Does ASEAN have an Evolving International Legal Culture?
By Aristyo Rizka Darmawan
One of the questions that arises when ASEAN recently introduced the Outlook on Indo-Pacific was the legal status of the outlook. Is it a legally binding treaty in international law? Or it is some kind of a declaration that does not have any binding legal obligations? This article aims to see ASEAN member states' attitudes towards international law. There are a lot of definitions on what legal culture is. Lawrence Friedman, a legal sociologist, describes legal culture as the values, ideas, and attitudes that society has with respect to its law. Put it in the context of international law, it is interesting and important to understand ASEAN member states’ attitudes towards international law.
When we talk about ASEAN and international law, its attitude is not quite obvious. Even though ASEAN is never perceived as a violator of international law, ASEAN member states seem to think twice before creating legally binding documents or in developing dispute resolutions under international law mechanisms
Founded in 1967, it took ASEAN more than 40 years to complete its charter in 2007. Moreover, throughout the years ASEAN rarely creates legally binding agreement amongst its member state, instead creating declarations and other less binding instruments.
ASEAN was also seen as very reluctant to solve any dispute arising between its member through legally binding dispute resolutions in international law. Few dispute cases between ASEAN member states that have been settled before an international tribunal. Some of the few cases were brought by Indonesia and Malaysia concerning the Sipadan and Ligitan Islands. Singapore and Malaysia concerning Pedra Branca, and Cambodia and Thailand brought a case on Temple of Preah Vihear before the International Court of Justice. The three cases were a relatively small number in comparison to other regions like Europe or Latin America.
Up until today, the ASEAN Protocol on Enhanced Dispute Settlement Mechanism (ADSM), was never been used by any ASEAN member states. It seems that ASEAN member states reluctant to bring their neighbors to a court whenever they have a dispute. This reluctance will be further explored.
First from a historical perspective, unlike Europe or North American countries which have a long history with international law, ASEAN member states are quite new to the idea of international law. For centuries, Southeast Asian countries have seen international law as part of colonial structures brought by the European states to the region. As Professor Anthony Anghie observed, in the nineteenth century, international law was used as a tool for the European countries to legitimize their conquest and colonize many countries in Asia and Africa. This legacy created a negative perception towards international law and institutions to many Southeast Asian countries. Many of these countries saw international law as mostly created by the West, and questioned whether international law really represents their interest.
Second, before the establishment of ASEAN, Southeast Asia was a region that saw a lot of conflicts, which led many to predict it would fall apart. From the Indonesia confrontation with Malaysia, the Vietnam war, and the Cambodian-Vietnamese war, it seemed the region was one of the most vulnerable in the world. Even though Professor Kishore Mahbubani argued that ASEAN has been a miracle to the region and helped the region be more peaceful, trust remains an issue in ASEAN to create legally binding instruments.
The third point to consider is the decision-making norms of the ASEAN. ASEAN is famously known for musyawarah (consultation) and mufakat (consensus). Any decision of the organization needs to agreed upon by all member states. Moreover, to avoid any conflict and escalation among member states, ASEAN also holds tightly to the principle of non-interference.
These three reasons help explain ASEAN’s hesitant attitude towards binding international law. However it does not mean that ASEAN disregards all international law. ASEAN has always recognized the importance of international law in maintaining peace and security in the region. For example in the ongoing South China Sea dispute, all ASEAN claimant states have always upheld the importance of international law in solving the conflict. In the recent note verbal from Indonesia, Vietnam, Malaysia, and Brunei to the UN-Secretary General, all countries mention the importance of all respecting and acting according to international law.
This bring us back to the ASEAN Outlook on Indo-Pacific. Although it is not created as a legally binding treaty, the document emphasizes and recognizes the importance of international law in solving disputes that arise in the region. Even though it seems that ASEAN member states' attitude towards international could be interpreted as one characterized by suspicion and distrust, this does not capture the full picture of ASEAN’s member states relationship with international law. As Judge Jin-Hyun Paik argued, Asia attitude towards international law institutions is not static but evolving, which nicely captures ASEAN’s stance. Even though at the beginning, it seemed that ASEAN member states' attitude towards international law was full of suspicion and distrust, it is more accurate to say ASEAN member states have turned out to be more friendly towards and trusting of international law.
Aristyo Rizka Darmawan is a lecturer and senior researcher at the Center for Sustainable Ocean Policy at the Faculty of Law University of Indonesia where his research focuses on maritime security in the Asia Pacific. He earned his Master’s in International Law from the Fletcher School of Law and Diplomacy at Tufts University.
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