The Making Of The Asean Charter

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The Making of the

ASEAN Charter

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The Making of the

ASEAN Charter Editors

Tommy Koh

Ambassador-At-Large, Singapore

Rosario G Manalo

European Studies Program, Ateneo de Manila University, The Philippines

Walter Woon

Attorney-General, Singapore

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Published by World Scientific Publishing Co. Pte. Ltd. 5 Toh Tuck Link, Singapore 596224 USA office: 27 Warren Street, Suite 401-402, Hackensack, NJ 07601 UK office: 57 Shelton Street, Covent Garden, London WC2H 9HE

Library of Congress Cataloging-in-Publication Data The making of the ASEAN Charter / edited by Tommy Koh, Rosario G Manalo, and Walter Woon. p. cm. ISBN-13 978-981-283-390-7 ISBN-10 981-283-390-0 I. Koh, Tommy T. B. (Tommy Thong Bee), 1937– II. Manalo, Rosario G. III. Woon, Walter C. M. IV. ASEAN. 2009000844

British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library.

Copyright © 2009 by World Scientific Publishing Co. Pte. Ltd. All rights reserved. This book, or parts thereof, may not be reproduced in any form or by any means, electronic or mechanical, including photocopying, recording or any information storage and retrieval system now known or to be invented, without written permission from the Publisher.

For photocopying of material in this volume, please pay a copying fee through the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, USA. In this case permission to photocopy is not required from the publisher.

In-house Editor: Juliet Lee Ley Chin

Printed in Singapore.

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Presentation of the ASEAN Charter to the ASEAN Foreign Ministers

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ASEAN Leaders and Ministers with Members of the EPG and the HLTF

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(From left to right) Tommy Koh, Luis T Cruz and Rosario Gonzalez-Manalo

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HLTF Members with their Assistants

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HTLF Members Sharing a Good Laugh over Dinner in Singapore

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Members of the EPG and HLTF on a Study Visit to Berlin

Contents xv

Foreword

xix

Preface

xxiii

Acknowledgements

xxv

List of Abbreviations

1

Chapter 1 Heart Labour

Dr Surin Pitsuwan, Secretary-General ASEAN

Pengiran Dato Paduka Osman Patra, Permanent Secretary, Prime Minister’s Ofﬁce, Brunei Darussalam

17

Chapter 2 Facing Unfair Criticisms Tan Sri Ahmad Fuzi bin Abdul Razak, Ambassador-At-Large, Ministry of Foreign Affairs, Malaysia

27

Chapter 3 The Jewel in My Crown Aung Bwa, Director-General (Rtd.) ASEAN-Myanmar, Ministry of Foreign Affairs, Union of Myanmar

37

Chapter 4 Drafting ASEAN’s Tomorrow: The Eminent Persons Group and the ASEAN Charter Rosario Gonzalez-Manalo, Special Envoy of the President for the ASEAN Charter, Republic of the Philippines xi

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The Making of the ASEAN Charter

47

Chapter 5 The Negotiating Process Tommy Koh, Ambassador-At-Large, Ministry of Foreign Affairs, Singapore

69

Chapter 6 The ASEAN Charter Dispute Settlement Mechanisms Walter Woon, Attorney-General, Singapore

79

Chapter 7 The Thai Perspective Pradap Pibulsonggram, Deputy Permanent Secretary, Ministry of Foreign Affairs, Kingdom of Thailand

95

Chapter 8 The Making of the ASEAN Charter in My Fresh Memories Nguyen Trung Thanh, Ambassador, The Socialist Republic of Vietnam in Singapore

107

Chapter 9 At Close Quarters with the Drafting of the ASEAN Charter Ong Keng Yong, Ambassador-At-Large, Ministry of Foreign Affairs, Singapore

117

Chapter 10 In Defence of the ASEAN Charter Termsak Chalermpalanupap, Special Assistant to ASEAN Secretary-General

137

Chapter 11 A Long Journey Dian Triansyah Djani, Director-General for ASEAN Cooperation, Department of Foreign Affairs, Republic of Indonesia

151

Chapter 12 A Personal Reﬂection Kao Kim Hourn, Secretary of State, Ministry of Foreign Affairs and International Cooperation of Cambodia xii

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Contents

159

Chapter 13 A New Turning Point in the Relations Among the Southeast Asian States Bounkeut Sangsomak, Vice-Minister of Foreign Affairs of the Lao People’s Democratic Republic

167

Annex 1 Charter of the Association of Southeast Asian Nations

197

Annex 2 ASEAN Sectoral Ministerial Bodies

201

Annex 3 Entities Associated with ASEAN

205

Annex 4 ASEAN Flag

207

Annex 5 ASEAN Emblem

209

Annex 6 List of Members of the High Level Task Force

211

Annex 7 List of HLTF Meetings

xiii

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Foreword ASEAN has come a long way in the 41 years since the signing of the Bangkok Declaration in 1967 where the ﬁve founding member states of ASEAN (Indonesia, Malaysia, the Philippines, Singapore and Thailand) signed a political document announcing the aspiration of the ﬁve senior Ministers of the ﬁve Southeast Asian governments to work together under ASEAN. In the last 41 years, ASEAN has grown from a family of ﬁve to ten, and the ten countries are now cooperating and integrating on more areas than ever before. The ASEAN Charter has given us new impetus for further integration and growth, and will carry us forward for generations to come. The ASEAN Charter is a precious gift to the peoples of Southeast Asia. The Charter would not have been possible without the endorsement of the ASEAN Leaders and work of the drafters of the ASEAN Charter — the High Level Task Force on the Drafting of the ASEAN Charter, the drafters of the Terms of Reference of the ASEAN Human Rights Body, and the other supplementary agreements. The Eminent Persons Group on the ASEAN Charter also gave us valuable recommendations. The High Level Task Force on the Drafting of the ASEAN Charter has contributed to the body of knowledge that will go down in the history of the region, for opening up new possibilities for ASEAN. xv

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The Making of the ASEAN Charter

The Charter spells out our vision for the future, our commitment to become a people-oriented and regional grouping that is united by a common desire to live in a region of lasting peace, security and economic growth, shared prosperity and social progress. The ASEAN Community will be underpinned by the values of good governance and rule of law as well as the respect for and protection of human rights and fundamental freedoms of our peoples. The ASEAN Charter has also created a new legal and institutional framework with a legal personality and improved decision-making mechanisms to carry out our work. I have already witnessed some of the implications that the ASEAN Charter have on my work in the ﬁrst year as the Secretary-General of ASEAN. The “little green book” is indispensable in my dealings with people, who range from the Leaders of the world’s greatest superpowers, heads of multilateral institutions, businesses, banks, religious leaders, academia, students, the media, Parliamentarians and civil society. These people come from the ASEAN region as well as from countries with whom ASEAN has yet to establish formal relations. The ASEAN Charter has allowed me to explain issues more clearly to our friends and partners, who support and share the same aspirations, and would like to contribute to our region’s future. It has helped ASEAN articulate our values, purposes, visions and foundations on which we are built and our desire to build a regional identity. The ASEAN Charter has paved the way for ASEAN’s stakeholders to build coalitions to help the region grow to embrace the future. It has laid the ground work for the partnerships we will forge with all our stakeholders, from xvi

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Foreword

different countries and industry sectors, between government and inter-governmental organisations, businesses, academia, civil society, and others, to create a vibrant and integrated Southeast Asia. It is now up to the stakeholders of ASEAN to take up the challenge of regional integration to respond creatively to globalisation and the opportunity to improve our lives. Although many challenges lie ahead, the ASEAN Charter gives us hope, purpose, and importantly, a framework of action for all the peoples of ASEAN. This book provides insights into the making of the Charter and background of the deliberations on the range of issues that are so pertinent for the region’s future. It will help us develop a perspective of the intent of some of the provisions in the Charter. As ASEAN celebrates the Charter’s full ratiﬁcation by all ASEAN member states and the entry into force this December, I am most grateful to the contributors of this volume who have helped to shed light into the inspiration and guiding principles of the drafting of the ASEAN Charter. This, in turn, will help future generations of the people of ASEAN to appreciate not only the text of the Charter, but also the spirit of our basic document. The more we understand and appreciate what went into the drafting of the Charter, the more we will respect and live our life under its guidance. Our collective endeavours to build the ASEAN Community will certainly beneﬁt from the collective memories and insights contained in this book. And that is nothing less than an intellectual legacy for our posterity. Surin Pitsuwan Secretary-General of ASEAN Jakarta xvii

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Preface “Your old men shall dream dreams, your young men shall see visions” At the 11th ASEAN Summit in Kuala Lumpur in 2005, the Leaders of ASEAN tasked the Eminent Persons Group (EPG) on the ASEAN Charter to propose major steps that could be taken to achieve an ASEAN Community. The EPG was enjoined to be “bold and visionary”. The EPG Report was presented to the Leaders at the 12th ASEAN Summit in Cebu on 12 January 2007. The following day the Cebu Declaration on the Blueprint of the ASEAN Charter was issued. The High Level Task Force (HLTF) for the Drafting of the ASEAN Charter received its mandate on the same day. That mandate came with a strict timetable: have the Charter ready for signature at the 13th ASEAN Summit in Singapore. It is of course a pleasant task to dream dreams and see visions. The process of actually translating the dreams and visions into practical reality requires much more than idealism and a magic wand. In the case of the ASEAN Charter, it took 11 months of hard work and hard negotiation. The work went on literally to the last minute, ending at the stroke of midnight on the ﬁnal day of the ﬁnal meeting of the HLTF in Vientiane. xix

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This is not meant as a textbook interpreting the Charter. It is a record of the impressions of the drafting process by members of the HLTF. Each of the contributors has focused on a different aspect of the drafting; each brings a unique perspective on the process. In his ﬁrst masterwork Rashomon, the great Japanese ﬁlm director Kurosawa Akira told the story through the various viewpoints of the different characters. The story of the creation of the ASEAN Charter is told in the same manner in this book. We have the contributions of the two chairpersons of the HLTF, Ambassador Rosario Manalo of the Philippines and Ambassador Tommy Koh of Singapore. They provide the insights of the two personalities who steered the HLTF in their work. ASEAN Secretary-General Ong Keng Yong shares his unrivaled experience of how ASEAN works in practice. Dr Termsak Chalermpalanupap (the Secretary-General’s special assistant and resource person to the HLTF) puts the Charter in its proper historical and political perspective. Each of the other contributors — Director-General Aung Bwa of Myanmar, Pengiran Dato Paduka Osman of Brunei, Tan Sri Ahmad Fuzi of Malaysia, Ambassador Nguyen Trung Thanh of Vietnam, Ambassador Pradap Pibulsonggram of Thailand, DirectorGeneral Dian Triansyah Djani of Indonesia, Secretary of State Kao Kim Hourn of Cambodia and Vice-Minister Bounkeut Sangsomak of the Lao People’s Democratic Republic — offers his own unique and interesting view of the drafting process. When Ambassador Tommy Koh took over as Chairman of the HLTF in August 2007, Ambassador Walter Woon was entrusted with the leadership of the Singapore delegation. Rather than overlap what Ambassador Koh has so clearly set xx

