A Review of the ASEAN Charter: In the Fullness of Time
A long-running review of the ASEAN Charter may yet bear fruit – or it may not.
Amid the attention lavished on the recent 53rd ASEAN Ministerial Meeting last week, there was an issue that was somehow overlooked. A top “deliverable”, as the bureaucratic parlance goes, was a review of the implementation of the ASEAN charter. The constituent document, which came into effect in 2008, is of huge significance. It enshrines ASEAN’s fundamental principles, confers legal personality and creates a governance structure for the grouping.
The so-called “Review of the Implementation of the ASEAN Charter” is tied to the Mid-Term Review of the ASEAN Community Vision 2025. The explicit objective of this “deliverable” is the completion of a Scoping Report on the review of the implementation of the ASEAN Charter.
Rather than promising an actual review of the ASEAN Charter, this deliverable merely undertakes an “expeditious” completion of a Scoping Report that will assess the “organisation and functions of ASEAN institutional structure and the application of rules and procedures that govern the aspirations of ASEAN as established under the ASEAN Charter”. The Scoping Report will be deliberated upon by the Senior Officials Meeting (SOM) and recommendations made to the ASEAN Coordinating Council (effectively, the ASEAN Foreign Ministers).
Will ASEAN follow through and conduct a complete review of its Charter? Not really.
Granted, Article 50 of the ASEAN Charter provides the legal basis for a review of the ASEAN Charter five years after its entry into force, or as “determined by the ASEAN Summit”. Those with elephantine memories will remember that the Eminent Persons Group and the High-Level Task Force on the drafting of the ASEAN Charter had agreed to disagree on sensitive parts of the Charter for the sake of completing the drafting in time for its signing at ASEAN’s 40th anniversary Summit in November 2007.
Since the Charter’s entry into force in 2008, however, progress on the review has been patchy, to say the least. In 2014, there appeared to be some interest in reviewing the ASEAN Charter. Another High-Level Task Force (HLTF) on “Strengthening the ASEAN Secretariat and Reviewing the ASEAN Organs” was established at the 25th ASEAN Summit under Myanmar’s chairmanship. The ASEAN Track II community at that time suggested a review of institutional efforts for an ASEAN common voice, strengthening formal dispute settlement mechanisms, and reviewing the mandate of the Committee of Permanent Representatives (CPR) in Jakarta. But these ideas were watered down to an examination of the more mundane issues of streamlining and improving ASEAN processes and institutions.
Under the Philippines chairmanship in 2017, ASEAN leaders noted that the ASEAN SOM and the CPR were “considering factual updates and revisions of certain articles of the ASEAN Charter”. ASEAN human rights optimists had hoped for a chance to revisit contentious parts of the ASEAN Charter during its drafting. Unfortunately, there was no political appetite due to the sensitivities surrounding any ASEAN human rights agenda.
The anticipated complete review of the ASEAN Charter will likely never happen. ASEAN’s stifling bureaucratic process is likely to bring about “death by committee” where even the best intentioned initiatives may not see light of day.
The tenth anniversary of the ASEAN Charter came and went with no review despite successive Joint Communiques from 2015 to 2019 making pronouncements on the supposed progress of the HLTF’s work and the implementation of its recommendations. Without knowing the actual recommendations of the HLTF, we can only take ASEAN policymakers’ words for it. From what we can glean from official statements, the recommendations touched on coordinating and improving work processes across the three Community pillars (Political-security, Economic and Socio-Cultural) and among ASEAN institutions to speed up community-building, connectivity and integration efforts.
In January 2020, Vietnam circulated a concept note proposing a review of the implementation of the ASEAN Charter at a Senior Officials’ Meeting. Subsequently, the ASEAN Secretariat was tasked to prepare a Scoping Report to do several things. It was tasked to assess ASEAN institutional structures and examine the implementation status of ASEAN rules and procedures. The Secretariat was also instructed to identify gaps in the implementation and recommend improvements to overcome these challenges. The draft Scoping Report identifies some 23 Articles of the ASEAN Charter. These include the admission of new members (Art 6); the office of the ASEAN Secretary-General and the ASEAN Secretariat (Art 11); budgeting and finances (Art 30) and rules and procedures concerning the conduct of external relations (Art 41-46).
An important recommendation in the draft Report is to delineate the roles and functions of these ASEAN organs that have overlapping responsibilities. This is to be achieved by establishing Terms of References or Rules of Procedures to remove duplication of work, for example, between the SOM and the CPR. There is a growing recognition that compartmentalising sectoral cooperation was no longer helpful but that issues should be dealt with by relevant competent authorities to effectively implement ASEAN decisions. The hope is that ASEAN can maintain relevance and centrality in a fast-changing environment.
The anticipated complete review of the ASEAN Charter will likely never happen. ASEAN’s stifling bureaucratic process is likely to bring about “death by committee” where even the best intentioned initiatives may not see light of day. Indeed, Sir Humphrey Appleby, the fictional but larger-than-life Machiavellian mandarin of the much-acclaimed British political satire Yes Prime Minister, sought to block his minister’s proposals by convening a committee and an intricate bureaucratic process to kill them eventually. Still, the Scoping Report and subsequent review may yet serve to achieve seamless coordination within ASEAN to meet the challenges of new cross-cutting issues such as cybersecurity and climate change, albeit in typical meandering ASEAN fashion with the usual official-ese overload. To quote the wily Sir Humphrey again: the review will be completed, at the “appropriate juncture, in due course, in the fullness of time”.
Sharon Seah is Senior Fellow and concurrent Coordinator at the ASEAN Studies Centre and Climate Change in Southeast Asia Programme, ISEAS – Yusof Ishak Institute. She is also editor of Building a New Legal Order for the Oceans.