ASEAN’s Legal Architecture Critical to Addressing Transboundary Challenges
May 17, 2017
With the geopolitics of Southeast Asia and changing rapidly and substantially, an opportunity presents for a timely and thoughtful deliberation on the role ASEAN can play in the region. This enduring union of 10 member states has made great strides in becoming a formidable regional body. At the same time, the region is facing radically new and complex security and economic challenges. ASEAN is in a distinct and timely position to ably guide its members toward more sustainable security and prosperity in the years ahead, and to lead member states in the development of a uniquely ASEAN jurisprudence.
In order to effectively grapple with those daunting challenges, ASEAN must consider new and innovative transboundary solutions, and work more deliberately across borders to enhance regional collaboration and implement existing agreements. The need to sustain a common regional identity and organizational coherence requires a fundamental rethinking of ASEAN’s institutional capacity and the reach of the ASEAN Secretariat. It is now imperative for ASEAN to help strengthen legal norms and establish effective rule-making systems in ASEAN member states so that the region can cope with the security and economic challenges it is facing.
ASEAN members differ not only in their perspectives, but in their respective capacities to implement existing or new regional obligations. That is, distinctions in laws, income levels, and political development and capacity among members threaten to derail progress on cooperation and the alignment of jurisprudence and by extension, the efficacy of ASEAN itself. More than ever before, successful ASEAN integration requires more coordinated member state efforts to ensure the revision, monitoring, enforcement, and harmonization of domestic and regional laws, administrative rules and procedures, judicial institutions, and jurisprudence.
The Asia Foundation, the U.S. Department of State, and the S. Rajaratnam School of International Studies (RSIS) recently convened a gathering of prominent scholars, government officials, and private sector actors for the “U.S.-USEAN Conference on Legal Issues of Regional Importance” in Singapore.
Participants debated some of the most salient issues facing ASEAN in light of the broader geopolitics of Asia and the shifting interests of the U.S., China, Japan, India, and Australia. Bringing together a wide-ranging group of experts in these issues, the conference made critical advancements toward both an understanding of current and future economic and security challenges facing ASEAN members, and in generating concrete and nuanced recommendations to enhance ASEAN integration and strengthen and fulfill ASEAN’s legal commitments, obligations, and jurisprudence.
Key takeaways from the conference include:
Cybersecurity and Data Protection: Risks to civilians from cybercrime require an immediate joint response from governments and private sector. ASEAN has made critical progress in leading the region on cybersecurity and data protection. It should consider leading a digital convention on cybercrime that moves beyond the G7 Declaration and encourages binding, rather than voluntary, commitments by governments. Greater collaboration with the private sector, especially the technology sector, is critical to ensuring a comprehensive and sustainable cybercrime framework modeled on frameworks governing nuclear and chemical weapons.
Maritime Security: Competing territorial and maritime claims lead to increased risk of conflict and destabilize the overall security of the region. Although there has been progress in terms of clarifying territorial rights, more clarification of and adherence to the rule of law is required. Moreover, peaceful dispute settlement mechanisms should be bolstered to ensure the swift resolution of disputes and to ensure security in the region.
Migration and Trafficking in Persons: At present, there are 1.4 million stateless people in Southeast Asia and 10.2 million international migrants working or living in the ASEAN region. Rapid influxes of refugees and migrants has great potential to threaten ASEAN’s regional and economic security. Labor migration—if properly leveraged—can provide profound benefits for ASEAN. However, migration management and the administrative capacities to handle migration effectively must be addressed on both a national and regional level in order to realize the benefits of migration. National systems lack the administrative and sub-national processes to implement well-intended policies and practices. Moreover, crafting a common institutional framework to protect migrant rights in ASEAN will require regional consent, political will, and the participation of civil society. This is also an opportunity for ASEAN to consider strengthening the rule of law and border control among member states and establishing minimum legal and operational standards that can facilitate much-needed efforts towards cross-border prosecutions of trafficking in persons. It is imperative that countries expand the use of international and regional treaty guidelines/ frameworks to execute regional mechanisms and ensure the effective investigation and prosecution of trafficking and associated corruption.
Regional Trade: ASEAN has a critical role to play in the post-Trans-Pacific Partnership (TPP) landscape. ASEAN should enhance its leadership on regional trade, spearheading progress and elevating standards on the Regional Comprehensive Economic Partnership (RCEP) Agreement. This will involve all 10 ASEAN members and the broader RCEP membership, including China and Japan, to realize the goals of the ASEAN Economic Community (AEC) and catapult growth in the region’s economies. This is a pivotal juncture for ASEAN. U.S. withdrawal from the TPP has altered the dynamics of cooperation on trade in the region, but may provide a critical opportunity for ASEAN to reimagine its role in the Asia-Pacific and rethink its relationships with the U.S., China, and others on trade cooperation.
Women’s Rights and Opportunities: For women business leaders, the opportunity to build a regional economic network offers new opportunities to exponentially grow their businesses. ASEAN should take immediate steps—alongside civil society—to promote and implement legal and policy measures to expand women’s access to capital, skills development, and other resources, and to strengthen networks of women entrepreneurs across borders to ensure women’s meaningful participation in regional trade forums and initiatives through the AEC. In terms of increasing women’s voice and influence through the women, peace, and security agenda, significant structural barriers such as discriminatory laws and limited access to institutions can impede women’s ability to meaningfully participate in peace and security processes in conflict-affected environments within the region. ASEAN member states would be wise to consider a regional platform within ASEAN to implement and advance the women, peace, and security agenda, styling ASEAN as a global leader on these issues.
Environment: ASEAN’s approach emphasizes non-interference in its members’ domestic affairs, consensus building, and cooperation rather than legally binding treaties, and national implementation of programs rather than ASEAN-led regional infrastructure. As a result, issues like Southeast Asia’s recurring haze problem continues to go largely unchecked. The successful management of and response to transboundary environmental issues requires international cooperation, including harmonization of standards, joint development of environmental management systems, and collaborative capacity-building.
Fifty years ago, no one would have looked to Southeast Asia as a test bed for successful regional cooperation. Over the past half century, ASEAN has evolved from a five-country, non-communist bloc that was in principle agreeable to economic cooperation when possible in an area beset with war, poverty, and underdevelopment, to an organization of 10 countries with a population of 630 million people with a combined income of $2.5 trillion, making it the sixth largest economy in the world. ASEAN still faces serious challenges, but the strengthening of member countries’ societies predicated on the rule of law is critical to its future development. As one distinguished ASEAN diplomat said at the conference: “ASEAN has all the vision, all the plans, but implementation is the key.” ASEAN must not only continue to develop its Charter-mandated legal architecture and jurisprudence on transnational issues, but also commit to domestic obligations of regional importance in order to enhance its geopolitical relevance and ensure its future success.
Sohini Chatterjee is a Senior Associate at the Center for Strategic & International Studies. The views and opinions expressed here are those of the author and not those of The Asia Foundation or its funder.
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