THE ASEAN CHARTER By Senator Miriam Defensor Santiago Sponsorship speech on 24 September 2008 Mr. President, distinguished colleagues: As Chair of the Senate Committee on Foreign Relations, I have the honor to sponsor the concurrence by this august chamber with the ratification of the Charter of the Association of Southeast Asian Nations, or in short, the Asean Charter. Your committee earnestly recommends concurrence within this year. On 20 November 2007, after over four decades of existence, Asean finally drafted its Charter in Singapore. On that auspicious day, ten heads of state of Asean signed the draft of the Asean Charter. Now, it needs the ratification of all ten member states this year so that, hopefully, it could enter into force next year and be registered with the Secretariat of the United Nations. As of 18 April 2008, seven Asean member states have already ratified it. These are: Singapore, Brunei Darussalam, Malaysia, Lao People's Democratic Republic, Vietnam, Cambodia, and Myanmar. Thailand, having complied with legal procedures, is expected to submit its instrument of ratification soon, making eight out of ten Asean states. As an ardent proponent of the Charter, the Philippines should follow suit. If it enters into force next year, Asean would beat the European Union, which failed in 2006 to ratify its Treaty Establishing a Constitution for Europe, due to its rejection by France and the Netherlands a year earlier. With your indulgence, I shall briefly discuss the rationale for, and the procedures involved in, the drafting of the Asean Charter, its basic features, the Philippine contributions to the framing of the Charter, and the benefits that can be derived by the Philippines from the Charter's entry into force. The Need for an Asean Charter Diplomats and experts on Southeast Asian studies agree that it is time that Asean formalizes its juridical personality or legal standing under international law through
a Charter. We do so, not only for the sake of identity, but also to promote regional cooperation on various transboundary issues and problems. According to the 2005 book, Framing the ASEAN Charter: An ISEAS Perspective, compiled by the former Asean Secretary-General, the following constitute the main raison d'etre for framing the Asean Charter: enhanced economic integration, further strengthening of transboundary cooperation for traditional and non-traditional problems; promotion of cultural cohesion in the region; and improvement in the operational efficiency of Asean and its Secretariat. Let me discuss these goals. A. Economic Integration. The economic integration of Asean member states would balance, if not prevent, the rise of China and India, as well as the recovery of Japan, as controlling economic powers or even regional hegemons in Asia. Moreover, Asean must face up the challenges of enhanced trade liberalization, that is, the WTO-led global trade liberalization. B. Transboundary Cooperation. There are problems in the region that demand expedient cross-border solutions through regional cooperation efforts. These are the non-traditional environmental, health, political, and social problems like the transboundary haze pollution, SARS, avian flu, migration, etcetera; and traditional security issues like border disputes, for example, the Spratly Islands claims. C. Promotion of Cultural Cohesion. The Asean regional identity is still weak. “National identity” is stronger than “regional identity” in Asean. Southeast Asia is still considered by many only as a geographical region rather than as sociopolitical, economic, and cultural region. Unlike European states which are predominantly Christian and economically developed, Asean is one of the most diverse areas in the world; it is multi-ethnic, multi-lingual and multi-religious. D. Improvement of Asean Operational Efficiency. Asean has managed its affairs with a minimum of formality, with few legally binding arrangements. For example, the Asean founding document is a mere declaration, that is, the Asean Declaration, more commonly known as the 1967 Bangkok Declaration. As a result, there is no way to make member states accountable for their treaty obligations, and Asean relies on voluntary compliance. Other operational problems in the Asean are as follows: •
Asean does not have juridical personality or legal standing under international law. 2
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Asean lacks a central authority to speak on the association’s behalf and conclude agreements and conduct relations with other organizations and states.
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Despite the strengthening of the powers of the Asean Secretariat in 1992, it remains weak in terms of formal powers
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Asean has no credible mechanism for settling disputes in an objective and binding manner.
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There are no criteria for selecting member states, other than geographical location.
These are the reasons why Asean is slow not only in arriving at agreements, but also in carrying them out. Drafting the Asean Charter The Philippines contributed actively in various ways in the crafting of the Charter. As early as the 1970s, the Philippines already proposed a constitutional framework to formalize the establishment of Asean. Hence, our colleagues in the Asean expect us to ratify it as soon as possible, before the end of the year. The early building blocks of the Asean Charter are the following: •
1976 Treaty of Amity and Cooperation.
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1976 Declaration of ASEAN Concord I.
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2003 Declaration of ASEAN Concord II. It declared an agreement to establish an Asean Community supported by three pillars: security community, economic community, and socio-cultural community.
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2004 Vientiane Action Programme. The idea of an Asean Community by the year 2020 was formalized through this Asean roadmap.
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2004 Ministerial Meeting in Jakarta, where the Asean foreign 3
ministers listed down Asean's goals and principles, which include: a.
