ASEAN as a “Rules-based Community”: Business as Usual

Abstract

In establishing the ASEAN Economic Community, ASEAN political elites emphasised their commitment to the rule of law. The definition of the rule of law adopted in the ASEAN Charter mirrored UN reforms that recognised the rule of law as interlinked with democracy and human rights. This commitment raises questions, given the various tactics employed by the grouping’s authoritarian and post-authoritarian regimes to silence dissent. This article critically assesses this apparent shift in regional governance. It first maps the inclusion of rule of law rhetoric in agreements since ASEAN’s foundation, and then examines the form and implementation of dispute settlement mechanisms. It finds that dispute settlement mechanisms have consistently retained the scope for protracted political and bureaucratic negotiation between disputing parties, and “opt out” clauses that enable their contingent application. These findings undermine claims regarding the development of a “rules-based community”, and indicate the continuation of rule by law rather than rule of law. The emphasis placed on ASEAN’s rule of law reforms by elites suggests, then, the rebranding of this political project in support of the ASEAN Economic Community so as to create confidence for investors in the region’s juridical environment.

Keywords:

• Rule of law
• dispute settlement
• ASEAN Charter
• ASEAN Economic Community
• Preah Vihear
• Southeast Asia

Acknowledgments

The author is grateful to the editors of this special issue and two anonymous reviewers for their comments and feedback.

Notes

1. Beckman et al. (2016) describe their study as based on the view that law “can only be understood and evaluated when situated in its political and economic context” and describe the study as providing the “political, economic, cultural and historical context in which one must understand ASEAN” (p.xii). Ba (2016) similarly adopts a broad definition of institutionalisation as “the process by which modes of behavior are made more dependable and durable” (p. 29), noting that this more expansive definition acknowledges practices prevalent in Southeast Asia that are not legalistic and contractual. However, neither of these studies explains the role of legal reforms in ASEAN’s trajectory according to how the grouping’s organisation of authority and decision-making relates to broader socio-political conflicts between different social groups, both within and across member states.

2. The 1996 Protocol was signed on 20 November and entered into force on 26 May 1998, with Lao PDR and Myanmar acceding in 1997 and Cambodia in 1999 as part of their accession to ASEAN agreements on joining the grouping (http://cil.nus.edu.sg/1996/1996-protocol-on-dispute-settlement-mechanism-signed-on-20-november-1996-in-manila-philippines-by-the-economic-ministers/).

3. For a detailed examination of the 2010 Protocol, see Naldi (2014).

4. Singapore first invoked it against Malaysia, withdrawing the case after the underlying source of the complaint was addressed. Singapore also later invoked it against the Philippines, and this dispute was settled without the convening of a panel but instead through consultations between trade ministers (Woon, 2012, p. 17).