The Significance of the ASEAN Charter

 

By Mr. Termsak Chalermpalanupap

Special Assistant to the Secretary-General of ASEAN

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Historic Commitment

 

For the first time in the history of the 41-year-old Association of Southeast Asian Nations (ASEAN0, its Member States[1] have  codified organic Southeast Asian diplomacy in the ASEAN Charter.   The ASEAN Charter is a momentous occasion to reiterate their commitment to community-building in ASEAN, as shown in the following paragraphs from the Preamble:

 

MINDFUL of the existence of mutual interests and interdependence among the peoples and Member States of ASEAN which are bound by geography, common objectives and shared destiny;

 

“INSPIRED by and united under One Vision, One Identity and One Caring and Sharing Community;

 

“UNITED by a common desire and collective will to live in a region of lasting peace, security and stability, sustained economic growth, shared prosperity and social progress, and to promote our vital interests, ideals and aspirations;

 

“RESPECTING the fundamental importance of amity and cooperation, and the principles of sovereignty, equality, territorial integrity, non-interference, consensus and unity in diversity;

 

“ADHERING tothe principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms;

 

“RESOLVED to ensure sustainable development for the benefit of present and future generations and to place the well-being, livelihood and welfare of the peoples at the centre of the ASEAN community building process;

 

“CONVINCED of the need to strengthen existing bonds of regional solidarity to realise  an ASEAN Community that is politically cohesive, economically integrated and socially responsible in order to effectively respond to current and future challenges and opportunities;

 

“COMMITTED to intensifying community building through enhanced regional cooperation and integration, in particular by establishing an ASEAN Community comprising the ASEAN Security Community, the ASEAN Economic Community and the ASEAN Socio-Cultural Community, as provided for in the Bali Declaration of ASEAN Concord II;” 

 

The ASEAN Charter gives due recognition  to democratic values in three different places  as follows in order to assert that ASEAN is neither “allergic” to human rights and fundamental freedoms, nor a “democracy-deficit” region:

 

ADHERING tothe principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms;” (Preamble)

 

7.  To 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;” (Chapter I, Article 1 : Purposes, Paragraph 7)

 

“(h) adherence to the rule of law, good governance, the principles of democracy and constitutional government;” Chapter I, Article 2: Principles, Paragraph (h)

 
Although implementation  of the above can be open to debate, the point to register is that ASEAN Member States have shown their collective recognition of  these elements of democracy in a formal and official way for the  first time.
 

Through the ASEAN Charter, Member States articulate their long-term goals for ASEAN, as stipulated in Chapter I: Purposes and Principles, Article 1 : Purposes, in which  at least 10 of the following  15 long-term purposes  of ASEAN are related to the well-being of people:

 

To maintain and enhance peace, security and stability and further strengthen peace-oriented values in the region;

 

“To enhance regional resilience by promoting greater political, security, economic and socio-cultural cooperation;

 

“To preserve Southeast Asia as a Nuclear Weapon-Free Zone and free of all other weapons of mass destruction;

 

+“To ensure that the peoples and Member States of ASEAN live in peace with the world at large in a just, democratic and harmonious environment;

 

“To create a single market and production base which is stable, prosperous, highly competitive and economically integrated with effective facilitation for trade and investment in which there is free flow of goods, services and investment; facilitated movement of business persons, professionals, talents and labour; and freer flow of capital;

+“To alleviate poverty and narrow the development gap within ASEAN through mutual assistance and cooperation;

 

+“To 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;

 

+“To respond effectively, in accordance with the principle of comprehensive security, to all forms of threats, transnational crimes and transboundary challenges;

 

+“To promote sustainable development so as to ensure the protection of the region’s environment, the sustainability of its natural resources, the preservation of its cultural heritage and the high quality of life of its peoples;

 

+“To develop human resources through closer cooperation in education and life-long learning, and in science and technology, for the empowerment of the peoples of ASEAN and for the strengthening of the  ASEAN Community;

 

+“To enhance the well-being and livelihood of the peoples of ASEAN by providing them with equitable access to opportunities for human development, social welfare and justice;

 

+“To strengthen cooperation in building a safe, secure and drug-free environment for the peoples of ASEAN;

 

+“To promote a people-oriented ASEAN in which all sectors of society are encouraged to participate in, and benefit from, the process of ASEAN integration and community building;

 

+“To promote an ASEAN identity through the fostering of greater awareness of the  diverse culture and heritage of the region; and

 

“To maintain the centrality and proactive role of ASEAN as the primary driving force in its relations and cooperation with its external partners in a regional architecture that is open, transparent and inclusive.” 

