recommendations by focusing on 3Ps namely; Peace, Prosperity and Progress. East Asian Vision Group also tailored out 6 areas to cooperate;

political-security, environment, energy, socio-culture, education and institution. Followed by the successful conclusion of EAVG I, EAVG II was also initiated and led by the Korean government in 2010 with an aim to realise the East Asian Economic Community by 2020. The policy recommendations encompass political security, trade facilitation, energy, education, institution, climate change and demographics. Each country picks up to 4 out of 25 recommendations to push forward its goal to accomplish. We also need to thoroughly prepare for the next APT Work Plan (2018-22) while ensuring the current APT Work Plan.

Also I want to highlight the important roles of academics and public-private partnership. We have EAF (East Asian Forum) and NEAT (Network of East-Asia Think Tanks) to discuss and recommend policies to the thirteen governments to realise the East Asian Economic Community. We should endeavour to strengthen the functional cooperation in which it will benefit ASEAN community building process and APT at large.

The project is starting at a time when the Mekong River Basin, which supports more than 60 million people, is undergoing huge transformation. While the river itself—long relatively untouched—is changing due to the building of dams, climate change, and habitat loss, larger economic and political forces are reshaping an entire region rich in culture and history.

“In my opinion, the Mekong River is the most important river in the world,” Hogan said, speaking ahead of the project launch in Phnom Penh, the Cambodian capital. “But the Mekong River is now at a tipping point, where the choices made in the next 10 or 15 years could make or break the life it sustains.”

Why it Matters?

For the more than seventy million people who live in the Mekong river basin, their livelihoods, and arguably their lives, depend on the health of the Mekong river. And now, the great river which originates from the Tibetan plateaus, flows to Laos, Thailand, Cambodia, then meets the sea in Vietnam’s southern shore, is dying.

Other than being the region which will be most harmed by climate change, the Mekong river basin is dying rapidly because -ironically- of another human activity which were built for their ‘clean’-energy-generating capacity: dams.

Although hydroelectric power plants will be increasingly used as the global economy is starting its sluggish move away from fossil fuels, unfortunately though, dams are known to be river killers. The use of dams worldwide has shown that it erodes riverbeds (and thus farmlands), destroys riparian ecosystems (the fishing industry), and damage the surrounding forests (the forestry industry and the wildlife that live in it). If that weren’t enough, dams also reduce the natural flow of sediment flowing downstream (which carry important n u t r i e n t s ) , exacerbates f l o o d

releases in areas already affected by the more catastrophic floods that climate change brings, all of which leads to thousands, if not millions, of people forced to evict their homes.

To date, China already has five dams built on its parts of the Mekong, Laos has started to build two with another one on the way, and Cambodia has plans for at least two. Talks are ongoing for building at least twenty more dams before 2035.

Despite Southeast Asia’s many achievements in regional cooperation, the concerted yet somehow senseless killing of the Mekong river will bring about one of the largest environmental,

economic, and humanitarian disaster the region will see.

A S E A N R O U N D - U P

Can the Amazon of Southeast AsiaBe Saved?

National Geographic, 22 March 2017http://news.nationalgeographic.com/2017/03/mekong-river-basin-sustainable-development-megafish-zeb-hogan/


King Maha Vajiralongkorn Bodindrade-bayavarangkun declined to accede to the throne immediately at the death of his father, King Bhumibol, asking for some time to grieve. As a result, Thailand had no king for 47 days.

In the meantime, Prime Minister Prayuth Chan-ocha, the military dictator who seized power in a coup in 2014, ruled by decree using article 44 of the 2014 interim constitution granting him all legislative, executive and judicial power.

Vajiralongkorn has also refused to put into effect the new constitution adopted by referendum on August 7 2016. It replaces the 2014 interim constitution granting all powers to the head of the military.

Why it Matters?

The intermittently suspenseful drama of Thai politics tenses once again with the circulation of news regarding Thailand proposed new constitution (if passed, it will be the twentieth in less than a century) with the new King Rama X as a lead actor.

The draft of the new constitution was drafted largely by the governing military junta and unsurprisingly it will confer even more power to the armed forces. In the new constitution, Thailand will

have a bicameral legislature, with five hundred seats for the lower house and a two-hundred and fifty seats upper-house senate. The upper house will effectively be appointed (or filled) with by the military brass, with six seats reserved for the armed forces and will have powers that would be able to sway the course of government.

The elections for the lower house will follow a modified version of a proportional voting system which -most likely- give more power to middle-sized parties which -if anything- risk making governments less cohesive in an already politically fractious country. As a matter of course, the junta understands this and it is speculated

that they deliberately made it such so that it would be difficult for pro-Thaksin Shinawatra parties to create a majority. If a civilian government wanted to have a majority in the overall legislative, it must have three quarters of lower house seats, made practically impossible by the election system.

