The Association of Southeast Asian Nations (ASEAN) ASEAN was founded on August 8, 1967. Its ten member states are Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam. The founding document of ASEAN, the Bangkok Declaration (also known as the ASEAN Declaration) of 1967[1] provides that the objectives of the organization include: (1) the acceleration of economic growth, social progress and cultural development in the region, and (2) the promotion of regional peace and stability. Recent Developments: Adoption of ASEAN Charter and ASEAN Economic Community Blueprint In November 2007, the heads of ASEAN member states took historic steps towards establishing an "ASEAN Community" when they convened in Singapore for the 13th ASEAN Summit. First and foremost, they signed the ASEAN Charter, which provides the organization with a formal legal personality and expands upon its values and institutional mechanisms. In addition, the member states adopted the ASEAN Economic Community Blueprint, which paves the way for the establishment of a regional common market by 2015. The ASEAN Charter (the "Charter") is subject to the ratification of all member states.[2] The ASEAN Secretariat expects this milestone to be achieved before the 14th ASEAN Summit, which is scheduled to be held in Bangkok in December 2008.[3] The Charter outlines, inter alia, (i) the purposes and principles underpinning ASEAN, (ii) its institutional framework and organs of operation, and (iii) the processes for decision-making and dispute settlement. Expansion of Obligations of Member States The purposes and principles stated in the Charter extend beyond those in the ASEAN Declaration of 1967, which prioritize economic growth and regional security. Instead, the Charter cites the alleviation of poverty[4], the promotion of sustainable development[5], and an integrated regional economy comprising a single market and production base[6]. The provisions in the Charter relating to human rights are brief but noteworthy; Article 1(7) includes within the purposes of ASEAN "[t]o strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN." Similarly, Article 2(2) requires member states to adhere to certain principles including those of "adherence to the rule of law, good governance, the principles of democracy and constitutional government . respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice." Finally, the Charter provides that "[i]n conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body" which "shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting."[7] The Charter also strengthens the existing institutional framework of ASEAN. Thus, for example, it officially recognizes the ASEAN Summit, which comprises the heads of state (or heads of government) of member states, as the organization's supreme policy-making body.[8] The Charter mandates that the ASEAN Summit meet twice a year rather than the existing practice of a single annual meeting.[9] The Charter establishes an ASEAN Coordinating Council, comprising the foreign ministers of member states, who will meet at least twice annually and be responsible for coordinating the ASEAN Summit and for other operational functions.[10] In addition, it establishes three ASEAN Community Councils to work on certain key areas. Specifically, Article 9 of the Charter provides for a Political-Security Community Council, an Economic Community Council, and a Socio-Cultural Community Council, each of which will meet at least twice a year and will, inter alia, implement decisions of the ASEAN Summit that fall under its designated purview. Pursuant to Article 11 of the Charter, the ASEAN Secretariat will comprise the Secretary-General of ASEAN, four Deputy Secretaries-General (an increase from the current two Deputy Secretaries-General[11]), and supporting staff. The budget of the ASEAN Secretariat will continue to be met through equal annual contributions of member states.[12] Dispute Resolution, Decision Making Several provisions of the Charter relate to decision-making and to the settlement of disputes within ASEAN. With respect to the former, the Charter endorses the organization's longstanding practice of making decisions by consensus.[13] Consensus would also be required to apply formulae for flexible participation to achieve economic targets - including the so-called "ASEAN minus X" formula [14] - which have been used to allow some ASEAN states to proceed with economic initiatives before other member states were ready to join them.[15] To settle disputes concerning specific ASEAN instruments, the Charter affirms the use of dispute resolution mechanisms provided for in such instruments.