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out in his essay, Ambassador Woon has conﬁned himself to the most legalistic aspect of the Charter, the dispute settlement mechanisms. It is hoped that this collection of essays will enable students of ASEAN to better understand the way the Charter came to be as it is, warts and all. The ASEAN Charter was not meant to be carved in stone, to stand unchanged for all eternity. ASEAN will evolve and the Charter will evolve with the organisation. What one sees today is a ﬁnely-balanced document taking into account the different perspectives, interests and concerns of the ten member states. Of course it could be better drafted, the phrasing could resound more, and there could be a greater dose of idealism and less of down-to-earth practicality; but what multilateral document could escape such criticisms? The important thing is that the Charter provides a practical framework for the functioning of ASEAN. It is said that a camel is a horse designed by a committee. The ASEAN Charter is the diplomatic equivalent of a camel. It may not have the good looks of a thoroughbred, but the camel is a perfectly good and reliable animal. When the terrain is tough and dry, a camel will survive trials that would kill the toughest horse. The ASEAN Charter will take ASEAN through the next decades of the 21st century. Like any other living organism, it will adapt, change and grow. Organisms only stop adapting and growing when they are dead. Tommy Koh Rosario G Manalo Walter Woon

xxi

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Acknowledgements First, we would like to thank His Excellency Dr Surin Pitsuwan, Secretary-General of ASEAN, for honoring us by writing the foreword for this book. Second, we would like to thank our fellow contributors for delivering on their commitments to write an essay each for us. This book is enriched by their insights and reﬂections. Third, we would like to thank the staff of the contributors who helped in the preparation of the essays. We are grateful to Ms Chan Sze-Wei for helpfully coordinating with the many contributors. Her in-depth knowledge gained from the two years in following the process was invaluable. We appreciate the good support provided by Ms Chang Li Lin of the Institute of Policy Studies, Ms Lily Ng at the Ministry of Foreign Affairs, and Ms Juliet Lee from World Scientiﬁc Publishing. We would like to thank the Director and staff at the Institute of Policy Studies, for agreeing to co-publish this book with the World Scientiﬁc Press. We hope that, in time, the ASEAN Charter will play a signiﬁcant and positive role in the lives of the 550 million people who live in Southeast Asia. Tommy Koh Rosario G Manalo Walter Woon xxiii

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List of Abbreviations ACC

ASEAN Coordinating Council

AEB

ASEAN Executive Board

AEC

ASEAN Economic Community Council

AEM

ASEAN Economic Ministers

AHRB

ASEAN Human Rights Body

AIPA

ASEAN Inter-Parliamentary Assembly

AMED

Asia-Middle East Dialogue

AMM

ASEAN Ministers’ Meeting

APEC

Asia-Paciﬁc Economic Cooperation

APSC

ASEAN Political Security Community Council

ASCC

ASEAN Socio-Cultural Community Council

ASEAN

Association of Southeast Asian Nations

ASEM

Asia-Europe Meeting

CLMV

Cambodia, Lao PDR, Myanmar and Vietnam

CPR

Committee of Permanent Representatives

DSG

Deputy Secretary-General

EDSM

Enhanced Dispute Settlement Mechanism

EPG

Eminent Persons Group xxv

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EU

European Union

HLTF

High Level Task Force

HRB

Human Rights Body

IAMM

Informal ASEAN Ministerial Meeting

KL

Kuala Lumpur

NAM

Non-Aligned Movement

NGO

Non-Governmental Organisation

NUS

National University of Singapore

OIC

Organisation of Islamic Countries

PMC

Post-Ministerial Conference

SEANWFZ

Southeast Asia Nuclear Weapons-Free Zone

SOM

Senior Ofﬁcials Meeting

TAC

Treaty of Amity and Cooperation

TOR

Terms of Reference

UN

United Nations

UNCTAD

United Nations Conference on Trade and Development

UNDP

United Nations Development Programme

UNFPA

United Nations Population Fund

UNIDO

United Nations Industrial Development Organisation

USA

United States of America

VAP

Vientiane Action Programme

WTO

World Trade Organisation xxvi

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Heart Labour Pengiran Dato Paduka Osman Patra Pengiran Dato Paduka Osman Patra is Permanent Secretary, at the Prime Minister’s Ofﬁce since August 2008. Prior to that, he served as Permanent Secretary, Ministry of Foreign Affairs and Trade since 2002. He is Brunei Darussalam’s representative to the ASEAN High Level Task Force on the drafting of the ASEAN Charter. Pengiran Dato Paduka Osman Patra joined the Brunei Foreign Service in 1981 after graduating from the University of Essex, United Kingdom. He also holds a Masters Degree in Area Studies (Southeast Asia) from the School of Oriental and African Studies (SOAS), University of London. Before his transfer to the Prime Minister’s Ofﬁce, he has held numerous positions in the Ministry of Foreign Affairs and Trade, primarily in the ASEAN and Political Departments and also served at the Brunei Mission in the Philippines from 1985–1987. He also contributed actively to a number of international meetings hosted by Brunei, in particular the ASEAN Ministerial Meetings (1989, 1995 and 2002), APEC (2000) and ASEAN Summit (2001). He was appointed Deputy Permanent Secretary (1997–2002) and eventually as Permanent Secretary (since 2002). He was involved in the Brunei Darussalam Economic Council (1997) and more recently as Joint Secretary for the Brunei Darussalam 2035 Long-Term Development Plan.

Introduction The work I was privileged to undertake on the ASEAN Charter as a member of the High Level Task Force (HLTF) was far more than a professional duty. It was an intensely personal experience. 1

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The year 2007 meant a great deal to me. It began with the prospect of joining nine other familiar friends and colleagues to draft an ASEAN Charter. It is understandable that the whole exercise also brought with it a feeling that there was so much at stake. Not just the hectic schedules, 13 meetings, mandates, positions and so forth. But more than that, the whole life history of ASEAN and all it stood for would be unravelled. This essay serves to provide readers with some ideas surrounding the making of the Charter with special reference to the reform of ASEAN’s organisational structure. Drafting was to have started immediately after the Leaders’ Summit in Cebu in January 2007. I was in a ﬁx, as the planned meeting in January coincided with another big event in my life. The behind-the-scenes diplomatic initiative of a Laotian HLTF member was much appreciated and the ﬁrst meeting of the Task Force took place in early February instead, at the ASEAN Secretariat.

HLTF’s Mandate The work of the HLTF as the Terms of Reference (TOR) suggest was very clear, tightly circumscribed by the Declaration of the ASEAN Leaders, instructions of Ministers and the preceding Report and draft model of the Charter prepared by the ASEAN Eminent Persons Group (EPG). This appeared to be an excellent process. Leaders sanctioned the way forward for the future; the EPG had been told to address questions related to ASEAN’s future relevance, viability and effectiveness as an association. They were given the luxury to be bold and visionary in expressing the Leaders’ wishes. 2

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At the opposite end of the process, the HLTF which comprised mainly of practitioners and serving bureaucrats, were treading a ﬁne line, particularly in striking an acceptable balance of competing pressures such as the need to conform to the Leaders’ declarations, Ministerial decisions, the EPG Report and instructions from the capitals. Without doubt, the tasks ahead were not easy even with all the documents at hand to facilitate the team’s work.

The Work Begins The Task Force’s deliberations on the proposed Article IV of the Charter, “ORGANS” only commenced during the ﬁfth meeting in Hanoi, and even then, they were very much exploratory, philosophical and general in nature. The exercise proved to be perplexing as the team felt the ASEAN DirectorsGeneral and the ASEAN Secretariat should initially provide substantive papers for the Task Force to ponder over. There was also the feeling that dealing with this article ﬁrst could make drafting the rest of the articles in the Charter much easier. The numerous ideas from colleagues overwhelmed the ASEAN Secretariat, preventing it from producing sufﬁcient background papers. However, the presence of the Secretary-General himself to explain the intricacies of the existing structure paved the way for well-informed debates.

ASEAN’s Current Structure Like any other organisation, ASEAN has its own organs to carry out its aims and purposes. The organs have developed from only one Ministerial Body (Annual Foreign Ministers Meeting) in 1967 to its current 28 Ministerial Bodies and 3

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132 Committees at the Senior Ofﬁcial as well as working group levels. They have increased in number as ASEAN has grown in its membership, scope and strength with a view to keeping up with ongoing changes and developments in the region and beyond. Some have described it like a “fat octopus” that had grown many tentacles, each having its own functions and areas of coverage. There are also about 750 ASEAN-related meetings in a year.

EPG’s Vision In their Report, the EPG had framed the pertinent question about what ASEAN had achieved in the last 40 years and what it would require for the future. Among the many prognoses they recognised which constrained the association was that “ASEAN’s problem was not lacking vision, ideas or action plans. The problem was one of ensuring compliance and effective implementation. According to them ASEAN must have a culture of commitment to honour and implement decisions, agreements and timeliness”. Furthermore, the EPG’s approach from the point of structural reform was enunciated in a number of ways. They considered that “ﬁrst the scope and number of ASEAN meetings at different levels have increased. Second, ASEAN does not have a mechanism in place to coordinate and oversee the progress of the three pillars of ASEAN Community. Third, the current institutional framework is not sufﬁciently wellstructured to deal with the increasing number of transnational and trans-sectoral issues”. The EPG also thought that “the key challenge is to adopt a holistic approach to establish an overall structure that can 4

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provide unity in purpose, focus and effective implementation of ASEAN Leaders’ decisions and ASEAN Agreements”. Undoubtedly, these views were valid. The existing structure developed over the last 40 years in a reactionary and ad hoc manner could not cope with the complexity and intensity of current undertakings.

EPG’s Recommendations In this regard, the EPG’s proposed structural reform consisted of the following: • ASEAN Council (ASEAN Summit which should meet at least twice a year); • Formation of three ministerial-level councils representing the three community pillars and reporting to the ASEAN Leaders; • A single ASEAN Chairmanship in which an ASEAN member state shall assume leadership of ASEAN and hosts and chairs practically all ASEAN meetings in the community council; • Strengthening the role and empowering the SecretaryGeneral especially in managing external relations for ASEAN and the pro-active role of the ASEAN Secretariat. In addition, the Secretary-General will be assisted by four Deputy Secretaries-General; • Accreditation of Permanent Representatives to ASEAN as representatives of ASEAN member states’ respective governments in Jakarta; • Reinvigoration of the ASEAN foundation; • Establishment of the ASEAN Institute, as a think-tank of the ASEAN Secretariat; 5

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• ASEAN committees; and • ASEAN committees in non-ASEAN countries and International Organisations. It is interesting to note that, in their proposal, the EPG envisaged that the work of ASEAN would be conducted within the context of the three ASEAN Community Councils supported by the ASEAN Committee in the respective Councils and further assisted by the ASEAN Secretary-General, the Secretariat and the Permanent Representatives. They also emphasised the greatly enhanced role of the Secretary-General, particularly in managing the conduct of external relations and, internally, entrusting him with the role of monitoring and reporting cases of non-compliance. There were two interesting revelations. First, the EPG did not speciﬁcally recommend a special body to deal with the promotion and protection of human rights in ASEAN. However in their report, “they discussed the possibility of setting up an ASEAN human rights mechanism and viewed that the idea could be considered further”. Second, the ASEAN Foreign Ministerial Meeting, which had played an important role in the association’s development in the last 40 years, would now be just a sectoral Ministerial Meeting in the Community Council. The EPG seemed to be grappling to ﬁnd a more substantive function in the Charter for this group of ministers, and eventually placated them by outlining their role as one of making preparations for the Council Meetings (Summit Meetings).

Discussions The HLTF’s discussions on the ASEAN structure which started in Hanoi in mid-April, continued gingerly throughout the rest 6

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of the scheduled meetings, but did not really pick up steam until the Eighth Meeting in Manila in July which coincided with the 40th AMM/PMC Meeting. The Task Force members were great colleagues to work with. The Philippines chaired the ﬁrst eight meetings and Singapore the remaining ﬁve. It was at this Manila Meeting that the work pressure of drafting became demanding and tense because of the substantive topics we had to deal with: ASEAN structure and, in it, the article referring to the establishment of the ASEAN Human Rights Body (AHRB). Although, the Philippines were truly great hosts, expectations presented a formidable challenge because of the intrusive media coverage. The press corps also seemed extremely excited by the free ﬂow of information about the content of the Charter. Overall, the deliberations on the AHRB as a part of the ASEAN organ had their own peculiarly interesting side. Of all our debates, this was the most explosive and tense of all. A number of subject matters came under the ambit of the proposed Article IV ORGANS. The drafting was easy as we had the EPG recommendations to guide us, but the discussions proved very complex as members of the Task Force tried to understand the kind of set-up which would differentiate the pre-Charter ASEAN from the Charter-era ASEAN. Four countries and the Secretariat submitted proposals about how the new ASEAN structure should look and attempted to explain the role of each sub-organ as well as how they would network and interact with one another. Owing to the accumulation of work from previous meetings, our treatment of the subject was usually relegated to the end of each meeting. In the course of our work, sensitivities arose, partly due to 7

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the sub-organ on AHRB. In so far as the HLTF assistants who had been serving a useful role to the HLTF, they were strictly instructed “not to touch the organ” (sic).

