The Struggle of Becoming the 11th Member State of ASEAN: Timor Leste‘s Case
Rr. Mutiara Windraskinasih, Arie Afriansyah 1
1 Faculty of Law, Universitas Indonesia E-mail : [email protected]
Submitted : 2018-02-01 | Accepted : 2018-04-17
Abstract: In March 4, 2011, Timor Leste applied for membership in ASEAN through formal application conveying said intent. This is an intriguing case, as Timor Leste, is a Southeast Asian country that applied for ASEAN Membership after the shift of ASEAN to acknowledge ASEAN Charter as its constituent instrument. Therefore, this research paper aims to provide a descriptive overview upon the requisites of becoming ASEAN Member State under the prevailing regulations. The substantive requirements of Timor Leste to become the eleventh ASEAN Member State are also surveyed in the hopes that it will provide a comprehensive understanding as why Timor Leste has not been accepted into ASEAN. Through this, it is to be noted how the membership system in ASEAN will develop its own existence as a regional organization. This research begins with a brief introduction about ASEAN‘s rules on membership admission followed by the practice of ASEAN with regard to membership admission and then a discussion about the effort of Timor Leste to become one of ASEAN member states.
Keywords: membership, ASEAN charter, timor leste, law of international and regional organization
I. INTRODUCTION South East Asia countries outside the The 1967 Bangkok Conference founding father states to join ASEAN who produced the Declaration of Bangkok, which wish to bind to the aims, principles and led to the establishment of ASEAN in August purposes of ASEAN. 8, 1967. The Declaration itself does not In 2004, Malaysia proposed the idea of specify the rules of admitting new member introducing ASEAN Charter to which was states, as it only says that, —the Association is formally adopted at the Eleventh ASEAN open for participation to all States in the Summit in 2005. ASEAN Charter was South-East Asian Region subscribing to the formally adopted by leaders in November 20, aforementioned aims, principles and 2007 and came into effect in December 15, purposes.“1 Therefore, it does not limit to any
1 ASEAN, —The Asean Declaration (Bangkok http://asean.org/the-asean-declaration-bangkok- Declaration)“, accessed October 4, 2017, < declaration-bangkok-8-august-1967>
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2008.2 This adoption effectively provides the to endure in gaining its independence, it is legal personality of ASEAN as well as still not admitted as a permanent member perfecting its organs and mechanisms for state of ASEAN despite its formal operation. It is conveyed through Article 3 of application for ASEAN membership in ASEAN Charter explicitly that states, 2011.6 Still to this day, the admission of —ASEAN, as an intergovernmental Timor Leste as a member state of ASEAN organization, is hereby conferred legal after six years from its formal application personality“.3 Therefore, ASEAN effectively remains to have no solution despite its strong stipulates its legal power and binding towards urge to become one due to many its member states to ease the operation of implications. This is a stark contrast to the no ASEAN in conducting its functions. time-consuming admission of Cambodia, In comparison to the 1967 Laos, Myanmar, and Vietnam in the late Declaration of Bangkok, ASEAN Charter is 1990s.7 rules-based that specifically provides The case of Timor Leste‘s membership provisions in matters that were not found in admission to ASEAN prevails the issues of the Declaration. One of which is the matter of ASEAN‘s legal framework itself to which membership admission. It is stated in Article may be in conflict with its own advocacy of 6 (2) of ASEAN Charter that the admission determined to transform from an informal shall be based on the following criteria, such organization to a rules-based organization. as: Location in the recognized geographical This causes on-going the accession of Timor region of Southeast Asia; Recognition by all Leste that has no end until today. ASEAN Member States; Agreement to be This article aims to analyze the bound and to abide by the Charter; and admission process of Timor Leste in Ability and willingness to carry out the becoming a member state of ASEAN through obligations of Membership. the eyes of international organizational law in Although ASEAN is a prestige regional regards to the ASEAN Charter and other intergovernmental organization in Southeast ASEAN instruments. In emphasizing the Asia, it still excludes Timor Leste. The issues of ASEAN‘s legal framework above, people of Timor Leste declared its restoration the article follows to summarize the of independence in May 20, 2002, making its membership system of international nation to be world‘s newest nation.4 They organization. Subsequently, it discusses the initially rejected special autonomy from legal framework of ASEAN in regards to Indonesia, which led to its independence.5 membership admission in a lengthy detail With all the struggling that Timor Leste had that distinct the ASEAN Declaration and
2 L. Leviter, ”The ASEAN Charter: ASEAN Failure 5 Ğlker Gökhan ğen, Sovereignty Referendums in or Member Failure?‘ (2010) 43 New York International and Constitutional Law, University Journal of International Law and (Switzerland: Springer International Publishing, Politics 159. 2015), 104. 3 ASEAN, —Asean Charter“, Article 3, accessed 6 Fina Astriana, Muhammad Arif, and Askabea September 4, 2017, Fadhilla, ”Rethinking the Process for Timor-
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ASEAN Charter Era. Additionally, the article ñ Third Protocol Amending the Treaty also discusses the membership admission of Amity and Cooperation in case of CLMV. Afterwards, it provides Southeast Asia. (July 23, 2010). examination of the Timor Leste‘s membership admission. To sum the main III. RESULTS AND DISCUSSIONS points of the article, conclusion and recommendations are provided at the end. Membership of International Organization In practice, membership principles are II. LEGAL MATERIALS AND METHODS grounded upon the purposes and aims of the This research begins with a brief international organization itself.8 Generally, introduction about ASEAN‘s rules on the principles of membership that are adopted membership admission followed by the by international organization mostly are practice of ASEAN with regard to universal principles and selective principle. membership admission and then a discussion International organization whom applies about the effort of Timor Leste to become on universality principle truly dedicate its work eof ASEAN member state. Legal materials to global-concerning matters, whether used in this research include: regarding to its wide and complex range of ñ ASEAN Declaration. (August 8, programs or to its specialized scopes within 1967) the international organization itself.9 In ñ Treaty of Amity and Cooperation in comparison, the selection principle Southeast Asia. (1976) establishes specific requirements concerning ñ Declaration on the Admission of the certain factors for its members to follow in Lao People‘s Democratic Republic order to gain membership. into the Association of Southeast Furthermore, another principle of Asian Nations. (July 23, 1997). membership in international organization is ñ Declaration on the Admission of the the principle of geographical proximity. Union of Myanmar into the International organizations whom adhere to Association of Southeast Asian said principle tend to form regional or sub- Nations. (July 23, 1997) regional organizations in which the members ñ Second Protocol Amending the will be limited to states located within its own Treaty of Amity and Cooperation in territories. An example of international Southeast Asia. (July 25, 1998) organization whom applied this principle is ñ Declaration on the Admission of the ASEAN, a regional organization in Southeast Kingdom of Cambodia into the Asia with 10 members. States outside Association of Southeast Asian Southeast Asia region are not allowed to join, Nations. (April 30, 1999) such as Sri Lanka. This is explicitly declared ñ ASEAN Charter. (November 20, upon Article 6 (2) point a of ASEAN Charter 2007) to which admission of new members shall be based on the criteria of —location in the
