Revisiting the question propelling our study – whether dispute settlement mechanisms can improve regional compliance with ASEAN instruments – the answer is: it depends. Dispute settlement mechanisms may give greater credibility to commitments, and the possibility of punitive measures can act as a deterrent against non-compliance. However, as demonstrated in the previous Chapters, both theory and practice in ASEAN show that dispute settlement mechanisms may not compel adherence as effectively as do compliance monitoring mechanisms. Another point to note is that ASEAN dispute settlement mechanisms currently appear not to fulfil their primary function of resolving conflicts. However, recourse to such regional mechanisms cannot be ruled out as ASEAN evolves. Just like it was quite unimaginable for ASEAN member states in a ‘spirit of brotherhood’ to litigate against one another in the past, they are increasingly bringing their contentions before international tribunals for peaceful resolution. In addition, while ASEAN has taken measures to increase compliance monitoring mechanisms, serious lacunae in their substantive functions exist. In sum, the dispute settlement and compliance monitoring mechanisms in ASEAN are presently not very effective – they are simply not being used. This may be because of the practice, entrenched throughout the ASEAN region, that formal dispute settlement should be avoided. Alternatively, structural flaws in the mechanisms could be deterring member states from using them.
As seen in Chapter 1, experts on dispute settlement have suggested that diplomatic engagement yields better results than does litigation, because the adversarial nature of litigation might exacerbate the tense relations in political-security disputes. For instance, the TAC was designed to deal with disputes that threaten the peace and security of the region. From what we have seen of ASEAN member state behaviour, unless disputes escalate to the point of armed conflict, they do not seem to warrant the invocation of the TAC. For example, Singapore avoided recourse to the High Council to resolve its dispute with the Philippines over Flor Contemplacion since it was a bilateral dispute which was nowhere close to affecting regional peace and stability. In the dispute over Sipadan and Ligitan, Malaysia declined Indonesia's suggestion to use the TAC for resolution because, in Malaysia's opinion, the members of the High Council could not be expected to be neutral, since Malaysia had other territorial issues with other ASEAN member states.
Unlike the Council of Europe or the EU, where efforts were made very early to develop strong compliance monitoring mechanisms in many respects of their cooperation, ASEAN's efforts to monitor member states’ implementation of regional commitments evolved very slowly, lacking the relative speed and comprehensiveness of ASEAN dispute settlement mechanisms. Without a secretariat or other forms of regional institutions in ASEAN's early years, none of the ASEAN instruments adopted between 1967 and 1976 prescribed institutional monitoring of the implementation of and compliance with ASEAN instruments. This task was left rather amorphously to whoever might be concerned or in charge. For instance, in 1972 and 1975 ASEAN adopted two agreements concerning the rescue of survivors of ship and aircraft accidents, but these agreements merely provided that their implementing bodies should be the ‘competent authorities’.
Fast forward to the post-ASEAN Charter situation today, the Secretary-General has de jure compliance monitoring powers but is, unfortunately, de facto emasculated. As the EPG Report emphasised, the real problem facing ASEAN, legally and institutionally, is compliance with and effective implementation of ASEAN instruments. ASEAN must establish a culture of honouring its promises and carrying them out on time in order to be taken seriously as a credible international actor. Regional compliance monitoring is heavily intertwined with how member states view ASEAN as an organisation and the types of institutional capacity with which it is invested.
The role of the ASEAN Secretariat in compliance monitoring
It is remarkable that ASEAN, as a regional organisation, even for the purposes of maintaining peaceful relations among member states existed for a decade without a centralised administrative body. In contrast, the Council of Europe, the Organization of the American States, and the Organization of African Unity – now replaced by the African Union – all have had their secretariats since their establishment in 1948, 1949 and 1963 respectively. In its first decade, ASEAN's administration was served by a standing committee and the national secretariats of the five original members. The lack of a centralised secretariat in the early years of ASEAN may not be unintentional. Pracha Guna-Kassem, a Thai diplomat who was present at the signing of the 1967 Bangkok Declaration, argued that if ASEAN had tried to establish a centralised secretariat in the beginning, it would have destroyed the nascent ASEAN by setting off a competition between its members over the location of the Secretariat.