Cardinal Principles The following points represent some of the cardinal principles in preparing the new ASEAN organs: • Think out of the box; • Improve coordination and efﬁciency of ASEAN; • Improve the effectiveness of decision-making process and implementation of activities; • Improve cross-sectoral coordination among ASEAN bodies; • Avoid unnecessary additional layer of bureaucracy; • Consider the frequency of the future ASEAN Summit; • Clarify the role of the three ASEAN Community Councils; • Recognise the role of the ASEAN Foreign Ministers as playing a coordinating role; • Make clear the enhanced role of the chair and the ASEAN Secretary-General; • Explain the role of the proposed committee of the Permanent Representatives; and • Strengthen and legalise the Senior Ofﬁcials Meeting (SOM). Despite the help from the Secretary-General and the papers submitted by the HTLF from Brunei, the Philippines, Indonesia and Myanmar, the Task Force struggled to contemplate, visualise and accept how the new Community Councils’ approach to the ASEAN process would work in 8

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reality. The Community Councils consist of ASEAN Political Security Community Council (APSC) — ﬁve sectoral ministers; ASEAN Economic Community Council (AEC) — 12 sectoral ministers; and ASEAN Socio-Cultural Community Council (ASCC) — 11 sectoral ministers.

Choosing a Workable Formula Would each community council convene with all its sectoral ministers under one roof? If this happened, it meant in the case of AEC, each ASEAN member country would send 12 economic sectoral ministers, totalling up to 120 ministers. This would be a nightmare for the host, especially in logistics, protocol and security arrangements. This is the “Jamboree” approach, according to the Secretary-General. Another concern questioned the need for the three Community Councils to meet at the same time, as this would present an even larger “Jamboree” [(APSC — 5 × 10 = 50 ministers; AEC — 12 × 10 = 120 ministers and ASCC — 11 × 10 = 110) = 280 ministers]. Or, as the Secretary-General again suggested, would the Indonesia MENKO format or coordinating ministers style representation be sufﬁcient? This would involve each country represented by three ministers, one from each Community Council. Two further questions arose. Firstly, how would the outcome of the Community Council meeting and its implementation be passed on to the Summit? Secondly, which sectoral minister would lead each of the respective Councils? 9

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Proposals In view of such questions, the Secretariat proposed that the Foreign Ministers assume the role of ASEAN Executive Board (AEB) to ensure that Community Councils and their subsidiary bodies work with ease and precision. It was envisioned that this would adopt a business-like set-up, along the lines of board directors. Though the idea was pragmatic, it was accepted as a necessary evil! Many among the HLTF feared that the multiple roles of Foreign Ministers in the Charter would make them omnipresent, although for possibly good reasons. Some members of the HLTF even protested that this was a Foreign Minister’s charter rather than an ASEAN Charter. Incidentally, the Economic Ministers were omitted from the photo session with the ASEAN Leaders during the historic signing of the Charter. They were unintentionally overlooked. To their dismay, the photo sessions were only for those involved in the drafting and in providing guidance for the drafting work. As well as this, the ﬂow-chart of the new organisational structure also consumed a lot of time and energy in debates. The proposed AEB was renamed the ASEAN Coordinating Council (ACC) after the New York Retreat of the Foreign Ministers in September 2007. By design rather than by default, there was now a council to coordinate the work of the three Community Councils and of course in preparing for the Leaders’ Summit. Controversies over whether to put the ACC just below the Summit or at the same level as all the Community Councils were overcame by not having a ﬂow chart of the new structure annexed to the Charter. It was presumed that the Secretariat 10

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Heart Labour

would have an administrative ﬂow-chart. This arrangement also helped reduce unnecessary oratory arguments among the members of the HLTF in suggesting which organs or suborgans should be a notch up or a notch down.

Comparing the Recommendations from EPG and HLTF The similarities and differences between the EPG and HLTF recommendations were as follows: EPG ORGANS

HLTF ORGANS

1.

ASEAN Council

ASEAN Summit

2.

ASEAN Foreign Minister to prepare for summit

ASEAN Coordinating Council

3.

Council of the ASEAN Community

ASEAN Community Council

4.

ASEAN Secretary-General

ASEAN Secretary-General

5.

ASEAN Committees

Sectoral SOM

6.

ASEAN Secretariat

ASEAN Secretariat

7.

NA

ASEAN Sectoral Ministerial Bodies

8.

ASEAN Permanent Representatives

Committee of Permanent Representatives to ASEAN

9.

ASEAN National Secretariat

ASEAN National Secretariat

10.

NA

11.

ASEAN Foundation

12.

ASEAN Institute

ASEAN Human Rights Body ASEAN Foundation NA

The details of each heading as elaborated by both the EPG and HLTF may be fully understood when comparing the former’s Report and the signed ASEAN Charter. 11

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The Making of the ASEAN Charter

So, having noted all this, what exactly is IN the Charter?

What the Charter Includes In this connection, the HLTF attempted to elaborate and clarify the EPG proposals. As set out in the above chart, there exist nuances in articulating what could have been similar titles or concepts. In addition to the three Community Councils, there is now an ASEAN Coordinating Council (ACC) consisting of the Foreign Ministers. It is conceived that the ASEAN Summit would require a mechanism to move the process across the Community Councils and the sectoral ministers, ﬁlter their reports and that of the Secretary-General. So this called for some kind of “hard” as well as “soft” infrastructure which would help ensure that the Summit is well prepared and the trans-sectoral connectivity works well. The Foreign Ministers also would serve in different capacities: • Sectoral Ministers in the ASEAN Political Security Community. • Representative of each ASEAN member state in the ASEAN Regional Forum. • Representative of each ASEAN member state in the (SEANWFZ) Commission. • Under chapter XII, External Relations, the Foreign Ministers are also entrusted with the responsibility to oversee the conduct of ASEAN external relations. As a result, the Charter stipulates that Foreign Ministers are deﬁnitely “IN” with an increasingly enhanced role.

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Heart Labour

ASEAN Human Rights Body Another important sub-article which is deﬁnitely “IN” is the AHRB — a most sensitive, controversial and difﬁcult subject. It took three ministerial interventions to settle two acceptable paragraphs for the article. At their Siem Reap Retreat in February 2007, the Ministers instructed the HLTF to come up with something they could look at on the article. By the time of the Manila AMM in July 2007, consensus did not seem possible. They was no way forward. The Foreign Ministers, however, had other views. They grasped the political nettle and they reached a consensus that ASEAN should establish such a body. It was not the end of it, however, as the battle line moved to the question of the TOR of the AHRB, particularly as to whether it should perform a consultative or a monitoring role and so on. Finally, at their New York Retreat in September 2007, the Foreign Ministers decided that they themselves would determine the AHRB’s TOR. So the work is half complete. Having noted this, the inevitable question is what is OUT of the Charter?

What is Not in the Charter The ASEAN Standing Committee has been abolished despite its quintessential role in ASEAN. Consequently, hope is placed in the Committee of Permanent Representatives (CPR) especially in taking over the function of the ASEAN Directors-General and possibly also the various Senior Ofﬁcials meetings. Frankly, several members were not particularly convinced about how the potential of this Committee would be realised 13

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The Making of the ASEAN Charter

unless the capitals of ASEAN are ready to empower and entrust full responsibilities to their PRs in Jakarta. Depending on how the ASEAN workload would be shared between SOM and the Directors of the National Secretariat and the importance of the ASEAN Capitals in decision-making and the implementation of initiatives or projects, the prospect of the CPR concept would need to evolve over time. Personally, I am willing to give it the beneﬁt of the doubt and am conﬁdent that a number of the Directors-General of ASEAN who served in the HLTF would be excellent candidates for the PR’s post in Jakarta.

Evolving ASEAN I feel it is critical to ask if the new organisational structure will work for ASEAN. I believe the answer may require another essay in ten to 20 years’ time. It is important to recognise that Leaders admitted that the Charter, though not a perfect document, is the best available to ASEAN. The Charter has to be looked at in its entirety, particularly the roles of the Summit, dispute-settlement mechanisms and the enhanced role of the Secretary-General and the Secretariat. As an association, the model of ASEAN has never been based on other regional organisations like the European Union, although we have learned a lot from them. The various articles of the Charter in general and in the Article IV in particular are really a means rather than an end. In essence, they offer possibilities rather than restrictions. The ASEAN process will have to evolve with the Charter, providing the necessary means and possibilities. 14

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Heart Labour

Conclusion I started by stating that my work was a personal experience as well as a professional one. On this personal note, it took the HLTF nine months, from February to October, to complete the drafting. The signing was done in November 2007 during the 13th ASEAN Summit in Singapore. Hard Labour? Sometimes. Heart Labour? Constantly and proudly! My wife who was also initially part of the Brunei HLTF and I attended the 1st HLTF meeting in the midst of our honeymoon. Two weeks after the signing of the ASEAN Charter our ﬁrst baby, a son named Raiyan, was born. According to our Malay custom, assuming the Charter had been a human being, he and our son would have been brothers. So, as parents, we will nurture them and care for them. Above all, we wish them hope for the future and a chance to do well. As citizens of ASEAN who are privileged to have served our region, we wish the same for the Charter.

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Facing Unfair Criticisms Tan Sri Ahmad Fuzi bin Abdul Razak Tan Sri Dato’ Ahmad Fuzi Haji Abdul Razak is Ambassador-At-Large, Ministry of Foreign Affairs, Malaysia. He is Malaysia’s representative to the ASEAN High Level Task Force on the drafting of the ASEAN Charter. Tan Sri Ahmad Fuzi joined the Malaysian Diplomatic and Administrative Service in 1972 after graduating from the University of Malaya. He served in various capacities at the Ministry of Foreign Affairs, mainly in the Political Division, and at the Malaysian Missions abroad in Moscow, The Hague, Canberra, Washington and Dhaka before assuming the post of Director-General of the Institute of Diplomacy and Foreign Relations, Deputy Secretary-General I (Political) and subsequently Secretary-General of the Ministry of Foreign Affairs. As Secretary-General, he played a prominent role in organising the Non Aligned Movement (NAM) Summit in 2003, the Organisation of Islamic Countries (OIC) Summit in 2003 and the ASEAN Summit and Related Summits including the East Asia Summit in Kuala Lumpur in December 2005. Recipient of numerous national honours, Tan Sri Ahmad Fuzi also serves on a number of boards of private and public organisations.

It was Tuesday, 20 November 2007. As I stood together with my fellow ASEAN High Level Task Force (HLTF) colleagues in the imposing Banyan Ballroom of Shangri-La Hotel, Singapore to witness the signing ceremony of the ASEAN Charter, I could not help feeling a deep sense of satisfaction. There was every justiﬁcation to rejoice at a job well done. We have managed to complete our work within the stipulated 17

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The Making of the ASEAN Charter

11-month time frame. We have proven what a dedicated collective effort could achieve within ASEAN by acting together. The event itself was epochal for ASEAN. It marked a signiﬁcant stage in the evolution of the 40-year-old regional organisation.

Criticisms of the Charter Critics of ASEAN however, were quick to highlight the inadequacies of the Charter. It was belittled as merely a “compendium of ASEAN’s existing principles and agreements already developed and in force in the last four decades”. It was criticised as not being “bold and visionary” enough and “a huge let-down”. The Charter, it was asserted, contained “no single big idea or single overarching policy to revitalise ASEAN’s appeal to its 500 million people”. Particular criticisms were directed at the absence of speciﬁc provisions in the Charter on the mobilisation of resources including the setting up of a “Special Fund” to narrow the development gap within ASEAN as recommended by the Eminent Persons Group (EPG). The retention of the principle of consensus in decisionmaking and non-interference was also criticised as being not progressive or forward-looking. There was no provision for suspension or expulsion of members for non-compliance. Even ASEAN’s attempt at deﬁning and developing its own identity was ridiculed. The various “blemishes” it suffers would eventually relegate the Charter to nothing more than “a piece of paper”. In the wider context, comparisons were made between ASEAN and the EU, by looking at what had been achieved by ASEAN on the basis of the Charter, with the EU in Europe. 18

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Facing Unfair Criticisms

The Signiﬁcance of the Charter These criticisms need to be addressed. Some of the critics did not fully appreciate the complexity of ASEAN including how ASEAN works as an evolving regional organisation. ASEAN’s institutional building initiatives and improvement of its organisational structure through the Charter process were not fully understood. They also failed to appreciate the totality of the whole exercise. Criticisms of the Charter appeared to be premised more on critics’ disappointment at not seeing what they themselves wanted to see in the document. Realism and pragmatism seemed to be far from their consideration. Indeed, their rather condescending attitude smacks of arrogance whilst being unfair to the ASEAN Charter drafting process and what it took to draft and complete such a major document involving ten member states.

