A. Introduction
For 40 years the Association of Southeast Asia Nations (ASEAN), an intergovernmental organization of 10 Member States, has had a sort of double life in the international system: both with the appearance of being an international organization and the reality of not acting like an international organization. It continues to suffer from a fundamental problem of perception.Footnote 1 However, it has now tried to bring appearance and reality closer together with the adoption in treaty form of the ASEAN Charter in 2007, an important document that seeks to establish a legal and institutional framework for the AssociationFootnote 2 This note surveys the Charter's key provisions and offers some remarks about its broader strategic imperatives.
B. Asean As Intergovernmental Organization
1. Membership
ASEAN was founded on 8 August 1967.Footnote 3 The founding Member States included Indonesia, Philippines, Malaysia, Singapore and Thailand. The Association was first enlarged after Brunei was admitted on 7 January 1984, after attaining independence from the United Kingdom.Footnote 4 That there are no permanent friends or foes in international relations was reaffirmed when Vietnam became an ASEAN member on 28 July 1995, despite a decade of antagonisms.Footnote 5 Laos and Myanmar became Member States on 23 July 1997. Cambodia was the last to join on 30 April 1999.Footnote 6
2. Stabilising Southeast Asia, facilitating regional stability
ASEAN's purpose fundamentally lies in its ability to reduce intra-mural conflict within Southeast Asian States and also in its strategic role as a facilitator of regional stability within East Asia. The former was and is the Association's primary accomplishment. One should recall the strident claims on Northern Borneo (Sabah) made by the Philippines against newly independent Malaysia in 1962.Footnote 7 Noteworthy, too, are the ten-sions generated by confrontation between Indonesia and Malaysia, as well as the fear of tiny Singapore in that climate.Footnote 8 Moreover, as late as November 1977, Malaysia had challenged Brunei's international status with belligerence before the Fourth Committee at the UN General Assembly.Footnote 9
Major powers are also jockeying for influence in Southeast Asia. This region bestrides the South China Sea and Pacific Ocean, where major powers such as India, China, Japan and the United States (US) will assert their commercial and military interests. ASEAN is of geopolitical significance to them because great powers, as Condoleeza Rice rightly noted, ‘do not just mind their own business’.Footnote 10 It is imperative that the Association is able to act in a reasonably cohesive manner by serving as a platform to accommodate the (sometimes divergent) interests of these major powers in a reliable, relevant and fair way.Footnote 11 These observations form the wider context on which the Charter, by consolidating ASEAN on a legal basis, could enhance the Association's ‘catalytic role’ in regional security.Footnote 12
3. Consensus, consultation and compromise: The ‘ASEAN Way’
It is worth discussing ASEAN's quiet diplomacy in some detail because it remains central to the Association's modus operandi. The ‘ASEAN Way’, as it is known in the vernacular, is characterized by an informal, personal working style. Policymakers and politicians have evolved habits of compromise, consensus and consultation. Consensus in decision-making has a protean quality. Consensus does not necessarily require unanimity.Footnote 13 Explicit consent to a decision is not necessary for consensus to be forged, although the latter might be blocked if one or more ASEAN members felt the decision would militate against their national interests. Consensus on a decision can also be reached despite misgivings from one or more member States.Footnote 14 Other international or regional organizations such as the UN and European Union (EU) also operate on the basis of consensus. Where they differ from ASEAN is that these organizations have formal voting or procedural mechanisms to break the impasse, if consensus fails.Footnote 15
Context is important. ASEAN is a set of States noted more for its ethnic, religious and political heterogeneity than its homogeneity. The ‘ASEAN Way’ has helped to increase the comfort level between founding members, who had been kept apart for over a century by different colonial spheres of influence.Footnote 16 Its relevance is undiminished today. The older members now face the challenge of raising the comfort level with the newer members—Cambodia, Myanmar, Laos and Vietnam (CMLV).Footnote 17
4. The ‘ASEAN Way’: rule against non-use of force & non-interference in internal affairs
Sovereignty in its internal aspect refers to the State as the ultimate authority that enacts and enforces law, to the exclusion of other competing sources of authority. It is in this sense that UN General Assembly Resolution 2625 provides a right for sovereign States to define their plural identities, such as their political, social and economic systems, in a manner of their choice.Footnote 18 For members of ASEAN sovereignty and sovereign equality, from which legal rules such as non-intervention flow from, continue to represent the ‘basic constitutional doctrine’ of international law.Footnote 19 This is the deeper basis of consensus, compromise and consultation in decision-making by ASEAN's members. It is precisely because individual ASEAN States, such as Singapore and Indonesia, are materially and physically unequal that Member States take advantage of and defend their sovereign equalities under international law. The ‘ASEAN Way’ demonstrates the welding of global legal doctrine to ‘local’ conditions, in which decisions reached by consensus are indicative of the sovereign equality and hence extensive consultations, as well as comfort level, between Member States.