Between July and August 2012, CIL conducted an observation on seventy-eight agreements concluded between ASEAN member states, focusing on their DSCs. The observation classified the types of DSCs that ASEAN has utilised since it was established in 1967 until the ASEAN Charter entered into force in 2008, and also identified if there is a standard clause applied to each type of DSC. Moreover, the classification of types of ASEAN DSCs also analysed whether ASEAN favoured a particular type of DSC in agreements produced by the ASEAN Economic, Socio-Cultural and Political-Security Communities.
CIL intentionally limited its observation to agreements (main and stand-alone) adopted prior to the entry into force of the Charter in 2008. The observation did not include protocols or other instruments of amendment, nor did it include implementing protocols or instruments unless those instruments contained DSCs different than those established under the mother agreements or if such protocols or instruments are listed under the Appendices of ASEAN's instruments on economic dispute settlement mechanisms: the 1996 Protocol and the 2004 Protocol.
CIL identified six types of DSCs. The first type highlights the absence of DSCs in some ASEAN agreements. The second type relates to DSCs that refer disputes to consultation or negotiation (or amicable solution). The third type is DSCs that refer to DSMs outside of the ASEAN Framework. The fourth type applies solely to ASEAN economic agreements, which refer disputes to the 1996 Protocol, or to the 2004 Protocol, which supersedes the 1996 Protocol. The fifth type of DSC relates to clauses that refer disputes between parties to agreement-based DSMs. Finally, the sixth type reflects clauses that utilise layered dispute resolutions.
List of selected ASEAN agreements
The observation was conducted on DSCs in seventy-eight ASEAN agreements adopted prior to the entry into force of the ASEAN Charter in 2008. The agreements consist of ten political-security agreements; fifty-nine economic agreements; five socio-cultural agreements; three ASEAN Secretariat-related agreements; and one agreement concluded with an international organisation. Seventeen of these agreements were concluded with parties from outside of ASEAN (external relation agreements), fifteen of which are economic, one political-security and one cooperation in general matters.
CIL's second observation focused on compliance monitoring (including implementation, review and supervision) clauses in ASEAN instruments. The observation aimed to: (1) confirm whether ASEAN has a standard practice of including compliance monitoring clauses in all of its instruments (from 1967 to 2012); (2) confirm the role of the ASEAN Secretariat in compliance monitoring (as mandated under the 1976 ASEAN Agreement on the Establishment of the ASEAN Secretariat and, later, under the ASEAN Charter); (3) identify the ASEAN organs responsible for compliance monitoring, where the ASEAN Secretariat is not acting as compliance monitoring authority; and (4) identify issues vis-à-vis ASEAN practice in prescribing compliance monitoring clauses in its instruments.
The observation on ASEAN compliance monitoring clauses was limited to 148 instruments adopted between August 1967 and August 2012 (the time of the establishment of ASEAN and the time of this observation). Similar to our observation of ASEAN DSCs, the observation was limited to main and stand-alone instruments. It did not include protocols or other instruments of amendment, or implementing protocols or instruments unless those instruments contain different compliance monitoring clauses.
As the Association of Southeast Asian Nations (ASEAN) approached its 40th anniversary, calls were made to strengthen it and make it more rules-based. In 2005, an Eminent Persons Group (EPG) consisting of ten former leaders and ministers of ASEAN states was established to make recommendations on the promulgation of a charter for ASEAN. The EPG Report was issued in December 2006 and it was endorsed by the Heads of ASEAN member states at the 12th ASEAN Summit in Cebu in January 2007.
The EPG Report stated that ASEAN's problem was not one of lack of vision, ideas or action plans. Rather, ASEAN's real problem was one of ensuring compliance and effective implementation of its decisions and agreements. It further stated that ASEAN must establish a culture of honouring and implementing its decisions and agreements, and must do so on time, since delays and non-compliance are counter-productive, undermine ASEAN's credibility, and disrupt its efforts in building the ASEAN Community. The EPG therefore pushed for the institutionalisation of effective monitoring and dispute settlement mechanisms. It recommended that dispute settlement mechanisms (DSMs) be established in all fields of ASEAN cooperation. Failure to comply with decisions of the DSMs should be referred to the ASEAN Summit for possible measures to address non-compliance; and the Secretary-General should be entrusted with the role of monitoring compliance and reporting cases of non-compliance. It is significant that the adherence to the rule of law and institutions is deemed so crucial to ASEAN's transformation that although not all of the EPG recommendations are incorporated in the ASEAN Charter, most of the recommendations pertaining to compliance monitoring and dispute settlement are.
