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The Asean Way and the Rule of Law

The Asean Way and the Rule of Law

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Published by: curlicue on Dec 18, 2008
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 THE ASEAN WAY AND THE RULE OF LAWAddress by Rodolfo C. Severino, Secretary-Generalof the Association of Southeast Asian Nations,at the International Law Conferenceon ASEAN Legal Systems and Regional Integrationsponsored by the Asia-Europe Institute and the Faculty of Law,University of MalayaKuala Lumpur, 3 September 2001-------------------------------------------------------------------------------- I wish to thank the Asia-Europe Institute and the Faculty of Law of theUniversity of Malaya for inviting me to participate in this important conferenceon this very interesting subject. Above all, I thank them for organizing theconference. We in ASEAN have much to learn from Europe on laying the legalfoundations for regional integration and cooperation, and we need the lawyersof ASEAN to guide us in this.I believe that it is about time that people looked upon ASEAN in terms of legal obligations and norms. People are not used to doing so, because ASEANhas never been associated with international law and treaties. ASEAN has
 
always been regarded as a group of sovereign nations operating on the basis of ad hoc understandings and informal procedures rather than within theframework of binding agreements arrived at through formal processes.Indeed, ASEAN has often been contrasted with the European Union – insomewhat facile fashion – in those terms. The EU regulates the relationshipbetween the Union and its members and the cooperative arrangements amongits members largely through agreements with the force of law. ASEAN has beencooperating through informal understandings that impose no legally bindingobligations.  This is a bit of an oversimplification, of course. It is true to a substantialextent, although not entirely. Certainly, it was entirely true in ASEAN’s earlyyears. ASEAN’s founding document, the Bangkok Declaration of August 1967,was a mere declaration of two pages setting forth the ends and means of ASEAN and of Southeast Asian cooperation. The foreign ministers of the fivefounding states signed it. It required no ratification. It certainly was no Treatyof Rome. The slow, cautious start of ASEAN was understandable. The fivefounding members still nursed historic animosities toward and suspicions of oneanother. It required remarkable statesmanship and a veritable act of faith onthe part of ASEAN’s founders to see beyond those animosities and suspicions --deeply embedded legacies of history -- and articulate and commit themselvesto a shared vision and common aspirations. ASEAN’s start was, inevitably,tentative.With the hindsight of history, we can say that this aspect of the ASEAN
 
Way has served Southeast Asia well. By not forcing its incredibly diverse andmutually suspicious members into legally binding standards, ASEAN has donethe remarkable job of moving its members from animosity to the closecooperative relationship that they enjoy today, a relationship in which violentconflict is all but unthinkable. We can say that the ASEAN Way has servedASEAN well.Even today, thirty-four years after its founding, ASEAN adheres to theevolutionary approach, relying largely on patient consensus-building to arrive atinformal understandings or loose agreements. With the recent entry of newmembers, ASEAN seems to be, in a way, starting over in terms of having todelicately manage the legacies of history.It is not just a matter of history; it is also a matter of culture. Southeast Asians’way of dealing with one another has been through manifestations of goodwilland the slow winning and giving of trust. And the way to arrive at agreementshas been through consultation and consensus mushawara and mufakat rather than across-the-table negotiations involving bargaining and give-and-take that result in deals enforceable in a court of law. Let us not exaggeratethis distinction. Much consultation and consensus-building goes into themaking of the European Union, which has, in any case, been itself painstakinglygradual. Personal chemistry and trust are also important for Europeanprocesses. Southeast Asians can and do engage in hard bargaining andexchanges of concessions. But historical circumstances and culture can provideat least a partial explanation for ASEAN’s avoidance, particularly in its earlydays, of legally binding agreements. The First Treaty 

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