8 Sri Setianingsih Suwardi, Pengantar Hukum 9 Sumaryo Suryokusumo, Pengantar Hukum Organisasi Internasional, (Jakarta: Penerbit Organisasi Internasional, (Jakarta: PT Tatanusa, Universitas Indonesia, 2004), 46 2007), 50 76 | Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation recognized geographical region of Southeast theory can be understood that the founders of Asia.“10 international organization have the intention for the formation is underlined with legal ASEAN‘s Legal Framework of personality; therefore, it is valid to be Membership Admission considered into having international legal personality. In this context, this reasoning 1. Legal Personality without doubt can be extended to ASEAN The legal personality of international with respect to the Member States, which is organization can be endowed through many that ASEAN has such legal personality as the modes, whether it is directly from the founding members have endowed it.13 constituent instrument, multilateral agreements, or whether any implication that 2. Transformation from Informal to may arise from such instruments. It is certain Rules-Based Organization that the international legal personality is The transformation of ASEAN from an through the manifestation of the will of the informal organization14 to rules-based founders.11 In the case of ASEAN, the organization has been an on-going discussion international legal personality arises through with the adoption of the ASEAN Charter. the constituent instrument, as it says in Southeast Asian governments intended to do Article 3 in ASEAN Charter that ASEAN —as such transformation with ASEAN Charter an intergovernmental organization, is hereby that established a normative framework for conferred legal personality.“12 Thus, the legal the region through the practice of regional personality of ASEAN is indisputable. cooperation and integration.15 Prior to the However, the legal personality of entry into force of the Charter, ASEAN was ASEAN prior to the establishment of widely known as intergovernmental ASEAN Charter shall be examined further cooperation between the founding Member although this claim does not mean ASEAN States that later expanded to other Southeast lacked international legal personality in the Asian States, namely: Brunei Darussalam, first place. The Reparation of Injuries case Vietnam, Cambodia, Myanmar and Laos. It set out a theory that may be adopted for the is a conscious decision for ASEAN to be question of international legal personality, adopting informal modes of operation in which is known as the will theory. This which is evident from the ASEAN
10 ASEAN, —Asean Charter“, Article 6, accessed 14 Prior to ASEAN Charter 2007, ASEAN was formed November 8, 2017, by a declaration in 1969 and did not expressly the
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Declaration that described ASEAN as an a. ASEAN Declaration (Pre-Charter) —Association for Regional Cooperation“ Era comprising of —the collective will of the Prior to the ASEAN Charter, the only nations of Southeast Asia to bind themselves conditions for gaining membership and together in friendship and cooperation.“16 participating in ASEAN were location in —the The shift to a more rules-based Southeast Asian Region“ and with the organization acquires Member States to capacity to adhere to the —aforementioned oblige themselves to —take all necessary aims, principles and purposes“ according to measures, including the enactment of the ASEAN Declaration.17 Another appropriate domestic legislation, to requirement for joining ASEAN is that effectively implement the provisions of this Member States must ratify the Treaty of Charter, and to comply with all obligations of Amity and Cooperation of Southeast Asia membership,“ which indicates that (TAC).18 The treaty stipulates fundamental compliance becomes an obligation for all principles: mutual respect for the Member States. Furthermore, the Charter to independence, sovereignty, equality, which endows the legality of ASEAN an territorial integrity and national identity of all international organization is essentially nations; the right of every State to lead its impacted by the constitutive and national existence free from interference, authoritative decision of ASEAN‘s subversion or coercion; non-interference in governing institutions. the internal affairs of one another; settlement of differences of disputes by peaceful means; 3. Membership System and Requirements renunciation of the threat or use of force; ASEAN as an intergovernmental effective cooperation among themselves.19 It organization adheres to the principle of is to be understood that acceding TAC selective for its membership system with the conveys subscription to the aims, purpose focus of geographical proximity as its and principles of ASEAN itself, which selection requirement. There are changes of becomes as an inevitable requirement of requirements for one in admitting to be a gaining membership. However, there are no Member State of ASEAN due to the shift of substantive internal requirements set out constituent instrument from ASEAN under the ASEAN Declaration nor the Declaration to ASEAN Charter. Such TAC.20 differences will be elaborated respective to In addition to such aforementioned the two ASEAN eras below. conditions, an observer status may be assigned as a step to be taken for potential candidates of Member States to ASEAN. It
16 ASEAN, —ASEAN Declaration,“ accessed 18 Alison Duxbury, The Participation of States in November 14, 2017,
78 | Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation shall be noted that this is not regulated under It is to be noted that many —informal“ the ASEAN Declaration. However, Rodolfo requisites or political considerations were C. Severino stated that the observer status taken into account. One of the things is to —should be granted only to potential members develop steady and strong state relations with of ASEAN who satisfy the criteria set for the founding Member States of ASEAN. ASEAN membership.“21 This status was Vietnam could have been considered as an granted to CLMV countries during their enmity due to the fact that it adheres to a —candidacy-in-waiting“ period after bidding different political system: communism.26 to join ASEAN. However, it must be noted Despite such disparity, it was believed that that said status does not endow automatic Vietnam‘s entrance to ASEAN would create admission into ASEAN and vice versa.22 a stronger regional cooperation, as it was set out as one of the purposes and aims of CLMV (Cambodia-Laos-Myanmar- ASEAN‘s establishment.27 The most Vietnam) Membership Admission to remarkable step of Vietnam progressing ASEAN towards such formal association was CMLV as Southeast Asian countries acceding the ASEAN Treaty of Amity and joined ASEAN as Member States in the Cooperation in July 1992, which had been period of 1990s to which the ASEAN drafted in 1976 Bali Summit.28 Such instrument that applies to such admission intention was officially notified to was the ASEAN Declaration. The only Philippines.29 It was considered as the requisite for membership under the gesture of Vietnam in accepting ASEAN Declaration was one‘s region to be located concept of regional cooperation in Southeast within Southeast Asia and its adherence to Asia, as the Treaty fully governs the the principles and purposes set out under the principles that ASEAN binds to.30 Therefore, Declaration.23 The enlargement of Member this may be viewed as fulfilling the requisite States of ASEAN is, without a doubt, through of Vietnam adhering to the —aforementioned consensus by the current Member States.24 aims, principles and purposes“ according to Vietnam joined ASEAN in July 1995, Laos and Myanmar in July 1997, and Cambodia in April 1999.25
21 Rodolfo C. Severino, Southeast Asia in Search of an 25 Pou Sovachana, —The Challenges of the CLMV ASEAN Community: Insights from the Former Countries and the Role of Development Partner,“ ASEAN Secretary-General, 77 (ASEAN Center), 25 26 22 Moe Thuzar, —What does it Take to Join ASEAN?“ Dr. Frank Frost, —Vietnam‘s Membership to ISEAS-YUSOF ISHAK Institute Analyse Current ASEAN: Issues and Implications,“ Current Issues Events No. 36, (Singapore: ISEAS-YUSOF Brief No. 3, (Australia: Parliamentary Research ISHAK Institute, 2017): 6, Service, 1995): 3,
Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå| 79 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation the ASEAN Declaration.31 It was also through its formal application in 1994.37 It is acknowledged that such accession of the not stated specifically anywhere in what kind Treaty was viewed as Vietnam‘s step into of formal application is being referred to becoming a Member State of ASEAN, which here. Considering other international was clarified by the Deputy Foreign Minister organizations, the formal application here Vu Khoan that said, —Vietnam wishes to refers to the statement conveying one‘s wish become an ASEAN Member. Following the to join said international organizations. accession to the Bali Treaty, Vietnam hopes The process of accepting the to take part in the annual ASEAN AMM application and the membership gain itself […]“32 was very short, considered that by July 28, The following year after Vietnam has 1995, Vietnam officially became a Member signed the Treaty, which comprises of State of ASEAN. This denotes through ASEAN fundamental principles, it gained its Declaration on the Admission of the Socialist observer status in ASEAN in 1993.33 As it Republic of Vietnam into the Association of has been discussed previously, the status of Southeast Asian Nations with certain regards Special Observer is governed under Article and considerations upon several aspects. The 44 to which is considered as status of external first aspect is obviously in which ASEAN is parties.34 It is to be noted that such status open for all States within the region of given to Vietnam is perceived as another Southeast Asia highlighting the aims, phase in order to gain full membership of principles and purposes of ASEAN itself.38 It ASEAN, regardless it is not mentioned in any is inevitable that Vietnam is within Southeast of the ASEAN instruments. However, Asia, bordering with Laos, Thailand, and observer status is commonly known as a Cambodia. The second aspect is Vietnam‘s starting point in gaining full membership, accession to the Treaty of Amity and with partial rights. Ordinarily observers Cooperation in Southeast Asia, which has cannot vote, however, allows to be been explained beforehand. Not only this participating in discussion.35 In the case of Treaty, Vietnam also agreed to: ASEAN, observers States —may be invited to Subscribe or accede, as the case may meetings or cooperative activities.“36 be, to all ASEAN‘s Declarations, However, such regulation did not exist prior Treaties and Agreements, including all the establishment of ASEAN Charter in ASEAN‘s Agreements with Dialogue which was unclear. Eventually, Vietnam Partners, Sectoral Dialogue Partners showed its determination of joining ASEAN and Consultative Partners, the
31 Rodolfo C. Severino, Southeast Asia in Search of an Partner, Sectoral Dialogue Partner, Development ASEAN Community: Insights from the Former Partner, Special Observer, Guest, or other status ASEAN Secretary-General, 50 that may be established henceforth; 2. External 32 Stephanie Balme and Mark Sidel, Vietnam‘s New parties may be invited to ASEAN meetings or Order: International Perspectives on the State and cooperative activities without being conferred any Reform in Vietnam, (New York: Palgrave formal status, in accordance with the rules of Macmillan, 2007), 54 procedure,“ (Article 44, ASEAN Charter) 35 33 Dr. Frank Frost, —Vietnam‘s Membership to Jan Klabbers, An Introduction to International ASEAN: Issues and Implications,“ 3 Institutional Law, (New York: Cambridge 34 The actual formulation of Article 44 is: —1. In University Press, 2002), 113 36 conducting ASEAN‘s external relations, the Article 44, ASEAN Charter 37 ASEAN Foreign Ministers Meeting may confer on Dr. Frank Frost, —Vietnam‘s Membership to an external party the formal status of Dialogue ASEAN: Issues and Implications,“ 5. 38 ASEAN Declaration 80 | Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation
Framework Agreement on Enhancing urgent study for membership requirements to ASEAN Economic Cooperation and the join ASEAN. All of these steps also Agreement on the Common Effective performed in assessing Cambodia‘s Preferential Tariff Scheme for the membership application. During this time, ASEAN Free Trade Area.39 Myanmar officially gained an Observer status underlying its application dated July Henceforth, it displays the fulfillment 22, 1995.44 Thus, the ASC Working Group of Vietnam in integrating ASEAN‘s aims, extended its mandate for Myanmar‘s purposes and principles by agreeing to accept membership admission as well. Eventually, said regulations to be enforced in the scope Laos and Myanmar gained their membership of its domestic legislations. This ensures the in 1997 and Cambodia in 1999. condition of membership that Vietnam must Laos‘ admission to ASEAN was oblige to, which consequently under the marked with the Declaration on the ASEAN Declaration, Vietnam is accepted as Admission of the Lao People‘s Democratic the seventh Member state of ASEAN.40 Republic into the Association of Southeast Subsequently, Laos and Myanmar also Asian Nations. The content of the gained membership in 1997.41 Laos, similar Declaration is similar to the ones that have to Vietnam, gained the Special Observer been set out in Vietnam‘s Declaration, status during the 25th AMM In Manila in July however, there was one additional 1992, as its application was approved. After consideration that shall be pointed out as a attending the AMM as an Observer for three requirement for Laos to become a Member consecutive years, Laos eventually applies State of ASEAN. The consideration is to be for membership through a letter of said that: application dated March 15, 1996, which was Noting further that the Lao People‘s also announced by its Foreign Minister at the Democratic Republic will, from the 28th AMM in Bandar Seri Begawan.42 date of its membership in ASEAN, Cambodia followed this step, also applied for extend on a reciprocal basis Most membership in March 23, 1996.43 Reviewing Favoured Nation Treatment to ASEAN the applications of both candidates, the Member States; National Treatment ASEAN Security Committee (ASC) formed on products of the territory of any a Working Group on the Membership of ASEAN Member State imported into Cambodia and Laos in assessing all issues in the territory of the Lao People‘s regards to the preparations. This was in Democratic Republic vis-à-vis like response to the invitation from the Lao products of national origin in respect Foreign Minister to which the ASC of all laws, regulations and established a fact-finding team to conduct an requirements (including sales tax,
39 ASEAN, —Declaration on the Admission of the 40 Ibid Socialist Republic of Vietnam into the Association 41 Thuzar, —What does it Take to Join ASEAN?“ 2 of Southeast Asian Nations,“ accessed December 42 Amitav Acharya, Constructing a Security 12, 2017, < http://arc- Community in Southeast Asia: ASEAN and the agreement.asean.org/file/doc/2015/01/declaration Problem of Regional Order, (London: Routledge, -on-the-admission-of-the-socialist-republic-of- 2001) vietnam-into-the-association-of-southeast-asian- 43 Ibid. nations.pdf> 44 Ibid