 

The ASEAN Charter lists 14 key principles in its Article 2 : Principles.  Most of them are well-known principles found in the UN Charter.  Those that are more interesting and may have new added-value are :

 

“(b) shared commitment and collective responsibility in enhancing regional peace, security and prosperity;”

 

“(g) enhanced consultations on matters seriously affecting the common interest of ASEAN;”

 

(k)  Abstention from participation in any policy or activity, including the use of its territory, pursued by any ASEAN Member State or non-ASEAN State or any non-State actor, which threatens the sovereignty, territorial integrity or political and economic stability of ASEAN Member States;”

 

 “(l)  Respect for the different cultures, languages and religions of the peoples of ASEAN, while emphasising their common values in the spirit of unity in diversity;”

 

“(m) The centrality of ASEAN in external political, economic, social and cultural relations while remaining actively engaged, outward-looking, inclusive and non-discriminatory; and”

 

 “(n) Adherence to multilateral trade rules and ASEAN’s rules-based regimes for effective implementation of economic commitments and progressive reduction towards elimination of all barriers to regional economic integration, in a market-driven economy.”

 

ASEAN will be conferred a legal personality as an inter-governmental organization  (Chapter II, Article 3).  Details of the legal personality – what ASEAN can or cannot do – are being considered by the High-Level Legal Experts Group.  The Group will submit its preliminary report and recommendations to the meeting of ASEAN Foreign Ministers in Thailand in mid-December 2008.

 

Criteria for the admission of new members into ASEAN are now spelled out in the Charter, in Chapter III : Membership, Article 6.   Details of the criteria  are as follows :

 

  1. The procedure for application and admission to ASEAN shall be prescribed by the ASEAN Coordinating Council.

 

  1. Admission  shall be based  on the following criteria:

 

(a)        location in the recognised geographical region of Southeast Asia;

(b)        recognition by all ASEAN Member States;

(c)        agreement to be bound and to abide by the Charter; and

(d)        ability and willingness to carry out the obligations of Membership.

 

3.   Admission shall be decided by consensus by the ASEAN Summit,  upon

 the recommendation of the ASEAN Coordinating Council.

 

  1. An applicant State shall be admitted to ASEAN upon signing an Instrument of Accession to the Charter.

 

It should be underlined here that none of the above include any political criterion, unlike in the EU in which every prospective European State wishing to join the EU must prove itself to be a pluralistic democracy, with good record of human rights, and with functional government institutions and capabilities to keep up with economic integration in the EU.  Political diversity in ASEAN is a given reality.  But all ASEAN Member States (including Laos and Viet Nam that are governed by their respective communist parties) accept market capitalism, economic liberalization, globalization, and multilateralism in world trade.  Only Laos is now still outside of the WTO.  All of them are in ASEM; seven of them (except Cambodia, Laos, and Myanmar) are in APEC.

 

Another important milestone in the Charter is provision for the establishment of an ASEAN human rights body     Article 14 in Chapter IV reads:

 

“1. In 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.

 

“2. This ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting.”

 

ASEAN Foreign Ministers in 1993 agreed to consider the establishment of some appropriate ASEAN human rights mechanism.  Now, they have agreed and let it be stipulated in Article 14 of  the Charter.  The TOR for the ASEAN human rights body is being drafted by the High Level Panel consisting of one senior government representative from every ASEAN Member State.  The draft TOR will be submitted to  the ASEAN Foreign Ministers Meeting in Thailand in July 2009.

 

Systematic Dispute Settlement

 

Dispute settlement in ASEAN will become more systematic under Chapter VIII : Settlement of Disputes.     ASEAN shall maintain and establish dispute settlement mechanisms in all fields of ASEAN cooperation.  One important new initiative is that the ASEAN Chair or the Secretary-General of ASEAN may be requested to assist in dispute settlement, according to Article 23 : Good Offices, Conciliation and Mediation in Chapter VIII:

 

“2.  Parties to the dispute may request the Chairman of ASEAN or the Secretary-General of ASEAN, acting in an ex-officio capacity, to provide good offices, conciliation or mediation.”