The legal rule against forcible and non-forcible intervention (interference in the internal affairs of a sovereign StateFootnote 20) is a fundamental rule of international law. This is why ASEAN's Treaty of Amity and Cooperation (TAC) of 1976 is an important document.Footnote 21 The TAC, which legally binds its signatories against both forcible and non-forcible intervention,Footnote 22 was unusual and striking because ASEAN members had preferred loose and informal agreements to legally binding documents, especially during the first decade of the Association's founding.
The form of the TAC, as a binding document which requires ratification,Footnote 23 represents a firm endorsement of ASEAN's commitment to the importance of the rule against non-intervention. This rule provides some legal protection for the plural identities of Southeast Asian States, which are extremely useful for small States such as Singapore and Brunei, in an anarchical system of States in international politics. It was not a coincidence that the TAC was signed on 24 February 1976. The communist victory and reunification of Vietnam in 1975 had already unsettled ASEAN. This development rallied Member States and gave the Association a sense of purpose which had hitherto been desultory. A code of conduct, an ‘international society’ with common interests, was established to regulate intra-mural relations and regional order for Southeast Asia.Footnote 24
These observations do not suggest that intervention, either forcible or non-forcible, has not occurred in Southeast Asia.Footnote 25 What needs emphasis, however, is that ASEAN members continue to regard the rule of non-intervention as fundamentally important to their national interests.Footnote 26 Although the interpretation of this rule has become less stringent, for example, in relation to human rights for States who participate in the Conference/Organization of Security and Cooperation in Europe (OSCE/CSCE) process, this is not a valid reason for ASEAN to follow suit.Footnote 27 ASEAN's embrace of global legal doctrine to its local conditions must ultimately be consistent with the national interests of the individual Member States.
5. Need for reforms
As ASEAN matures, its preference for loose arrangements over legally binding documents has created practical problems. The measured pace of institutional building, itself indicative of the consensual approach in which such decisions are made, has struggled to keep up with the nature and pace of integration (especially its economic agenda) within the Association.
The economic power of rising powers such as India and China in the region, of which they have become strong competitors for foreign direct investment inflow, forced ASEAN to establish a single market and production base.Footnote 28 The latter necessitates streamlining its institutions such as giving the ASEAN Secretariat more responsibilities to cope with deeper regional integration. It was not until 1976 that an ASEAN Secretariat was established in Jakarta. In 1992, the Secretariat was augmented to its pre-Charter form in order to coordinate and implement ASEAN activities such as the ASEAN Free Trade Agreement (AFTA).Footnote 29
Another basic issue was the uncertainty surrounding ASEAN's legal personality under international law. Neither the Bangkok Declaration of 1967Footnote 30 nor subsequent instruments such as the TAC clarified this issue as these documents did not expressly provide for ASEAN's legal personality.Footnote 31
C. Asean Charter: some key provisionsFootnote 32
1. General
The Charter must be ratified by all member States.Footnote 33 Singapore, as Chairman of the 13th Summit, has expressed cautious optimism about the progress of the Charter's ratification.Footnote 34 By concluding a legally binding agreement, ASEAN's leaders have signalled their commitment to a catalogue of legal obligations and rights. However, the Charter's design elements are correlated, that is to say, its substantive (deep or shallow obligations), structural (binding or non-binding) and review (strong or weak enforcement) elements are closely linked.Footnote 35 We must expect trade-offs in one or more of these elements when a document is legally binding.Footnote 36
Also the Charter has been carefully drafted to preserve the sovereignty of each member State as the ultimate source of authority that enacts and enforces laws within their territorially defined units. The ASEAN Charter is designed to be respectful of sovereignty and sovereign equality under international law.Footnote 37
