ASEAN Dispute Settlement

ASEAN DISPUTE SETTLEMENT MECHANISM

Kabilan a/l Thayagaraju

QGB 140002

Project Paper as a Partial Fulfilment for

International Masters in Regional Organizations

(IMRI)

Asia Europe Institute, University of Malaya

Kuala Lumpur

2015

ASEAN Dispute Settlement Mechanism

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Table of Content Page

ABSTRACT……………………………………………………………………………. iii.

ACKNOWLEDGEMENT…………………………………………………………...... iv.

LIST OF ABBREVIATION…………………………………………………………… vi.

LIST OF FIGURES……………………………………………………………………. vii.

LIST OF TABLES…………………………………………………………………….. viii.

Chapter 1: INTRODUCTION……………………………………………………… 1

1.1 Background……………………………………………………………. 1

1.2 Problem Statement……………………………………………………. 3

1.3 Research Questions………………………………………………….. 3

1.4 Research Objectives…………………………………………………. 3

1.5 Significance of the Study…………………………………………….. 4

1.6 Scope of the Study……………………………………………………. 4

1.7 Limitations of the Study………………………………………………. 5

Chapter 2: LITERATURE REVIEW………………………………………………. 6

2.1 Conceptual Framework………………………………………………. 6

2.1.1 The ASEAN Way……………………………………………… 6

2.1.2 ASEAN Political Security Community……………………….. 8

2.2 Methodological Framework…………………………………………... 10

2.2.1 Regionalism in ASEAN……………………………………….. 10

2.2.2 Conflict Resolution……………………………………………. 12

Chapter 3: METHODOLOGY……………………………………………………... 14

3.1 Data Collection………………………………………………………… 14

3.2 Data Analysis………………………………………………………….. 14

3.2.1 Historical Analysis…………………………………………….. 15

Chapter 4: HISTORICAL ANALYSIS OF ASEAN……………………………… 16

4.1 Pre-ASEAN Dispute Settlement……………………………………... 16

4.2 Independent Asians…………………………………………………… 21

4.3 ASEAN…………………………………………………………………. 22


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Chapter 5: CURRENT DEVELOPMENT OF ASEAN………………………….. 31

5.1 The ASEAN Charter…………………………………………………... 31

5.2 ASEAN Political Security Community……………………………….. 32

5.3 2010 Protocol to the ASEAN Charter on Dispute

Settlement Mechanisms……………………………………………… 38

Chapter 6: ISSUES REVOLVING ASEAN DISPUTE SETTLEMENT

MECHANISM………………………………………………………….. 39

6.1 Building a Stable Compliance Mechanism………………………….. 42

6.1.1 Peer Review…………………………………………………… 44

6.2 Other possible solution for ASEAN Dispute Settlement

Mechanism…………………………………………………………….. 47

6.2.1 ASEAN Economic Community –

Dispute Settlement Mechanism……………………………… 47

6.2.2 ASEAN Troika…………………………………………………. 48

6.2.3 ASEAN Court of Arbitration…………………………………... 50

Chapter 7: CONCLUSION………………………………………………………… 52

REFERENCES………………………………………………………………………... 54


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ABSTRACT

One of the basic principle of ASEAN had been the non-interference policy that ASEAN

Member States had been adhering to since its establishment. The so called ASEAN Way

of diplomacy had been helmed as the saving grace of ASEAN with its diverse geopolitics,

economy, race and religion. However, the impeding cracks had been appearing to

indicate the fragile relationships among the Member States. With the ASEAN Economic

Community pillar of the ASEAN Community gathering momentum in its implementation,

it is important that ASEAN members look into more effective models of uniting their

political voice. Henceforth, this paper will look into an appropriate Dispute Settlement

Mechanism that ASEAN could consider in near adopting in resolving disputes arising from

implementation of programs and activities under the three pillars of the ASEAN

Community namely the ASEAN Political-Security Community, ASEAN Economic

Community and the ASEAN Socio-Cultural Community. With ten Member States, it is now

high time that ASEAN looks into an appropriate method of resolving conflicts internally

without relying on outside parties.

ACKNOWLEDGEMENT


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“Maybe being grateful means recognizing what you have for what it is. Appreciating small victories. Admiring the struggle it takes to simply be human…At the end of the

day, the fact that we have the courage to still be standing is reason enough to celebrate.”

Meredith Grey, Grey’s Anatomy

Sometimes words are not enough to express thankfulness. However, under this

circumstances it would have to be done. First and foremost, I would like to express my

deepest gratitude to the all mighty lord. It is through his guiding works that I have been

able to complete my work today. Next, a sincere appreciation to my mother and my family

members. The final stretch of the development had been hard not only to me but also to

them. I had to literally shut off myself from them in order to complete my paper. They were

understanding enough not to bother me even through some serious family issues.

Next I would like to express my deepest gratitude to my supervisor Dr Azmi Mat

Akhir. I am sometimes a renegade as I will send e-mails to him to report my progress. He

would patiently reply to my email and even answer queries no matter how trivial things

might be. I also had come to understand that his tenure is ending with Asia Europe

Institute (AEI). I would like to take this opportunity to wish him all the best in his future

endeavors.

I would also like to express my sincere thanks to the lectures and staff of Asia

Europe Institute (AEI) of the University of Malay. Without their guidance and assistance,

I would not achieved much in my study.

A special shout out to Mr Pou Sovachana, Deputy Executive Director in charge of

Research and Publications at the Cambodian Institute for Cooperation and Peace (CICP)


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for giving me the opportunity to undertake my internship at the institute. It was an

interesting memory indeed. I also appreciated that you took the time and liberty to go over

my drafts and provide informative insights for me. My gratitude is also extended to other

members of the board members and staffs at CICP in particular Ambassador Pou

Sothirak, Executive Director of CICP. He had especially taken the time to have a sit in to

provide his insights on this paper.

Finally, a big thank to the students ‘Family of AEI’ batch 2014 / 2015. They had

been the beacon of hope whenever I felt left behind. The IMRI classmates in particular,

thank you for continuously providing inspiration for me to move forward. It was a joy

getting to know all of you.

LIST OF ABBREVIATION

ASEAN Economic Community - AEC


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Association of Southeast Asian Nations - ASEAN

Confidence Building Mechanism - CBM

Dispute Settlement Mechanism - DSM

Dispute Settlement Understanding - DSU

Eminent Persons Group - EPG

European Coal and Steel Community - ECSC

European Union - EU

High Level Task Force - HLTF

Treaty of Amity and Cooperation - TAC

World Trade Organization - WTO

ASEAN Political-Security Community - APSC

ASEAN Defense Ministerial Meeting - ADMM

Treaty of Amity and Cooperation - TAC

LIST OF FIGURES


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Figure 1: The Concentric Circle of Power of Mandala based on Majapahit

Kingdom………………………………………………………………… 18

Figure 2: ASEAN Member States……………………………………………….. 23

Figure 3: Map of East Timor……………………………………………………… 25

Figure 4: Important Components of Treaty of Amity and Cooperation In

Regards to ASEAN Way……………………………………………….. 29

Figure 5: Phases of Peer Review………………………………………………… 46

LIST OF TABLES


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Table 1: Types of Sovereignty…………………………………………………….12

Table 2: Types of Conflict Resolution…………………………………………….13

Table 3: Pre-ASEAN Attempts at Regional Organizations……………………..16

Table 4: ASPC Blueprint on A Cohesive, Peaceful, Stable and Resilient

Region with Shared Responsibility for Comprehensive Security……3


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Chapter 1: INTRODUCTION

1.1 Background

Regional Integration had been of the post Westphalian1 scheme where states are no

longer identified via their national identity. The idea of a regional grouping as a

response to the political development in the surrounding world had come to the effect

as a post-World War II mechanism.

There had been three main reasons for states to bind together forming regional

bodies namely security, politics and economy. The current European Union (EU)

predecessor, the European Coal and Steel Community (ECSC) had been one of the

institution that had been established in the post-World War II atmosphere. The states

came to an understanding the collective action by states will bring more benefit rather

than fighting among them. The Association of Southeast Asian Nations (ASEAN) also

is seemed as a regional grouping that had been in place due to similar predicament.

ASEAN had been a regional body formed in 1967 in response to the communist

insurgence during the Vietnam War that had been happening in ASEAN Member

States backyard. This had resulted in ASEAN being framed from a more political and

security factor rather than an economical one. The role of ASEAN had dramatically

changed over the course of time. The Asian Financial Crisis of 1997 served as an

important reminder of the fragility and interconnectedness of ASEAN Member States

economic forces. Economic prosperity had become the core idea of ASEAN with the

expansion of ASEAN from its original five Member States to the current ten. However,

the politics of ASEAN remains diverse as it was formed only less than 50 years ago in

comparison to EU. EU Member States had been in the same place as ASEAN

1 Westphalian ideology – States are identified as the main actor in the international political arena.


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members were. However, due to strict accession criteria, many of EU Member States

have developed similar political standing. Thus, economic integration and political

integration that followed thereafter had been easy in EU compared to ASEAN.

With the blueprint for ASEAN Economic Community (AEC) in place in 20072,

there will be instances where ASEAN members need to resolve their differences.

Though the ASEAN Charter which was adapted in 2008, and had provided provision

for Dispute Settlement Mechanism however, no concrete actions had been pursued.

The AEC also has its own separate working scheme to resolve conflict that do not go

along with the political interest of Member States. However, the impeding need for a

structured Dispute Settlement Mechanism is not forgotten. The AEC Dispute

Settlement Mechanism could serve as a working model towards developing a more

viable mechanism that can be used by all Member States to resolve bilateral as well

as multilateral disputes between among them. The rift among ASEAN members had

been tested with several disputes that had required international attention to be

resolved. Therefore, the need for a regional body to resolve dispute settlement among

members as well as non-Member States will further enhance the cooperation among

ASEAN Member States.