 

The Secretary-General of ASEAN will have greater role in monitoring   and reporting on compliance, according to Article 27 : Compliance of Chapter VIII:

1.  The Secretary-General of ASEAN, assisted by the ASEAN Secretariat or any other designated ASEAN body,  shall monitor the compliance with the findings, recommendations or  decisions resulting from an ASEAN dispute settlement mechanism, and submit a report to the ASEAN Summit.”

 

Significance to the ASEAN Political-Security Community

 

The Charter, once again, underlines the importance of political-security cooperation in ASEAN as the bedrock of community-building.  Article 1: Purposes, Paragraph 1 reads:

 

“1.  To maintain and enhance peace, security and stability and further strengthen peace-oriented values in the region;”

 

-     The drafters intentionally put the above as No.1 Purpose. (Maybe because all of them come from the MFA.)

 

Through the Charter, ASEAN has “adopted” the Treaty of Amity and Cooperation in Southeast Asia as an ASEAN legal instrument – although the 1976 Treaty was designed as a stand-alone regional agreement independent of ASEAN.  “High Contracting Parties” entered into the Treaty  as States in Southeast Asia, but not as Member States of ASEAN.

 

Article 24 : Dispute Settlement Mechanisms in Specific Instruments, Chapter

VIII : Settlement of Disputes, stipulates:

 

“2.  Disputes which do not concern the interpretation or application of any ASEAN instrument shall be resolved peacefully in accordance with the Treaty of Amity and Cooperation in Southeast Asia and its rules of procedure.”

 

Also “adopted” as an ASEAN legal instrument is the Treaty on Southeast Asia Nuclear Weapon-Free Zone (SEANWFZ).  States Parties entered into  the 1995 Treaty as States in Southeast Asia, but not as Member States of ASEAN.  The Charter states as one of its Purposes in Article 1: Purposes, Paragraph 3:”

 

“3.  To preserve Southeast Asia as a Nuclear Weapon-Free Zone and free of all other weapons of mass destruction;”

 

The Charter embraces the concept of “comprehensive security” in Article 1, Paragraph 8, which reads:

 

“8.  To respond effectively, in accordance with the principle of comprehensive security, to all forms of threats, transnational crimes and transboundary challenges;”

 

Significance to the ASEAN Economic Community

 

The Charter confirms Member States’ acceptance of “multilateral trade rules” and “ASEAN’s rules-based regimes” and “market-driven economy”. Article 2 : Principles, Paragraph 2(n) :

 

“(n) Adherence to multilateral trade rules and ASEAN’s rules-based regimes for effective implementation of economic commitments and progressive reduction towards elimination of all barriers to regional economic integration, in a market-driven economy.”

 

The Charter also endorses as one of the Purposes the creation of the ASEAN Economic Community in Article 1: Purposes, Paragraph 5, which reads:

 

+    “5. To create a single market and production base which is stable, prosperous, highly competitive and economically integrated with effective facilitation for trade and investment in which there is free flow of goods, services and investment; facilitated movement of business persons, professionals, talents and labour; and freer flow of capital;”

 

The practice of flexible participation in the implementation of economic commitments, including  ASEAN minus X formula, in the ASEAN Economic Community is recognized in Article 21 : Implementation and Procedure.  Paragraph 2 of Article 21 reads :

 

“2.  In the implementation of economic commitments, a formula for flexible participation, including the ASEAN Minus X formula, may be applied where there is a consensus to do so.”

 

Significance to the ASEAN Socio-Cultural Community 

 

The Charter puts peoples of ASEAN at the centre, and makes ASEAN a more “people-oriented” organization:

 

The Charter starts with a symbolic beginning which reads :  “WE, THE PEOPLES of the Member States of the Association of Southeast Asian Nations (ASEAN), as represented by the Heads of State or Government of ….”

 

Ten  of the 15   Purposes in Article 1 of the Charter are directed at the

peoples of ASEAN.  (See those with ++ sign on Pages 2 and 3.)

 

Chapter V: Entities Associated with ASEAN is designed to enhance consultations and interactions with all the entities associated with ASEAN that support the ASEAN Charter.   The entities are classified under five categories as follows :

 

     1.       Parliamentarians (only AIPA)

     2.       Business Organizations (including ABAC, ASEAN-CCI, etc)

     3.       Think-Tanks and Academic Institutions (only ASEAN-ISIS, so far)

     4.       Accredited Civil Society Organizations (58 formally accredited)

     5.      Other Stakeholders (including ASEANAPOL, and the Working Group for an ASEAN Human Rights Mechanism)

 

The main criterion for getting on the list is whether or not certain entity has regular and active interaction/collaboration with ASEAN.   The Secretary-General of ASEAN, upon the recommendation of the Committee of Permanent Representatives may update the list.