Vientiane and Kuala Lumpur It should be appreciated that whilst the Charter proposal was not an entirely new idea, the political decision made within ASEAN to pursue a Charter, as formally reﬂected in the 2004 Vientiane Action Programme and the 2005 Kuala Lumpur Declaration on the establishment of the ASEAN Charter, was a very signiﬁcant development. The KL Declaration marked the formal end of whatever misgivings and initial reluctance on the part of some member states, for ASEAN to have such a legal document. Tribute in this regard should go to those dedicated ASEAN Senior Ofﬁcials whose initiative at accelerating the process of pursuing a Charter was subsequently endorsed by ASEAN’s political leadership. Without such initiative 19

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The Making of the ASEAN Charter

the Charter idea would remain just that — an idea to be continuously and endlessly explored and debated.

From EPG to HLTF It was to ASEAN’s credit that, following the submission and acceptance by the ASEAN Leaders of the Report and Recommendations of the Eminent Persons Group (EPG) in Cebu, the Philippines in January 2007, the task of drafting the ASEAN Charter was delegated to Senior Ofﬁcials who were familiar with ASEAN’s history, contemporary realities and vision of the future. Their comprehensive understanding of ASEAN and the position of member states on various sensitive issues provided a useful backdrop in enabling them to complete their work whilst preserving the unity and integrity of ASEAN as an organisation.

Mutual Accommodation and Consensus Members of the HLTF took great pains to preserve the principle of equality within ASEAN in the course of tediously negotiating the 55 Articles contained in the Charter. No undue pressure of one or more states by other member states was tolerated. Persuasion and the power of arguments were recognised as the basis for compromise and ﬁnal agreement. No single member state could claim to play the dominant role or that the Charter was based on its original draft. It was entirely a collective effort from the beginning to the end. The process itself reﬂected a clear example of a politically negotiated but legally binding ASEAN document par excellence.

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Facing Unfair Criticisms

Some Dramatic Moments Negotiations throughout the 13 meetings held by the HLTF were not without tension, occasional outburst of emotions or dramatic moments. The absence of “undue pressure” did not mean the complete absence of “threats” exhibited by some members from time to time. Such conduct or negotiating techniques reﬂected the burden held by the HLTF members in protecting their respective national interest pertaining to key provisions in the Charter. The older ASEAN member states namely Indonesia, Malaysia, the Philippines, Singapore and Thailand even had to counter the notion of being seen to be “too generous” in conceding to the CLMV (Cambodia, Laos, Myanmar and Vietnam) member states on various critical and sensitive issues in the Charter.

ASEAN Human Rights Mechanism Perhaps the single most sensitive issue faced by the HLTF was the drafting of the enabling provision pertaining to the establishment of an ASEAN Human Rights mechanism. The HLTF had to contend with the well-known positions held by member states on the issue including the fact that Indonesia, Malaysia, the Philippines and Thailand had already established their own National Human Rights Commission. Continuous pressure was also being exerted by the relevant NGOs during the drafting process on the governments concerned to the extent that the inclusion or otherwise of a reference to an ASEAN Human Rights mechanism was looked upon as a measure of the relevance and signiﬁcance of the Charter itself. For a long time “human rights” was considered “taboo” within ASEAN and was never the subject of detailed 21

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The Making of the ASEAN Charter

deliberations. As such, even to discuss it in the manner undertaken by the HLTF was a major progress for ASEAN. The ﬁnal resolution of the issue among member states certainly spoke well of ASEAN’s increasing recognition of the importance of human rights for the general wellbeing of all citizens of the region, consistent with the notion of transforming ASEAN into a “people-oriented” organisation. A major challenge now is to ensure that the body would be able to function well without allowing itself to become the subject of ridicule by critics within and outside the region.

Mobilisation of Resources It was true that no speciﬁc provision was made in the Charter with regard to the mobilisation of resources. Many within the HLTF itself were unhappy with its inability to achieve a consensus on this. Various proposals put forth on the table were not even considered. ASEAN currently has to contend with the USD904,000 (USD Nine Hundred and Four Thousand) annual contribution made by each member state for its operating budget and whatever additional funds voluntarily contributed towards the ASEAN Development Fund. In practice, however, each member state had to incur more than their respective annual contribution when account was taken of the ﬁnancial commitments made in hosting and attending the relevant ASEAN Meetings at various levels and in organising ASEAN-related events throughout the year. Critics should also take note that the mobilisation of resources issue is now being administratively addressed within ASEAN with 22

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Facing Unfair Criticisms

the establishment of an Experts Group to improve ASEAN’s ﬁnances for the beneﬁt of the organisation.

Myanmar Western observers were particularly critical on the question of Myanmar in relation to the ASEAN Charter drafting process. It was argued that the provisions on decision-making which made no reference to “suspension or expulsion” as recommended by the EPG was inadequate in allowing ASEAN to effectively deal with such issues. Such a view reﬂects a misinterpretation of Paragraph 2 of Article 20 on DecisionMaking which clearly provides that “where consensus cannot be achieved, the ASEAN Summit may decide how a speciﬁc decision can be made”. The spirit behind this formulation is to allow ASEAN Leaders to discuss and ultimately take a stand on any issue other than by resorting to the principle of consensus once the Charter comes into force. Such an option would allow the Leaders some measure of ﬂexibility in making ﬁrm decisions on issues considered sensitive as in the case of Myanmar in the larger interest of ASEAN and the region. The challenge now is for ASEAN Leaders to garner the necessary political will to do so in conformity with the provision of the Charter.

Joining ASEAN As a member of the HLTF, I was particularly happy that the Charter had ﬁnally put to rest any uncertainty on the issue of membership considered highly sensitive by several members. The Charter lists down four criteria for membership: 23

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The Making of the ASEAN Charter

(i) location in the recognised geographical region of Southeast Asia; (ii) recognition by all ASEAN member states; (iii) agreement to be bound and to abide by the Charter; and (iv) ability and willingness to carry out the obligations of membership. The only country outside ASEAN which could potentially satisfy all four criteria is Timor Leste. In completing the Charter drafting exercise, tribute should be given to the ASEAN Leaders for their vision, ASEAN Ministers for their guidance, the EPG for their views and recommendations, and ASEAN Members of Parliament, Government Agencies, sectoral ASEAN bodies, NGOs and relevant members of the private sector for their commendable inputs. A special tribute should also be given to the ASEAN Secretariat, as represented by the Secretary General and his able Assistants, for their professional advice and to the Assistants of the HLTF themselves for their indefatigable role in enabling the HLTF to resolve sensitive provisions through the creative formulation of provisions acceptable to all member states. Ambassador Manalo and Ambassador Tommy Koh, who took turns to chair the HLTF meetings, also deserve credit for adding colour, vigour and urgency to the deliberations.

Not Perfect But Best Achievable In the ﬁnal analysis, the ASEAN Charter cannot but reﬂect the prevailing regional realities. It is not intended to be an ideological thesis but a broad framework of rules, regulations and procedures to govern the conduct of relations involving 24

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Facing Unfair Criticisms

members of ASEAN. No Charter can be perfect. The language in the Charter too can never be simpler or clearer. Any semblance of ambiguity that exists is creatively intended to achieve consensus which can only be understood and appreciated within ASEAN. The Charter is also as bold and visionary as it can be so as to ensure compliance. Pragmatism, ultimately, is the key word. ASEAN member states should take pride in ﬁnally having the “mother of all documents” that could be the source of common reference and that should prevail over all other ASEAN instruments of the organisation.

Charter a Living Document A useful Charter is one that is implementable and fully complied with. Compliance, however, cannot be on a selective basis. Disappointment with any provision of the Charter should not be an excuse for non-compliance or for withdrawal from member states’ commitment to ASEAN. The Charter must also be a living document. The provisions on Amendments and Review can take care of whatever inadequacies that currently exist. The so-called “lowest common denominator” can be gradually upgraded over the years as ASEAN matures. ASEAN’s capacity to continue to evolve in meeting changing circumstances should not be underestimated. To compare it with the EU equivalent document (if ever it is eventually agreed upon) is not only unnecessary but inappropriate and irrelevant. The relevance of ASEAN with its own distinct Charter in any case is not and should not be measured by the degree of similarity that it enjoys with the EU. ASEAN is not about “simply copying” the EU. ASEAN is ASEAN with its own 25

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The Making of the ASEAN Charter

wisdom, practices and evolutionary pace and there should be no apology for that. As ASEAN turns 42 in 2009, the existence of a fully ratiﬁed Charter, ready for enforcement, should mark the beginning of a new era for the organisation. It has every right to function well as a rules-based organisation with, inter alia, clearly deﬁned principles, purposes, legal personality, membership, organs, decision-making process, settlement of disputes mechanisms, privileges and immunities, protocols and practices, identity and conduct of external relations.

ASEAN’s Future Much work, no doubt, lies ahead for ASEAN. Creating an ASEAN Community to cover all the three Security, Economic and Socio-cultural pillars requires the full commitment of all member states. And so is the commitment towards ASEAN’s central position and as the cornerstone in the foreign policy of member states. Such commitments will be strongly rooted now with the existence of the ASEAN Charter which should enjoy a special place within ASEAN as it continues to evolve in the years ahead for the beneﬁt of all members.

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The Jewel in My Crown Aung Bwa Aung Bwa is currently a member of the Eminent Persons Group of ASEAN-Japan Dialogue Relations. He served as Director-General of ASEAN Affairs Department of the Myanmar Ministry of Foreign Affairs (MOFA) from 2001–2007 after serving as Acting Deputy Director-General from 2000–2001. He had also served as a Director of Consular Division and Deputy Director-General of Political Department from 1995–1999. He was also Deputy Chief of Mission at the Myanmar Embassy in Sri Lanka and the United Kingdom. During his tenure at the MOFA, he also ﬁrst served as Joint Secretary in the National Commission for Environmental Affairs (NCEA) and later on as Secretary for the Commission. He has attended numerous meetings, conferences and seminars on environmental affairs, Asia Paciﬁc Security Workshop, Asia Paciﬁc Round Table, ASEAN Standing Committee Meetings, other various ASEAN meetings, ASEAN Ministerial Meetings and ASEAN Summits. He was a member of the ASEAN High Level Task Force (HLTF) for the ASEAN Charter.

Introduction ASEAN is being transformed from an association to a community and moving from regional cooperation to integration. ASEAN Charter, it is believed, will confer a legal personality and strengthen ASEAN’s capability of meeting the challenges of the 21st Century. When Myanmar ﬁrst joined ASEAN in 1997, we were a new member state compared to the older members which were 27

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The Making of the ASEAN Charter

already into their 30th year as members of the Association. We, as a new member, had to accede to whatever agreements or treaties we were compelled to sign. However, in the drafting of the ASEAN Charter we are now in a stronger position, with equal footing with the other members. We felt that the ASEAN Charter must be one that every member state must be comfortable with, encompassing a sense of belonging and partnership, future-oriented, forwardlooking, and bold but not over-ambitious. After 40 years, ASEAN needed to be revitalised, to become more dynamic to achieve the aspirations of the people, and be more competitive within the context of an ever changing international landscape brought about by the emerging new economic powers of China and India.