2. Consolidating & streamlining ASEAN institutions
a) Organs
Article 7 states that the ASEAN Summit shall be the Association's supreme policy-making bodyFootnote 38 and will comprise its heads of state or governments.Footnote 39 ASEAN's leaders are empowered to ‘deliberate, provide policy guidance and take decisions on key (ASEAN) issues’.Footnote 40 Crucially, the Summit is the final arbiter on matters related to the failure to reach a consensus and settlement of disputes between member States.Footnote 41 Article 7(3)(a) stipulates that Summit meetings shall be held twice annually.Footnote 42 Since its founding in 1967, ASEAN Summits were only held in 1976, 1977 and 1987. Thereafter ASEAN leaders experimented with a system of ‘formal’ and ‘informal’ meetings and it was not until the 7th ASEAN Summit in 2001 that this tenuous distinction was abandoned.Footnote 43
Noteworthy, too, is the facilitative role of the ASEAN Coordinating Council (comprising ASEAN foreign ministers) under Article 8. Some of this Council's responsibilities, which must meet at least twice a year,Footnote 44 include undertaking ‘other tasks’ or ‘such functions as may be assigned by the ASEAN Summit’Footnote 45 and coordination with the ASEAN Community Councils ‘to enhance policy coherence, efficiency and cooperation among them’.Footnote 46
In relation to the ASEAN Community Council, Article 9(1) states that it shall comprise the ASEAN Political-Security Community Council, ASEAN Economic Community Council and ASEAN Socio-Cultural Community Council. These councils will meet at least twice a yearFootnote 47 and are tasked (among other things) to ensure implementation of relevant decisions by the ASEAN Summit,Footnote 48 as well as coordinate work of different sectors under their purview and issues which cut across other Community Councils.Footnote 49
Finally, it is also significant that each Member State must now appoint a Permanent Representative (with the rank of Ambassador) to be based in Jakarta.Footnote 50 This Committee of Permanent Representatives will serve as a vital interface between the various national ASEAN secretariats, the Community Council and the Coordinating Council.
b) Legal personality
An international organization's legal personality affects its capacity under international law to enter into relations with other organizations or States and also their competence to conclude treaties.Footnote 51 Article 3 expressly confers legal personality on ASEAN, which will help to buttress external perceptions of ASEAN as a political actor on the international plane even though the precise nature of its legal character might still be unclear.Footnote 52 This is true even if one accepts the view that the Charter (when it enters into force) does not radically alter the substance of ASEAN's competence under international law.Footnote 53 A former ASEAN Secretary-General has described the ‘real handicap’ of persuading multinational corporations to contribute funding support to ASEAN projects since the Association, which apparently lacked legal personality, could not claim tax exemption status as a non-profit organization in the domestic laws of the Member States.Footnote 54
c) Conclusion of treaties/agreements
An international organization's legal personality indicates that it is a valid subject of international law and is capable of assuming its rights and obligations. But it is the constituent instrument, ie ASEAN's Charter, on which its legal competence to conclude treaties with either States or other international organizations rests, that is critical. There is some force in the observation that international personality is not so much a status as a capacity: it matters less what you claim than what you do (or cannot do) at the international level.Footnote 55
In its conduct of external relations, the Association's ‘procedures for concluding such (international) agreements shall be prescribed by the ASEAN Coordinating Council in consultation with the ASEAN Community Councils.’Footnote 56 Three remarks are noteworthy. First, whereas the EU Commission may within its area of competence represent and act for the UnionFootnote 57 in trade negotiations, the ASEAN Charter pointedly does not include these specific powers for its institutions, such as the ASEAN Secretariat.