 

Significance to the ASEAN Institutional Framework

 

The ASEAN Charter will  introduce the following institutional changes to ASEAN:

 

  • ASEAN will, for the first time after 40 years of existence, be conferred with a legal personality of an Inter-Governmental Organization.   Details will have to be worked out in a supplementary protocol.

 

  • ASEAN Leaders shall meet (at least) twice a year :  one among themselves to focus on ASEAN Community affairs; the other (the usual one) will include meetings with Dialogue Partners in ASEAN+1 (with China, Japan, RoK, India), ASEAN+3, and EAS.

 

  • Three ASEAN Community Councils shall be established

-                     ASEAN Political and Security Community (APSC) Council [with 5 Sectoral Ministerial Bodies]

-                     ASEAN Economic Community (AEC) Council [12 ]

-                     ASEAN Socio-Cultural Community (ASCC) Council [12 ]

 

  • ASEAN Foreign Ministers will form the ASEAN Coordinating Council (ACC) to assist ASEAN Leaders in preparing for Summits, with support from SG and ASEC.

 

-                     The AMM will be renamed as “ASEAN Foreign Ministers Meeting” and will be one of the four Sectoral Ministerial Bodies of the APSC Council.

-                     They will continue to participate in the ARF.

-                     And they will also be Members of the SEANWFZ Commission.

 

  • Single ASEAN Chairmanship

 

-        Chair of ASEAN Summit will be the same Chair of other key ASEAN bodies, including the three Community Councils, the ACC, the ASEAN Foreign Ministers’ Meeting and the ASEAN Defence Ministers Meeting (ADMM), as well as their respective Senior Officials Meetings (SOMs), and also the Committee of Permanent Representatives to ASEAN [to be established in Jakarta].

 

-   The ASEAN Chairmanship will start on 1 January and end on 31 December (in the past, it used to start at the end of the AMM, the annual meeting of ASEAN Foreign Ministers in July).

 

  • Committee of Permanent Representatives to ASEAN

- Each Member State shall appoint a Permanent Representative to ASEAN (ASEAN PR), who will reside in Jakarta.

- Collectively the ASEAN PRs shall form the Committee of Permanent Representatives.

- Essentially the new Committee will take over many of the functions of the ASEAN Standing Committee (ASC), including external relations, supervising the ASEAN Secretariat, etc.

 

  • Dialogue Partners and “relevant inter-governmental organizations” may appoint and accredit Ambassadors to ASEAN (but no residency requirement).

Article 46 reads :

Non-ASEAN Member States and relevant inter-governmental organisations may appoint and accredit Ambassadors to ASEAN. The ASEAN Foreign Ministers Meeting shall decide on such accreditation.”[2]

 

  • ASEAN human rights body

-                     It will be a new organ of ASEAN. 

-                     The  TOR will have to be formulated after the signing of the Charter, and approved by the ASEAN Foreign Ministers Meeting.

 

  • ASEAN Foundation

-                     The ASEAN Foundation will be accountable to the Secretary-General  of ASEAN.  (At present it is directly supervised by the Board of Trustees, consisting mainly of ASEAN Ambassadors to Indonesia in Jakarta.)

 

  • ASEAN Committees in Third Countries and International Organisations

-                     The role of the ACTC is reaffirmed in Article 43 of Chapter XII : External Relations.

 

  • ASEAN National Secretariats

-                     Article 13 of Chapter IV reaffirms the role of the ASEAN National Secretariats in serving as “the national focal Point”.

  • Decision-Making will continue to be based principally on consultation and consensus  (Article 20, Chapter VII: Decision-Making

     “1.  As a basic principle, decision-making in ASEAN shall be based on consultation and consensus.”

“2.  Where consensus cannot be achieved, the ASEAN Summit may decide how a specific decision can be made.”

“3.   Nothing in paragraphs 1 and 2 of this Article shall affect the modes of decision-making as contained in the relevant ASEAN legal instruments.”