Ensuring non-agression;
b.
Respect for sovereignty and territorial integrity;
c.
Promotion and protection of human rights,
d.
Maintenance of political stability, regional peace, and economic progress; and
e.
Establishment of an effective and efficient institutional framework for Asean,
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2005 Kuala Lumpur Declaration on the Establishment of the ASEAN Charter. An Eminent Persons Group was tasked to recommend to Asean leaders broad policy guidelines on the drafting of the Asean Charter and the directions to take in realizing an Asean Community.
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2007 Cebu Declaration on the Blueprint for the ASEAN Charter. The Cebu Declaration planned to complete the drafting in time for its next summit meeting in Singapore in November 2007. A high-level task force to draft the Charter was created. It consulted, among others: the Asean Inter-Parliamentary Assembly; Officials of the European Union; civil society organizations; Asian Development Bank; national human rights institutions of some Asean countries; and senior Asean economic, social, and security officials. Hence, it can be argued that the drafting of the Asean Charter was transparent and participatory.
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20 November 2007 Draft Asean Charter. It was signed by the ten leaders of the Asean member states. It will enter into force thirty days after the tenth instrument of ratification is deposited with the SecretaryGeneral of Asean, and will be registered with the United Nations afterwards.
Basic Features of the Charter There are 13 chapters, 55 articles, and 4 annexes in the Asean Charter. I will discuss only its essential features. 4
Nature of Asean: The Asean Charter shall be the framework for Asean member states to work together in a rules-based environment where decisions are legally binding. It confers upon Asean a juridical or legal personality as an intergovernmental organization; hence it can sue and can be sued. Purposes of Asean (Article 1): In a nutshell, the Charter aims to build an Asean Community that is people-oriented, and which shall pursue the following: •
Set principles and purposes to be adhered to by its member states in order to maintain and enhance peace, security, and stability and further strengthen peace-oriented values in the region;
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Enhance regional resilience by promoting greater political, security, economic, and socio-cultural cooperation;
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Preserve Southeast Asia as a Nuclear Weapon-Free Zone, and free of all other weapons of mass destruction;
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Create a stable, highly competitive single market and production base;
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Respond effectively, in accordance with the principle of comprehensive security, to all forms of threats, transnational crimes and transboundary challenges;
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Promote sustainable development to ensure protection of the region's environment, the sustainability of its natural resources, the preservation of its cultural heritage, and the high quality of life of its peoples;
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Promote an Asean identity through the fostering of greater awareness of the diverse culture and heritage of the region;
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Maintain the centrality and proactive role of Asean as the primary driving force in its relations and cooperation with its external partners in a regional architecture that is open, transparent, and inclusive.
Principles of Asean (Art. 2): The Charter specifies, among others, the following principles which shall guide Asean: 5
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Respect for the independence, sovereignty, equality, territorial integrity, and national identity of all member states;
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Renunciation of aggression and of the threat or use of force or other actions in any manner inconsistent with international law;
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Non-interference in the internal affairs of Asean member states;
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Adherence to the rule of law, good governance, the principles of democracy, and constitutional government;
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Respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice;
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Respect for the different cultures, languages, and religions of the peoples of Asean, while emphasizing their common values in the spirit of unity in diversity;
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Adherence to multilateral trade rules and Asean's rules-based regimes for effective implementation of economic instruments and progressive reduction towards elimination of all barriers to regional economic integration, in a market-driven economy.
Admission of New Members (Art.6): Members of the Asean shall no longer be admitted based on geographical location in Southeast Asia alone. Three new criteria were added: (a) recognition by all Asean member states, (b) agreement (of the applying State) to be bound and to abide by the Charter, and (c) ability and willingness (of the applying State) to carry out the obligations of membership. The applying State should also sign an instrument of accession to the Charter. Asean Organs (Arts. 7 to 16): The Charter establishes a new and more efficient organizational structure of Asean, and strengthens the Secretary-General of Asean and the Asean Secretariat. The organs of Asean shall consist of the following: 1.
Asean Summit, which is the supreme policy-making body composed of heads of state/governments of all member states. The chairmanship of the 6
Summit shall be rotated annually among the ten member states in alphabetical order of the English names of the members. Whoever heads the Summit shall also chair all other Asean organs down to the Committee on Permanent Representatives. 2.
Asean Coordinating Council, which shall prepare the groundwork for the Summit composed of the Asean Foreign Affairs Ministers;
3.
Three Asean Community Councils on political-security, economic, and socio-cultural matters;
4.
Asean Sectoral Ministerial Bodies, which shall function in accordance with their respective established mandates;
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Secretary-General of Asean and Asean Secretariat which, among others, shall be in-charged of facilitating and monitoring progress in the implementation of Asean agreement and decisions;
6.
