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The Asean Charter: Evolutionary or revolutionary?

The Association of South-east Asian Nations (Asean) Charter has been in force now for nearly a decade.

Philippine President Rodrigo Duterte, centre, poses with Association of South-east Asian Nations (Asean) Foreign Ministers and their representatives at the closing ceremony of the 50th Asean Foreign Ministers Meeting (AMM) and its 50th Grand Celebration Tuesday Aug 8, 2017 at the Philippine International Convention Centre. Source: AP

Philippine President Rodrigo Duterte, centre, poses with Association of South-east Asian Nations (Asean) Foreign Ministers and their representatives at the closing ceremony of the 50th Asean Foreign Ministers Meeting (AMM) and its 50th Grand Celebration Tuesday Aug 8, 2017 at the Philippine International Convention Centre. Source: AP

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The Association of South-east Asian Nations (Asean) Charter has been in force now for nearly a decade.

Professor Tommy Koh, Singapore’s representative on the High Level Task Force that drafted the Asean Charter many years back, considers the Charter to be a “revolutionary agreement.”

However, if asked whether the Asean Charter has brought any significant positive change in Asean, I would say the answer is a qualified “yes,” because whether or not the Charter set in place “revolutionary” transformations in the region remains to be seen.

At the most fundamental level, Chapter II Article 3 of the Charter endows Asean with legal personality at an inter-governmental level.

Having taken Asean 40 years to add a legal dimension to its political foundation, this 10-word clause in the Charter means that Asean now has the right to enter into a contract and to own property, and the ability to sue and be sued.

The Secretary-General or any of the four Deputy Secretaries-General can now represent Asean in entering into legal transactions governed by the respective domestic laws.

The same provision also transforms Asean into a diplomatic entity. As of now, the regional grouping is formally recognised with the accreditation of Ambassadors to Asean from more than 80 countries as well as the European Union (EU) and the Holy See.

From its inception, the Charter was designed to transform Asean into a rules-based regional entity to support community-building and to achieve specific regional goals within a specific timeline.

To this end, the realisation of the Asean Community in December 2015 has already been achieved, at least on paper. The next benchmark is for Asean to move towards the even more ambitious goal of establishing a “rules-based, people-oriented, people-centred Asean Community” by 2025.

Over the years, Asean has often come under sustained criticisms – and not without justification – for taking the “safe road” to avoid facing up to contentious issues.

Positively, some elements in the Charter goes against this convention.

The most significant is the effort to redefine the principle of “non-interference” with the principles of “shared commitment and collective responsibility in enhancing regional peace, security and prosperity” and of “enhanced consultations on matters seriously affecting the common interest of Asean”.

The former principle, which is enshrined in Chapter I Article 2(b) of the Charter, stresses the importance of the collective interest and underlines the obligation of member states to protect those interests.

From a practical standpoint, member states can no longer hide behind the veil of non-interference and are legally, if not morally, obliged to inform and consult the grouping on national developments that impinge on regional peace and stability.

The Rohingya issue in the Rakhine State of Myanmar and the Marawi terrorist attacks in southern Philippines are test cases of these principles.

The Charter also attempted to resolve the regional bureaucratic gridlock by empowering the Committee of Permanent Representatives (CPR), which consists of Permanent Representatives with the rank of ambassador, to be the primary interface between the member states and the Asean Secretariat and to coordinate the work between the Asean national secretariats and the sectoral bodies.

Far from helping to cut red tape, the CPR has been accused at times of adding to the thick layer of bureaucracy. The good intentions of the Charter framers were side-tracked by the member states’ interest in retaining tight reigns on decision-making in the hands of officialdom at home.

For the first time, the rights and obligations of Asean members are spelled out in Chapter III Article 5(2), which states that all member states “shall take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of this Charter and to comply with all obligations of membership.”

Without provisions for sanctions or other forms of punitive measures, this provision rings hollow as compliance is held up only by the conscience and integrity of the member states, which more often than not, counts for very little in the world of realpolitik.

In all fairness, the Charter establishes new ground for Asean. For example, Chapter II Article 14 affirms Asean’s commitment to “the promotion and protection of human rights and fundamental freedoms,” through the establishment of an Asean human rights body.

Few would dream of Asean adopting “human rights” into the regional discourse, and fewer still would have the audacity to contemplate Asean agreeing to advance human rights in the region.

To be sure, Asean’s record in this subject is patchy at best, but Asean must be credited for daring to dream.

Celebrations to commemorate the 10h anniversary of the adoption of the Charter is unfortunately clouded by the disappointment of Asean not honouring Chapter XIII Article 50, which states that the Charter “may be reviewed five years after its entry into force or as otherwise determined by the Asean Summit.”

Asean’s silence on the matter of the Charter review speaks loudly to its leaders’ preference to privilege the latter part of the provision over the former.

While Asean watchers point to the lack of political appetite to review the Charter, the reality is that Asean leaders do not see a need to undertake this laborious and politically tricky endeavour.

Most member states believe the Charter is good enough as it is, however imperfect it may be.

Although the Charter has not lived up to its hype, it has nevertheless established guideposts to advance the regional community-building agenda.

Change in Asean will not be revolutionary. It would certainly not come overnight. Judging on the past 50 years, transformations tend to be deliberate, and come about as the result of “consultation and consensus.”

“Slow and steady” has been Asean’s hallmark in the last 50 years, and Asean would have to call on the same perseverance and strategic patience for the spirit and ambitions transcribed in the Charter to make its way into the lives of the Asean people.

 

ABOUT THE AUTHOR:

Termsak Chalermpalanupap is Lead Researcher I (Political-Security Affairs) at the Asean Studies Centre, Iseas-Yusof Ishak Institute. This is part of a series of commentaries TODAY is running to mark Asean’s 50th anniversary.

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