Some Background We had been brainstorming on developing an ASEAN Charter for the past few years and I had been asking myself how it could be that after ten years of joining ASEAN, we were told that the Association had no legal status. How is it that the ASEAN Leaders had for the past 40 years been signing Treaties and Agreements without legal authority? As directed by the ASEAN Leaders, an Eminent Persons Group (EPG) was established to formulate the Fundamental Principles to be enshrined in the Charter. Myanmar was represented by eminent scholar Dr Than Nyunt. The wise old persons of the EPG had performed an excellent job and were able to produce the Basic Principles which were then adopted by the ASEAN Leaders. The eminent persons had made very forward-looking, future-oriented recommendations, as well 28

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The Jewel in My Crown

as some bold and sensitive ones including the formation of ASEAN Union, expulsion and suspension of member states for non-compliance, and decision-making by voting in the failure of reaching a consensus. After an adoption of the EPG recommendations by the ASEAN Leaders, a High Level Task Force (HLTF) was established to draft the ASEAN Charter based on EPG recommendations and the ASEAN Leaders’ guidance. I was appointed as HLTF member for Myanmar and it was an honour for me to serve in this position. I was due to retire from serving as Director-General of the ASEAN Affairs Department of the Myanmar Ministry of Foreign Affair after nearly six years. I consider this appointment to the HLTF to be the “jewel in the crown” of my career. This task bestowed on me was full of challenges and opportunities alike.

Guidance from the ASEAN Leaders and Foreign Ministers Our task in drafting the ASEAN Charter was made much easier by the clear guidance from the ASEAN Leaders. Problems or issues on which no agreement could be reached were put up to the Foreign Ministers for their ﬁnal decision. We remain indebted to our Foreign Minister who came to our rescue numerous times for unresolved issues at the HLTF level. Our late Prime Minister, while in ofﬁce at the time, took a special interest in the ASEAN Charter process and provided us clear guidelines on sensitive issues. This enabled us to speak with conviction and consistency.

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The Making of the ASEAN Charter

My HLTF Colleagues I had the privilege of making acquaintances with other outstanding members of the HLTF and together we forged a strong bond of friendship and family. The chair person Rosario Manalo of the Philippines is a very charming and competent lady. I called her the “Iron Lady” after former British Prime Minister Mrs Margaret Thatcher. Seemingly tough, she was driven near to tears at times. She could also be dramatic such as when she called for a closeddoor meeting, asked the other staff to leave and in a solemn manner informed us that her Minister wanted this or that. We were compelled to remind her that her Foreign Minister was not our Foreign Minister and that we were also guided by our own Minister’s instructions. In one incident, at one of our late night meetings, I was agitated by the zigzagging of some of our members and told them that we were not there to play games. Rosario got upset, left the room, came back about 20 minutes later and told us that she was so upset that she went into the wrong restroom, that is, the men’s. Fortunately there was nobody inside. The tension was immediately defused as we all roared with laughter. Professor Tommy Koh of Singapore is the perfect gentleman and a great compromiser. He always tried his best to compromise in times of a stalemate, never lost control and stayed calm even when one of our colleagues attacked him for ignoring his call for the ﬂoor. I can still picture his face shocked with disbelief! Tommy was chairman for the second half of the meetings and was assisted by his able colleague Walter in conducting 30

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The Jewel in My Crown

the meetings to reach a successful conclusion. Tommy had the same hairstyle that resembled a mop since the ﬁrst time I met him at the Preparatory Committee meetings of Environment Conference meetings in Geneva and Nairobi in the early 1990s. He also had the same gentle smile. During deliberations, he came to my rescue many times as a true friend. He was also kind enough to let me adopt one of his young assistants Sze-Wei Chan as my second daughter. There was another Tommy from Vietnam whose eloquent speeches made him sound like an Oxford Professor. He was appointed Ambassador to Singapore mid-way. His successor, though a latecomer, was equally up to the task. Another one of my main allies was Bounkeut from Laos PDR, a Deputy Minister well experienced and also known as “King of Happiness” for his Don Juan escapades. Kim Hourn from Cambodia was tough talking — very convincing — and we, the members from Cambodia, Laos PDR, Myanmar and Vietnam (CLMV) got along very well most of the time. One of my main adversaries in the HLTF meetings was Djani from Indonesia, Prince of Solo with whom I had to cross swords many times. In spite of our differences, we maintain our close friendship. Osman was a perfect gentleman from Brunei Darussalam. He let me take the ﬂack on economic encounters, supporting me from the background spiritually. Pradap of Thailand was also a near-perfect gentleman who never raised his voice unlike the rest of us who were like a pack of wolves and sometimes got into heated discussions. Malaysia’s Fuzi often made us uneasy when he questioned on why such and such a position was taken and we needed 31

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The Making of the ASEAN Charter

to convince him to obtain his support, earning him the title “King of Questions”. Former Secretary-General of the ASEAN Secretariat, Ong Keng Yong, should take pride that ASEAN’s 40th Anniversary was celebrated and that the ASEAN Charter was signed during his tenure. He was always there to give a helping hand and he made the ASEAN Secretariat more efﬁcient by his streamlining measures. Last but not least, there is Dr Termsak of the ASEAN Secretariat whose institutional memory was a great help.

Role of Assistants HLTF members were ably supported by their assistants. In my case, I was supported by ﬁve assistants: experts from the legal, justice, home affairs, economic and foreign affairs. The assistants would have initial discussions on some issues and put them up to the HLTF for ﬁnal approval. The assistants’ valuable roles were most evident when legal scrubs were required. My daily consultations with the assistants during breakfast proved to be very effective as they provided very sound suggestions.

Human Rights Issue Foreign Ministers, at the urging of Philippine President Mrs Arroyo, asked the HLTF to come up with an enabling human rights clause in the ASEAN Charter. This was the most challenging task and at one time it almost derailed the whole process. There were those of us who believed that it was a very delicate and sensitive issue, and could be politicised. Attention 32

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was called for caution against double standards and the need to proceed in a step-by-step manner. Eventually we reached a compromise on a Human Rights Body, and not a Commission, with the terms of reference to be discussed later. Some of our colleagues were assuming the role of champions of human rights and adopting a “holier-than-the-Pope” approach. Those who live in glass houses should not throw stones! We sometimes had to refer unresolved issues to the Foreign Ministers at their meetings for a decision. We had been accused of trying to block the human rights issue, but what we were doing in fact was to avoid taking a rigid position and thus reach a compromise. The discussions on the issue were most heated and at times we almost came to blows — literally speaking. However after 13 meetings, we had become like a family. After heated debates, we would embrace each other and thus maintained our family spirit. After years of experience, I used two effective weapons to my advantage: consensus, and “putting brackets” on issues that were not in our national interest. At one stage, I put a bracket on one point made by my Thai colleague. He offered as an alternative to show it as a footnote. I put a bracket even to his footnote. And thus they called me “The King of Brackets”. Eventually we managed to remove the brackets in the spirit of give and take, giving here a little and taking there a bit, but never compromising on the vital issues that could be detrimental to the national interests.

Economic Aspects In addition to ensuring that sensitive paragraphs that could be detrimental to our national interests were not included, I 33

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also had to ensure that the vital economic principles that our Economic Ministers held dear were not neglected. It is true that the Charter drafted by the Foreign Affairs ofﬁcials has been heavy on political principles and less economic-oriented. My ﬁght for the economic principles was mainly to get the support of my Economic Minister which was vital, if I were to get the cabinet approval for the Charter back in the country. My HLTF colleagues seemed genuinely surprised that I was so pro-economic. I believe strongly that the Charter should be more balanced on political, economic and social aspects.

“Spa” Diplomacy Just as the draft ASEAN Charter needed legal scrubbing in the ﬁnal stages, delegates also yearned for physical and mental scrubbing after the hard days’ work to let off their steam. One of the tactics employed at the meetings was “spa” diplomacy: delegates were offered spa facilities at the hotel they were staying so that the delegates would be in a relaxed frame of mind and be more cooperative. At the HLTF meeting in Vientiane, we were tempted by Bounkeut to two sessions of spa treatment on our last day. Regrettably, we had to forego this luxury as the meeting continued into the late hours.

Conclusion The adoption of the ASEAN Charter is the most signiﬁcant milestone in the 40-year history of ASEAN and will serve as a solid foundation for ASEAN in the future by conferring a legal status to the Association. 34

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The Charter will be instrumental in achieving the ASEAN Community built on the three pillars of security, economy and socio-culture. The priority is for narrowing the development gap between the older and newer members. It is mainly up to the CLMV countries to strive for development to catch up with the older members. With a helping hand from the other member states, the path to progress for the region would be much quicker. Now, reminiscing after a fulﬁlling and monumental task, I cannot help but think that each and all of us to the best of our abilities, while safeguarding our national interests, gave our utmost and produced an ASEAN Charter which is elegant, composed and one which we can all be proud of.

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Drafting ASEAN’s Tomorrow: The Eminent Persons Group and the ASEAN Charter Rosario Gonzalez-Manalo Rosario Gonzalez-Manalo has had a distinguished career in the Philippine foreign service. She served as Ambassador to various European capitals, among them: Brussels, Paris, Lisbon and Stockholm. Currently, she is teaching and doing research in various universities in Manila and abroad. She chaired the HLTF from January to July 2007. She was also involved in the work of the EPG as assistant to President Fidel Ramos. She has recently been appointed the Philippine Governor to the Board of Governors of the Asia-Europe Foundation.

The creation of a Charter for the Association of Southeast Asian Nations (ASEAN) came at the most opportune time. As ASEAN celebrated 40 years of existence in 2007, the member states faced the reality of transforming the organisation into a regional entity that will serve as base, catalyst and motor for stronger cooperation and deeper integration among them while at the same time render it more relevant to its citizens. For four decades, ASEAN went about its way in a loose, informal manner. It operated without a formal charter, the organic law that outlines the function and structure of any organisation, and lays down the basic rules and principles 37

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for its institutions and its members. In spite of lacking such a document and operating simply under the Bangkok Declaration of 1967, ASEAN was able to preserve peace within the region throughout these years, to draw ten vastly diverse member states close to each other politically, socially and economically, and to create solidarity among the citizens of these neighbouring states. Indeed ASEAN had served well its aims and purposes in the Cold War environment in which it was founded and thrived as well in the immediate post-Cold War era.

Changing Realities Nevertheless, present realities are testing the role and strength of ASEAN as an organisation. Changes in the geopolitical landscape, the rise of new economic powers and issues that have become more transnational in nature, including epidemics, environmental catastrophes and terrorism, are forcing ASEAN’s member states to evaluate the level of cooperation they have had among each other and the effectiveness of the Association itself, its organs and its undertakings. It has been pointed out that some agreements under ASEAN’s auspices are technically binding on its members, but the organisation lacks central institutions and a legal framework that will force its member states to comply and be accountable. Neither does it have strong, legally institutionalised mechanisms to settle disputes; its Secretariat remains weak.1

1

“Framing the ASEAN Charter: An ISEAS Perspective”, Rodolfo Severino, ISEAS, 2005. 38

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Drafting ASEAN’s Tomorrow: The EPG and the ASEAN Charter

The Need for a Charter The need for a Charter of the organisation, therefore, has never been more pressing. The list of what an ASEAN Charter can achieve for the organisation and its members is a long one. A Charter, if signed and ratiﬁed, is expected to do the following:2 • act as a “constitution” of ASEAN • endow the association a legal identity • provide the association with a more institutionalized framework • codify all ASEAN norms, rules and values that will guide actions of member states • provide for the establishment of appropriate and effective dispute mechanisms, and steer ASEAN towards a rule-based environment where decisions are legally binding and are observed • make ASEAN’s institutions work more efﬁciently and effectively • enhance the role and functions of the ASEAN chair, the Secretary-General and the Secretariat • promote ASEAN identity and create solidarity among its citizens • strengthen ASEAN’s external relations and encourage common positions among its members • form a base for the ASEAN Community While the Bali Concord I issued in the ﬁrst ASEAN Summit in 1976 had already envisioned an ASEAN Community, clear efforts to frame an ASEAN Charter began only a few years go. It began with the Declaration of ASEAN Concord II in Bali 2

Report of the Eminent Persons Group on the ASEAN Charter. 39

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in 2003 where a document was signed, calling for an ASEAN Community supported by three pillars: a Security Community, an Economic Community and a Socio-Cultural Community. The following year, the ASEAN Foreign Ministers agreed to work towards the development of a Charter for the Association. This was followed by a formal declaration calling for the Establishment of the ASEAN Charter. Signed in Kuala Lumpur in 2005, it rallied for the creation of an Eminent Persons Group (EPG) tasked to aggregate recommendations on guidelines leading towards a Charter and to incorporate policies facilitating the creation of an ASEAN Community. The outcome of the EPG’s work would later form one of the bases for the text produced by a High Level Task Force on drafting the ASEAN Charter.