Committee of Permanent Representatives to Asean which, among others, shall be based in Jakarta to coordinate, liaise, facilitate, and support the work of the Asean Community Councils and Sectoral Ministerial bodies;
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Asean National Secretariats, which shall serve as national focal points;
8.
Asean Foundation, which shall promote greater awareness of Asean’s identity, people-to-people interaction, and close collaboration among business sector, civil society, academia, and other stakeholders.
9.
Asean Human Rights Body, which shall promote and protect human rights and fundamental freedoms in the region.
Immunities and Privileges (Arts. 17-19): Asean shall enjoy in the territories of the member states immunities and privileges necessary for the fulfillment of its purposes. These are also accorded to the Secretary-General of Asean and staff of the Asean Secretariat. Decision-Making (Arts. 20-21): Consultation and consensus shall remain as Asean's guiding principles in decision-making. Asean leaders may be called upon to resolve unsettled issues. In the implementation of economic commitments, the “Asean Minus X� formula may be applied. Under the Asean Minus X formula, a 7
member state may opt out from certain economic schemes that it is not yet ready to participate, although it has taken part in determining and approving such economic schemes in the first place. Settlement of Disputes (Arts. 22-27): The Charter calls for the establishment and maintenance of dispute settlement mechanisms in all fields of Asean cooperation. The Asean Chair or the Secretary-General of Asean may be requested to provide good offices, conciliation or mediation. The Secretary-General shall monitor compliance of decisions Philippine Initiatives There are many provisions in the 13-chapter Charter which the Philippines helped to develop. These are: provisions on human resources development and unhampered movement of business persons, professionals, talents, and labor; criteria on the admission of new member states; establishment of an Asean Human Rights body; renaming from Asean Security Community to Asean PoliticalSecurity Community; roles and functions of the Committee of Permanent Representatives in Jakarta; strengthening the role of the Secretary-General of Asean, and the Asean Committees in Third Countries and International Organizations. Benefits of Asean Charter There are many benefits that the Philippines and the Southeast Asian region could receive from the ratification of the Asean Charter: 1.
The foremost benefit is the continued maintenance of peace and order in the region. Diplomats and scholars agree that ever since Asean came into existence, not one major conflict erupted into a war among the organization's members. Some Westerners criticize Asean as “one PR club.� But it cannot be denied that its informal procedures have maintained peace not only in its home region, but also in the whole expanse of Asia. It does so through its Asean Regional Forum and other regional dialogue mechanisms. For example, the Asean Plus Three is a meeting between Asean, the People's Republic of China, Japan, and South Korea, and is primarily held during each Asean Summit. If ever there are conflicts in the region, members can turn to the Asean 8
Summit, the highest policy-making body of Asean, to settle their disputes. 2.
The Charter shall facilitate the creation of a single market and production base through effective trade facilitation in which there is free flow of goods, services, and investment; facilitated movement of businessmen, professionals, talents and labor; and freer flow of capital.
3.
Under a Philippine initiative, the Asean Charter will promote democracy, good governance, and the rule of law. With these values, the region shall continuously enjoy “democratic peace,” which the Asean has espoused since 2003, and which is currently reflected in its slogan “One Vision, One Identity and One Caring and Sharing Community.”
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At present, all activities of Asean hinge on the voluntary compliance of its members; but by contrast, the Charter shall formalize and legalize the members’ obligations. Hence, all member states shall be asked to strictly implement their treaty obligations, including the protection and promotion of human rights. But, there will be no diminution in the sovereignty of members because the Charter respects the fundamental importance of amity and cooperation, and the principles of sovereignty, equality, territorial integrity, non-interference, consensus, and unity in diversity.
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There will be a more efficient operation of the regional organization with streamlined organizational structure, improved coordination among national agencies, and judicious use of funds for development. There shall lesser meetings of senior government officials who will be replaced by permanent delegates to be based in Jakarta which will decrease the expenses of the members.
Conclusion Your Committee on Foreign Relations strongly supports concurrence with the Asean Charter. It will not only serve the interest of the Philippines, but also of the entire Southeast Asian region, in this age of globalization. Globalization is both a boon and a bane to the Philippines and the region – we could either sink or swim with it. Just like the 300 Spartans of King Leonidas who battled thousands of Persians in 480 BC, Asean could similarly form a phalanx vis-a-vis the rampaging onslaught 9
of the dark side of globalization, and reap the dividends from it – freedom, peace, stability, and economic progress. The Asean Charter may not be able to establish an invincible intergovernmental regional organization just like King Leonidas' phalanx of 300 resolute Spartans. But it would certainly provide us with allies who share a common vision and a common identity, within one caring and sharing community. I shall be ready for interpellation, on Monday, September 29. TAGS: ASEAN, foreign relations, Senate
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