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exchange rate determination and Declaration as well as Cambodia‘s foreign exchange control) affecting Declaration.47 their internal sale, offering for sale, The reason to which Cambodia was purchase, transportation, distribution admitted later although it was initially agreed or use; and ensure transparency in its to be admitted in 1997, due to political trade regime on goods and services by consideration. The Cambodian Premier Hun keeping ASEAN Member States Sen at the time ousted his co-premier Prince informed of all its laws, regulations Norodom Ranariddh in July 1995 coup; thus, and requirements and subsequent the invitation to be admitted into ASEAN changes thereto which affect its trade was withdrawn, as political stability became in goods and services with ASEAN a condition that shall be fulfilled for bidding Member States […]45 membership.48 This is due to the consensus that was not achieved with objection from This shows that the acceptance of one Singapore, which it acquired Cambodia to to be transparent in conducting its trade authorize a constitutional amendment for a regime for the purpose of economic new upper house or senate.49 However, after cooperation is also another requisite that shall contemplating, all Member States of ASEAN be fulfilled by a SEA country to become a agreed to admit Cambodia as the tenth Member State of ASEAN. It is unclear that Member State.50 Evidently, one‘s political why such consideration is not listed in the condition is also another factor to be taken Vietnam‘s Declaration. It may likely due to into account for gaining full membership of the disparity economic condition of Vietnam ASEAN, as it is clearly depicted in the case and Laos. However, it is to be noted, based of Cambodia‘s admission. Although it is not upon Laos‘ Declaration, that economic governed anywhere under the ASEAN condition, especially in trade sector, is to be instruments due to the principle of non- acquired as a Member State in order to interference that ASEAN adheres to; thus, it —strengthen[ing] the economic and social is considered to be rather controversial if stability of the [Southeast Asian] region,“ as there is a regulation indicating such. set out in the ASEAN Declaration.46 Such After examining the case of accession consideration is also evident in Myanmar‘s of CLMV to ASEAN, it is to be concluded
45 ASEAN, —Declaration on the Admission of the Lao content/uploads/formidable/18/1999-Declaration- People‘s Democratic Republic into the on-the-Admission-of-the-Kingdom-of-Cambodia- Association of Southeast Asian Nations,“ accessed into-ASEAN.pdf > December 12, 2017, < http://arc- 48 CNN, —ASEAN Nations Disagree on Admitting agreement.asean.org/file/doc/2015/01/declaration Cambodia,“ CNN (CNN, 1998), accessed -on-the-admission-of-the-lao-people-s- December 12, 2017, < democratic-republic-into-the-asean.pdf> http://edition.cnn.com/WORLD/asiapcf/9812/15/ 46 ASEAN Declaration asean.03/index.html> 47 ASEAN, —Declaration on the Admission of the 49 Ibid Union of Myanmar into the Association of 50 Agence France-Presse, —Asian Group Says It Will Southeast Asian Nations“ and —Declaration on the Admit Cambodia, Despite Instability,“ New York Admission of the Kingdom of Cambodia into the Times (New York: New York Times, 1998), Association of Southeast Asian Nations,“ accessed accessed December 12, 2017 < December 12, 2017, < http://arc- http://www.nytimes.com/1998/12/17/world/asian- agreement.asean.org/file/doc/2015/01/declaration group-says-it-will-admit-cambodia-despite- -on-the-admission-of-the-union-of-myanmar-into- instability.html> asean.pdf > and < https://cil.nus.edu.sg/wp- 82 | Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation that the requirements of membership the ASEAN Charter to what constitutes as admission is not only restricted to what has one‘s recognition. However, it is believed been regulated under the ASEAN that recognition is in the context of Declaration, which is the regional aspect and acknowledgement of one holding a status as the integration of aims, principles and a State or also understood as recognition of purposes. Political and economic factors are statehood. The application of recognition of also highly considered to ensure the statehood under the ASEAN Charter depicts longevity of ASEAN itself, though it may the constitutive theory of said recognition in vary to one country to another. which —a State is, and becomes an International Person through the recognition b. ASEAN Charter Era only and exclusively.“52 Therefore, in brief, The previously mentioned conditions all Member States must recognize one to be still apply under the ASEAN Charter, in the condition of possessing statehood for however, with certain additional this requirement to be realized. requirements, as stated in Article 6 (2) of The third condition stipulated as shown ASEAN Charter in the concern of admission above is in regards to the agreement to of new members. The Article specifically declare one‘s consent in binding and abiding regulates the criteria for admission, which are itself to the ASEAN Charter. Previously, namely: such condition did not exist, as there has not (a) Location in the recognized been any countries joined ASEAN in the era geographical region of Southeast of ASEAN Charter. Therefore, the Asia; instruments that one must abide to were (b) Recognition by all ASEAN Member ASEAN Declaration and TAC as it governs States; the aims, purposes, and principles of (c) Agreement to be bound and to abide ASEAN. This also occurred during Vietnam by the Charter; and in gaining membership in ASEAN that in (d) Ability and willingness to carry out 1992, Vietnam signed the TAC.53 the obligations of Membership.51 Another condition that is set out in this Location, as one of the requirements, Article is the capacity of one to carry out irrefutably demonstrates the selective obligations of being a Member State of principle that ASEAN follows, which ASEAN. The obligations of Member States conveys that ASEAN is a regional are stipulated in Article 5 that includes all organization. Therefore, all current Member Member States to have equal rights and States have, without doubt, fulfilled this obligations and enacting appropriate condition. Furthermore, Member States must domestic legislation to in implementing acknowledge one in order to gain provisions within the ASEAN Charter.54 For membership in ASEAN. It is not stated under instance, the Member States have the right to
51 Article 6 (2), ASEAN Charter 53 Dr. Frank Frost, —Vietnam‘s Membership to 52 James Crawford, —The Criteria for Statehood in ASEAN: Issues and Implications,“ 3, International Law,“ British Yearbook of
Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå| 83 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation immunities and privileges for its Permanent the recommendation of the ASEAN Representatives and Officials under ASEAN Coordinating Council.58 duties. However, the immunities and privileges shall be further governed under 4. Decision-Making Process of ASEAN national law of the ASEAN Member State ASEAN regulates and contained its concerned.55 In carrying out the obligations, decision-making process within the Charter there are various conducts that should be to which is clearly stated in Article 20 that, performed by the Member States. One of the —As a basic principle, decision-making in obligations is to comply to all —findings, ASEAN shall be based on consultation and recommendations or decisions resulting from consensus.“59 Such principle has been an ASEAN dispute settlement mechanism“ derived by the Indonesian-Malay practice in the case of there is a dispute occurred known as musyawarah and mufakat.60 The among Member States.56 This obligation consensus-based decision-making in illustrates that compliance is a key ASEAN does not necessarily imply component under the ASEAN Charter, which unanimity or it involves voting since there is is an effort in transforming ASEAN from an no requirement of explicit agreement to be informal institution to a rules-based said towards any proposal. In other words, a organization. unanimous agreement is not acquired, as long Aside from aforementioned as no Member State openly voices an obligations, ASEAN now also applies a more objection. Yet, there is a requirement for —institutional assessment process“ in endorsing proposal with certain number of undertaking one to be a Member State. The supports for adoption even though there is no institutional assessment process essentially specific number mentioned in neither involves a senior-official level-working ASEAN documents nor instruments.61 Such group that evaluates one‘s national capacities mechanism also facilitates Member States to by examining its political, economic and veto any proposal with the consideration that socio-cultural implications.57 Such it might jeopardize the national interests of assessment is performed upon Timor Leste‘s said Member State. This is because the application for admission in which will be decision will only be binding if the Member discussed in depth in the next chapter. It is State agrees to sign and ratify. Therefore, further governed under Article 6 (3) of the there is no pressure to comply and ASEAN Charter that the admission of new implement.62 Essentially, this tool allows members to ASEAN will be decided by Member State agree to disagree with the consensus within the ASEAN Summit upon underlying ground of maintaining solidarity.