The EPG One can say that the Eminent Persons Group had effectively been the main preparatory body for the ASEAN Charter. Composed of ten highly distinguished citizens from each of the ten member states, the Group was mandated by their leaders to provide practical proposals and “out-of-the-box” recommendations for the intended Charter. They include HE Tun Musa Hitam (Chairman, Malaysia), HE Pehin Dato Lim Jock Seng (Brunei Darussalam), HE Dr Aun Porn Moniroth (Cambodia), HE Ali Alatas (Indonesia), HE Kamphan Simmalavong (Laos), HE Than Nyun (Myanmar), HE Fidel V Ramos (Philippines), HE Professor S Jayakumar (Singapore), HE Kasemsamosorn S Kasemsri (Thailand) and HE Nguyen Manh Cam (Vietnam). 40

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Drafting ASEAN’s Tomorrow: The EPG and the ASEAN Charter

In the course of 2006, the Eminent Persons Group met periodically to discuss and share plausible policy recommendations for the Charter. They also had several consultations with foreign and economic ministers of their home countries, various think-tanks on public policy based in the region, academics, civil society organisations, and the business sector. The Group also sent a special team to Brussels for meetings with leaders and ofﬁcials of the European Union.3

EPG’s Five Main Recommendations In December 2006, the EPG presented to the ASEAN Heads of State a ﬁnal document containing their views on what ASEAN can be, how to strengthen the organisation and what the Charter must include in order to be an effective base and backbone as ASEAN moves forward. The following4 are highlights of their recommendations, followed by relevant articles from the Charter in which they are manifested: a. Fundamental Principles and Objectives. The Charter must update the organisation’s principles and objectives “in line with the new realities confronting ASEAN, and to strengthen regional solidarity and resilience”. The Charter must therefore promote peace and stability founded on democratic values, good governance, the rule of law and respect for human rights and fundamental freedoms. ASEAN must also strive towards economic prosperity through the creation of an Economic Community and a Single Market while at the same time narrow the development gap. It must also strive to respond in a timely and effective manner to regional 3 4

Ibid. Ibid. 41

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challenges as well as endeavour to protect cultural heritage and engage with civil society (Article 1: Purposes and Article 2: Principles of the Charter). b. Towards an ASEAN Community. The Charter must invite greater political commitment from member states “to realise the vision of an ASEAN Community”. In order to do so, ASEAN Leaders must meet regularly and provide impetus for community building (Article 7: ASEAN Summit). Three Ministerial-level Councils must be formed to supervise the three pillars that will support the ASEAN Community, namely security, economic and socio-cultural (Article 9: ASEAN Community Councils). ASEAN must also move towards the establishment of a Single Market (Article 1.5). c. Taking Obligations Seriously. To give substance and teeth to its accords and institutions, ASEAN must develop a “culture of commitment to honour and implement decisions, agreements and timelines”. The EPG thus recommended establishing Dispute Settlement Mechanisms, giving the ASEAN Secretariat a monitoring role on the compliance of agreements and referring serious breaches and non-compliance to the ASEAN Summit for decision (Articles 22–28). d. More Effective Decision-making. The EPG recommended that the organisation consider “alternative and ﬂexible decision-making mechanisms”. This means the use of several decision-making procedures and not just consensus. Unanimity should be reserved for cases that are highly sensitive (Article 20: Consultation and Consensus and Article 21: Implementation and Procedure). e. Towards a People-Oriented ASEAN. The Charter must encourage interaction amongst its citizens. ASEAN must also 42

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engage members of civil society, the business sector, academia, NGOs and other stakeholders in its community building (Article 15: ASEAN Foundation). One can also say that the work of the EPG had been substantial and provided much muscle for the working document drafted by the High Level Task Force the following July 2007. This is made evident by the fact that many of the recommendations from the December 2006 report appeared in the ﬁnal Charter in one form or another. In some cases, such as in Article 1.15, the transliteration was verbatim.

Going Beyond EPG It is important to note, however, that there were some points in the Charter that were not based outright on the EPG Report. The latter, for example, did not call for the provision of an ASEAN Coordinating Council, composed of the Foreign Ministers of the member states and charged with preparing meetings of the ASEAN Summit and the coordination of the implementation of agreements at the Summit and policy formulation at the Community Council level.5 The proposal for the creation of an ASEAN Human Rights Body did not come from the EPG but was a strongly debated subject by the High Level Task Force and the ASEAN Foreign Ministers. The High Level Task Group also endowed the Permanent Representatives more competence than the EPG had suggested. The representatives are appointed by their respective governments, ambassadorial in rank and are to be permanently based in Jakarta. But the Charter has gone further by organising the ASEAN Permanent Representatives 5

The ASEAN Charter. 43

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into a Committee and has given the Committee the role of supporting “the work of the Community Councils and Sectoral Ministerial Bodies, [to] liaise with the Secretary-General of the ASEAN and National Secretariats and facilitate cooperation with external partners”. In other words, the Committee of ASEAN Permanent Representatives has replaced, in situs, the current ASEAN Standing Committee. It is also important to point out that there had been a general tendency to create a Charter that will keep the intergovernmental character of ASEAN and dispel any suggestion of creating a supra-national body. This is immediately evident in the nomenclature: the name ASEAN Summit was kept in lieu of ASEAN Council, as the EPG has suggested. Any mention of an ASEAN Union — suggested in the EPG Report — was absent in the ﬁnal Charter. A second and more important example has been the watering down of the vision for the Secretary-General and the Secretariat. The EPG viewed this ofﬁce as having wide decision-making and representative powers, which “included encoding the competence to: a. initiate plans and programmes of activities for ASEAN regional cooperation in accordance with approved policy guidelines b. represent ASEAN as Observer to the UN and other international fora c. conduct discussions and negotiations on behalf of the ASEAN with other states and international organisations”.6 Such competences were not encoded in the ﬁnal Charter. 6

EPG Report. 44

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Lastly, on the account of human rights, the Charter tries to be all encompassing in its wording. It relates to no speciﬁcities on how to remove discrimination on the basis of race, creed, gender and ethnicity, as the EPG recommendations had been. The only exceptions are the provisions relating to qualiﬁcations for candidates to the post of Secretary-General and the Deputy Secretaries-General where gender equality is to be upheld and respected (Article 11). The omission of such wording in Articles 1 and 2 (Purposes and Principles) might not prove satisfactory and progressive enough to the public, the very same public that ASEAN aspires to be relevant to and whose welfare it works for. But then, the Charter brings a comprehensive and ﬂexible enabling framework with which subsequent protocols and other instruments will naturally follow, to provide ﬂesh to these human rights concepts. In spite of these differences, one can say that the work of the EPG had been successful. As mentioned above, their efforts provided the direction and substance to the work of the High Level Task Force that followed, and to the ﬁnal version of the Charter which has been signed in Singapore in November 2007, and at the time of writing is up for ratiﬁcation in the different member states.

Conclusion The signing of the Charter will always be remembered in the history of this region. The Charter does not only mark a huge step towards the future of ASEAN but a turning point for the organisation. It represents a lot. Its creation is emblematic of the trust that had been built among the ten member states, 45

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the brewing solidarity among each other for a future united in peace and prosperity, and the accumulated work of the people who have served ASEAN, people who saw promise in creating One Community in this corner of the world. This has been the material from which it had been made and by which is expected to be fueled in the years to come.

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The Negotiating Process Tommy Koh1 Tommy Koh is Ambassador-At-Large at the Ministry of Foreign Affairs, and Chairman of the Institute of Policy Studies and the National Heritage Board. He was formerly Dean of the Law Faculty at NUS. He had served as Singapore’s Permanent Representative to the UN in New York and Ambassador to the United States of America, Canada and Mexico. He was also the President of the Third UN Conference on the Law of the Sea and chaired the Earth Summit. He was the founding Chairman of the National Arts Council and the founding Executive Director of the Asia-Europe Foundation. He had served as the UN Secretary-General’s Special Envoy to Russia, Estonia, Latvia and Lithuania. He was also Singapore’s Chief Negotiator for the USA-Singapore Free Trade Agreement. He has chaired two dispute panels for the WTO. Professor Koh was a member of the ASEAN High Level Task Force (HLTF) and was Chairman of the HLTF from August to November 2007.

I was a member of the Singapore delegation to the 12th ASEAN Summit, held at the Shangri-La Hotel on Mactan Island, Cebu, the Philippines. I attended the meeting, held on Friday, 12 January 2007, at which the Chairman and members of the Group of Eminent Persons (EPG) presented their report to the ASEAN Leaders. Foreign Minister George Yeo observed, after the meeting, that we had just witnessed a historic event. On the next morning, 13 January, the ten members of the High 1

This essay is written in the author’s personal capacity. 47

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Level Task Force (HLTF) held an informal meeting, on the sidelines of the Summit, to get acquainted with one another and to organise our work.

HLTF’s Mandate The HLTF received its mandate from the ASEAN Leaders as contained in the Cebu Declaration on the Blueprint of the ASEAN Charter. The mandate was to complete drafting the ASEAN Charter on time for the 13th ASEAN Summit, to be held in Singapore in November 2007. On what bases would the Charter be drafted by the HLTF? It would be drafted on the bases of: (i) the directions of our Leaders given at the 11th and 12th ASEAN Summits; (ii) the relevant ASEAN documents; and (iii) the recommendations of the EPG.

Directions from 11th Summit What directions from ASEAN’s Leaders were contained in the Kuala Lumpur Declaration on the Establishment of the ASEAN Charter (12 December 2005) and the said Cebu Declaration? The Kuala Lumpur Declaration contains four speciﬁc directions. The Leaders declared that the Charter should: (i) serve as a legal and institutional framework of ASEAN to support the realisation of its goals; (ii) codify all ASEAN norms, rules, and values and reafﬁrm that ASEAN agreements signed and other instruments adopted before the establishment of the Charter shall continue to apply and be legally binding where appropriate; 48

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(iii) reafﬁrm principles and ideals contained in ASEAN’s milestone agreements, in particular, the ASEAN Declaration (1967), the Treaty of Amity and Cooperation in Southeast Asia (1976), the Treaty on Southeast Asia Nuclear Weapon Free Zone (1995), the ASEAN Vision 2020 (1997) and the Declaration of ASEAN Concord II (2003), as well as the principles contained in the UN Charter and international law, including 18 selected principles; and (iv) confer a legal personality to ASEAN and determine the functions, develop areas of competence of key ASEAN bodies and their relationship with one another in the overall ASEAN structure.

Directions from the 12th Summit What directions were contained in the Cebu Declaration? It contains only two directions: (i) to make the ASEAN Charter the crowning achievement of ASEAN on its 40th Anniversary; and (ii) that the Charter will enable ASEAN to meet its future challenges and opportunities, serve as a ﬁrm foundation to achieve one ASEAN community by providing an enhanced institutional framework as well as by conferring a legal personality to ASEAN.

No Reference to Role of Foreign Ministers Neither the Kuala Lumpur Declaration nor the Cebu Declaration gives a role to the Foreign Ministers. Their role evolved by practice and necessity. The ten members of the HLTF were appointed by their respective Foreign Ministers. 49

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It was, therefore, natural for the HLTF to turn to the Foreign Ministers for their advice and guidance and because the HLTF was accountable to the Foreign Ministers.

No Requirement to Consult The HLTF’s mandate, unlike that of the EPG, did not require it to meet with ASEAN Senior Ofﬁcials, representatives of civil society, and Parliamentarians or to undertake study trips. However, when requests and invitations were received and in order not to offend, but, instead, to earn the goodwill of the various stakeholders, the HLTF agreed to visit the EU at Germany’s invitation and to meet with ASEAN Senior Ofﬁcials, Parliamentarians and members of the civil society. In Manila, Penang, and Bali the HLTF met with representatives of the civil society (including academia and the media), ASEAN Parliamentarians and human rights organisations respectively. The HLTF’s meetings with the Senior Ofﬁcials from the three pillars (High Level Task Force on Economic Integration, ASEAN Security Community Coordinating Conference and ASEAN Socio-Cultural Community Coordination Conference), were intended to solicit their inputs for the drafting of the Charter.