2 THE AEC Blueprint was adopted by the 13th ASEAN Summit on 20th November 2007 in Singapore.


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1.2 Problem Statement

The Thailand-Cambodia temple dispute in mid-2009 had been one of the many

indicator of the fragile relationship of ASEAN Member States within the ASEAN

framework. The ASEAN Way3 had have been the binding force of ASEAN for all this

time had shown severe fracture. Thus, it had raised the need for a more solid dispute

settlement mechanism within ASEAN. As mentioned earlier, though the 2008 ASEAN

Charter had provided provision for the development of ASEAN Dispute Settlement

Mechanism, no concrete actions had been taken. Therefore, this paper will address

this predicaments.

1.3 Research Questions

The research questions to be addressed are:

(i) What is the historical development of ASEAN Way?

(ii) Why is it important to have a Dispute Settlement Mechanism (DSM)

within ASEAN? and

(iii) What is the best type of DSM within the ASEAN framework?

1.4 Research Objectives

The research objectives are:

(i) To understand the predicaments of the current ASEAN Way of

Diplomacy;

(ii) To understand the importance of DSM in the ASEAN; and

(iii) To identify the best DSM to be implemented in ASEAN.

3 ASEAN Way – Diplomatic means in ASEAN which is derived from the principle of non-interference. This structure had been within ASEAN since its inception 1967. Some scholars had argued that ASEAN had managed to keep up its hegemony in ASEAN due to its ASEAN Way.


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1.5 Significance of the Studies

ASEAN had been a regional entity with slightly less than 50 years in the making, yet

no concrete steps had been taken to discuss one of the grave issues in the region.

Many Member States are in constant disagreement with one another. The

establishment of a proper Dispute Settlement Mechanism would allow states to

discuss disagreements among themselves without the intervention of a third party.

The current model of ASEAN Way needs to be updated and institutionalized to offer

more legitimacy to ASEAN Secretariat to address these issues. Thus, this paper seeks

to offer basic understanding of building up a proper Dispute Settlement Mechanism

within the regional framework

1.6 Scope of the Studies

This study will only discuss political and security disputes in ASEAN. Though separate

mechanism had been put in place to deal with economic and political dispute, they do

not seem to gain the confidence of Member States. Member States prefer to resolve

political disputes (territorial) in the International Court of Justice (ICJ) in Hague. This

indicates that there needs to be more parallelism between the international body and

the system developed ASEAN. Developing the common political and security

settlement could later be adapted to the economic sector.

1.7 Limitation of the studies

This research had been carefully planned and executed. However, due to unavoidable

circumstances, there are several limitation to this research. The design of this research

is based on secondary data analysis. It is difficult to get primary data for this research

as this research is done from an historical analysis. Thus, the use of secondary data

as the medium of interpretation already tempered with the tone of this research. The


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data and research done in regards to ASEAN is not plenty. I had to conduct parallel

studies of similar regional organizations such as European Union and African Union

to gain an understanding of several key concepts of this paper. The data and research

papers done are often not up to date with the current development in ASEAN. I also

had to rely on data from on-line news agencies and magazines to conduct my

research.


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Chapter 2: LITERATURE REVIEW

2.1 Conceptual Framework

2.1.1 ASEAN Way

According to Bunn Nagara, ASEAN had been an institution that had emerged based

on basic necessity of forming regional cooperation. So much so that Member States

wanted to maintain their national sovereignty with core principal of consensus and

non-interference becoming major part of the regional organization. He added that

though some critics had been skeptical of the nature of this working relation, it had

proven to work for ASEAN. However he does acknowledge that there are serious flaws

in the system.

“… The problem emerges when ASEAN decisions and actions, if any are perceived as slow, laborious and ineffectual. When crisis occur in the region, ASEAN tends to appear aloof, out of touch or irrelevant…”

(Nagara, Bunn)

Nevertheless, Bunn listed several of the redeeming attributes of ASEAN that

manage to overcome its predicaments. One of the interesting note is the moderate

nature of ASEAN that is an inclusive organization with strong informal structures that

work together to resolve any issues that comes to the fore i.e. the 10-X formula of

resolving issues that do not affect majority of ASEAN Member States. For instance the

Straits of Malacca security is an issue of interest of Malaysia, Singapore, Indonesia

and Thailand that had been resolved via maritime coordination among the four

Member States following the 10-X formula. The other Member States that do not have

any issues with this security issues do not need to take part in this working group. This

provides flexibility among ASEAN Member States.


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Amitva Acharya had instituted the nature of ASEAN culture that had been an

important role in determining intra-ASEAN relations as well as inter-ASEAN relations.

Amitva had identified four major theme that had promoted the ASEAN Way namely

the relationship among founding fathers of ASEAN, the cultural similarities within

ASEAN, the state relations among ASEAN Member States as well as socialization of

ASEAN evolution since 1967. In 2007, Amitva had also reported the call by the

Eminent Persons Group4 (EPG) had reported on the need to readdress the nature that

ASEAN seems to work. The development of the ASEAN Charter is viewed as one of

the most appropriate way to “constructively engage” with ASEAN without doing away

the ASEAN Way.

Non-Interference had always been the core concept of the development of

ASEAN Way. According to Lee Jones, the principle had been adapted into ASEAN

mainly because of two main ideology in response to social conflict within ASEAN. The

first is to reel in ASEAN Member States to the grounded principle of United Nations.

In particular, Article 2 (7) of the United Nation Charter calls for non-intervention in

domestic affair of Member States by other Member States. Thus, the application of

non-interference principal of ASEAN is in line with that of the UN Charter. It is also

seen by Lee Jones (2009) as a response to stabilize relation between Member States.

In particular between Malaysia and Indonesia after the 1963 formation of Malaysia that

created deep mistrust among these two neighboring states. The second reason had

been to

“… Insulate ASEAN societies from what was perceived as ‘subversive’ external influences to facilitate the stabilization of capitalist social order in the region…”

4 Eminent Persons Group – A group of prominent individual in ASEAN. Tasked in 2005 under the 11th ASEAN Summit Declaration to develop the framework of ASEAN Charter. The report was published in 2006 and was later used as the guideline of the development of ASEAN Charter


8

(Lee Jones, 2009, pp. 10)

With the colonial power ready to leave the region, ASEAN Member States need to

come up with managing the impeding threat of communist insurgence in the region.

Thus ‘non-intervention’ is seen as the best possible policy that ASEAN could adapt.

(Lee Jones, 2009) Although many scholars had been providing a varied understanding

of ASEAN Way, in this paper, I am more comfortable working with the middle-ground

of understanding the concept. I am in opinion that it is high time that scholars and

leaders should look into other methods of mediation. However, abandoning the

ASEAN Way could be detrimental to the region. Henceforth, a more subtle method of

substituting the ASEAN Way needs to be taken.

2.1.2 The ASEAN Political Security Community

The development of ASEAN Community had been the agenda of ASEAN leaders

under the Vision 2020 for ASEAN. In this vision, three key pillars had been identified

as the major community building effort by ASEAN Member States. One of the key

pillars towards the development of ASEAN Community is the ASEAN Political Security

Community. The plan had been put in place under the ASEAN Political Security

Community Blueprint. Core characteristics of this development had been to promote

the community which is to create

a. A Rule-based Community of shared values and norms;

b. A Cohesive, Peaceful, Stable and Resilient Region with shared responsibility

for comprehensive security; and

c. A Dynamic and Outward-looking region in increasingly integrated and

interdependent world.

Though all three characteristics of APSC is interrelated, the focus of this paper puts

much emphasis on the second characteristics of APSC. There are several action that

had been highlighted under this characteristics. The development of the APSC would

be discussed further in this paper.


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Tomotaka Shoji (2008) had promoted the adaptation of ASEAN Security

Community (ASC) within the ASEAN framework. He had plotted the development of

ASEAN from its inception to the current development of ASEAN Charter as well as a

planned APSC by 2015. His paper detailed the active role that Indonesia had played

in advancing this type of community. Indonesian, Rizal Sukma, Executive Director of

the Centre for Strategic Studies and International Studies (CSIS) played an important

role in developing this community idea. His paper became the benchmark at the 2003

seminar on ASEAN Cooperation; Challenges and Prospects in the Current

International Situations entitled “The Future of ASEAN: Towards A Security

Community” is viewed as the stepping stone for the creation of ASC. His proposal for

a political and security community was a counterbalance to the deepening economic

progress that had been put in place with the adaptation of ASEAN Free Trade Area

(AFTA). Indonesian government was very inclined to pursue a different framework for

cooperation rather than a military cooperation. ASEAN care for admitting the non-

traditional security issues in its context of security community is a sign that ASEAN

rectify the need to develop a security community rather than a military partnership.

(Shoji Tomotaka, 2008) In this paper I support the ideas that had been put forward by

Rizal Sukma. The current development of integration in the economic front needs to

be supplemented by the integration in other sectors in the region. Without integration,

the region would be surrounded by deep mistrust that would hurt the economic

progress made by the region.


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2.2 Methodological Framework

There is a need to identify the concepts that will be used in this paper.

Methodological framework refers to the framework that will be used to develop this

paper. This paper is developed using constructivist framework. Constructivist scholars

believe that the concepts in International Relations are socially constructed. Therefore,

there is a need to have a deeper understanding of the past and current development

in the ASEAN fore. Member state culture and value are paramount in developing the

ASEAN norms. Thus, the development of ASEAN Dispute Settlement would be

studied with this in mind. I had identified two main concepts of this paper.

2.2.1 Regionalism in ASEAN

In this paper, the concept of regionalism would be defined via two main criteria,

security and sovereignty. These two main features of regionalism are chosen as it

directly affects this topic.

