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Guest Column

The ASEAN Charter in its current form does not hinder ASEAN to act, and for it to act decisively. What needs to change are the habits and practices in ASEAN.

ASEAN faces daunting problems, from the continuing health impact of COVID-19, economic recession and unemployment, to increasing socio-economic disparity and great power rivalry. More than ever, ASEAN needs to step up its game—or lose its credibility and centrality. As a central instrument to address this challenge, should the ASEAN Charter be revised after fifteen years?

Constitutions are not tinkered lightly; they provide stability to its intended subjects and objects. They are also products of tedious deliberations and contestations. The Charter is thus a product of complicated political bargains and accommodation given the huge diversity and disparity in economic and political developments among member states. Constitutions, however, are not static; they can be interpreted and reinterpreted as practices and conditions change.

That no one is left behind has become a central tenet in designing ASEAN’s compliance regime. Like domestic constitutions, the Charter embodies the legal, political, and social conditions and aspirations of member states. It also expresses the vital interests of the region’s elites, the fundamental actors in ASEAN regionalism. This is precisely the reason why initiatives to review the Charter after its fifth year have faltered or met with caution.

At the heart of ASEAN’s malaise is that it remains a state-centred entity, with little constraints on sovereign discretion. The Charter, while intending to foster a rules-based regime, is still subsumed to a higher order, the will of member states. This makes decision making, compliance, and enforcement of commitments dependent on respect for sovereignty and the process of consultation and consensus.

This is perhaps why we see that ASEAN is not yet a fully integrated community based on the blueprints and timelines. Economic cooperation has advanced, and ASEAN defied the pandemic trends in attracting foreign investments. But it remains unclear if intra-regional trade has deepened. There is greater awareness of ASEAN by the public, but only less than a third knows about its work and the community pillars.

Recently, there is widespread perception that ASEAN is not doing enough to stem the tide of the humanitarian tragedy in Myanmar. Despite its achievements, ASEAN is still widely regarded even among its peoples as “slow and ineffective in dealing with fluid developments” and becoming embroiled in great power rivalry.

Rather than simply a Charter legal problem, however, ASEAN’s challenges are largely political. The Charter can only provide the broad framework on how and when to respond to salient concerns. It cannot guarantee that members will act in the first place, or act pursuant to the rules. Nor can the Charter anticipate all possible issues that could arise.

That said, the Charter is a complete document from a constitutional standpoint. ASEAN is not fundamentally different from other international instruments that prescribe rights and obligations of signatory states. International agreements are after all ‘weak’ by nature owing to their low institutionalization and weak enforcement.

But the Charter provides a framework to overcome compliance deficits. The provision of different modes of dispute resolution mechanisms—the ASEAN Enhanced Dispute Settlement Mechanism, ASEAN Summit, Treaty of Amity and Cooperation (TAC), good offices of the Secretary-General, and instrument-specific mode of dispute settlement—was meant to offer parties a variety of avenues to deal with unresolved issues or disputes.

To date, most of these mechanisms are under-utilised. The High Council under the TAC, for example, has not been “activated” or established since it was stipulated in 1976. This means that the ASEAN Summit, operating on consensus decision-making, controls the resolution (or non-resolution) of contentious matters with regional implications.

Only when private entities and individuals are increasingly affected by ASEAN rules and increase their confidence in regional mechanisms that might spur usage—and pressure governments. Until such time, the ASEAN Charter in its current form does not hinder ASEAN to act, and for it to act decisively.

Strengthening of ASEAN institutions, such as the capacity of the Secretariat and the Committee on Permanent Representatives, are matters that can be decided at the political level without changing the Charter. Greater compliance of economic obligations can be facilitated by providing binding and non-binding coercive sanctions in specific agreements. Enhancing the mandate of the human rights body, the AICHR, needs amendment only of its term of reference to give it protection function.

To deal with serious breaches of Charter, ASEAN might consider establishing the High Council of the TAC, on an ad hoc basis, to give timely and considered advice to the Summit. A protocol can be made to specify instances of serious breaches to the Charter, as well as various modes or levels of dispute resolution to particular incidents. An early warning system might be constituted to enable ASEAN to monitor early signs of conflict and provide appropriate responses to avert escalation into humanitarian disaster and widespread violence.

The ASEAN Charter need not be burdened with these details. What needs to change are the habits and practices in ASEAN. Informal rules and institutions, while giving flexibility and due consideration to the diversity among members, could also be frustrating the growth of ASEAN and its institutions. To instil confidence in ASEAN’s institutions, ASEAN leaders should allow them more autonomy and decision.

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Imelda Deinla is an Associate Professor at the Ateneo School of Government. She can be reached at ideinla@ateneo.edu and via twitter @DeinlaImelda

Image credit: Canva

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