[16] If a dispute resolution mechanism has not been specified and it relates to an ASEAN economic agreement, the dispute shall be settled in accordance with the existing ASEAN Protocol on Enhanced Dispute Resolution,[17] while other disputes shall be settled by "appropriate . mechanisms, including arbitration[18]." Article 26 of the Charter provides that any dispute that remains unresolved after using these various mechanisms shall be referred to the ASEAN Summit for its decision. The Charter requires the Secretary-General to monitor compliance and implementation of ASEAN decisions and agreements - including compliance with decisions of ASEAN dispute-resolution mechanisms - and to submit reports thereon to the ASEAN Summit.[19] In addition to signing the Charter at the 13th ASEAN Summit, ASEAN leaders also adopted the ASEAN Economic Community Blueprint (the "AEC Blueprint").[20] The AEC Blueprint, together with its Strategic Schedule for the ASEAN Economic Community[21] , provides a detailed road-map to creating a single market and production base in the ASEAN region. The common market will encompass the free movement of goods, services, investment and skilled labor, and a freer flow of capital. While most elements of the ASEAN Economic Community are scheduled to be in place by 2015, the AEC Blueprint includes a few targets to be met between 2015 and 2020, primarily by the less affluent, so-called "CLMV" states (Cambodia, Laos, Myanmar, and Vietnam). For example, it mandates the removal of all non-tariff barriers by 2010 for Brunei; Indonesia; Malaysia;, Singapore; and Thailand, by 2015 for the Philippines, and by 2018 for CLMV.[22] **** The adoption of the AEC Blueprint and the signing of the ASEAN Charter are clearly landmark events in the history of ASEAN, which fittingly took place on the 40th anniversary year of its founding. The AEC Blueprint heralds the beginning of a potentially formidable economic bloc, though much will depend on how successfully the less developed member states of ASEAN will meet their liberalization targets. While the ASEAN Charter will be formally operative only after ratification by all ten member states, some preliminary observations can be made regarding its adoption and content. Firstly, it appears that the Charter is well on target to be ratified by all ASEAN states. This is despite earlier indications that some member states - especially Indonesia and the Philippines - might delay ratification due to concerns about human rights and democracy in Myanmar.[23] President Arroyo of the Philippines, for example, had suggested that her nation's Congress would be unlikely to ratify the Charter until it was satisfied that Myanmar was committed to democracy and released Aung San Suu Kyi.[24] As of October 8, 2008, however, the Philippines and all other member states except Indonesia had ratified the Charter. The Indonesian Foreign Ministry has stated that ratification will occur shortly, noting that it is "counting on Myanmar to gradually comply with the charter."[25] Even before it adopted the Charter, the ASEAN leadership was frequently criticized for its muted approach to promoting and protecting human rights - especially in Myanmar.[26] The Charter now commendably includes the promotion and protection of human rights among its explicit purposes and principles, and more remarkably, provides for the eventual establishment of an ASEAN human rights body.[27] The likely impact of these provisions, however, is difficult to gauge. This is especially so because the mandate and powers of the human rights body are not specified in the Charter itself but rather, are subject to future determination by the ASEAN Foreign Ministers Meeting.[28] The terms of reference of the human rights body are currently being discussed and negotiated among member states who will consider a report of the High Level Panel (HLP) on the establishment of the ASEAN human rights body at the 14th ASEAN Summit in December 2008. There are preliminary indications that the human rights body may be more "advisory" in nature, and will lack authority to investigate, adjudicate or impose sanctions for violations of human rights.[29] If these indications prove correct, the ASEAN human rights body will not substantially advance current policies and practices within the organization and its member states.[30] Indeed, although the Charter provides for several other new offices and mechanisms, it is unclear how much change these will effect on ASEAN. Thus, for example, commentators have already noted that although the Charter provides for new offices such as two additional Deputy Secretaries-General, the budget of the ASEAN Secretariat has not been increased to meet additional expenses.