The concept of security is one of the main ideology dominating this paper.

Security had been the concern of state since the establishment of Westphalia Peace.

The dominating idea of peace and security had spurred many distinctive concepts and

theories. However, in this paper, the main point of focus would be of those regarding

collective security. The concept had been developed by German philosopher

Immanuel Kant in his work, Perpetual Peace: A Philosophical Sketch (1795) which

called for the creation of governing body that will be able to regulate state’s action to

end wars and maintain peace. This concept had been one of the core principle for the

development of League of Nations by Woodrow Wilson. The concept of sovereignty is

another concept that takes precedence in this paper. According to Andrew Heywood,


11

“Sovereignty in its simplest sense, is the principle of absolute and unlimited power. However, a distinction is commonly made between legal sovereignty and political sovereignty….” (Heywood, Andrew, 2000: 37)

The concept of sovereignty from the 13th till 17th century was often connected with

Western imperialism. Through the Peace of Westphalia, 1648, the idea of sovereignty

became part of the Western ideology of the state. Hence, the states that claimed

independence after the Peace of Westphalia was signed, had a strong sense in

developing its sovereignty through conquests. The role of state is strengthened with

the concept of sovereignty. Sovereignty gives federal government the rule over the

provincial government thus directly interacting with the community and individuals

(Barash & Webel, 2009). According to Stephen Krasner, (2009) there are four

distinctive ways of defining sovereignty. In order to define the concept of sovereignty

the domestic sovereignty needed to be analyzed further. Hinsley, 1986 (cited in

Krasner, 2009) suggest that sovereignty provides the absolute political authority in a

political community. In understanding interdependence sovereignty, it is important to

look at the state’s ability to manage its resources across the border. Moreover, states

sovereignty provides states the ability to enter into agreements to create international

institutions. The international – legal sovereignty is related to establish the status of

the political entity in the international system. The identity of state associated with

international – legal sovereignty is built based on the recognition extended to entities,

states and any type of formal judicial autonomy. There are even specific entities are

recognized as sovereign under this concept. The Westphalian sovereignty is related

to two basic concept of state namely its territoriality and exclusion of external actors

from domestic authority structure.


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Table 1: Types of Sovereignty

No. Type Explanation

1. International – Legal Sovereignty

Practice associated with mutual recognition usually between territorial entities that have formal judicial independence

2. Westphalian Sovereignty

Exclusion of external actors from authority structure within a given territories

3. Domestic Sovereignty

Formal organization of political authority within the state and the ability of public authorities to exercise effective control within the borders of their own policy

4. Interdependence Sovereignty

Ability of public authorities to regulate the flow of information, ideas, goods, people, pollutants or capital across the borders of their state

(Source: Krasner, S.D., 2009)

The development of these different concepts of sovereignty had been a vital input in

the development of regionalism in this region. Member States in ASEAN seek to

maintain their sovereignty rather than the collective sharing of sovereignty that the

European Union model had taken.

2.2.2 Conflict Resolution

Sociologist have often agreed to the general statement that conflict is all around

us. The management of these conflicts had been the goal of human life. In the

international arena, conflict had been a major part of this paper deals with Dispute

Settlement Mechanism. The development of this section of International Relations (IR)

had been rapid since the beginning of World War I where scholars begun to produce

systematic studies of peace and war. The development of this field of social sciences

had been the result of the development of an inter-disciplinary study of conflict

resolution i.e. psychology, politics and international studies. Traces of this ideology

begun evolving with the end of World War II saw the emergence of potential nuclear

war changing the development of this field of social science. The further evolution of


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this field is recorded in the 1990’s with the end of Cold War. There had been several

levels of conflict resolution that had been classified as follow;

Table 2: Classification of Different Types of Conflict Resolution

Type Description

Multilevel

Analysis and resolution had to embrace all levels of conflict: intra- personal (inner conflict), interpersonal, intergroup (families, neighborhoods, affiliations), international, regional, global, and the complex interplays between them

Multidisciplinary

Address complex conflict systems. This new field had to draw many disciplines including politics, international relations, strategic studies, development studies, individual and social psychology

Multicultural

Increasing interconnectedness and intricate relationship of the local and global culture, the development of resolution need to be cooperative in terms of geographical locations of where the conflict originates and the conflict resolution initiatives deployed to address them

Analytical and Normative

The foundation for the study of conflict was to be systematic analysis and interpretation of the ‘statistic of deadly quarrels’ (polymology) but this was to be combined from the onset with the normative aim of learning how better thereby to transform actually or potentially violent conflict into non-violent processes of social, political and other forms of change

Theoretical and Practical

The fields of conflict resolution to be at constant mutual interplay between theory and practice. Only the theoretical understanding and practical experience of what works and what does not work are connected can properly informed experience develop

(Source: Adapted from Oliver Ramsbotham, Tom Woodhouse, and Hugh Miall, 2011)

The development of these models of conflict resolution had been an important

development in International Relations. There had been many debate in the field of

International Relations to define the concept of conflict and conflict resolution. More

recently the term conflict transformation had been gaining momentum. In this paper,

conflict refers to widest set of circumstances in which conflict parties perceives that

they have incompatible goals.


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Chapter 3: METHODOLOGY

3.1 Data Collection

Data collection refers to the method that will be employed to collect data. The

method that the data is collected is important in ensuring that the research is

conducted in an ethical manner. In this research there is a single method of data

collection. The method that will be used in this research is desk research. In this type

of research, data is collected through the account of others. The data is collected from

books, journals and the internet. This data from books, journals and internet are

collected by government officials, academia, and authors that made their observation

of the methods employed to resolve dispute in the ASEAN regional.

3.2 Data Analysis

The data collected will be analyzed further to produce the result. Since the data

collected are secondary data, Qualitative Content Analysis method will be deployed.

All the data collected will be filtered and analyzed with the paradigm of the research in

mind. The analysis of the data will be produced in the Data Analysis chapter of this

paper. The data analysis chapter will look to answer the questions that had been

posted in the research question chapter of this paper. Any other issues raised from

the data analysis will be presented in the discussion part of this paper. According to

Catherine and Rossman (2006), there are several advantages and disadvantages to

the content analysis. The unobtrusive and nonreactive nature of the research are the

advantage of the research. The researcher is able to determine the direction of the

data collected.


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3.2.1 Historical Analysis

One of the important concepts related to data analysis is historical analysis. In

order to understand the root of the research, it is vitally prudent to understand the

setting of the research. Hence, the historical analysis will be able to provide sufficient

background to the studies. Catherine and Rossman (2006), states that historical

content analysis,

“… Is particular useful in qualitative studies for establishing a baseline or background.”

(Marshall, C. & Rossman, G.B., 2006)

Therefore, it is imperative to understand the nature of ASEAN from the beginning to

understand the complex nature of ASEAN Member States that have been working

together all these years.


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Chapter 4: HISTORICAL EVOLUTION OF DISPUTE SETTLEMENT IN ASEAN

4.1 Pre-ASEAN Dispute Settlement

Conflicts had been part and parcel of world history, throughout the millennium, world

politics and relations had been defined by conflicts. The Southeast Asian region is no

stranger to this notion of conflict. The influence of China had been paramount in

defining regional relationship in this region prior to the European colonization.

Ancient kingdom such as the Dai Viet, Champa, Khmer Empire of Angkor,

Burmese-Mon Kingdom of Pagan, Srivijaya, Sailendra, Mataram and Kediri had been

established in the 8th and 13th century had close ties with the Imperial Chinese

government. The organization of these kingdoms is based on the Hindu-Buddha

understanding of Mandalas5 (Min Shu, 2011). During this phase of national building,

the kingdom had a specific relation with China via the payment of tributes6. According

to Min Shu, there are three main reason why kingdoms in Southeast Asia looked to

China as their balancing strategy. The first is to seek Imperial Recognition from the

Middle Kingdom. Royal succession had been one of the trickiest and sensitive political

issue in the region. The approval from China, would enhance the leaders standing

compared to his other successors in the matter of succession. This recognition was

also important to as weaker nations would counterbalance their aggressive neighbor

due to strong relations with China. Tribute is also seen as the mechanism to benefit

5 Mandalas – Political structure based on concentric circle of power with a central authority. The Power is concentrated on the center, the further away from the center, the less power can be authorized. This leads to the overlapping of power in some areas which created conflict and war among the kingdoms. 6 Tributes - A stated sum or other valuable consideration paid by one sovereign or state to another in acknowledgment of subjugation or as the price of peace, security, protection, or the like. In the case of the Imperial Chinese, it involves precious metals such as gold and silver. These tributes are often paid annually to the emperor of China. The system is also hierarchical. States with closer relation with Chinese often pay the lowest tribute as a form of acknowledgement of its power. States with distant relation with China would pay more. This practice ended during the Opium War (1839-1842)


17

the Kingdom’s trade. With private trade banned, tributary trade is seen as the viable

source of economic income. The final and important tribute relation is for external

arbitration and protection. The Chinese presence in the region had been paramount

in maintaining peace in the region. In some cases, the Chinese had issued explicit

warnings of possible conflicts for kingdom to comply with its view or opinion. The

Sultanate of Malacca had been one of the success stories of tribute relation with China.

The relation is strong, that the Ming Emperor Yong-Le had personally wrote an

inscription regarding the relation. Thus proving the severity of the tribute system. This

however, only consolidates the balance of power that China had in the region.

In ancient Southeast Asia, the expansion of territory is seen as one of the

cardinal actions of a kingdom. The Kingdom of Majapahit under the wise advisor of

Gajah Mada, was one such era. Gajah Mada wanted to establish the Kingdom of

Majapahit as the center of earth based on the Hindu-Buddhist understanding of

Mandala. Often the relationship of the Kingdom of Majapahit had had nearly 98

tributaries stretching from Sumatra to New Guinea. The concentric circle in the middle

suggest the Kingdom of Majapahit as the center of the universe. The Kingdom is

surrounded by other concentric circles in particular friends expanding to foes. The

power and the distance of the Kingdoms had been one of the important factor in

determining the geopolitical situation of Majapahit. With relationships being defined

the Kingdom often look to expand its territory via tributary and marriages.