EPG Report The EPG Report is a bold and visionary one. It was drafted by ten ASEAN elder statesmen, led by Tun Musa Hitam, a former Deputy Prime Minister of Malaysia. They were appointed to serve in their individual capacities and not as representatives of their respective governments. This enabled them to think out of the box and to make some radical recommendations on how to strengthen ASEAN and for the Charter. Unlike 50

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the EPG, the HLTF consisted of ten representatives of the ten ASEAN Governments, working under the supervision of the Foreign Ministers. Also, the EPG Report was not the only basis, but one of the bases on which the HLTF drafted the Charter. Some members of the EPG do not understand this and have therefore expressed disappointment with the Charter. They should not feel disappointed because, with only a few exceptions, most of their recommendations have been reﬂected in the Charter. The HLTF held the EPG in high regard and constantly referred to its report in the course of drafting the Charter. In fact, the HLTF invited Tun Musa Hitam and members of the EPG to speak to us at our ﬁrst meeting, held in Jakarta on 5 February 2007.

HLTF’s Informal Meeting on 13 January 2007 The informal meeting of the HLTF was chaired by Ambassador Rosario Manalo of the Philippines, the then Chair of ASEAN. As agreed by member states, this meant that the chairmanship of the HLTF would pass to Singapore, at the end of the ASEAN Foreign Ministers’ Meeting in July. The HLTF agreed to hold their ﬁrst meeting at the ASEAN Secretariat, on 5 and 6 February 2007 and to invite the Chairman and members of the EPG to address us. The HLTF requested the ASEAN Secretariat’s Special Assistant to the Secretary-General, Dr Termsak Chalermpalanupap, to prepare the following documents: (i) a summary of the Leaders’ instructions on the Charter; (ii) a draft outline of the Charter, based upon the second half of the EPG Report (also known as the ‘Alatas paper’); 51

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(iii) a list of issues on which the ASEAN Leaders had expressed divergent views at the Cebu Summit; and (iv) a proposed timeline for the HLTF’s work.

First Meeting of HLTF The ﬁrst order of business of the HLTF’s meeting on 5 February 2007 was to listen to the views of the EPG. In response to the HLTF’s invitation to all EPG members, the Chairman of the EPG, Tun Musa Hitam and his colleagues from Cambodia and Laos, Aun Porn Moniroth and Khampanh Simmalavong, respectively, attended the ﬁrst meeting of the HLTF. It was a productive meeting, although the EPG delegation refrained from giving direct answers to the many questions posed by members of the HLTF. The Secretary-General made many useful points to the HLTF. The atmosphere of the meeting was conducive and the ten members of the HLTF were able to work cooperatively with one another. What else did the HLTF achieve at its ﬁrst meeting? The meeting had the following deliverables: (i) It adopted nine guidelines on the drafting of the Charter; (ii) It authorised the Singapore delegation to redraft the preamble and the chapters on objectives and principles; (iii) It agreed to accept an invitation from Germany (the then Chairman of the EU) to visit Germany and Brussels and to attend a workshop to exchange views with representatives of the German government, parliament and think-tanks;

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(iv) It agreed to meet with representatives of civil society organisations at the beginning of the third meeting in Manila; and (v) It agreed to request a meeting with the ASEAN Foreign Ministers during their retreat in Siem Reap in March.

Second HLTF Meeting The second HLTF meeting was held in Siem Reap on 28 February and 1 March 2007. The meeting advanced the work of the HLTF by: (i) adopting an agreed skeletal outline of the chapters and articles of the Charter; (ii) adopting a comprehensive work plan for the period, March to November; (iii) agreeing that the deputies and other colleagues would help the Secretariat to vet the draft summary records and prepare the documents for the HLTF’s consideration; and (iv) agreeing to meet with the HLTF on economic integration as well as with the coordinating committees of the Political and Socio-Cultural pillars of ASEAN.

First Meeting with Foreign Ministers With the help of the Secretariat, the Chair prepared the HLTF’s ﬁrst progress report to the Ministers. All the ten members of the HLTF met with the Ministers on the early evening of 1 March 2007. Rosario Manalo read the progress report and requested the Ministers’ guidance on ten points. The Ministers 53

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did not pose any questions to us. Instead, they discussed our progress report during their working dinner. After the dinner, the Secretary-General gave us a copy of his written notes containing the Ministers’ decisions on the ten points. The Ministers decided, inter alia: • that the term “ASEAN Union” should not be mentioned in the Charter; • that there is no need to mention suspension, expulsion and withdrawal in the Charter; • that the basic principle of decision-making is consensus; • that there must be an appropriate provision in the Charter to deal with serious non-compliance and when consensus cannot be achieved; • that there is no need to make speciﬁc provisions on funding the Special Fund; • that the HLTF should draft an enabling provision to allow appropriate dispute settlement mechanisms to be established; and • to include a draft provision on an ASEAN Human Rights Commission as an organ.

Third HLTF Meeting The third HLTF meeting was held in Manila on 28 and 29 March. The HLTF held a dialogue session with representatives of non-governmental and civil society organisations. The meeting implemented the decision taken at the second meeting to create a working group of assistants. They would meet one day before the HLTF and would vet the draft summary records, and with the help of the Secretariat, attempt to merge 54

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the various texts into a single text and prepare the ground for the HLTF to meet. The HLTF completed its discussions of the Preamble and the Principles (Chapter I). Working in parallel, the group of assistants managed to produce merged texts for Purposes (Chapter II) and Membership (Chapter III).

Fourth HLTF Meeting The fourth meeting of the HLTF was held in Yangon on 9 April 2007. The group of assistants met on 8 April. The HLTF on the Charter held a meeting with the HLTF on Economic Integration. The latter offered to draft paragraphs for inclusion in the Preamble, Purposes and Principles, based on key documents and agreed language. They requested an advance copy of the ﬁrst draft of the Charter. They also requested the Charter HLTF to consider: (i) whether the ASEAN minus X principle could be expanded to become “policy”; (ii) that the AEM should remain as the coordinating body for the economic pillar and retain its right to report directly to the Summit; (iii) to strengthen the role of the Secretary-General and the ASEAN Secretariat in coordinating implementation, monitoring and reporting compliance of ASEAN economic agreements, commitments, and plans of action; and (iv) that the EDSM should be enshrined in the Charter as the mode of dispute settlement for the economic pillar. The response of the Charter HLTF was somewhat sceptical. My sense is that there was a certain lack of empathy between 55

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some members of the Charter HLTF, all of whom are from their foreign ministries, and our colleagues from the economic track. This could have been due to the fact that in some ASEAN countries, coordination between them is not optimal and there is also considerable rivalry between them. The HLTF did not make much progress during their half-day meeting in Yangon. This was largely due to the lack of discipline as several HLTF members insisted on revisiting texts which had already been agreed. As a result, the only new ground covered was a cursory discussion of six paragraphs from Purposes.

Fifth HLTF Meeting The ﬁfth meeting of the HLTF was held in Hanoi on 19 and 20 April 2007, preceded by a meeting of the group of assistants on 18 April. Unlike the previous meeting, the HLTF worked with a greater sense of urgency and managed to complete its discussions of four chapters of new texts on Legal Personality, Membership, Privileges and Immunities, and DecisionMaking. The HLTF also began a preliminary discussion on the organisational structure of ASEAN. The HLTF decided that all their future meetings would be extended from two to three days.

Sixth HLTF Meeting The sixth HLTF meeting was held in Penang on 17, 18 and 19 May 2007, preceded by a meeting of the group of assistants on 16 May. The HLTF also held a dialogue with a delegation from the ASEAN Inter-Parliamentary Assembly (AIPA). The meeting made good progress and completed its discussions of several key chapters, on dispute settlement, budget and 56

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ﬁnance, and administration and procedure. Professor Walter Woon made a major contribution to the chapter on dispute settlement. The Secretary-General, Ong Keng Yong, presented a revised organisational structure, in diagrammatic form, taking into account the roles of the proposed four deputy secretariesgeneral.

Seventh HLTF Meeting The seventh HLTF meeting was held in Bali on 26, 27 and 28 June 2007, preceded by a meeting of the group of assistants on 25 June. The HLTF held a two-hour long consultation with the four heads of the national human rights commissions from Indonesia, Malaysia, the Philippines and Thailand, and with the Chairman of the ASEAN Human Rights Mechanism Working Group (a network of human rights NGOs from ASEAN countries), Pak Marzuki Darusman of Indonesia. The meeting was useful, especially on the question of deﬁning human rights in the ASEAN context, and on the possible role and function of an ASEAN human rights mechanism. The HLTF (without their staffers, but with Dr Termsak) devoted two half-days, in a retreat format, to the discussion of two issues: the enabling provision for establishing an ASEAN human rights mechanism and its terms of reference. The HLTF agreed that the terms of reference would specify that: (i) It would be inter-governmental in composition; (ii) It would not be a ﬁnger-pointing body; (iii) It would deﬁne human rights in an ASEAN context; (iv) It represents ASEAN’s views at international forums; and (v) It should have consultative status. 57

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At the request of Myanmar, it was also agreed that the paper containing the views of the HLTF would be treated as a Secretariat concept paper. Apart from human rights, the HLTF focussed on the nomenclature and functions of the key organs (Chapter IV), especially the Summit, ASEAN Executive Board, Foreign Ministers’ Meeting, ASEAN Standing Committee and the Permanent Representatives. In the meantime, the assistants had revised the text of the Chapter on External Relations.

Eighth HLTF Meeting The eighth meeting in Manila was a long meeting, taking place from 22 to 26 July, 28 July, and 30 and 31 July 2007. The HLTF completed its discussions on the Chapter on External Relations and the Chapter on General and Final Provisions. The HLTF also discussed the major elements of the remaining Chapter on Organs. Singapore’s innocuous proposal to insert an enabling provision for the Leaders to task the relevant Ministers to deal with emergency situations as well as with cross-cutting issues, consumed one and a half days of discussion before it was ﬁnally accepted. The most contentious issue was the human rights mechanism. On the evening of 26 July, the ten members of the HLTF were divided into three camps: (i) Cambodia, Laos, Myanmar and Vietnam were opposed to the creation of an ASEAN Human Rights Commission; (ii) Indonesia and Thailand were in favour; and (iii) Brunei, Malaysia, the Philippines and Singapore occupied the middle ground. 58

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The meeting adopted, on an ad referendum basis, the following text: “ASEAN shall/may establish an ASEAN human rights body, at a time acceptable to all ASEAN member states to promote and protect human rights and fundamental freedoms of the people of ASEAN.” On 28 July, the Chair informed the HLTF that her Foreign Minister had rejected the ad referendum formulation. Indonesia, Malaysia and Singapore also informed the meeting that their Foreign Ministers had also rejected the ad referendum formulation as falling below their instruction given in Siem Reap. The Philippines then put forward a new proposal that ASEAN shall establish a Human Rights Commission and ASEAN countries would participate when they were ready to do so. The proposal was supported by Indonesia, Malaysia and Thailand and rejected by Cambodia, Laos, Myanmar and Vietnam. Strong words were exchanged and emotions ran high. Ong Keng Yong saved the day by putting forward the following innocuous text: “In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall cooperate to establish an ASEAN human rights body.” This and other contentious issues on which the HLTF was unable to arrive at a consensus were referred to the Foreign Ministers for their guidance.