Member States shall take all necessary measures, 59 Article 20, ASEAN Charter including the enactment of appropriate domestic 60 Kim, —The changing role of dialogue in the legislation, to effectively implement the provisions international relations of Southeast Asia.“ of this Charter and to comply with all obligations 61 Atena S. Feraru, ”ASEAN Decision-Making of Membership. 3. In the case of a serious breach Process: Before and After the ASEAN Charter,‘ of the Charter or non-compliance, the matter shall (2015) 4 1 Asian Development Policy Review 29 be referred to Article 20,“ (ASEAN Charter) 62 T. Kawasaki, ”Neither Skepticism nor 55 Article 19, ASEAN Charter. Romanticism: the ASEAN Regional Forum as a Solution for the Asia-Pacific Assurance Game,‘ 56 Article 27, ASEAN Charter (2006) 19 2 The Pacific Review 223 57 Ibid 58 Article 6, ASEAN Charter 84 | Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation
This conveys the —flexible consensus“ that Committee. The Standing Committee clearly ASEAN employs that mostly applies to would deliver the specific issues into their economic decisions or sensitive political own respective ministers with the hope issues, which becomes a polemic debate that bringing contribution in the AMM. ASEAN still institutes as an informal organization. b. Decision-Making Scheme in ASEAN Charter Era a. Decision-Making Scheme in ASEAN In comparison to the scheme illustrated Declaration (Pre-Charter) Era previously in regards to the scheme of Prior to ASEAN Charter, there were no decision-making in the Pre-Charter era, the documents indicating a machinery as such to shift of ASEAN in adopting the ASEAN conclude a decision. However, a forum of Charter consequently resulted in the change discussions among the five Southeast Asian of character of the decision-making process foreign ministers was convened. This was itself. It enforces the governmental character also known as the Annual Meeting of Foreign of decision-making, which translates that Ministers (—AMM“), yet the powers and focuses upon the prevailing codified regional functions of the AMM were not further values as well as incorporated principles and elaborated. In making the decisions, ideas into ASEAN agreements.64 ASEAN‘s cooperation between an ad-hoc and today‘s decision-making converge upon five Permanent Committees, Standing organs, namely: ASEAN Summit, ASEAN Committee, and Annual Meeting of Foreign Coordinating Council (ACC), ASEAN Ministers were significant. AMM was Community Councils, ASEAN Sectoral similar to today‘s ASEAN Summit, which Ministerial Bodies, and the Committee of basically comprised of leaders of the Member Permanent Representatives to ASEAN States discussing certain matters. (CPR). The functions of these five organs Meanwhile, a Standing Committee was have been discussed previously. These chaired by the foreign minister of the host organs essentially collaborated of country that consisted of the ambassadors of intergovernmental consultations to reach the the Member states in the hosting country.63 aim of seeking consensus. It is to be noted The next important organ prior the ASEAN that the Summit is still the organ with the Charter in the process of decision-making authority to —provide policy guidance and was the ad-hoc and Permanent Committees to take decisions“ under the Charter.65 which comprised of experts and government However, the other four organs have the task officials reviewing certain matters. to coordinate and supervise the Therefore, ad-hoc and Permanent implementation of the Summit‘s decisions by Committees would be the front-runner organ intergovernmental meetings under their that reviewed many aspects of specific issues purview with reporting back to the Summit.66 in which would be addressed to the Standing Furthermore, it is to be emphasized that the
63 Atena S. Feraru, —ASEAN Decision-Making 65 Article 7 (a), ASEAN Charter Process: Before and After the ASEAN Charter,“ 66 Atena S. Feraru, —ASEAN Decision-Making 30 Process: Before and After the ASEAN Charter,“ 64 T. Koh, R. Gonzales Manolo and W. Woon, The 32 Making of the ASEAN Charter, (Singapore: World Scientific Publishing Co. Pte. Ltd, 2009)
Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå| 85 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation nature of the relationship between the organs is subordination in the process of decision- Analysis of Timor Leste‘s On-going making, as the organs under the Summit have Membership Admission to ASEAN the obligation to report back to their leaders. 1. History of State Formation Even, for the supervision of implementation Independent sovereignty is a struggled goes to the extent of requesting the Secretary- achievement for Timor Leste, with after a General of ASEAN to —monitor“ long period of time through colonization era implementation of agreements by Member of Portuguese and Indonesia‘s occupation. States and to report to the Summit annually.67 Timor Leste declared independence from Notice, the Charter states, —when Portugal on November 28, 1975, however, it consensus cannot be achieved, the ASEAN was effectively occupied by Indonesia Summit may decide how a specific decision hereafter. The occupation of Indonesia was can be made.“68 This is, by many, considered motivated by the political aspect to ensure as a step backward by ASEAN as, there is a that Timor Leste, after decolonized by the lack of clear reference to the mechanism of Portuguese, would not follow the concept of concluding such a decision, either by communism as its political system, similar to majority vote or other formulas.69 Therefore, Vietnam at the time. Such motivation this negates the aim and purpose of ASEAN declared by Indonesia‘s President Soeharto Charter in the first place in providing clear was supported by the United States of procedure of decision-making process. America, as The Revolutionary Front for an Within ASEAN, one‘s admission Independent East Timor (Fretilin) was membership will be decided through the perceived as a —Communist wing.“71 mechanism of consultation and consensus as However, to hide such motivation in its decision-making tool. It is governed under avoiding any controversies, President Article 6 (3) of ASEAN Charter that: Suharto declared on July 8, 1975, that there —Admission shall be decided by the was a lack of economic basis for viable consensus by the ASEAN Summit, upon the independence of Timor Leste.72 recommendation of the ASEAN Timor Leste was integrated as a region Coordinating Council.“70 As has been of the Republic of Indonesia based upon the explained previously, consensus is, in Balibo Declaration, signed in November 30, reference to Article 20 of the ASEAN 1975.73 This was a resistance to the unilateral Charter, the decision-making tool of declaration of Timor Leste‘s independence ASEAN. Therefore, in the process of made by the Freitilin although the admitting a new Member State, the scheme international community did not of decision-making that has been explained acknowledge such declaration.74 In previously. exercising said ”integration‘, Indonesian