Secondly, the ASEAN Secretary-General has in practice concluded agreements on behalf of the Association. For example, a Memorandum of Understanding (MOU) which was concluded between the governments of ASEAN member States and China on cultural cooperation was signed on behalf of ASEAN by the Secretary-General and a Chinese representative on 3 August 2005.Footnote 58 This pragmatic approach is unlikely to change after the Charter is ratified and in force even though it is not explicitly stated in the document.Footnote 59 The ASEAN Eminent Persons Group (EPG), which was tasked to make recommendations for the Charter,Footnote 60 confirmed this ad hoc practice of allowing the ASEAN Secretariat to conclude ‘non-sensitive’ agreements on behalf of the Association.Footnote 61 Though it reflected the EPG's desire for a stronger Secretariat, this recommendation, which would only institutionalize past practice, was not directly included in the Charter. In this sense, the trade-off in substance (empowering the Secretariat) for form (a legally binding Charter) should be noted.
Thirdly, there are no clear provisions in the Charter, especially in Articles 11Footnote 62 or 41,Footnote 63 on the manner in which important agreements such as the China-ASEAN Free Trade Agreement (CAFTA) would be concluded in future.Footnote 64 There are tentative signs in the framework agreement (FA) that CAFTA might be a collection of bilateral agreements concluded between China and ASEAN member States in their individual capacities and not with ASEAN as an entity.Footnote 65 This is because it was the various heads of government (or States) from China and individual ASEAN States (and not a representative of ASEAN's Secretariat) who affixed their signatures on the FA as contracting parties.Footnote 66 Also it is perhaps notable that the FA carefully and individually referred to member States and China as a ‘Party.’Footnote 67 We should not, though, make too much of these observations as conclusive indications of whether ASEAN's legal personality is distinct from its Member States until the actual terms of the agreements are concluded, particularly on the separation (or not) of legal rights and obligations between ASEAN and member States and also on aspects of international responsibility.
However, there is some basis to doubt whether ASEAN's leaders would be willing to empower the Secretariat to represent all 10 members in concluding important agreements.Footnote 68 Member States, including active participants such as Singapore, fear the possibility that both the Secretary-General and Secretariat could become ‘a powerful body which can have its own life and influence, which will mean that they (secretariat) can determine the agenda of the grouping and the outcome of all these issues to be deliberated.’Footnote 69 The Secretariat's representatives have thus privately conceded that ASEAN's leaders have firmly rejected the creation of a supra-national body.Footnote 70
3. Decision-making: importance of consensus
Article 20(1) enshrines consultation and consensus in decision-making as a ‘basic principle’ of ASEAN. The recognition that member States are sovereign equals under international law, who enjoy procedural parity within ASEAN, is also underscored in the equal annual contributions to the operational budget of the ASEAN Secretariat.Footnote 71 This also implies that the funding of the Secretariat, whose responsibilities include facilitating and monitoring progress in the implementation of ASEAN agreements,Footnote 72 has to be determined by the ability to contribute of the poorest Member State.
The ASEAN Summit's responsibilities are two-fold as the supreme policy-making body. First, ASEAN's leaders have the discretion to decide how a ‘specific decision can be made’ if consensus cannot be achieved.Footnote 73 It is striking that some of the EPG recommendations in this respect were rejected by ASEAN's leaders. The EPG was careful to distinguish decision-making on sensitive areas such as security and foreign policy (for which consensus should continue to obtain) from ‘other areas’ where decisions might be taken through voting if consensus cannot be achieved.Footnote 74 Of course, the option to force a vote is left open: the Charter neither endorses nor prohibits the ASEAN Summit from voting to break an impasse in decision-making. In practice, it would be surprising if this option is exercised in the areas of foreign policy and security. Diplomatic persuasion during the Foreign Ministers' retreat, such as the relinquishment of Myanmar's chairmanship in 2005,Footnote 75 is consistent with the ‘ASEAN Way’ and more likely to achieve a successful outcome.Footnote 76