This book aims to investigate whether ASEAN's faith in dispute settlement and monitoring mechanisms as means to better compliance is justified and the extent to which they can facilitate this process. First, it examines all ASEAN DSMs and inquires whether these DSMs can be effective in promoting compliance. Second, it maps out and dissects ASEAN's compliance mechanisms so that their strengths and weaknesses, as well as overlaps and lacunae, can be more easily comprehended and systematic improvements can be made. Third, it makes various recommendations on what steps should be taken to strengthen DSMs and establish effective compliance monitoring mechanisms in ASEAN.
The rise of norms and substantive dispute settlement and monitoring mechanisms
The post-Second World War geopolitical landscape of Southeast Asia in the 1960s was extremely fractious. Intra-regional tensions ran high over border disputes and proxy support of secession movements, while intra-state power struggles erupted against former colonial powers and between non-communist and communist factions. These manifested in near-conflict and undeclared armed conflict situations, such as Singapore's bitter separation from Malaysia in 1965; the Philippines’ territorial claim over North Borneo in 1963; Indonesia's confrontational foreign policy (Konfrontasi) against Malaysia, and later against Singapore, between 1963 and 1966; and tensions between a purportedly communism-inclined Indonesia and the comparatively more democratic and capitalist-minded countries of Malaysia, the Philippines and Singapore throughout the 1960s. Against this background, and with two failed attempts to establish a regional organisation behind them, these five countries – Indonesia, Malaysia, the Philippines, Singapore and Thailand – finally signed the ASEAN Declaration, establishing ASEAN, in 1967. Although the express purpose of ASEAN was to promote economic, social and cultural cooperation, managing the tinderbox of regional security exigencies was in fact ASEAN's primary objective. This remained so in ASEAN's first decade. This is indicated, for instance, in the statement of the then Foreign Minister of Thailand, Chatichai Choohavan, in 1973: ‘[t]he immediate task of ASEAN … is to attempt to create a favourable condition in the region whereby political differences and security problems among Southeast Asian Nations can be resolved peacefully’. Prior to the First ASEAN Summit in 1976, member states were not concerned with developing ASEAN's structure as a regional organisation, with proper dispute settlement and compliance monitoring functions. Thus the First ASEAN Summit in 1976 initiated the structural development of ASEAN with the establishment of the ASEAN Secretariat. ASEAN member states concentrated on two practical priorities: (1) eliminating member states’ security concerns, both from within and without Southeast Asia, as well as strengthening intra-regional trust; and (2) forming and consolidating regional principles and rules of conduct to manage intra-regional disputes.
The establishment of ASEAN was thus a strategy to institutionalise the region's reconciliation process. To that aim, ‘the forging of a structure of a special relationship’ was a practical solution to manage and overcome regional disputes and more deep-seated contentions among member states.
This monograph is published within the context of a wide-ranging research project entitled, Integration Through Law: The Role of Law and the Rule of Law in ASEAN Integration (ITL), undertaken by the Centre for International Law at the National University of Singapore and directed by J. H. H. Weiler and Tan Hsien-Li.
The Preamble to the ASEAN Charter concludes with a single decision: ‘We, the Peoples of the Member States of the Association of Southeast Asian Nations … [h]ereby decide to establish, through this Charter, the legal and institutional framework for ASEAN’. For the first time in its history of over four decades, the Legal and the Institutional were brought to the forefront of ASEAN discourse.
The gravitas of the medium, a Charter: the substantive ambition of its content, the creation of three interlocking Communities, and the turn to law and institutions as instruments for realization provide ample justification for this wide-ranging project, to which this monograph is one contribution, examining ASEAN in a comparative context.
That same substantive and, indeed, political ambition means that any single study, illuminating as it may be, will cover but a fraction of the phenomena. Our modus operandi in this project was to create teams of researchers from Asia and elsewhere who would contribute individual monographs within an overall framework which we had designed. The project framework, involving several thematic clusters within each monograph, is thus determined by the framework and the place of each monograph within it.
As regards the specific content, however, the authors were free, indeed encouraged, to define their own understanding of the problem and their own methodology and reach their own conclusions. The thematic structure of the entire project may be found at the end of this Preface.
The project as a whole, and each monograph within it, display several methodological sensibilities.