67 Ibid, 33 https://gsp.yale.edu/sites/default/files/03- 68 Article 20, ASEAN Charter 263_ch_09.pdf> 69 ASEAN Studies Centre, The ASEAN Community: 72 Ibid, 204 Unblocking the Roadblocks, (Institute of Southeast 73 Hendro Subroto, Saksi Mata Perjuangan Integrasi Asian Studies, 2008), 88 TimorTimur, (Jakarta: Pustaka Sinar Harapan, 70 Article 6, ASEAN Charter. 1996), 113 71 Ben Kiernan, —War, Genocide, and Resistance in 74 Robert Dubler SC, —The International Law Aspects East Timor, 1975-99: Comparative Reflections on of the Case of the Balibo Five,“ Melbourne Cambodia,“ (2003): 200 and 204, < Journal of International Law 11 (2010): 9, 86 | Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation armed forces arrived and invaded the a. Involvement in AMM and ASEAN territory of Timor Leste on December 7, 1975 Summit as a Guest that led to a full-scale war raged until 1980.75 After ASEAN settling with the Said integration by the government of accession of Cambodia in 1999 as its tenth Indonesia was a de facto legitimation to Member State, the rebirth of a new nation in which was also noted in Indonesian national Southeast Asia was rather unexpected, which legislation in Law No. 7 Year 1976, which presented the issue of another membership integrated Timor Leste as the 27th province of decision. The pursuit of membership by Indonesia.76 As a contrast, from the de jure Timor Leste is visible through the speech perspective, there was no authority for delivered by President Ramos-Horta in 2000, Indonesia to perform said integration upon accepting its Nobel Prize award, announcing Timor Leste, as Timor Leste was included in that, —We are conscious of our geography, the United Nations Agenda. which compels us to coexist with our In addition, the UN Resolution 1246 in neighbors in that part of the world. We will 1999 by the UN Security Council had seek membership in ASEAN and APEC.“80 decided to form UN Mission in East Timor ASEAN did not respond to such claim until (UNAMET) to hold a referendum. The 2002, which ASEAN informed Timor Leste referendum was eventually held in August of a continuous discussion upon Timor 30, 1999, with the result of rejecting the Leste‘s obtainment of an observer status and special autonomy from Indonesia by 79% of accession to the Treaty of Amity and Timorese wished for independence.77 The Cooperation (TAC). result ultimately led Timor Leste to its Consequently, the involvement of independence.78 Timor Leste, eventually Timor Leste began at this point of time, as it attained its full statehood, and commemorate was invited to attend the Annual Ministerial May 20, 2002 as its Restoration of Meeting (AMM) in July 2002 by Brunei Independence day to which it is viewed its Foreign Minister, Prince Mohamed Bolkiah, true independence was ”taken‘ away by the on behalf of ASEAN Standing Committee. Indonesian government.79 From that point, Timor Leste has been invited to AMM, In the Joint Communiqué of the 2. Timor Leste and ASEAN 38th AMM in Vientiane, Timor Leste was addressed as a Guest to the Chairman of the Standing Committee, as conveyed above. Such status was maintained by Timor Leste
accessed September 4, 2017, (Switzerland: Springer International Publishing,
Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå| 87 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation until the Joint Communiqué of the 40th AMM AMM as a guest. However, eventually, in Manila. With the shift of ASEAN ASEAN agreed to invite Timor Leste as the Declaration to ASEAN Charter, AMM was 25th participating country in ARF by July altered to ASEAN Summit. Such alteration 2005 with the belief that such participation did not affect any status of Timor Leste would contribute to the enhancement of gained in ASEAN. Until today, Timor Leste political and security dialogue as well as is still considered as a Guest, as it was cooperation within the region.84 After joining addressed in 31st ASEAN Summit by 2017.81 the forum since 2005, Timor Leste took its Therefore, this is a contrast to the CLMV turn in hosting the 5th Meeting of the ASEAN countries in which they were accorded Regional Forum Experts and Eminent observer status during their —candidancy-in- Persons from January 27 to 28, 2011. waiting,“ meanwhile, Timor Leste has not This truly marks the hard-won only the status of a Guest in attending open achievement of Timor Leste in grabbing the sessions of AMM and ASEAN Summits.82 attention of the international community, especially ASEAN, to show its determination b. Participant Country of ASEAN of showcasing its capability as a sovereign Regional Forum state. Additionally, it also improves the Timor Leste placed its position to move relationship that Timor Leste has with forward in intensifying its relationship with ASEAN, with the main goal of accession into ASEAN, to gain endorsement of full the Association. It is to be noted; nonetheless, membership in the Association. Therefore, that membership of ARF does not prelude Timor Leste embarked upon a campaign for ASEAN membership, as there are no such purpose. The first step that it was prevailing ASEAN instruments containing determine to take was the possibility of such suggestion. becoming a participating country in the ASEAN Regional Forum (ARF).83 At the c. Non-regional Signatory of the Treaty of AMM in Phnom Penh in June 2003, the Amity and Cooperation in Southeast expectation of Timor Leste of being Asia accepted, as a participant in the ARF was not Another milestone step that Timor fulfilled, instead Pakistan was accepted as the Leste conducted in improving its relationship 24th participant in ARF to which had been with ASEAN is the signing of the TAC. TAC requesting as such for years. Timor Leste is fundamental treaty that sets out principles represented by Ramos-Horta attended the in which ASEAN adheres to; thus, the
81 Rosemarie A. Zamora, —Gov‘t bares preparations with the aim to foster constructive dialogue and for 31st ASEAN Summit,“ BusinessWorld, consultation on political and security issues of (Business World Publishing: October 25, 2017) < common interest and concern; and to make http://bworldonline.com/govt-bares-preparations- significant contributions to efforts towards 31st-asean-summit/ > confidence-building and preventive diplomacy in 82 Moe Thuzar, —What does it Take to Join ASEAN?“ the Asia-Pacific region (ASEAN, —ASEAN ISEAS-YUSOF ISHAK Institute Analyse Current Regional Forum (ARF), ASEAN, accessed in Events No. 36, (Singapore: ISEAS-YUSOF December 17, 2017, < http://asean.org/asean- ISHAK Institute, 2017): 6, political-security-community/asean-regional-
85 Severino, Southeast Asia in Search of an ASEAN 88 Lex Rieffel, Myanmar/Burma: Inside Challenges, Community: Insights from the Former ASEAN Outside Interests, (Washington, D.C.: Brookings Secretary-General, 77 Institution Press, 2010), 163 89 86 ASEAN, —Second Protocol Amending the Treaty of ASEAN, —Third Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia,“ Amity and Cooperation in Southeast Asia,“ ASEAN, accessed in December 17, 2017, < ASEAN, accessed in December 17, 2017, http://agreement.asean.org/media/download/2014
Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå| 89 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation
the most-eastern part of the Lesser Sunda 3. Membership Application of Timor Islands.90 It is bordered with Australia and Leste based upon ASEAN Charter Indonesia to which it occupies an area of a. Location in the Recognized 14,874 km2. It is inevitable that Timor Leste Geographical Region of Southeast Asia lies upon the region of Southeast Asia, which The Democratic Republic of Timor indefinitely fulfills the first requisite of Leste was previously called as East Timor, is joining ASEAN under the Charter. Figure 1 a country located in Southeast Asia. The below displays the location of Timor Leste in island of Timor is part of the Maritime the region of Southeast Asia: Southeast Asia and is the largest as well as
Figure 1: Map of Timor Leste (source: www.theasian.asia) b. Recognition by all ASEAN Member ASEAN meetings, such as AMM and States ASEAN Summit.91 Such gesture may be In the context of ASEAN‘s legal acknowledged as Timor Leste having the framework, it is not explicitly stated to which capacity to enter into relations with ASEAN is considered as recognition. However, it may as a platform comprising of sovereign come into conclusion that the applied theory Member States. Therefore, the criterion of in the concept of recognition under the —recognition by all ASEAN Member States“ ASEAN Charter is the constitutive theory, as has been met. it acquires acknowledgment of the ASEAN Member States towards the statehood of c. Agreement to be Bound and to be Abide Timor Leste. This can be seen through the by the Charter capacity of ASEAN, all Member states There have not been any agreed to invite Timor Leste as Guest in comprehensive rules of procedures in
