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Friday, December 7, 2007

ASEAN Charter

Dec 4, 2007
Assertive steps on the path of progress
By K. Kesavapany

ASEAN has long adhered to certain norms and principles guiding relations among its member states and inter- state ties in general. These were first codified in the Treaty of Amity and Cooperation in South-east Asia, which Asean's leaders signed in 1976.
These norms and principles are: renunciation of the use or threat of force in global relations, peaceful settlement of inter-state disputes and non-interference in one another's internal affairs.

The Asean Charter reaffirms these norms and principles for inter-state relations and also sets norms that have to do with the relationship between the state and its citizens. Specifically, it includes among Asean's objectives democracy, good governance, the rule of law, human rights and fundamental freedoms as well as equitable access to opportunities for human development, social welfare and justice.

This is something of a breakthrough, although not of the magnitude some of us would have wished for. For the first time, Asean enshrines in a basic document principles that deal with the domestic affairs of its members. The Charter defines the bloc's values, draws up standards of behaviour and provides leaders with something to invoke and act upon in case of serious violations.

Human rights

THE Charter expresses Asean's intention to set up a human rights body. But with its terms of reference still to be drawn up, we do not yet know the mandate, composition or authority of this body.

No judicial arm or enforcement mechanism is envisioned. Asean is not about mutual accusation or the legal enforcement of commitments. As of now, the human rights body could promote the exchange of best practices and help to build capacity in Asean countries for the promotion and protection of human rights.

It could expand and make more specific the regional definition of human rights. It could do so perhaps on the basis of the statement on human rights in the Joint Communique of the 1993 Asean Ministerial Meeting.

Asean's approach to human rights has been step by step, sector by sector. For example, it has taken, at different times, collective positions on the worst forms of child labour, violence against women and the rights of migrant workers. The human rights body could monitor compliance with these commitments and initiate similar consensus on others.

These might not be the stuff of contention and confrontation that is grist for the media. NGOs, too, might not be satisfied with the pace. But in a regional group as diverse as Asean, it is the most efficacious way of proceeding on this issue at the moment.

Single market

THE Charter also reaffirms Asean's determination to integrate the regional economy into a 'single market and production base'. It reiterates the steps the bloc has agreed on to achieve this goal. For this purpose, leaders have adopted a 'blueprint' for the Asean Economic Community embodying these and additional measures, most of them with specific timelines.

They did so on the recognition that the integration of the regional economy would be the most effective way of attracting investments.

If combined with policies to ensure that people have equitable access to their nation's wealth, all this would greatly improve people's lives. It is often pointed out that South-east Asia has a population of more than 550 million people and a combined gross domestic product of US$1 trillion (S$1.4 trillion). But these figures will mean something to investors only if the regional economy was truly integrated.

According to the Charter, the blueprint and other commitments would be carried out by strengthening regional institutions and by reinforcing Asean's procedures.

Hands-on leadership

HERE, the Charter does several things. One of them is to call for Asean summits to be held twice a year instead of the current once a year. One of these meetings is to be devoted entirely to intra-Asean matters, which will enable the heads of state or government to take hands-on and focused leadership of regional affairs. The summit is also explicitly charged with making decisions on important matters, particularly in cases where consensus cannot be reached.

Another step is to create a committee of permanent representatives to take over supervision and decision- making from the Asean Standing Committee. The committee of permanent representatives would be based in Jakarta, where the Asean Secretariat is located, while the Asean Standing Committee is made up of home-based officials. With this change, supervision should be closer, management easier and decision-making faster. At least, that is the Charter's intention.

The Charter also makes explicit the secretary-general's responsibility to 'facilitate and monitor progress in the implementation of Asean agreements and decisions'. It calls for the establishment of dispute-settlement mechanisms in cases where the agreement concerned does not provide for one. The secretary-general would 'monitor' compliance with the decisions of the dispute-settlement mechanisms.

This is what we mean when we say the Charter is intended to make Asean more rules-based - strengthening the mechanisms for compliance and improving the likelihood of compliance.

The Charter, of course, provides for no coercive mechanism for enforcement. It sets up no body like the United Nations Security Council.

What the Charter banks on is the further cultivation of a culture of compliance with Asean agreements and decisions. The development of such a culture would, in turn, depend on two things. One would be the sharper consciousness of the identity of the national interest with those agreements and decisions. The other would be the domestic reforms required for the implementation of Asean agreements.

Dispute settlement

PERSONALLY, I would have liked to have seen the dispute-settlement mechanism in the Charter strengthened. Although such a mechanism exists, it has never been used. Given the acute sense of nationalism in our respective countries and the element of 'face-saving' interest in our cultures, an independent body to make pronouncements is an absolute necessity.

Let me illustrate this by the example offered by the World Trade Organisation (WTO). Before its inception, the General Agreement on Tariffs and Trade (Gatt) was a toothless organisation. Lots of agreements were signed and commitments made. But none of them was binding on all the members. As a result, Gatt lacked clout.

Those of us engaged in the Uruguay Round of trade negotiations in the mid-1990s felt this shortcoming should be remedied.

A dispute-settlement body, with panels drawn from a list of trade experts and lawyers, was established to adjudicate on trade issues purely on the basis of trade law.

While there was some uneasiness initially, the findings of the Dispute Settlement Panel have been accepted by all. In fact, it has become 'the crown in the jewel' of the WTO. It is the only world body where all countries have equal access to the law.

While it might be premature to wish for such a mechanism in Asean, it is a goal we should aspire to if we want to see it become a rules-based organisation and equipped to face the challenges of the decades ahead.

Charter ratification

OUR governments have brought forth as good a Charter as possible under present circumstances. It is now our task to bring the process forward. By 'us', I mean the respective national legislatures of Asean countries and non-governmental institutions such as think-tanks and advocacy groups.

Here, parliaments have the specific and urgent responsibility of having the Charter ratified. Any delay in ratification would cause a loss in dynamism and all the old doubts of whether Asean is anything more than a talk shop will re-emerge.

I suggest a fast-track process be used. This is a mechanism that trade negotiators use to advance their work. Simply, it means everything in a particular agreement is either endorsed or rejected. There is no scope for picking and choosing those parts which are to one's liking and calling for other parts to be rejected or re-negotiated.

Think-tanks, research institutions and advocacy groups in member countries should rise to the challenge of explaining the Charter to the people.

In the past, the tendency was to leave such matters to governments. But in this era of globalisation, when decisions taken by governments have a direct and immediate impact on the people, there is a need for the latter to be kept fully informed.

Ratification of the Asean Charter and its subsequent implementations call for collective effort on the part of governments, parliaments and the citizens of Asean. We need to move with a steadfastness of purpose if the goal of achieving an Asean community by 2020 is to be achieved.

Ambassador Kesavapany is director of the Institute of Southeast Asian Studies. This article is excerpted from a speech yesterday in Kuala Lumpur at a conference jointly organised by the Asean Inter-Parliamentary Caucus for Good Governance and the Working Group for an Asean Human Rights Mechanism.

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