18

(Source: Pandu Utama Manggala, 2013)

Figure 1: The Concentric Circle of Power of Mandalas based on Majapahit

Kingdom

Diplomatic marriages had been one of the other significant matter of resolving

territorial dispute. In 1357, the King of Majapahit, Hayam Wuruk extended a marriage

invitation to the Kingdom of Sunda to be able to gain the Sunda Kingdom. The Sunda

King unfortunately denied the marriage proposal (Pandu Utama Manggala, 2013).

These marriage proposal are an indicator of the complex nature of pre-colonial South

East Asian nations.

In 14th Century, western influence have started to show is presence in the

region. With that, many of the kingdoms, had undergone drastic changes in adapting

European values and law. With exception of Thailand, all the other states in this region

had been colonized by western powers, the Portuguese, Dutch and the British in the

Malay Archipelago, the Spanish in the Philippines while the French colonized the

Vijigisu (Centre) - Majapahit

Madhyama (Middle Power) -Ayudhya

Udasina (Major Power) - China (Ming Dynasty)

Mitra (Friend) - Champa / Syanka

Ari (Enemy) - The Chola Dynasty / The Mongol


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Indochina. This dramatic change also affected the neighborly relations of these

nations.

The war on Naning on one such example of the complex relationship between

the western colonizer and the local community. Naning is a small hamlet located in the

border of Malacca and Negeri Sembilan. In 1641 the Dutch which were colonizer in

Malacca made a treaty with the rulers of Naning in 1641 to maintain the sacrosanctity

of the region. The British in 1801 also signed a similar treaty. However, by 1827, the

East Indian Company was losing money in Malacca and wished Dol Syed to pay tithe

on corps at one tenth of the collection. William Lewis, deputy Resident Councilor of

Malacca and Robert Fullerton, Governor of Straits Settlements wanted to extend

Naning into Malacca and expand the court jurisdiction into Naning in particular in

regards to capital punishment. Village Head Man Dol Syed was relenting to agree to

the claim. There were several instances that Dol Syed went against the Companies

command and refuse to answer to the call of the Resident. The Company later decided

to take armed action over the region of Naning. On August 1831, the Naning

confrontation occurred. The British were surprised that they were defeated by the

Malays who had least development war machinery. This failure of confrontation lead

the British to launch a more organized military conflict in Naning. Naning officials were

later elected by the British. (Emrys Chwe, 1998) This is a clear indication that the

territorial dispute for the worst case would result in war between conflicting parties.

The western colonizers became the dictator of national foreign policy thus

submitting the nation to their whims. One of such documented relation would be

between the Dutch and the British. The dispute resolution of the European colonizers

is often embedded in treaties and conventions. One fine example is the exchange of

territories between the Dutch and the British via the signing of the Anglo-Dutch Treaty


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in 1824. This treaty bifurcated the Malay Archipelago into two separate sphere of

influence. The peninsular region of the Malay Archipelago is under the British influence

while the islandic region of the Malay Archipelago was under the Dutch influence,

ultimately giving rise to modern day Malaya and Indonesia. The Anglo-Dutch Treaty

was signed after intense four year negotiation between the two. This manner of dispute

settlement is fairly new to the Southeast Asian region, introduced a new dimension to

relation between neighbors. This had thus developed varied understanding of

resolving conflict based on the influence of their colonizers.

Imperialism and colonialism had significantly impacted the nation-building of

these modern day Southeast Asian states. This had been one of the important cultural

development of the Southeast Asian region. The political fragility is seen as something

that had been inherited from the European colonizers. Many of the disputes among

neighbors had been resolved via negotiations and treaties such as the status of Perlis,

Kedah, Terengganu and Kelantan were determined by the 1909 Anglo-Siamese

Treaty which put the states of these states into the hand of British Imperial force. Thus,

the period of the imperialist had been significantly influenced by the western ideology.


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4.2 Independent Asians

World War II had significant importance to the history and development of

Southeast Asian nations. Post World War II saw the emergence of newly independent

nation’s states in the region. Indonesia, Malaya, Philippines, Lao, Cambodia, Viet

Nam, Myanmar is seen as the remnant of colonial past. Different nation’s states

dictated different method of gaining independence. The cultural heritage is often

discussed as one of the significant role in the call for independence. While states like

Malaya and Singapore took a more diplomatic approach, states like Indonesia and

Philippines had a bloody affair reclaiming independence from the colonies. Newly

independent states were more focused on nation building that regional cooperation

was put in the back seat. The emergence of Malaysia in 1963 that called for significant

fracture in the neighborly relations especially in Indonesia and the Philippines. Both

nations claimed parts of the territory of Malaysia as their own. Indonesia went a step

ahead calling the creation of Malaysia as a neo-colonization7 in the region. However,

the external threat of the communist is deemed more important. With Southeast Asian

Treaty Organization (SEATO) in place in 1954 to combat the communist insurgence

in the region. Only Thailand and Philippines were nations that were in the region that

joined this organization. Malaya and Singapore were unable to join as they were still

part of the British Colony. Indonesia and Myanmar had internal conflicts during that

time while the Indochina was unqualified due to the terms under Geneva Convention.

The organization suffered as it was a Western construct for an Asian problem. The

organization was formally disbanded in 1977.

7 Neocolonialism - the economic and political policies by which a great power indirectly maintains or extends its influence over other areas or people


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4.3 ASEAN

The fear of communist influence from the north is seemed as one of the most important

point of rally for many Southeast Asian nations. With the imminent threat of the

communist from the north as well as internal elements that support this development,

Southeast Asian nations themselves found the need to band together to ward of

communist. Thus, on 1967, Association of Southeast Asian Nations (ASEAN) was

born. The political nature of many of the ASEAN Member States called for a more

sensitive approach to the regional grouping. Thus, the concept of non-interference had

been one of the key point developed in Bali Concord I. It dictates that

“Member States shall vigorously develop an awareness of regional identity and exert all efforts to create a strong ASEAN community, respected by all and respecting all nations on the basis of mutually advantageous relationships, and in accordance with the principles of self-determination, sovereign equality and noninterference in the internal affairs of nations”

(ASEAN Concord I, 1976)

Further analysis of this clause would reveal severe juxtaposition in this clause.

Member States have been had been advised to develop a strong ASEAN Community.

From my understanding, this calls for the creation of new norms and value that is able

to unite the ASEAN’s people. ASEAN had been a region that had multiple different

communities with varied understanding, culture, religion and language. Therefore,

consolidating all into one culture and community is not possible. The European

assimilation occurred as western nations often share similar culture and

understanding. Thus, the creation of new community identity would require the

assimilation or in some cases elimination of certain culture. However, the next part of

the clause points out a different approach.

The concept of equal sovereign and non-interference in the internal affairs of

Member States provides a different outlook to ASEAN. This highlights that


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independent Member States shall determine the development of national identity not

of an ASEAN identity. Thus hindrance to the establishment of ASEAN community. This

concept is further complicated with the expansion of ASEAN to include 5 new member

making the total of 10 Member States in ASEAN. Now, ASEAN is a forum that

consolidate and create compromise with 10 different voices in the region. However,

all ASEAN Member States are treated equally as dictated in the declaration of ASEAN,

1967.

(Source: ASEAN, 2015)

Figure 2: ASEAN Member States

According to John Funston (2000), the principal of non-intervention in ASEAN

is not something new. John attributes this to one of the fundamental principal of

modern Westphalia nations. He had suggested that there are three broad instances

that nations practice this policy. The principal is in use not to criticize other Member

States leaders, not to support the opposition in other Member States, and the

development of economic and social cooperation. However, there are several

instances where Member States unintentionally broke this principal. John had

suggested that there had been strong calls for reform to this principal. The call also


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had been made within the ASEAN framework. However John believed that the non-

interference principal needed to be maintained to develop a better working relation

between ASEAN Member States.

Hiro Katsumata (2004) of the Nanyang Technological University in Singapore

had a different understanding. Hiro had suggested that there had been serious calls

for reform of the non-interference policy practiced by ASEAN. With the concept heavily

contested by two ASEAN Member States namely Thailand and Philippines. Katsumata

had added that the 1990’s had been the period of change in ASEAN relations with the

expansion of new members, the economic crisis of 1997 as well as the trans-

boundaries issues that seemed prevalent especially to Thailand official. Thus, the call

for a more flexible mode of engagement had been suggested to ASEAN. More and

more informal meetings such as ASEAN Retreat where leaders would engage with

one another without a formal relation had been included. Surin, the former Thailand

Foreign Minister, as well as former Secretary General of ASEAN Secretariat also

called for a more people centric approach to ASEAN. Though both these views carry

different values, they echo the similar sentiment within ASEAN. There is a strong

notion to change the current standing of non-interference in ASEAN.

The most important issue related to non-interference when it comes to dispute

settlement was East Timor Independence. East Timor was a province under the

Portuguese colonial rule. East Timor gained independence on 1975 but was annexed

by the Indonesian in fear of communism. The struggle for independence had been

bloody for almost 30 years. Yet, ASEAN had not been able to intervene Indonesian

aggression as it looked like invasion of a sovereign nation privacy. The Portuguese as

the former colonizers and the Australians as the neighboring state took the role of

criticizing Indonesian antics. Though the Australian did have a vested interest in this


25

issue, the silence of ASEAN was deafening. ASEAN leaders did not provide any form

of discomfort towards Indonesia’s action towards East Timor. The Asia Pacific

Conference on East Timor organized by ASEAN Member States is seen as a weak

response to the delayed conflict in East Timor (Asia-Pacific Coalition of East Timor,

2015). The ASEAN Member States in particular Thailand, Malaysia, Philippines and

Singapore had been very active in UN coordinated response to East Timor. However,

no action had been taken from the collective stance of ASEAN proves the detrimental

effect of non-interference policy.