90 Embassy of the Democratic Republic of Timor-
92 ASEAN Charter, Article 47 Affairs of Republic of Indonesia, —Joint 93 Ibid, Article 5 Preparatory Meeting for the Preparations of the 94 Woon, The ASEAN Charter: A Commentary, 83 20th ASEAN Summit in Phonm Penh, Cambodia, 95 Ibid 5 March 2012,“ accessed in December 17, 2017) < 96 The Joint Meeting essentially was preparations of https://www.kemlu.go.id/en/berita/siaran- ASEAN Coordinating Council for the upcoming pers/Pages/Joint-Preparatory-Meeting-for-the- ASEAN Summit; thus, it consists of many sub- Preparations-of-the-20th-ASEAN-Summit-in- organs of ASEAN itself. (Ministry of Foreign Phnom-Penh-Cambodia-5-Mar.aspx>
Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå| 91 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation independent studies is unclear, at least to country in which shall be informed the lack public. of capacity it may have to improve. The Following such emergence of working reports are still confidential that supposedly group, a study was commenced by Prof. Dr. will be disclosed to Timor Leste at the time Richard Pomfret from the University of ACCWG will visit Timor Leste personally. Adelaide, Australia in early 2013 to conduct Also, the meetings of ACCWG on Timor a research in assessing the economic Leste‘s Membership Application never implications of acceding Timor Leste into involved officials of Timor Leste.101 The ASEAN. The study was funded from the Asia confidentiality nature of the results of the Development Bank.97 A study on political studies is also reaffirmed by ASEAN and security implications was also Secretariat staffs, which cannot be disclosed implemented by joining the Singapore-based to public, even Timor Leste.102Such lack of Institute of Southeast Asian Studies (ISEAS) transparency in the work of independent and the S. Rajaratnam School of International studies commissioned by the ACCWG is the Studies (RSIS) in early 2015.98 Moreover, a issue of legal framework that ASEAN faces. study upon the socio-cultural implications Nonetheless, Timor Leste has taken was also performed by Malaysia‘s Institute of initiatives to prepare for its accession into Strategic and International Studies.99 As it is ASEAN, particularly in the economic aspect. shown, the studies conducted upon Timor Asian Development Bank, which funded the Leste under the mandate of ACCWG are ACCGW-commissioned study upon Timor respectively to three pillars of ASEAN. Leste as an assessment of membership Underlining this, the studies conducted upon application, has provided technical assistance Timor Leste to assess its capacity in joining (TA) for the preparation of regional ASEAN were independently commissioned economic integration since 2013 and is on- by ACCWG, meaning that the researchers going. The TA essentially works in aligning were experts outside ASEAN-related. This Timor Leste‘s current legal frameworks with may bring unbiased opinion. However, there the requirements under the ASEAN are no publications available in depicting the Community Blueprints and ASEAN legal results of said studies, perhaps due to the instruments.103 It is targeted that the intellectual property rights of the document proportion of binding ASEAN legal from the studies belong to ASEAN.100 agreements that Timor Leste should be in Moreover, Timor Leste apparently has never compliance with should increase to 50% by received as well the final reports conducted June 2018, which by 2015, there has been by those studies, despite it is the applicant only 1.6%.104 Such low rate of compliance
97 Termsak Chalermpalanupap, —Timor Leste‘s Quest the Democratic Republic of Timor Leste in to Join ASEAN: The Process and the Pace,“ December 22, 2017 at 16.00 WIB ASEAN Focus 1, (2015): 9, 102 The results of the e-mail by the Author to the
105 —ASEAN and History of Cambodia‘s Membership
Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå| 93 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation admitting Timor Leste, it is evident that there It is indicated that —the elements and are no substantive requirements set out under procedures outlined by ASEAN Member the ASEAN Charter. This becomes a huge States“ in regards to the application of Timor issue in stipulating to what constitutes as Leste. Therefore, perhaps, this causes the ”ability‘ of one to become a Member State, as strict confidentiality of the procedures, as each Member State shall have its own there may have political drive underlying definition or understanding. Such lack of such policy. This, without a doubt, causes the substantive requirements become the legal framework of ASEAN to become not obstacle for ASEAN Charter in becoming transparent and efficient. more of a rules-based organization œ under the ASEAN Charter œ due to vagueness of 4. Consensus Towards Timor Leste‘s what is considered as being able to carry out Membership Application obligations of ASEAN membership. Although, the requisites of Furthermore, the function of ACCWG is also membership application has been described undetermined to which only drafts under the ASEAN Charter, the role of recommendations to ASEAN Summit upon political consideration is inevitable to be the independent studies that are performed to weighed in upon the case of one‘s accession the candidate countries, such as Timor Leste, into ASEAN. This goes to Timor Leste as or whether it is to set out the parameter that well to which affect the consensus in shall be met by Timor Leste in order to gain admitting the new member. In this context, membership. This is due to the unclear consensus is unable to be achieved due to regulations or legal framework that stipulate objections of several Member States the functions and mandate of ACCWG in expressing concerns for the capacity of which is inaccessible to public. However, the Timor Leste in carrying out obligations of application of Timor Leste is still being membership. Singapore has been the most further assessed, as stated by ASEAN reluctant to endorse Timor Leste‘s admission Secretariat staff: with the basis of economic reasoning to The study on Timor-Leste‘s application which it views Timor Leste as having the for ASEAN membership is ongoing. possibility to burden ASEAN. However, it is The members of ACC Working Group to be noted that the economic condition of (ACCWG) met and discussed on this Timor Leste does not have very much matter in early of December this year. disparities in comparison with CLMV ASEAN Sectoral Bodies and Organs countries, particularly Cambodia. For continue exploring relevant capacity- instance, the GDP rate of Timor Leste, by building activities for Timor-Leste‘s 2014, was higher than Cambodia, which participation, in accordance with the indicates the financial ability that Timor elements and procedures outlined by Leste has, can be considered as more or equal ASEAN Member States.108 to ASEAN Member State.109 This is conveyed by Figure 2 below, yet it is to be
108 The results of the e-mail by the Author to the country‘s economy in which representing the total ASEAN Secretariat staffs in the Political and dollar value of all goods and services produced Security Directorate in December 22, 2017. over a specific time period (—What is GDP and 109 GDP, an abbreviation of Gross Domestic Product, why is it so important to economists and is a primary indicator to illustrate the health of a investors?“ Investopedia (2017)) 94 | Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation noted GDP is not the only indicator of one‘s economy:
Figure 2: GDP Rate of Timor Leste v. Cambodia (source: World Bank)
It may be deemed as illogical for it. Therefore, independent studies under the Singapore to claim such opinion towards mandate of ACCWG on Timor Leste‘s Timor Leste for the reason of not admitting Membership Application are conducted, as
Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå| 95 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation there are Member States needed convincing the establishment of ASEAN Charter that Timor Leste is able and willing to carry influences its membership system. out the obligations of membership, which Nonetheless, it is still to be noted that the includes regional economic integration. principles of ASEAN remain the same with However, despite rejections, there are other enhancement on the aspects of political- ASEAN Member states that deliver their security, economic, and socio-cultural, as it strong support for Timor Leste‘s accession states in Article 2 (2) of the ASEAN into ASEAN, especially Indonesia. Timor Charter.111 The case of membership Leste‘s formal application that was submitted application by CLMV countries as well as during Indonesia‘s chairmanship in 2011 is Timor Leste truly signifies the changes that viewed as no coincidence. This depicts the the membership system of ASEAN. During political strategy that Timor Leste attempts to the era of the ASEAN Declaration, as the make in order to gain support hoping that constituent instrument, the membership consequently leads to consensus of ASEAN system was informal to which the conditions Member States, as it acquires for all Member of membership only acquired two factors, States agree or at least no objection is namely: geographical location and forwarded. subscription to aims, purposes and As for the consensus-making in principles.112 Evidently, the ASEAN Charter admitting Timor Leste as the eleventh prescribes additional requirements, such as Member State, it has not been conducted one‘s capacity in carrying out obligations of properly due to the view that Timor Leste membership. Said condition becomes a huge must meet certain requisites to ensure its obstacle for a Southeast Asian country to capacity in conducting the obligations of enter into ASEAN, as illustrated by the case membership. This is because the ACCWG on of Timor Leste. However, this causes Timor Leste‘s Membership Application still ASEAN to be more structural with its rules- prevails, meaning that the recommendations based transformation. that the ASEAN Coordinating Council must The comprehensive requisites that are draft has not been completed yet, as applied for Timor Leste‘s application, independent studies needed to be analyzed, regarding to the studies and the strategic presumably.110 Thus, the consensus towards development in order to gain full Timor Leste‘s admission to ASEAN is the membership in ASEAN, almost mirror the final step that must be taken to decide membership requirements of European whether it shall be done or not. Union. The European Union acquires the negotiation process in which essentially 5. The Influence of ASEAN‘s Membership comprises of negotiations between the System for its Development Member States and the candidate country to The transformation of ASEAN from an which discuss the alignment of the acquis or informal to a rules-based organization with EU‘s body of law.113 This requisite is similar
110 ASEAN Charter, Article 6 Touro International Law Review 14, No. 2, (2011): 111 ASEAN Charter, Article 2 (2) 390, 112 ASEAN Declaration
to the case of Timor Leste‘s accession into March 4, 2011. The requisites of ASEAN that also acquire alignment of Timor geographical location and willingness to Leste to its legal instruments, with subscribe to aims, purposes and principles of approximately 64 substantive legal ASEAN become insufficient as there are instruments to accede and also make the other additional requirements that must be necessary changes to domestic legislation for fulfilled under the ASEAN Charter, namely: implementation.114 Therefore, such (a) location in the recognized geographical alterations of membership requirements may region of Southeast Asia; (b) recognition by predict ASEAN‘s development into being a all ASEAN Member States; (c) agreement to more institutional organization, similar to the be bound and to be abide by the Charter; (d) EU. ability and willingness to carry out the Regardless, notice that there are no obligations of membership. Timor Leste has criteria set out of what constitutes as ability met the first three requisites, yet it is the and willingness of one to become an ASEAN capacity of Timor Leste in carrying out its Member State. The vagueness of said obligations as Member State that is still stipulation invites various interpretations. questioned, even until recently. However, the This essentially leads to the failure of vagueness and lack of transparency of the consensus-making towards the membership procedures in assessing said capacity as well application of Timor Leste. Hence, one as lack of substantive requirements become Member State may deem as Timor Leste the obstacles of ASEAN‘s legal framework being able and willing to join ASEAN, others to be effective. This is undoubtedly may disagree, as each sovereign has different exemplified by the case of Timor Leste‘s outlook to what constitutes such. In membership application that has been on- considering the transformation of ASEAN to going since 2011-2017, and still not resolved. become a rules-based organization, this is an Therefore, the goal of ASEAN in obstacle. transforming into a more rules-based organization is still not shown, despite its IV. CONCLUSIONS AND SUGGESTIONS adaptation of ASEAN Charter as its new A case that excellently portrays issue of constituent instrument since 2008 being membership is ASEAN that experienced two entered into force. eras because of its shift from ASEAN The diversity of ASEAN Member Declaration to ASEAN Charter as its States is the heterogeneity that ASEAN constituent instrument. Therefore, this embraces. This is portrayed through its indefinitely caused changes in stipulations regulations that do not include political regulating membership admission in ASEAN orientation as one of the requisites in itself. The case of Timor Leste‘s membership becoming a Member State, although political application to ASEAN is rather a unique one stability is acquired in a very flexible manner. due to being the first Southeast Asian country The case of Timor Leste‘s membership that applies for said membership during the application essentially shows that ASEAN Charter era, specifically applied in transformation into a rules-based
114 Asian Development Bank, —Democratic Republic of Timor Leste: Capacity for Regional Economic Integration,“ 2
Windraskinasih, Afriansyah - The Struggle of Becoming the 11th Member State of ASEANå| 97 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation organization with the establishment of purposes. However, based on the analysis of ASEAN Charter does not necessarily make the Author, it is suggested for ASEAN to its legal framework to be effective, perhaps elaborate more for the requisites of its new even more problematic. The time-consuming members, especially in the sense of of determining Timor Leste as eligible to substantive requirements to set out objective become a Member State truly exemplifies parameters. This refers to the ”ability‘ of one such claim. Therefore, the transformation of in carrying out the obligations of ASEAN in becoming more institutional has membership. Also, it is suggested for not been successful if viewing such from the ASEAN to be more transparent to candidate viewpoint of its membership admission. countries that wish to join the Association for ASEAN, as a regional organization, certainty of obtaining full membership. In has its own ways in dealing with issues, addition, Timor Leste shall keep its efforts specifically membership issues. It utilizes being involved in ASEAN with its current certain ways that may not be similar to other status, as well as to gain its ASEAN full organizations to align with its own aims and membership.
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