The Use and Abuse of the “ASEAN Way” I. Introduction

2017/06/26 DISCUSSION PAPERS The Use and Abuse of the “ASEAN Way” Iwao Fujisawa The Use and Abuse of the “ASEAN Way” Iwao Fujisawa∗ I. Introduction What contribution has ASEAN made to the improvement of political and social conditions of Myanmar? Some might say that their contribution is outstanding. Others might argue that their influence has been negligible compared to the pressure exerted by the United States and European countries. What is notable is that the answer to this question is to some extent dependent on the one’s view on the ASEAN’s time-honored policy of non-intervention in the affairs of other states. When the domestic conditions of Myanmar began to deteriorate in 1990s, Western developed countries sharply denounced the military regime of Myanmar and imposed sanctions in order to isolate Myanmar in the international community. However, ASEAN and its member states were critical of such policies because they were hostile and interventionist. They instead advocated the “constructive engagement” policy, stressing dialogue and persuasion as the appropriate means to improve the situation in Myanmar. A former ASEAN official argued that economic sanctions were generally not effective in attaining the regime change and those imposed by the United States and European countries only harmed the people of Myanmar. In his opinion, although the constructive engagement with Myanmar did not bring about regime change either, it could attain some improvement in the living standard of the people of Myanmar through its integration in the global economy, that is, through opening foreign markets for products of Myanmar and inducing foreign investment into Myanmar. Myanmar’s admission into ASEAN in 1997 is a prime example of the “constructive engagement” policy. In the view of ASEAN, they had no reason to deny Myanmar’s application for membership because of its domestic policy. The conditions for ASEAN membership were that the applicant country was geographically located in Southeast Asia and that it committed to the principles governing relations between member states. This paper does not try to answer the above question of whether ASEAN with such “constructive engagement” policy did better than the Western hard line policy in promoting the human rights and democracy in that country. That question is beyond the ability of the author. Instead this paper first tries to identify the ASEAN’s conception of international norms underlying such “constructive engagement” policy. Those norms have been articulated as the “ASEAN Way”. This paper then locates that “ASEAN Way” within the contemporary debate on state sovereignty in International Law. In particular, it examines the question whether the “ASEAN Way” can be reappraised as the better way than the legalistic and coercive one in coping with issues of common concern such as promotion of human rights, protection of environment, management of global economy. Finally, the limit of the use of the “ASEAN Way” is examined by referring to the recent South China Sea Arbitration. ∗ Associate professor in Graduate School of Humanities and Social Sciences, Chiba University, Chiba, Japan. 1 2017/06/26 DISCUSSION PAPERS The Use and Abuse of the “ASEAN Way” Iwao Fujisawa II. What is the ASEAN Way? The ASEAN Way is a catchword for the norms that is supposed to govern the relations between states in Southeast Asia. But there is no authentic definition of that ASEAN Way. For some, it denotes a decision making process that features a high degree of consultation and consensus. It prefer regional interactions and cooperation based on discreteness, informality, consensus building and non- confrontational bargaining style, to those based on adversarial setting, majority vote and other legalistic decision making such as adjudication. Two elements are essential in this conception. The first is preference for informality and the resultant dislike for formal institutions of cooperation. This point is outstanding as regards mechanisms for inter-state disputes within the region. The basic instrument for the purpose is the Treaty of Amity and Cooperation in Southeast Asia adopted in 1976. The treaty was originally concluded by Indonesia, Malaysia, Philippines, Singapore and Thailand. But now not only all the ASEAN member states but also other countries such as Australia, China, India, Japan, the United States are the parties. Article 14 of that treaty stipulates that 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. But that High Council came into existence only 2001, that is, 25 years after its conclusion. Moreover, that Council has never been set in motion for the settlement of concrete disputes so far. The Second element is consensus as a principle of collective decision making. Consensus is distinguished from unanimity in that consensus does not require express consent of all members. Consensus on a decision is established when no one expressly object to the decision even if one party might not like that decision. It is hailed as a way of moving forward by establishing what seem to have broad support while ensuring that collective decision against vital interests of a state can be vetoed by that state. Others see the essence of the “ASEAN Way” in the principle of non-intervention in the affairs of other states. Indeed that principle has been recognized by ASEAN member states from its early days. The Treaty of Amity and Cooperation in Southeast Asia (1976) counts “Non-interference in the internal affairs of one another” and “The right of every State to lead its national existence free from external interference, subversion or coercion” among the principles by which the High Contracting Parties shall be guided in their relations with one another. That emphasis on non-intervention should be understood with reference to the context of the Cold War. It was 1975 that Vietnam was unified by the communist regime. Thus the principle of non-intervention was to a considerable degree an expression of a collective commitment to the survival of non-communist regimes in the region against the communist intervention. It has been pointed out that in practice that principle has four components. First, it requires not criticizing the actions of a member government against its population. Second, it urges members to criticize the breach of the principle by other states. Third, it obliges member governments to deny recognition, safe haven and supports to the opposition groups seeking to overthrow governments of other member states. Finally, member governments are required to provide moral and material supports to efforts of other governments to suppress those opposition groups. Thus the academic controversy on the precise definition of the “ASEAN Way” is still unsettled. One stresses 2 2017/06/26 DISCUSSION PAPERS The Use and Abuse of the “ASEAN Way” Iwao Fujisawa informality and consensus in cooperation between states while others advance the principle of non-intervention. It should be also noticed, however, that the two versions of the “ASEAN Way” we examined above do not exclude each other. Rather, both views are rooted in one and the same idea that is state sovereignty. Informality and consensus guarantee that the independence of a sovereign state shall not be restricted without its consent. That aspect of sovereignty has been long recognized in International Law. As early as in 1927, The Permanent Court of International Justice argued as follows: International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed. As for the principle of non-intervention, it also purports to protect state sovereignty. According to the International Court of Justice: In this respect it notes that, in view of the generally accepted formulations, the principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. Accordingly, despite differences in stress among scholars, it is safe to say that in essence the “ASEAN Way” prescribes the mutual respect of sovereignty between states in the Southeast Asia. Understood in that manner, the “ASEAN Way” is not the norms peculiar to that region. Rather it merely manifests and confirms the traditional international law of universal validity. But if that is the case, why ASEAN and its member states have called it the “ASEAN Way” as if it were the law peculiar to the region? That is because they put forward the “ASEAN Way” as a defense against the recent efforts in the international community to address the common issues such as promotion of human rights, protection of global environment and maintenance of global economy. Let us elucidate the point in the next section. III. The “ASEAN Way” in Perspective (1) The International Law of Coexistence The traditional concept of sovereignty that stresses the freedom of states has been increasingly considered anachronistic especially since the end of the Cold War. International Law has pursued two purposes. First, it aims to 3 2017/06/26 DISCUSSION PAPERS The Use and Abuse of the “ASEAN Way” Iwao Fujisawa ensure the coexistence of states by preventing disputes and armed conflicts.

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