(Source: Timor Leste: Past and Present, n.a)

Figure 3: Map of East Timor

The diversity that ASEAN had in its economy and politics makes it nearly impossible

to come up with a mold of engagement to fit all government. Thus, strong Confidence

Building Mechanism (CBM) had to be put in place. The destabilized relationship

between neighboring Member States needed to be address if this regional mechanism

had to work. The failure of past regional organizations structure in this region is the

testimony for the need for a more comprehensive regional cooperation. Some of the

previous regionalism structure in Southeast Asia is as follow,


26

Table 3: Pre-ASEAN attempt at Regional Organizations

Organization Year

Asian Relation Conference 1947

New Delhi Conference 1949

Southeast Asia Treaty Organization (SEATO) 1954 – 1977

Bandung Conference 1955

Non-Aligned Movement (NAM) 1961 – Current

Association of Southeast Asian (ASA) 1961

Maphilindo 1963

(Source: Martin Loffelholz & Danilo A.Arao, 2010)

These organizations had been the stepping stone that became the foundation of

ASEAN in 1967. Many of Maphilindo’s and ASA’s structures had been adapted into

ASEAN. The failure of these institution is rooted by deep misunderstanding among

Member States of each other. Therefore, there was a need to develop a new working

method to define the relationship of Member States. With deep misunderstanding

among the Member States such as Indonesia suspecting Malaysia being a neo-

colonist approach and ‘Sabah Claim’ by Philippines over the northern state in the

island of Borneo needed to be addressed efficiently. Thus, this created the current

working model of ‘ASEAN Way’ centered deeply in non-interference and consensus.

The development of an ASEAN policy had been developed via the Islamic

concept of ‘musyawarh8’ and ‘muafakat9’. The development of both this traditional

approach of decision making had been deeply embedded in the Muslim culture

8 Musyawarah: The process of decision making through consultation and and discussion. 9 Muafakat: The unanimous decision that is made associated with traditional approach to decision making process.


27

through the Al-Quran. With Indonesia and Malaysia being Islamic Member States of

ASEAN, these principals were promoted by them especially by the Indonesian to

become part of integral process of decision making in ASEAN. This method of decision

making ensures that all Member States are on-board with any decision made. If any

other member is dissatisfied with a decision, no concrete actions will be taken. Only if

all Member States are on-board the decision, consensus can be reached. Therefore,

this is viewed by many scholars as a people (leader) pleasing method. The only

setback to this method would be the time to develop the decision may vary based on

the diversity of the Member States stand. Quick decision-making can only be reached

if all Member States are on-board of the decision. Development of the ASEAN Way is

viewed as one of the underlying principle of ASEAN Neutrality. With the framework for

cooperation put in place, ASEAN begun to view its relationship with its Member States

more seriously with the signing of Kuala Lumpur (KL) Declaration Zone of Peace,

Freedom and Neutrality (ZOPFAN) in 1971, Treaty of Amity and Cooperation (TAC) in

1976 with its amendments in 1987 to open its accession to other states outside of

Southeast Asia and Southeast Asia Nuclear Weapon-Free Zone (SEANWFZ) in 1997

are key milestones of ASEAN development. The TAC in particular had been the

cornerstone of ASEAN development. The principal of peace and stability had been

highlighted by TAC. The 4th Chapter of TAC called for the Pacific Settlement of

Disputes with five article attached to this chapter. The details of the Chapter as per

below,

CHAPTER IV: PACIFIC SETTLEMENT OF DISPUTES

ARTICLE 13

The High Contracting Parties shall have the determination and good faith to prevent disputes from arising. In case disputes on matters directly affecting them should arise, especially disputes likely to disturb regional peace and harmony, they shall


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refrain from the threat or use of force and shall at all times settle such disputes among themselves through friendly negotiations.

ARTICLE 14

To settle disputes through regional processes, the High Contracting Parties shall constitute, as a continuing body, a High Council comprising a Representative at

ministerial level from each of the High Contracting Parties to take cognizance of the existence of disputes or situations likely to disturb regional peace and harmony.

ARTICLE 15

In the event no solution is reached through direct negotiations, the High Council shall take cognizance of the dispute or the situation and shall recommend to the parties in dispute appropriate means of settlement such as good offices, mediation, inquiry or

conciliation. The High Council may however offer its good offices, or upon agreement of the parties in dispute, constitute itself into a committee of mediation,

inquiry or conciliation. When deemed necessary, the High Council shall recommend appropriate measures for the prevention of a deterioration of the dispute or the

situation.

ARTICLE 16

The foregoing provision of this Chapter shall not apply to a dispute unless all the parties to the dispute agree to their application to that dispute. However, this shall

not preclude the other High Contracting Parties not party to the dispute from offering all possible assistance to settle the said dispute. Parties to the dispute should be well

disposed towards such offers of assistance.

ARTICLE 17

Nothing in this Treaty shall preclude recourse to the modes of peaceful settlement contained in Article 33(l) of the Charter of the United Nations. The High Contracting

Parties which are parties to a dispute should be encouraged to take initiatives to solve it by friendly negotiations before resorting to the other procedures provided for

in the Charter of the United Nations.

(Treaty of Amity and Cooperation, 1976)

The development of this chapter in TAC is viewed as the early indicator of a sensible

dispute settlement mechanism within ASEAN. The principle of ASEAN Way could be

seen making a deep impact in TAC through its six core ideas.


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(Source: Adapted from Leviter, L. 2011, pp. 168)

Figure 4: Important components of Treaty of Amity and Cooperation (TAC) in

regards to ASEAN Way

These six guiding principal is seen as a supplement to the already rich ASEAN Way

culture that is developed by the diplomat and leaders of the founding state of ASEAN.

There was an underlying need to provide a mechanism to resolve conflict within the

ASEAN framework thus, TAC was signed. However, the lack of binding measures

were apparent within this working method. Member States or High Contracting Parties

(as used in the TAC) had no legal consensus to use this method to resolve conflict.

This in return provided no legitimate standing for Member States to refer disputes to

the ASEAN but to other international authority such as International Court of Justice.

The expansion of TAC membership also pose a dilemma to disputing Member States.

Freedom from

External Inteference

Respect of States

Sovereignty

Non-inteference in Internal

Affairs

Peaceful Dispute

Settlement

CooperationRenounciation of the use

of force


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As the TAC was amended to include more member, more members were admitted as

High Contracting Parties. There was a larger working group that needed to be dealt

with rather than the original proposal of five Member States.

In Hanoi, 2001 meeting, the Rule of Procedures of the High Council10 of TAC

in Southeast Asia was adapted. This provided proper working order for the High

Council in matters regarding to TAC. It is all based on the discretion of national leaders

and assemblies to resolve conflict with this framework. The ASEAN is viewed as

‘Paper Tiger’ that manage to pack a punch only via paper with no direct or apparent

legal binding power since its inception.

10 High Council: Constitutes of a Representative at Ministerial level from each ASEAN Member States. It also includes one Representative at Ministerial level at States outside Southeast Asia and are directly involved in the dispute which the High Council cognizance of pursuant to the Treaty


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Chapter 5: CURRENT DEVELOPMENT OF ASEAN

5.1 The ASEAN Charter

ASEAN leaders came to the junction to implement ASEAN Charter under Kuala

Lumpur Declaration. This declaration is in line with fulfillment of the vision of ASEAN

set under Bali Concord II and subsequent Action Plans. The development of ASEAN

Charter was dictated by a dedicated group of individuals selected by Member States

to provide reports on the conditions and the requisitions for ASEAN Charter. These

group of individuals were named as Eminent Persons Group (EPG). The development

of ASEAN Charter had been one of the important milestones of ASEAN. Over the

years, ASEAN had tried to formalize its relationship among Member States with limited

success. The adaptation of ASEAN Charter in 2008 solidify the regional organization

commitment to work together. It provided a comprehensive guideline for Member

States to regulate their relations. However, the Charter does not fully depart from the

norms of ASEAN. The Charter only provides structural framework for the organization

without any legal standing. The legality of ASEAN Charter is enshrined via the

adaptation of national Member States Legislative councils independently without any

coherent action among them. This indicates that the Member States still had the

sovereign right to determine the law of the land without the interference of ASEAN.

The fragility of ASEAN had been inherited due to the need to preserve self-interest of

Member States.

It is also a clear indication that Member States are free to interpret the language that

ASEAN Charter is drawn without having a cohesive stand on this issues. ASEAN

Integration through ASEAN Charter had been at the level of promoting cooperation as

not to implement legal agreement.


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“The founding documents define ASEAN activities as State-led, not as the product of any formal and permanent decision-making ASEAN Institution…”

(Lin Chun Hung, 2010)

Thus the development of ASEAN Charter is viewed as redundancy without legal

binding or enforcement measures.

The role of ASEAN Summit as a role of agenda setter to ASEAN disputes had

been put in front under ASEAN Charter. The ASEAN Summit is a conference for

ASEAN Member States leaders convene and resolve issues of common interest. The

function of this ASEAN Summit had been expanded with the issues of dispute. The

ASEAN Charter also enforces to develop a procedure for decision making when

consensus is not feasible but only at a case by case basis. (Leviter, L. 2010, p. 198)

The most recent conference Kuala Lumpur is a great indicator as the Prime Minister

of Malaysia had expressed the disappointment of ASEAN with China on the conduct

of South China Sea.