The new King, as per his own request, wanted some changes to constitution regarding his royal authority. Now the king has the prerogative to appoint his own regent where before the regent pro tempore was effectively the royal privy council. With the new prerogative, the King would theoretically be able to reign from wherever he wished. This in itself merely raises eyebrows, but when combined with his other requests of: (1) the ability to sign executive decrees

in some specific matters and (2) the authority to wield extraordinary powers during times of national crisis; it is undoubtedly a step towards a less democratic Thailand. The fact that the junta drafted a constitution that would empower them further was unwelcome but not unsurprising, that the King made a request in the drafting of the constitution itself was sufficiently alarming, but the substance of the request suggests that Thailand’s political drama has yet to reach its dénouement.

Thailand’s new king is moving the country away from being a constitutional monarchy

http://www.thejakartapost.com/academia/2017/02/03/seeking-more-power-thailands-new-king-is-moving-the-country-away-from-being-a-constitutional-monarchy.html

Agustha Lumban Tobing is a researcher at The Habibie Center’s ASEAN Studies Program

First ASEAN Summit held in Bal i , Indonesia , on 24 February 1976. It was

decided that the desirabi l i ty of a new constitut ional framework for ASEAN

should be studied.

The ASEAN Charter process drew momentum during the chairmanship of Indonesia at

the 2003 Bal i Summit.

Indonesian delegat ion presented a ful l draft of

the ASEAN Charter in the ASEAN SOM meetings

in 2004 to expedite discussions, some ASEAN

members were st i l l reluctant for di f ferent reasons.

With the establ ishment of an Eminent Persons Group (EPG), fol lowed by a High Level Task Force (HLTF)

before the ASEAN Charter was completed and signed by

ASEAN Leaders.

1976 2003 2004 2007

Source:The Making of ASEAN Charter,

Tommy Koh, et al.


T h e C h a r t e r P r o h i b i t s a n A S E A N

M e m b e r S tat e t o C o n s p i r e w i t h

A n o t h e r S tat e t o S a b o ta g e O t h e r A S E A N M e m b e r

S tat e s

T h e C h a r t e r D e t e r m i n e s a N e w N at u r e f o r A S E A N

The ASEAN Charter is a historical achievement of ASEAN. It is the outcome

of shared political will, strengthened solidarity and far-sighted vision.

T h e C h a r t e r E n s u r e s D u r a b l e

P e a c eOne important emphasis of the Charter was placed on fostering peace-oriented

attitudes in the consciousness of the peoples of ASEAN to ensure ASEAN’s

future of tranquility.

T h e C h a r t e r E n s u r e s L a s t i n g

S e c u r i t yThe Charter enforces ASEAN member states with different political systems to mutually assure state and government

security.

T h e C h a r t e r R e s p e c t s t h e R i g h t

o f E v e r y M e m b e r S tat e t o L e a d I t s

N at i o n a l E x i s t e n c eThe Charter, which stipulates the right of every member state to freely choose its own political, economic and social

development, has responded well to the principles of sovereignty and the right to

determine one’s own destiny.

The recognition of this new principle has further enhanced the unity of ASEAN and has implanted the sense of solidarity in a

truly one ASEAN family

T h e C h a r t e r i s A g a i n s t

A g g r e s s i o nThe Charter recognises the principles of non-aggression. This is a new principle for ASEAN, which can ensure a high level of

comfort in co-existence.

T h e C h a r t e r C r e at e s a N e w S t r u c t u r e f o r

A S E A NThe new structure will meet with some difficulties in implemention at the early

stage, but it will be strong and effective in the longterm once it has been settled.

T h e C h a r t e r E s ta b l i s h e s a n

A S E A N H u m a n R i g h t s B o d y

There are different views on the concept of human rights in ASEAN. Some were of the view that ASEAN should adhere to the universal value while others argued that ASEAN should uphold the value of

Southeast Asia.

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GALLERY

THCASEAN .ORG

ASEAN STUDIES PROGRAMThe Habibie Center

Jl. Kemang Selatan No.98, Jakarta Selatan 12560(P.) 62 21 781 7211(F.) 62 21 781 7212

www.habibiecenter.or.idwww.thcasean.org

facebook.com/habibiecenter @habibiecenter

The ASEAN Studies Program was established on February 24, 2010, to become a center of excellence on ASEAN related issues, which can assist in the

development of the ASEAN Community by 2015. The Habibie Center through its ASEAN Studies Program, alongside other institutions working towards the same

goal, hopes to contribute to the realization of a more people-oriented ASEAN that puts a high value on democracy and human rights.

The objective of the ASEAN Studies Program is not merely only to conduct research and discussion within academic and government circles, but also

to strengthen public awareness by forming a strong network of civil society in the region that will be able to help spread the ASEAN message. With the

establishment of ASEAN Studies Program, The Habibie Center aims to play its part within our capabilities to the ASEAN regional development.

Cover:Panoramic view of Mt. Bromo, Mt. Batok, and Mt. Semeru

Photo Credit: Wikimedia Commons

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