In relation to economic matters, instead of taking a vote, Article 21(2) specifically provides for flexible participation on the basis of the ‘ASEAN Minus X’ formula. In other words, the slowest member State should not impede the Association's overall economic goals and would be allowed to opt out of any economic agreement as long as there is ‘a consensus to do so’.Footnote 77 It is thus difficult to escape the wider conclusion that ASEAN's integration is a ‘two-track process’ between the older and CMLV members.Footnote 78 It is also perhaps noteworthy that other forms of flexible participation in economic agreements might be envisaged by ASEAN since the ‘ASEAN Minus X’ formula is inclusive and not exhaustive of flexible participation.Footnote 79 To resolve disputes, there is also recourse to ‘good offices, conciliation or mediation’Footnote 80 and specific instruments such as the ASEAN Protocol on Enhanced Dispute Settlement Mechanism (2004).Footnote 81
Secondly, under Article 20(4), a ‘serious breach’ of the Charter or non-compliance shall be referred to the Summit. In this respect, Article 22(1) further states that Member States ‘shall endeavour to resolve peacefully all disputes in a timely manner through dialogue, consultation and negotiation.’ In terms of the Charter's design elements (form, structure and substance), then, its review structure is weak: there is no express provision for sanctions in the event of non-compliance. This was extensively discussed by ASEAN leaders and it was ultimately decided that the Summit shall be given the widest flexibility on how they might wish to proceed with violations, which includes human rights issues.Footnote 82
4. Membership
a) Admission
The Charter confirms the criterion laid down in the Bangkok Declaration that admission and membership of ASEAN is based on ‘location in the recognised geographical region of Southeast Asia.’Footnote 83 ASEAN's definition of itself in this manner has settled matters of self-perception and international recognition.Footnote 84 This is why States such as Myanmar and Timor-Leste cannot be excluded from the Association.
Unlike the Commonwealth, for example, admission to ASEAN is not contingent on the requirement of democratic governance. Membership based on democratic governments, to the extent that it is politically relevant and possible for members to agree meaningfully on its content, would have discounted many States in Southeast Asia. Footnote 85 It is true that under Article 2 of the Charter, member States have committed themselves to ‘principles of democracy and constitutional government’. ASEAN might become more ‘westernistic’,Footnote 86 but it is not obvious why a full embrace of ‘Western’ perspectives of liberal democracy or that of democratic governance should be an inevitable outcome for Southeast Asia.
In relation to Timor-Leste, its prospects of admission to ASEAN in the short term appear to have been influenced by reservations about the State's lack of material ability to carry out the obligations of ASEAN.Footnote 87 Since gaining independence in 2000, its Government is still struggling to exert effective public power over the people in its territory. The violence perpetrated by martial arts clubs and quasi-political organizations, of which some are allegedly linked to leading political figures and have even infiltrated the security forces, have destabilized the State.Footnote 88 In the light of Timor-Leste's history of social and communal violence, its people have perhaps not grasped the necessity of only allowing public authorities the monopoly of exercising legitimate force.Footnote 89 Put simply, this is a juridical State.Footnote 90
D. Concluding Observations
1. Global versus local
If our conceptual map of Southeast Asian law is ‘essentially a map of our own ignorance’, then remedying it necessitates a serious commitment to understanding local knowledge and global doctrine.Footnote 91 The ASEAN Charter gives material for this urgent task. It is in this sense that the Charter is not merely the preserve of the lawyer. A fuller understanding of its form and substance, as well as the political process in which this document has been adopted by Member States, requires a sociological and (even) ‘non-technical’ approach.Footnote 92 As noted already, the Southeast Asian context is important.
a) Fundamental rights & human rights body
The Charter does not lack references to the imperatives of fundamental rights as legal principles. Pursuant to Article 2 (2)(i), Member States shall respect ‘fundamental freedoms, the promotion and protection of human rights and the promotion of social justice’. Under ‘Purposes’ in Article 1(7), ASEAN seeks (among other things) to ‘promote human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN’. These ‘rights and responsibilities’ must surely include sovereignty in both its internal and external aspects. Members, as sovereign States, remain the ultimate source of authority within their territorially defined units to promulgate and enforce laws. Whereas internally it is now common for this authority to be subjected to its Constitution as the supreme law of the State, from an external standpoint the ultimate authority must be exercised in a way that is consistent with its international legal obligations. This would now include the ASEAN Charter.