5.2 ASEAN Political-Security Community

The reinforcement of the need for a Dispute Settlement Mechanism had

resonated within ASEAN under the ASEAN Vision 202011. With the ASEAN Political

Security Community Blueprint that had been put in place in 2009, the need to form a

decisive Dispute Settlement Body had become more imminent. The total aspect of a

11 Adopted by the 1997 ASEAN Informal Summit in Kuala Lumpur, the ASEAN Vision 2020 is a declaration by ASEAN Head of States making a pledge to envision the cooperation and progress of ASEAN by the year 2020. Four main principal were put forward namely; A concert Southeast Asian Nations, A Partnership in Dynamic Development, A Community of Caring Society, and An Outward looking ASEAN.


33

comprehensive security had been highlighted in the second component of the

blueprint as per below;

Table 4: APSC Blueprint on A Cohesive, Peaceful, Stable and Resilient Region

with Shared Responsibility for Comprehensive Security

Theme Action Details

3.1. Conflict Prevention / Confidence Building Measures

3.1.1. Strengthening confidence building measures

Organize regional exchange among ASEAN Defense and military officials at all level

Promote the exchange of observers of military exercise commensurate with capabilities and conditions of each ASEAN Member States

Share information on submission to the UN Register of Conventional Arms

Promote bilateral exchange and cooperation between defense officials and military training institutions

Conduct joint research projects on defense issues between government-affiliated policy and strategic research institutions in the region.

3.1.2. Promote greater transparency and understanding of defense policies and security perceptions

Work towards developing & publishing an annual ASEAN security outlook

Hold voluntary briefings on political and security developments in the region

Develop and early warning-system based on existing mechanisms to prevent occurrence / escalation of conflict

Hold consultation and cooperation on regional defense and security matters between ASEAN and external parties and Dialogue Partners including ASEAN Defense Ministerial Meeting (ADMM) Plus when it is operationalized


34

3.1.3. Build up necessary institutional framework to strengthen the ARF process in support of APSC

Follow up on the recommendation for the Review of ARF

Implement the enhanced role of ARF Chair and activate the Friends of ARF Chair Mechanism as and when needed

Implement decision of the ARF Ministers to move ARF towards the preventive diplomacy stage (PD)

Expand the capacity of ARF Head of Defense Universities, Colleges and Institution Meeting (ARF HDUCIM) to exchange best practices in defense policy and academic development

Compile best practices on CDM, preventive diplomacy and conflict resolution for future development by ARF

Enhance the role of Secretary General of ASEAN in ARF include further strengthening the ARF Unit in ASEAN Secretariat

3.1.4. Strengthen efforts in maintaining respect for territorial integrity, sovereignty and unity of ASEAN Member States as stipulated in the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations

Compile best practices and relevant international law to promote understanding and appreciation of best practices concerning friendly relations and cooperation among Member States of the United Nations;

Convene consultation as well as a series of tract-two activities to strengthen cooperation in addressing threats and challenges that may affect the territorial integrity of ASEAN Member States including those posed by separatism;

Further promote and increase awareness on these issues to help accelerate the pace of ASEAN Community building and elevate ASEAN’s profile in the world.


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3.1.5. Promote the development of norms that enhance ASEAN defense and security cooperation

Initiate preparatory work for the development of practical cooperation programs among the militaries of ASEAN Member States.

3.2. Conflict Resolution and Pacific Settlement of Disputes

3.2.1. Build upon existing modes of pacific settlement of disputes and consider strengthening them with additional mechanisms as needed

Study and analyze existing dispute settlement models and/or additional mechanism with a view of enhancing regional mechanism for the pacific settlement of disputes

Develop ASEAN modalities for good offices, conciliation and mediation

Establish appropriate dispute settlement mechanism, including arbitration as provided for by the ASEAN Charter

3.2.2. Strengthen research activities on peace, conflict management and conflict resolution

Consider the establishment of an ASEAN Institute for Peace and Reconciliation

Compile ASEAN experiences and best practice on peace, conflict management and conflict resolution

Identify priority research topics with a view to provide recommendations on promoting peace, conflict management and conflict resolution

Enhance existing cooperation among ASEAN think tanks to study peace, conflict management and conflict resolution

Hold workshops on peace, conflict management and conflict resolution with relevant regional and international organizations including the UN

Undertake studies to promote gender mainstreaming in peacebuilding, peace process and conflict resolution

Develop a pool of experts from ASEAN Member States as resource power to assist in conflict management and conflict resolution activities


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3.2.3. Promote regional cooperation in maintain peace and stability

Carry out technical cooperation with the UN and relevant regional organizations to exchange expertise and experiences in maintaining peace and stability

Identify national focal points with a view to promote regional cooperation in maintain peace and stability

Establish a network among existing ASEAN Member States peace keeping centers to conduct joint planning, training, and sharing of experiences with a view of establishing an ASEAN arrangement for the maintenance of peace and stability in accordance of with ADMM 3 Year Work Program

3.3. Post-Conflict Peace Building

3.3.1. Strengthen ASEAN humanitarian assistance

Provide basic services or assistance to bring relief to victims of conflict in consultation with the receiving state

Promote cooperation for orderly repatriation of refugee/displaced persons and resettlement of internally displaced persons

Promote the safety of humanitarian relief assistance workers

Develop common operating procedures for the provision of humanitarian assistance in the event of conflict

Intensify cooperation with UN and promote the role and contributions of relevant international organizations on humanitarian assistance

Promote civil-military dialogue and coordination in humanitarian assistance and expand the role and contribution of women in field-based humanitarian operations

3.3.2. Implement human resource development and capacity building programs in post-conflict areas

Draw up guidelines for training capacity-building needs assessments

Identify priority training topics


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Design training programs in the identified priority topics and development of training materials

Implement annual program in each target areas

Develop cooperation program with relevant external parties and financial institutions to promote Human Resource Development and capacity building in post-conflict reconstruction and peace building

Work towards the development of a systematic training program for formal and community educators in the field of peace education and reconciliation which can be conceptualized and implemented

3.3.3. Increase cooperation in reconciliation for further strengthen peace-oriented values

Undertake studies to increase cooperation in reconciliation and further strengthen peace oriented values

Promote public participation in the development of cooperation in post-conflict reconstruction and rehabilitation including the encouragement of comprehensive input of academia, media, non-governmental organizations, civil society and community groups

Promote inter-communal undertakings through exchange activities

(ASEAN Political-Security Community Blueprint, 2009)

The development of these possible solutions to ASEAN Disputes indicates that

ASEAN Member States are aware of the need to develop a common method in

resolving conflicts. However the echoes of the past could be still seen within these

documents. The issue of compliance and cohesion to adhere to these mechanism is

viewed by many as the greatest failure of this documents. Since its inception, though


38

disputes had broken off among members within the ASEAN and among its neighbor,

these mechanism had not been addressed. This indicates the blunt failure of these

mechanism to entice even Member States to adhere to this agreed solutions.

5.3 2010 Protocol to the ASEAN Charter on Dispute Settlement Mechanisms

In April 2010, ASEAN Member States gathered for the 16th ASEAN Summit in Hanoi

Vietnam. With the signing of ASEAN Charter of 2007, the development of ASEAN

DSM had been discussed with no concrete action had been taken. This led to the

signing of 2010 Protocol to the ASEAN Charter on Dispute Settlement Mechanisms

by ASEAN Foreign Ministers. The protocol provided the legal façade needed to the

development of Article 25 of ASEAN Charter. It addresses the issues at hand

regarding the law and procedures that will be used to enforce the ASEAN DSM.

However, the protocol had not been enforced since it had been undergoing

rectification process in local government.


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Chapter 6: ISSUES REVOLVING AROUND ASEAN DSM

It is important to note that the current development within the ASEAN

framework had provided for a diversified view to certain issues. The differences among

ASEAN Member States could be worked out via the current system of ASEAN Way.

However, some significant predicaments requires a more comprehensive solutions.

Henceforth, I believe ASEAN DSM could be the possible solution to some of these

predicaments.

The recent Bangladesh-Myanmar refugee crisis for instance is a thorn that

signifies the need to develop ASEAN DSM. The government of Myanmar had refused

to acknowledge the citizenship status of many Rohingya ethic group members. The

Myanmar government proclaimed that they are Bangladeshi living in Myanmar. They

had been denied citizenship under the 1982 Nationality law enacted by junta under

General Ne Win. The Rohingya had been smuggled on boats into the Andaman Sea

sailing through the straits of Malacca to go to Thailand, and Malaysia in promise of a

better live. Due to tightening of Thailand Law regarding employment of these illegal

migrants in particular in the fishing industry, the smugglers abandoned them stranded

in the seas in thousands. Many of them have sought refuge in Malaysia, Thailand and

Indonesia. More alarmingly, nearly 139 graves at 28 transit camps had been

discovered in the Malaysia Thailand border. (Luke Hunt, 2015)

ASEAN should be able to utilize its cohesiveness to resolve this issue. Yet, only

after immense international pressure that action had been taken. This had put ASEAN

Member States in a difficult place. The matter at hand is an internal issue of Myanmar,

however it affects many other ASEAN Member States. If ASEAN DSM had been put

in place, the other ASEAN member could deploy this method to find solution. Myanmar


40

should also be reprimanded for not taking any actions. This would put pressure at

Myanmar to react fast and efficiently if this problems persist.

The other issue that had made an annual issue is the transboundary haze that

affects major cities in ASEAN. Annually, due to the practice traditional practice of

‘slash and burn12’, by farmers in Indonesia, haze had become a serious issue. In 2002

meeting in Kuala Lumpur, ASEAN Leaders had signed the ASEAN Agreement on

Transboundary Haze Pollution. It aims to provide a solution to the annual problem that

Member States face. It efforts such as coordinating, assessing and managing in

accordance to the agreement, ASEAN Co-ordinating Center for Transboundary Haze

Pollution Control was formed. The center is enforced to take preemptive actions and

conduct research activities in regards to haze pollution. However, Indonesia only

managed to ratify the treaty in 2014 parliamentary session.