“4.  In the case of a serious breach of the Charter or non-compliance, the matter shall be referred to the ASEAN Summit for decision.”

  • As advised by the ASEAN Economic Ministers, flexible participation is permissible under Article 21:  Implementation and Procedure, Paragraph 2, which reads:

     “2.   In the implementation of economic commitments, a formula for flexible participation, including the ASEAN Minus X formula, may be applied where there is a consensus to do so.”

  • English is reaffirmed as the working language of ASEAN in Article 34, Chapter X : Administration and Procedure.
  • Under Chapter XI, the following will add to the creation of ASEAN identity:

-    ASEAN Motto :  “One Vision, One Identity, One Community

     -    ASEAN flag (existing)

          -    ASEAN emblem (existing)

          -    ASEAN Day : 8 August  (existing)

-   ASEAN anthem (a region-wide contest is being held by Thailand –in its capacity as the ASEAN Chair -- to select the best entry for adoption as the ASEAN anthem)

  • Enhanced Mandate and Role of SG of ASEAN

The Secretary-General  of ASEAN will have greater mandate and more important role in :

 

  • Monitoring progress of implementation of Summit decisions and ASEAN agreements;
  • Ensuring compliance with economic commitments, especially those in the ASEAN Economic Community Blueprint;
  • Reporting to the ASEAN Summit on important issues requiring decision by ASEA N Leaders;
  • Interpreting the ASEAN Charter if and when requested;
  • Interacting with Entities Associated with ASEAN;
  • Representing ASEAN’s views in meetings with external parties;
  • Advancing the interest of ASEAN and its legal personality.

 

             4 Deputy Secretaries-General (DSGs)

 

  •  2 DSGs from the usual national nomination under the alphabetical order, serving a one 3-year term.[3]
  •  2 other DSGs from open recruitment, whose  3-year term may be renewed by another 3-year[4].
  •  However, these 4 DSGs and the SG will have to come from 5 different Member States – to ensure equitable distribution of the senior posts.
  •  Each of the three ASEAN Community Councils will be served by one of the DSGs.
  •  The fourth DSG may concentrate on ASEC affairs and narrowing the development gap among ASEAN Member States.

 

But there is no  change  to the equal sharing of the contribution to the annual

operating  budget of the ASEAN Secretariat.   Article 30, Paragraph 2 states:

 

          2.  The operational budget of the ASEAN Secretariat shall be met by ASEAN Member States through equal annual contributions which shall be remitted in a timely manner.

 

In the 2007-2008 financial year, ASEC was given US$9.05 million.   Thus each Member State contributed US$905,000 to the budget.

 

The ASEAN Secretariat staff now consists of one SG (H.E. Dr. Surin Pitsuwan, a former Foreign Minister of Thailand; his 5-year term started in January 2008), 2 DSGs, 60  openly-recruited staff  (ORS) from 9 Member States (none from Brunei Darussalam), and about 150 support staff (Indonesians).

 

The ASEAN Secretariat is undergoing a major restructuring to enhance its capability to support ASEAN Member States in building the ASEAN Community, and to ensure prompt compliance with all the provisions in the ASEAN Charter.



[1] ASEAN was established on 8 August 1967 by Indonesia, Malaysia, the Philippines, Singapore, and Thailand.  Brunei Darussalam joined in 1984; Viet Nam in 1995; Laos and Myanmar in 1997; and Cambodia in 1999.  Timor-Leste, which gained independence in 2002, is actively preparing to join ASEAN in 2012.

[2] So far, four Dialogue Partners have announced the appointment of their first Ambassadors to ASEAN: USA : Mr. Scot Marciel, Deputy Assistant Secretary of State for Southeast Asia; Australia : Ms. Gillian  Bird, Deputy Secretary of the Ministry of Foreign Affairs and Trade; New Zealand : Mr. Phillip Gibson ,who is concurrently New Zealand’s Ambassador to Indonesia; and Japan : Mr. Yoshinori Katori, former Japanese Ambassador to Israel.

[3] The two incumbents are Mr. Nicholas T Dammen from the Department of Foreign Affairs of Indonesia, and Dr. Soeung Rathchavy from the Ministry of Foreign Affairs and International Cooperation of Cambodia.  The next two DSGS will be nominated by Laos and Malaysia in 2009.

[4] Open recruitment of these two new DSGs is now underway.  They are expected to take office by 1 November 2008, if possible.