In this respect, it is significant that Article 14 provides for the establishment of an ASEAN human rights body whose terms of reference will be determined at the ASEAN Foreign Ministers Meeting.Footnote 93 Though the creation of a human rights body was strongly opposed by the CMLV members, ASEAN nevertheless persisted and included it in the Charter.Footnote 94 This outcome is significant because it suggests that the Association is able to make an important decision without a taking a vote or clear consensus.
b) Human rights body: tongue and teeth
While ASEAN is committed to respect for human rights as set out at the Vienna World Conference on Human Rights in 1993, the Association made it clear that these rights ‘should be addressed in a balanced and integrated manner and protected and promoted with due regard for specific cultural, social, economic and political circumstances.’Footnote 95
It is unclear what these fundamental rights would entail although the Universal Declaration of Human Rights (UDHR) should at least be the basic referent.Footnote 96 Singapore's foreign minister has already hinted that ultimately the ASEAN human rights body ‘while lacking in teeth, will at least have a tongue, and a tongue will have its uses’.Footnote 97 This supports suggestions that its activities are likely to be declaratory and promotional.Footnote 98 It is also unlikely that this body will include a (robust) review mechanism to enforce the catalogue of fundamental rights. The pressure from non-ASEAN States and interests groups on the Association to accept their hegemonic conceptions of ‘global’ human rights should not distract ASEAN from the serious task of discerning the ‘local’ core rights for itself, which must comport with the variegated political, social and economic conditions in Southeast Asia.
2. The limits of non-interference
a) Haze and severe acute respiratory syndrome (SARS)
ASEAN members have not been shy to ‘interfere’ in the domestic affairs of other ASEAN States when there are regional implications which affect their national interests. Two examples might suffice. First, the haze pollution that affected other ASEAN States was brought about by land and forest fires in Indonesia.Footnote 99 Powerful domestic interests were at play because Indonesia's national policies had encouraged the conversion of their forests into oil palm or agricultural land. The most cost-effective means of land clearance was by burning. Bilateral relations between Indonesia, Brunei, Singapore and Malaysia were tested. Officially, though not publicly, at a meeting (in 1998) for ASEAN environment ministers, the latter complained that Indonesia's land-clearing activities were socially irresponsible and that the perpetrators were deserving of punishment. Relations were sufficiently strained for the late President Suharto to offer Indonesia's ‘sincere apologies’. Though the ASEAN Agreement on Transboundary Haze Pollution came into force on 25 November 2003Footnote 100, Indonesia has not ratified this agreement.Footnote 101
Secondly, and in marked contrast, ASEAN reacted swiftly and with success to combat the SARS in 2003.Footnote 102 Together with China, South Korea and Japan, the various agencies across these States were able to cooperate and coordinate measures such as strict quarantine measures, as well as thermal screening at entry and exits points, to contain the disease without any legal agreements.Footnote 103 The point to note is that non-interference is not upheld by ASEAN members for disinterested reasons. Nor are legal agreements necessarily more effective in securing a desired outcome. Ultimately it is the national interests of the individual Member States that obtain.
b) Myanmar
Myanmar is an embarrassment for ASEAN but also an inescapable fact of Southeast Asia. This is why Singapore's UN Permanent Representative said, ‘whatever we may think about the behaviour of a family member, it (Myanmar) is still a family member’.Footnote 104 When Myanmar's junta ruthlessly crushed the protests, which were led by monks and pro-democracy activists, after the regime unexpectedly raised fuel prices in August 2007, ASEAN issued a strong statement that expressed its ‘revulsion’ over the use of violence against its citizens.Footnote 105 Before the UN Security Council, Singapore repeated that this episode had implications for ASEAN's credibility and could not be an internal matter for Myanmar.Footnote 106
Furthermore, when Cyclone Nargis struck and devastated Myanmar in May 2008, of which tens of thousands died and at least a million are displaced,Footnote 107 the Government's initial intransigence towards external humanitarian relief forced ASEAN to ask Myanmar ‘point-blank’ what the Association meant to this Member State.Footnote 108
These are strong indications of ASEAN's departure from its adherence to the rule against non-interference. It is instructive that the ASEAN Chair publicly revealed the extent in which Myanmar has exasperated the Association and the manner in which its foreign ministers have expressed it, whereas previously ASEAN has been fairly discreet about the substance of its discussions with Myanmar.Footnote 109 Such a move partly reflected a necessary response to the magnitude of the humanitarian disaster which has affected Myanmar, but it was also calculated to demonstrate ASEAN's credibility as an effective organization just as it sought to ratify the Charter.