“… The delay in ratifying the agreement has been criticized as a major embarrassment to Indonesia: the largest haze producer in the region. The AATHP was written in response to massive air pollution in 1997/1998, largely due to fires in Sumatra and Kalimantan where nearly 100,000 square kilometers burned in less than one year causing estimated losses of $9 billion… However, very few government policies appear to be in support of this step. Such as government regulations to protect peat lands that actually do very little to protect peat lands. 70% of the fires creating smoke pollution burn in peat. As long as there is only minimal protection of peat lands, this ratification is only political show. Indonesia faces a growing problem as rampant forest loss increases the likelihood of fires getting out of control. An analysis of last year’s pollution events recently published by CIFOR concludes that the degraded state of Indonesia’s forests allows them to easily burn, meaning haze events are likely to increase…”

(Source: The Jakarta Post, 2014)

12 Slash and burn practices, Also known as shifting cultivation, swidden agriculture, or simply jhum, is an

ancient form of agriculture practiced by 200 to 500 million people around the world currently. The two key

components of slash and burn agriculture are the use of fire to prepare fields for cultivation and the subsequent

abandonment of those fields as productivity declines. The inevitable decline in productivity is a result of the

depletion of soil nutrients and also a result of the invasion of weed and pest species.

http://news.mongabay.com/2014/0821-deforested-forest-fires-riau.html

http://news.mongabay.com/2014/0821-deforested-forest-fires-riau.html


41

The ratification came in the wake of a new Singapore law that calls for a sizable

amount of fine towards foreign companies that have been associated with the haze in

Singapore. It was believed that the action is aimed at Indonesian companies operating

in Singapore. This shows the pitfall of ASEAN Way. Much had been let to the

development of consensus that legal actions had to be put in place to entice

compliance. If ASEAN DSM had been utilized, Jakarta may be willing to ratify the treaty

together with national legislation that would aid to resolve this issue. Currently,

Indonesia had only ratify the agreement with no substantial changes to its laws and

procedures. The complications would arise when the agreement is enforced with no

legal standing in Indonesian national legislative. Therefore, resolving complicated

issues should be dealt with more tact. The ASEAN DSM I believe would be able to

provide structural platform to resolve the above mentioned issues carefully.

The issue of compliance is one of the most prominent issue that ASEAN has.

Member States have problems enforcing the rule of law that they had previously

agreed upon due to certain issues that they face. This accumulates to compliance

predicaments in ASEAN. In providing a serious compliance mechanism within

Regional Organizations, the best example that can viewed is European Union. The

compliance mechanism within the EU had been enshrined under the Article 7 of the

Treaty of European Union (TEU). It provides a legal ground to ensure compliance.

Within ASEAN Charter there had been no specific agreement to ensure compliance.

All the methods that had been deployed by ASEAN had been voluntary basis.

Currently, there are provisions to implement all three mechanism within the ASEAN

Charter framework. However, the question still rely upon the Member States

willingness to participate in such activities. Thus, these mechanism are some that can

build confidence among Member States to trust the ASEAN mechanism rather than


42

reliance on international bodies that may be culturally insensitive towards these

issues. There are also several non-conventional methods of DSM that ASEAN

Members could look at. These will in the long run help make ASEAN DSM more

effective and efficient.

6.1 Building a Stable Compliance Mechanism

One of the most pressing change that ASEAN needs to make is in its

compliance mechanism. Building up a stable compliance mechanism could be the best

way to build confidence among ASEAN Member States. With ASEAN reliance on

ASEAN Way, the compliance issue seemed to have taken a back seat. Many political

pundits reviewed the establishment of ASEAN Charter would evolve to a more

structured compliance mechanism. However, ASEAN Charter although provides a

legal façade to ASEAN failed to ensure the compliance of Member States. Within the

current DSM that had been proposed, this problems continue to persist. One of the

most successful compliance mechanism within Regional Organizations had been

European Union. In addressing the success of its compliance mechanism Jonas

Tallberg (2002) suggest that European Union (EU) managed a balance system of

enforcement and management. These two criticial idea had been central to ensure

compliance within diverse EU Member States. Enforcement theories had been

theorized under the game theory and collective action theory. States are viewed as

rational actors that is able to analyze the cost and benefits of alternative choices before

making a decision. Compliance problems are therefore tackled with high cost of

detection through monitoring and threat of sanctions. On the other hand, management

theories suggest that compliance could be achieved with consideration of efficiency,


43

interest and norms. Non-compliance is based on limitation of capacity and ambiguity

of the rule itself. Resolving the issue of non-compliance is done through problem-

solving strategy of capacity building, rule interpretation and transparency. The EU had

a unique system that adheres to both the management theory and enforcement theory

of compliance. The centralized EU level is responsible to enforce violation of EU

compliance system as states are held responsible for the violation, but there are also

attempts to improve their capacity to comply. This is highlighted in the four level action

plan by the EU Institutions. First is through the setting up of funds to ensure Member

States ability to comply and encourage accommodation to the EU policy via various

EU Institution. The second action involves the negotiation of transitional agreements

by the Commission with states acceding into the EU to allow for additional time for

adjustment. The third action involves the Commission responsibility to close the

knowledge gap within and promote trust among Member States. The forth action calls

for the Commission to issue interpretative guidelines on rules that could give rise for

non-compliance among Member States. (Tallberg, J., 2002) In comparison ASEAN

does implement several of the abovementioned actions however, the final action which

gives more emphasis on the role of ASEAN Secretariat is yet to seem achievable.

The EU also has credible Institution to ensure that violation of the compliance

mechanism is detected and punishable. Article 226 calls for the EU Commission to

function as the prosecutor and European Court of Justice to serve as the judicial arm

for any violation of the EU Treaties (Tallberg, J., 2002). This compliance mechanism

is seen lacking ASEAN Charter. Although the calls for a centralized judicial institution

had been rampant, the Member States are more concerned preserving their national

sovereignty than support the creation of an independent centralized organization. The

EU also had set up a two track approach to detect and ensure compliance among


44

Member States. The EU Commission is in charge of information collection and

analysis of state compliance through in-house monitoring. The EU also has several

informal methods to record and investigate violation of EU law via complains by

citizens, firms, non-governmental organizations and national administrators (Tallberg,

J., 2002). These series of check and balance to the system is lacking in ASEAN. In

particular the ASEAN DSM only deals with national actors in states without providing

any legal standing for private citizens or any other groups of interest. Thus, the system

is heavily relied upon states conformity without any other interference. The introduction

of other stakeholder in ASEAN DSM may provide a more different outcome to it.

In order to enforce compliance, sanctions had been the final option of EU. The

Article 228 of Treaty on European Union provides legal options for EU institutions to

impose economic sanctions to other Member States to ensure compliance. However

the possibility of payment of penalty is often reserved as the final option (Tallberg, J.,

2002). There had been no specific underlining procedure under ASEAN Charter to

enforce ASEAN rule of law other than the practice of good governance. Although the

act to comply had always been a commendable act, no heavy reasoning had been put

to deter from compliance. Building a strong deterrence policy may be needed within

ASEAN in particular to ASEAN DSM to ensure Member States compliance.

6.1.1 Peer Review

Though ASEAN Way had not been making headway in promoting a stable DSM. Some

scholars had been pushing a simpler method of ensuring compliance. The method

that had been suggested has been peer review.


45

“… Peer review are traditionally used as instrument of self-organized social groups and professions signaling some autonomy of relevant group. In International law, peer review is a monitoring of a country’s performance or practice in a particular field… under the auspices of international organizations…”

(Source: Dimitropoulos, G., 2014, pp. 5-6)

More than often the process involves various actors and relevant stakeholders

conducting examination on the documentation and participate in discussion in

particular the third parties to gain an understanding of the status of the process. The

African Union (AU) is one of the regional organizations that had been utilizing this

method to evaluate compliance. The New Partnership for Africa’s Development

(NEPAD) utilizes the African Peer Review Mechanism (APRM) to ensure compliance.

The peer review process often revolves around three main phases. The first

phase is the formation of the peer review team. It is important to select the team based

on their independence and objectivity. If the teams are formed without these two

criteria, it is most possible that the team would have some bias behavior. The team

will later submit a series of questionnaire to the investigated authority to gain a better

understanding of the on-ground situation of the investigation. The next phase involves

on-site investigation. Depending on the issue that will be investigated, the time frame

for the on-site investigation is conducted. The usual method of conducting

investigation includes interviews, inspections and study audits. The team will also

study the need to engage civil society if there is a need. It would also look into the

need to engage local NGO’s for inspection purposes.


46

(Source: Dimitropoulos, G., 2014)

Figure 5: Phases of Peer Review

The final phase of peer review is reporting. The team complies the investigation into a

report that would be submitted with the relevant authority. It indicates the analysis of

the compliance in the issue investigated. Since this method often deployed by Member

States of equal standing, ASEAN could adapt this mechanism into its work. Although

some scholars such as Alan Collins and Amitav would argue that EPG is a method of

peer review within ASEAN, I would argue that EPG does have its limitation. Compared

to other peer review mechanism that other Regional Organization in particular EU and

AU had been utilizing, ASEAN EPG certainly had its limitation. Most of the EPG’s

recommendation could be ignored by Member States to pursue national interest over

regional interest. Thus the development of a more conclusive peer review process in

ASEAN could be the starting point of CBM within ASEAN Member States.