[31] Similarly, the Charter notably provides for mandatory dispute resolution by arbitration or other mechanisms, but still confers ultimate responsibility for unresolved disputes to the ASEAN Summit, who will presumably continue to decide matters on the basis of consensus and consultation.[32] The Charter retains the current practice of permitting a departure from a collectivist approach to making and implementing decisions only in economic matters (hence many provisions of the AEC Blueprint invoke the "ASEAN minus X" formula to meet economic targets for establishing an ASEAN Economic Community by 2015).[33] In short, it remains to be seen whether the expansion of ASEAN's explicit values and institutions in the Charter will transform its internal processes and character. Professor Dinusha Panditaratne Faculty of Law The Chinese University of Hong Kong Footnotes: 1 Association of South East Asian Nations Declaration, Aug. 8, 1967, 6 ILM 1233, available at http://www.aseansec.org/1212.htm [hereinafter ASEAN Declaration]. 2 Association of South East Asian Nations Charter, art. 47(2), opened for signature Nov. 2007, available at http://www.aseansec.org/ASEAN-Charter.pdf 3 ASEAN Secretariat ASEAN Charter Full Ratification on Target, Oct. 8, 2008, available at http://www.aseansec.org/press-8oct08-2.htm 4 ASEAN Charter, supra art. 1(6) note 2. 5 Id. art. 1(9). 6 Id. arts 1(5), 2(2)(n). 7 Id. art. 14. 8 Id. art. 7(2). 9 Id. art. 7(3). 10 Id. art. 8. 11 Protocol Amending the Agreement on the Establishment of the ASEAN Secretariat, Subang Jaya, Malaysia, July 23, 1997, available at http://www.aseansec.org/1878.htm. 12 ASEAN Charter, supra art 30(2) note 2, 13 Id. art. 20(1). 14 Id. art. 21(2). 15 See Barry Desker, Is the Asean Charter Necessary?, RSIS COMMENTARIES, available at http://www.rsis.edu.sg/publications/Perspective/RSIS0772008.pdf (last visited Nov. 18, 2008) (2008) (Hereinafter "Desker"). 16 ASEAN Charter supra. art. 24(1). 17 Id. art. 24(3); ASEAN Protocol on Enhanced Dispute Settlement Mechanism, available at http://www.aseansec.org/16754.htm. 18 ASEAN Charter supra note 2, at Article 25. 19 Id. arts. 11(2)(b), 20(4), 27(1) , 27(2). 20 See Declaration on the ASEAN Economic Community Blueprint (the "Declaration on the AEC Blueprint"), available at http://www.aseansec.org/21081.htm (last visited Dec. 19, 2008); the ASEAN Economic Community Blueprint (the "AEC Blueprint"), available at http://www.aseansec.org/21083.pdf (last visited Dec. 18, 2008). 21 Strategic Schedule for the ASEAN Economic Community (the "Strategic Schedule"), available at http://www.aseansec.org/21161.pdf. (last visited Dec. 18, 2008); see also the Declaration on the AEC Blueprint, Id, para 1, and the AEC Blueprint, Id, para 67. 22 AEC Blueprint, id, at para 14. 23 Asean on the Rocks, WALL STREET JOURNAL, July 25, 2008, available at http://online.wsj.com/article/SB121692439261981801.html (last visited Dec. 18, 2008); Wayne Arnold, Rift over Myanmar emerges at Asean summit, INTERNATIONAL HERALD TRIBUNE, November 19, 2007, available at http://www.iht.com/articles/2007/11/19/asia/asean.php (last visited Dec. 18, 2008) (hereinafter "Arnold"). 24 See Arnold, supra; Burma warned over Asean charter, BBC NEWS, November 19, 2007, available at http://news.bbc.co.uk/2/hi/asia-pacific/7101239.stm (last visited Dec. 18,2008). 25 Indonesia to ratify ASEAN Charter: foreign ministry, AGENCE FRANCE-PRESSE, October 8, 2008 available at http://afp.google.com/article/ALeqM5idaHPH9SOQS8VSV4soLE_LGDMzxQ (last visited Dec. 18, 2008).
26
See, e.g,, Lee Hudson Teslik, The ASEAN Bloc's Myanmar Dilemma, COUNCIL ON FOREIGN RELATIONS, October 2, 2007, available at http://www.cfr.org/publication/14353/ 27 The ASEAN Charter, supra note 2, arts. 1(7), 2(2)(i), 14. 28 Id. art. 14. 29 ASEAN Human Rights Body to Rely on 'Peer Pressure', RADIO AUSTRALIA, July 22, 2008, available at http://www.radioaustralia.net.au/news/stories/200807/s2310241.htm (last visited Dec. 18, 2008). 30 See ASEAN: human rights in the Charter and beyond, AMNESTY INTERNATIONAL USA November 21, 2007, available at http://www.amnestyusa.org/document.php?id=ENGASA010092007&lang=e (last visited Dec. 18, 2008) (For recommendations to establish a strong ASEAN human rights body). 31 Desker, supra note 14. 32 The ASEAN Charter, supra note 2, at arts. 26, 20; see also Desker, supra (Critiquing the prioritization on agreement by consensus in the Charter). 33 The ASEAN Charter supra art.21(2); the AEC Blueprint, supra note 20, at e.g. paras. 21(ix), 22(a), 72(v). |
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