First, law, in our view, can only be understood and evaluated when situated in its political and economic context. Thus, the first studies in the overall project design are intended to provide the political, economic, cultural and historical context against which one must understand ASEAN and are written by specialists in these respective disciplines. This context, to a greater or lesser degree, also informs the sensibility of each monograph.
This is a special year for ASEAN. On August 8, 2007, ASEAN celebrated its 40th anniversary. In November, the ASEAN Summit will be held in Singapore. One of the key deliverables of the Summit is the adoption by the 10 ASEAN Leaders of the ASEAN Charter. It has the potential to transform ASEAN into a stronger, more united and effective organisation … [I]t will grow a culture of taking our obligations seriously. In the past, only about 30 percent of ASEAN's agreements were implemented. We will put in place a system of compliance monitoring and, most importantly, a system of compulsory dispute-settlement for non-compliance that will apply to all ASEAN agreements.
The adoption of the ASEAN Charter on 20 November 2007 was a momentous turning point in the 40-year history of the organisation. Through this treaty, ASEAN member states inaugurated the maturation of their grouping into a formal international organisation with legal personality, codified regional norms and set in place a firm legal and institutional framework to bring about the ASEAN Community. Achieving this lofty ambition for the rule of law and institutions to reign meant that regional commitments required better adherence. To that end, the ASEAN Charter stipulated compliance monitoring and dispute settlement mechanisms to enhance implementation levels of ASEAN instruments. These changes, enunciated in the ASEAN Charter, were the culmination of ASEAN's gradual evolution, catalysed into being by the Eminent Persons Group (EPG) tasked with advising on ASEAN's new trajectory and drafted into existence by the High Level Task Force (HLTF). In particular, the EPG pushed for the institutionalisation of ‘effective monitoring, compliance and dispute settlement mechanisms’. It is significant that adherence to the rule of law and institutions is deemed so crucial to ASEAN's transformation that while the HLTF did not incorporate all the EPG recommendations, those pertaining to compliance monitoring and dispute settlement were.
As the organisation's reputation and achievement of the ASEAN Community hinges on member states’ adherence to commitments, the rationale behind this book is to test whether ASEAN's faith in dispute settlement and monitoring mechanisms as a means to better compliance is justified and the extent to which they can facilitate this process.
Due to its turbulent beginnings, ASEAN's preoccupation with regional dispute management never truly diminished. Instead, dispute settlement modalities took on increasingly sophisticated roles in response to geopolitical and economic influences. This Chapter examines the evolution of ASEAN dispute settlement mechanisms pertaining to hard security issues and economic challenges, as well as the region's focus on reinforcing the rule of law and the strength of its institutions, and the extent to which such mechanisms are effective in fulfilling ASEAN's aspirations.
Phases in the development of ASEAN dispute settlement mechanisms
The early phase: promotion of regional peace and security
Generally, in this phase of regional peace maintenance and conflict avoidance, ASEAN lacked a clear and systematic practice on the inclusion of dispute settlement clauses in its instruments. Most ASEAN instruments adopted in the period from 1967 to 1991 did not include such provisions and there are no clear reasons as to why it is so. This was also the case with ASEAN agreements signed with external parties prior to 1992. This could be because state parties deemed these ASEAN agreements to be political confidence-building measures instead of legally binding treaties.
The TAC, signed in conjunction with the Bali Concord I on 24 February 1976 at the First ASEAN Summit, perfectly encapsulates ASEAN's attitude towards dispute settlement mechanisms in its early years. The TAC is the principal security treaty of the region and by signing it, state parties not only affirmed that the peaceful settlement of disputes was a ‘fundamental principle’, but also had recourse to a mechanism to resolve any situation that could destabilise regional peace and harmony. As non-regional states are permitted to be signatories, the TAC is the only regional mechanism that can be used for disputes arising between an ASEAN state and a non-ASEAN state. Accession to the TAC by non-ASEAN states has become an important indication of their commitment to engage in the region; it is also a requirement for joining the East Asia Summit. To date, many non-ASEAN countries have acceded to the treaty, including Australia, China, the European Union, India, Japan, Russia, the United States of America, South Korea and Timor-Leste.
The 2001 Rules of Procedure of the High Council of the TAC set out several steps that state parties should follow in the event of a dispute. First, state parties are to resolve their dispute through negotiation.
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