It is also notable that neither the Security Council nor ASEAN endorsed the characterization of Myanmar's actions as a threat to international peace or security.Footnote 110 Indeed, it is precisely because the junta has been able to sustain a fragile ceasefire with the various armed ethnic groups (within this heterogeneous State) that the collapse of the leadership would lead to a power vacuum that is potentially a threat to Southeast Asia's regional peace and security.Footnote 111 It is emphatically not in Southeast Asia's interests to allow Japan, India, China or the US to be drawn into an arena for big powers conflict over Myanmar. Unpalatable a prospect though it is, the Myanmar Government will play an important role in managing the State's problemsFootnote 112, which are likely to be intractable of a conclusive resolution.Footnote 113 This is because the junta represents the only viable, ultimate authority in effective control over a significant part of its territory, with the realistic prospect of remaining so.
3. ASEAN: facilitator of security within Southeast & East Asia
The fundamental purpose of ASEAN is to act as a platform on which it is able to promote security within Southeast and East Asia. It is essential to grasp this point. It bears repetition that Southeast Asia is of strategic importance to the major powers. The latter will seek to assert their military and economic interests in Southeast Asia and this is why ASEAN has assiduously tried to facilitate an open regional architecture.Footnote 114 The Association has strived to take the ‘driver's seat’ in ASEAN-led processes (such as the ASEAN Regional Forum and ASEAN+3Footnote 115) not because ASEAN is powerful but because it is ‘completely non-threatening’ and is able to engage the major powers in a fair and reliable way.Footnote 116
The ASEAN Charter, despite its attenuated substance and enforcement mechanism, is nevertheless a legally binding document which has generated some political momentum for ASEAN's objectives. It is a manifestation of ‘regional ego’ to (not least) the major powers that ASEAN is capable of forging common positions on key issues that matter to the parties and is also serious about its role in the regional architecture.Footnote 117 These aspirations raise expectations about ASEAN and must now be supported by genuine and sustained political commitment. There are already possible alternative platforms to challenge the Association's role in Southeast Asia such as the six-party mechanism,Footnote 118 the Shanghai Cooperation Organization (SCO)Footnote 119 and even an ‘Asia-Pacific community’.Footnote 120
Ultimately, without a stable balance of power, ie US superpower overlay to prevent a putative hegemonic power such as China from disturbing the existing distribution of power,Footnote 121 economic integration (which depends on stability) and international law are flights of fantasy. These are the strategic calculations of the ASEAN Charter.
Size is destiny. Big powers with the greatest capabilities will radically affect international peace, stability and prosperity.Footnote 122 Southeast Asian States are and must be thoroughly realistic about ASEAN's limited capacity to influence the ability and willingness of major powers to assert their interests in this region. But if ASEAN demonstrates a sense of purpose, as it did during the Kampuchean conflict,Footnote 123 it should be capable of playing at least a constructive role in sustaining regional security in a manner that comports with the national interests of its member States. The hostility between Cambodia and Thailand over the Preah Vihear in 2008 suggests that internal political pressures within member States and the opportunistic antagonisms that ensue between them are political facts, which will occasionally threaten the Association's collective purpose.Footnote 124 They will require both political equanimity and careful tending by ASEAN's leaders.
Perceptions of ASEAN and the Charter exceed what is possible to achieve in reality.Footnote 125 Whether it is the apparent contradiction between deeper integration and non-interference,Footnote 126 or if the Charter only deferred the important questions about ASEAN's place in the world,Footnote 127 it is fortunate that in practice we need not respond to these issues in a principled or conclusive manner. ASEAN's integration must never be achieved at the expense of weakening bilateral relations between individual States in Southeast Asia and other States in the international system. The continued survival of ASEAN, especially its smaller members, greatly depends on its ability to cohere as a regional organization and yet remain steadfastly open to the world. This might be a political contradiction, but more importantly it is also the art of the possible.
The Charter has since entered into force on 15 December 2008.