• Peer review teams are formed

• Independent and Objective

Preparotary

• Conducted by team

• Interviews, Inspections and study audits

On-site visit• The team drafts

report for the organization

• Descibe and analyze the mesures taken

Reporting

A series of questionnaire is sent

to the relevant organization


47

6.2 Other Solutions to ASEAN DSM

The ASEAN method of DSM had been one that had been developed through the

evolution of ASEAN Way since its inception. The success and failure of this method

had not been tested as ASEAN Member States are not willing to utilize this method.

Moreover, only four out of ten ASEAN Member States had ratified the 2010 Protocol

on ASEAN DSM. However, with grave concern over this mechanism, it is imperative

that other possible solution is studied as a confidence building measure.

6.2.1 ASEAN Economic Community – Dispute Settlement Mechanism

With AEC looming ahead in near future, under the third pillar of AEC, there had

been a provision dealing with DSM in detail. Locknie Hsu in The ASEAN Economic

Community, A work in progress (2013) wrote the importance ASEAN Senior Economic

Official Meeting (SEOM) in this protocol. The strength of the protocol is seemed with

the addition of the ASEAN Compliance Body (ACB) that is purely peer-to-peer

evaluation. The DSM is often shown parallel with the WTO Dispute Settlement

Understanding (DSU). The Member States are actually provide with alternative dispute

resolution mechanism via this understanding. Hsu also added the main difference

between the two is the clause on confidentiality at the stage of consultation as well as

on providing for conciliation and good offices. The lack of possible backing under the

third party support is also seen as the shortcoming of the protocol. The lack of sufficient

code of conduct for the DSM is also a shortcoming for the AEC DSM. The information

regarding the AEC DSM had not been properly disseminated to the Member States

equally. The establishment and the management of this mechanism in watched by the

High Level Task Force (HLTF) with the aid of the ASEAN secretariat in Jakarta.

Although there had been provision on funds via the ASEAN DSM Fund, it is


48

insufficient. Therefore, ASEAN Member States had been referring their cases to the

WTO DSU structure more than their reliance on the ASEAN DSM. One other option

that had been put forward under the AEC is the ASEAN-X cooperation. This form of

cooperation promotes the not all ASEAN Member States to agree to divulge on certain

issues. Member States that are in favor of certain initiative may start on their own with

other interested parties joining in later at their own pace. This agreement seemed to

be a departure from the principal of consensus that ASEAN had been promoting all

these years. This initiative will allow ASEAN members to work with their differences

without being inhibited by other Member States. Implementing this framework into

ASEAN Dispute Settlement Mechanism would benefit the Member States as a good

confidence building mechanism. Member States would not be pressured into making

decisions. They will have ample time to adapt the legislature to suit their national

interest for the betterment of regional interest.

6.2.2 ASEAN Troika

Troika had been one of the most intermediate form of Dispute Settlement within any

International Organization. The current model of troika had been the one in relation to

Greece financial meltdown between European Commission, European Central Bank

(ECB), and International Monetary Fund (IMF). This triparty agreement had been one

of the most stable means of conflict resolution that I believe adheres to some aspect

of ASEAN Way. The Troika is not at all a new dispute resolution mechanism.

In the past, ASEAN had engaged with Troika to resolve disparities among

members and even resolve accession issues into ASEAN. One of the most famous is

the ASEAN Troika comprised by Thailand, Philippines and Indonesia in relation to

Cambodia’s admission into ASEAN. In 1997, Cambodia, Myanmar and Laos were


49

scheduled to go through the accession process into ASEAN. However, in the mid July

of the progress, there was a coup in Cambodia. The elected leader Prince Ranariddh

was removed from the office. This called for the indefinite postponement of

Cambodia’s accession into ASEAN. Only July 1997, ASEAN Troika team comprised

by Indonesian Foreign Minister Ali Alatas, Philippines Foreign Affairs Secretary

Domingo Siazon and Thailand Foreign Minister Prachuab Chaiyasam met with current

Prime Minister Hun Sen and other Cambodian leaders to mediate the predicament.

The ASEAN Troika later engaged with other nationals under the ‘Friends of Cambodia’

group mainly western world to work on possible solutions for the Cambodian situation.

This also set the mood to set up a clean and fair election process in Cambodia. ASEAN

does its part by sending election observers to ensure the election process is clean and

fair. The election was conducted on 26th July 1998. Hun Sen’s Cambodian People’s

Party (CPP) won with nearly 38 other political parties taking part in the election. A

coalition was formed as there was no clear majority winner in the election. The outset

Prince was offered the role as the President of the National Assembly. In 1999,

Cambodia reengage ASEAN with its accession into the regional organization after it

had achieved a sense of stability. (Din Merican, 2007)

With works in place of the success of ASEAN Troika, the paper to make a

permanent addition of this working method had been approved at the 33rd ASEAN

Ministerial Meetings (AMM) in Bangkok, Thailand on 2000.

“Pursuant to the decision of the Third ASEAN Informal Summit, convened in Manila on 28 November 1999, on the proposal to set up an ASEAN Troika at the ministerial level, the Foreign Ministers approved the Paper which sets out the principles and purposes, and the procedures for the constitution of the ASEAN Troika”

(ASEAN, 2000)


50

ASEAN Member States were willing to engage with each other under this working

arrangements. However, the issue is not taken at hand. Though in economic

cooperation, troika’s seemed like a possible solution. There had been less

engagement under the political security agreement. I believe the establishment of

ASEAN Troika as a method of ASEAN Dispute Settlement Mechanism could be a

stepping stone to foster better understanding among Member States. The troika is a

more advance method than the peer review method that had been used by other

regional organizations. This method could ensure that the Member States will be more

comfortable dealing with only a few fellow Member States rather than engaging with

all at the same time. This would also allow disputing parties to have an independent

team to engage with. The evolution of the normal method of DSM should include the

possibility of troika within ASEAN.

6.2.2 ASEAN Court of Arbitration

The current model of ASEAN Court of Arbitration had been put in place under the

ASEAN Secretariat via the 2010 Protocol to ASEAN Charter of Dispute Settlement

Mechanism. It provides several articles that are read together which provides a legal

setting for the ASEAN DSM.

The ASEAN Secretariat is places under the pressure to assist the tribunal.

Article 18 details the ASEAN Secretariat shall be responsible of assisting the tribunals

as well as providing secretarial and technical support (ASEAN, 2010). In essence this

adds the burden to the already taxed ASEAN Secretariat. The ASEAN Secretariat

already been used as to maintain the day to day activity of ASEAN. If, this task is

added without increasing the capacity of ASEAN Secretariat, it will be detrimental to

it. I would suggest using the already present International Arbitration Centre in


51

Singapore. It had already had been developed as a leading arbitration center in Asia.

Singapore International Arbitration Centre had been kept up to date using the state of

the art facilitates, proceeding could be conducted in accordance to UNCITRAL Model

Law13. It also a signatory to the 1958 New York Convention on Enforcement of

Arbitration Awards that is enforceable in 140 countries. Using Singapore International

Arbitration Center’s capability would increase the credibility of ASEAN as an

independent center that will be able to mediate other conflicting parties outside of

ASEAN as well.

13 United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration was signed in 1985 with amendments as adopted in 2006 had been designed to assist in reforming and modernizing their law on arbitral procedures. It covers all stages of arbitration process.


52

Chapter 7: CONCLUSION

ASEAN had been around for nearly 50 years. The leaders of ASEAN are aware the

need for ASEAN to become more integrated. With ASEAN Community under the three

pillars; ASEAN Economic Community, ASEAN Political Security Community and

ASEAN Socio-Cultural Community in the horizon the need to consolidate the

difference that ASEAN Member States have is more important now than ever. The

current possible solution is to deploy a more structured ASEAN Dispute Settlement

Mechanism. Historically, the ASEAN Way had been inculcated in ASEAN lifestyle

since the inception of ASEAN in 1967. The principal document of 1967 Bangkok Treaty

and 1976 Bali Concord I which paved the way to Treaty of Amity and Cooperation is

based on ASEAN Way. The need to evolve from the ASEAN Way had been more and

more apparent with issues that could not be resolved using the traditional method of

ASEAN Way such as the Thailand and Cambodia border dispute over 900 year old

temple, Preah Vihear. Although the International Court of Justice (ICJ) had made its

ruling in 2013 that the temple belongs to Cambodia, it failed to address the human

values of the conflict. The land around the temple had been spurring conflict ever since

it is unclear on whose jurisdiction would it fall under. Western law and values often

gives more important to the rule of law with little or less regard to the human value. I

believe that the development of ASEAN system that would be more careful of the

cultural and human value of the dispute while not undervalue the legality of the

problem. Thus, ASEAN Dispute Settlement Mechanism needed to find the balance on

the rule of law and its people. With cooperation in its way in the economic sector, it is

high time that other forms of cooperation especially in its political and security sector

had to be put in place.


53

The Member States needed to recognize the need for ASEAN DSM in a wider

context. It is also imperative for ASEAN to maintain ASEAN core principal of neutrality

and ASEAN centrality. ASEAN had been the driving force of regionalism in Asia. The

ASEAN DSM could be used as driving force of regionalism within the wider Asian

region. With ASEAN DSM in place as a neutral platform for disputing parties, other

Asian states could resolve using ASEAN DSM method rather than reliance on the

Western dominated ICJ. In particular states with long history of mistrust such as India,

China and Pakistan could utilize ASEAN DSM to resolve disputes if ASEAN DSM is

able to resolve its issues.

The evolution of ASEAN DSM in the long run will be beneficial for ASEAN as a

region of neutrality. This will also be great in developing ASEAN centrality as a

concept. Currently ASEAN had been the center for many forums and conventions such

as ASEAN Regional Forum (ARF) and Regional Comprehensive Economic

Partnership (RCEP) which are mainly economical in nature. The development of a

stable ASEAN DSM would push for ASEAN recognition in security and political

aspects of regionalism. Thus, there is a more pressing need for ASEAN DSM to

materialize.


54

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