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Second Meeting with Foreign Ministers On the morning of 30 July 2007, the HLTF held its second meeting with the Foreign Ministers. The HLTF submitted its second progress report, a ﬁrst draft of the Charter and a request for guidance on 14 points. The Foreign Ministers considered our report, the draft Charter and answered each of our 14 requests. The HLTF Chair was present at the Foreign Ministers’ Meeting as a resource person. Following the meeting, the Secretary-General provided the HLTF with his written summary of the Ministers’ decisions. The decision of the Ministers to establish an ASEAN human rights body was received by some of my colleagues with disbelief. The Foreign Ministers conﬁrmed the correctness of the Secretary-General’s and the Chair’s reports. The HLTF met brieﬂy on the evening of 30 July and at breakfast on 31 July to receive and discuss the decisions made by their Ministers. Apart from the human rights issue, the Ministers had also instructed the HLTF to, inter alia: (i) include the principles of democracy and constitutional government, in place of the principle of rejecting undemocratic and unconstitutional changes of government; (ii) state that the Summit may make its own rules of procedure, and acting as a committee of peers, decide how speciﬁc decisions may be made; (iii) enshrine the ASEAN minus X principle for economic commitments; (iv) delete the principle of non-discrimination and the repatriation of foreign workers; and (v) delete the provision on Special Funds. 60

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Ninth HLTF Meeting The HLTF held its ninth meeting in Singapore from 24 to 26 August 2007. At a brief ceremony held on the morning of 24 August, Rosario Manalo passed the gavel of chairmanship to Tommy Koh. Singapore decided to separate the chairmanship and its national position. Tommy Koh would act as the neutral chairman, Walter Woon would represent Singapore’s national position and Andrew Tan would succeed the able Luis Cruz as chairman of the group of assistants. Walter Woon would also chair the group of legal experts to undertake the legal scrubbing of the draft Charter. Chan Sze-Wei would assist Walter Woon in the HLTF and Deena Bajrai would assist him in the group of legal experts. The focus of the Singapore meeting was on the outstanding organisational issues, namely, the Community Councils, the Committee of Permanent Representatives, the National Secretariats, and a new article on sectoral ministerial bodies. The key points of the discussion were the composition and reporting lines of the Community Councils and sectoral ministerial bodies, whether to include provisions for the various bodies to consult with stakeholders and how to reﬂect the role of the Senior Ofﬁcials’ Meeting. The Secretariat introduced a paper containing feedback from the ASEAN Senior Economic Ofﬁcials and another paper containing follow-up on inputs from ASEAN Economic Ministers on the ASEAN Charter. On 26 August, the Secretariat was requested by the ASEAN Economic Ministers, who were meeting concurrently in Manila, that they be put in charge of the ASEAN Economic Community Council. 61

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Tenth HLTF Meeting The tenth HLTF meeting was held in Chiang Mai from ten to 14 September 2007. The HLTF completed its discussion of all the outstanding articles of Chapter IV. The group of assistants, chaired by Andrew Tan, prepared the ﬁrst draft of the third progress report to the Foreign Ministers. Most of the time in Chiang Mai was spent on human rights. There was no disagreement with the fact that in Manila, our Ministers had agreed to include in the Charter an enabling provision to establish an ASEAN human rights body. The disagreement was over: (i) the function of the human rights body; (ii) whether the Ministers had instructed the HLTF to draft the terms of reference; and (iii) whether the terms of reference should be completed before the signing of the Charter. The meeting was deadlocked. The Philippines, supported by Indonesia, Malaysia and Thailand, said that the item on the terms of reference of the human rights body should be deleted from the agenda. Rosario Manalo also said that the body’s function would include monitoring and that its terms of reference should be taken up by a group of experts after the Charter has been signed. On the other hand, Cambodia, Laos, Myanmar and Vietnam took the position that the terms of reference must be ﬁnished by the HLTF as a package with the enabling provision and that the human rights body would only have consultative status. In the hope of breaking the impasse, the Chair organised a working dinner on 12 September, hoping that colleagues would feel more relaxed in a dinner setting. This was not 62

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the case. Strong words were exchanged with one colleague threatening to pack his bag and go home. Rosario Manalo was so worked up that she went into the men’s toilet by mistake! The dinner adjourned in a bad mood and without any common ground. Our Thai host, Khun Pradap, decided to lighten the atmosphere with some durian therapy. He treated us to some wonderful Thai durian, which we had to eat on the deck beside the river. On the morning of 13 September, the Chair found that colleagues had gathered themselves into two different rooms: with Cambodia, Laos, Myanmar and Vietnam in a room on the ground ﬂoor and Brunei, Indonesia, Malaysia, the Philippines and Thailand in another room on an upper ﬂoor. The Chair and Walter Woon spent the whole morning commuting between the two groups, trying one compromise text after another. Finally, at around noon, the two sides agreed to accept a compromise consisting of two elements: (i) the inclusion of an additional paragraph in the Charter on the Human Rights Body that: “The ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers”;

and (ii) an informal discussion on the ASEAN Secretariat’s concept paper on “Possible Elements for Inclusion in the Terms of Reference of an ASEAN Human Rights Body”.

Eleventh HLTF Meeting The HLTF held its 11th meeting at the Permanent Mission of Brunei to the UN in New York on 26 September 2007. The 63

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focus of the meeting was to prepare the third progress report and draft Charter for submission to the Informal ASEAN Ministerial Meeting (IAMM) on 27 September. At the request of the Foreign Minister of Singapore, the HLTF was requested to submit not more than two issues to the IAMM. The HLTF agreed that the two issues would be the human rights body and the frequency of summit meetings. On the ﬁrst issue, the HLTF posed four questions: (i) what is the nature and function of the HRB; (ii) who should draft the TOR; (iii) when should the TOR be completed; and (iv) where should the HRB be placed in the Chapter on Organs. The one-day meeting was very productive as the HLTF was able to clean up several outstanding questions.

Third Meeting with Foreign Ministers On the morning of 27 September 2007, all ten members of the HLTF met the Foreign Ministers in one of the conference rooms at the UN. The Chair read the third progress report and requested the Ministers’ guidance on the issues discussed above. Unlike previous occasions, the HLTF was allowed to remain in the room while the Ministers discussed and agreed on answers to the questions posed to them. The SecretaryGeneral’s written notes on the decisions of the IAMM were given to HLTF later that day. On the HRB, the Ministers decided that it should be located in Chapter IV, after ASEAN National Secretariats and before the ASEAN Foundation. The Ministers also decided that the HLTF should draft the TOR, which need not be included in the Charter. If the TOR cannot 64

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be completed before the Summit, it should be regarded as work-in-progress. Interestingly, the Chairman of the IAMM stated that, “ASEAN is in favour of the promotion and protection of the human rights of its citizens … ASEAN should therefore view human rights in a positive light and not adopt a defensive attitude”.

Twelfth HLTF Meeting The HLTF held its 12th Meeting in Bandar Seri Begawan from 3 to 5 October 2007. The intention in Brunei was to produce a clean text of the Charter. This intention could not be realised because a few colleagues insisted on re-opening agreed texts. There was also no agreement on how to streamline the lengthy Preamble and Purposes. The HLTF managed to deal with the brackets and footnotes in 11 out of the 13 Chapters. The legal scrubbing of Chapters 1 to 13 progressed smoothly.

Thirteenth HLTF Meeting The 13th and ﬁnal meeting was held in Vientiane from 18 to 20 October 2007. In order to speed up the work of the HLTF, the Chair introduced the ground rule that any amendment which was met by even a single objection would not be accepted. With this procedure in place, the work was accelerated but it also meant that attempts to remove repetitive language from the Preamble, Purposes and Principles was not possible. A lot of time was spent on how to respond to the requests of the ASEAN Economic Ministers. They were resisted by several members of the HLTF who, probably for domestic reasons, had no empathy for the AEM. Because of their 65

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resistance, compromise language had to be negotiated between those who were supportive and those who were unsympathetic to the requests of the AEM. I would respectfully request our Foreign and Economic Ministers and their respective Senior Ofﬁcials to meet together and to do so more frequently in order to bridge this gap. In order to complete our work on time, the ﬁnal meeting was held in the evening of 20 October, after a short break for dinner. The pace of progress picked up as the night wore on. Soon, all the remaining disputed texts were settled. The report of the chairman of the group of legal experts, Walter Woon, was accepted without any reservation. The chairman of the group of assistants, Andrew Tan, submitted the four annexes and accumulated summary records to the plenary and they were rapidly approved. The letter of transmittal was also approved. At the magic hour of midnight, the HLTF succeeded in completing its work by adopting a clean text of the ASEAN Charter, legally scrubbed, consisting of a Preamble and 13 Chapters, with four annexes and a letter of transmittal, for submission to the ASEAN Foreign Ministers on 19 November 2007. Everyone was tired but happy that, after ten months of very hard work, our collective endeavour had been successfully concluded.

Reﬂections First, I would like to pay a tribute to our Foreign Ministers. Although their role was not mentioned in the Cebu Declaration, they played an indispensable role. All the difﬁcult issues were resolved, not by the HLTF, but by our Foreign Ministers. 66

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Second, I would like to give a big bouquet to Ong Keng Yong and Termsak Chalermpalanupap. Keng Yong was a fountain of wisdom and, with his unique combination of candour and humour, he was able to tell us unpleasant truths in a palatable manner. Termsak was a walking encyclopaedia and a prodigious worker. He was ably assisted by his staffers, Ms Teh Lip Li, Ms Carla Budiarto and Ms Serena Wong. Third, the traditional ASEAN spirit of solidarity and of seeking mutual accommodation, in the constant quest for consensus, prevailed and helped to keep the family together, especially on those occasions when strong words were exchanged and tempers had got out of control. When it was all over, I believe that we have remained friends and proud of our historic achievement. Fourth, I think I made the right decision to act as a neutral chairman and to ask Walter Woon to represent Singapore. If I were not a neutral chairman, I do not think it would have been possible for me to act as an honest broker in Chiang Mai and to broker a compromise acceptable to the two opposing groups of colleagues. Fifth, it is never easy to chair a multi-national meeting, even one consisting of only the representatives of ten countries. I had to reconcile the competing interests of the ten countries, the strongly held beliefs of some and the highly restrictive mandates of others. I had also to build a team of ten very senior colleagues, some of whom have very strong personalities. My strategy was to follow Buddha’s teaching and to be ego-less. I decided to endure the difﬁculties with a smile, a dose of humour, and to be always polite, respectful and calm. 67

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Sixth, the successful exercise of drafting the ASEAN Charter in less than a year was a difﬁcult, challenging and ultimately, inspiring experience. The ten of us were conscious of our historic mission. Although each of us fought hard to protect our respective national interest, we were always ready to compromise for the common good. I hope that this account of our negotiating history will, on the one hand, inform the outsiders how difﬁcult the process was and, on the other hand, inspire the people and ofﬁcials of ASEAN with our strong collective will to build a brighter future for ASEAN and Southeast Asia. Finally, I wish to express my deep gratitude to my Singaporean colleagues, Walter Woon, Andrew Tan, Chan SzeWei and Deena Bajrai. Without them, I could not have got the job done.

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The ASEAN Charter Dispute Settlement Mechanisms Walter Woon Professor Walter Woon is Attorney-General of Singapore, having served from October 2006 until April 2008 as Solicitor-General. He is concurrently a Professor at the Faculty of Law, National University of Singapore and President of the Singapore International Law Society, as well as Judge Advocate-General. From 1992 to 1996 he was a Nominated Member of Parliament. He was also Legal Adviser to the President of Singapore and Council of Presidential Advisers from 1995 to 1997. Between 1989 and 2000 he served as a director on the boards of Intraco Ltd and Natsteel Ltd, both companies listed on the Stock Exchange of Singapore. From 1997 to 2006 he was seconded to the Ministry of Foreign Affairs. During that period he was Singapore’s ambassador to Germany, Greece, Belgium, the European Communities, the Netherlands, Luxembourg and the Vatican, as well as being Permanent Representative to the Organisation for the Prohibition of Chemical Weapons. Professor Woon is the author of several books on company and commercial law as well as two novels.

Introduction The idea of peaceful and formal settlement of international disputes is not something that conspicuously marks the history of mankind. Until quite recent times the dictum of Clausewitz that “war is the continuation of policy by other means” reﬂected the attitude of great powers towards the 69

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settlement of disputes with other peoples. All the members of ASEAN have had historical experience of gunboat diplomacy by external powers. It is not an experience that anyone would care to repeat in the 21st century. ASEAN exists in order to “maintain and enhance peace, security and stability and further strengthen peace-oriented values in the region”. This is clearly stated in Article 1(1) of the Charter. ASEAN is a community, not just a group of nations thrown together by geographical proximity. The ultimate goal is to create a sense that each of us belongs to a family of countries in Southeast Asia, interlinked economically, politically and culturally. To achieve this, it is necessary that there should be some means of peacefully settling disputes amongst member states. In the absence of a formal dispute settlement mechanism, disagreements between members could fester for years or generations and get in the way of closer cooperation. Thus, for the sake of ASEAN’s credibility, there has to be a way of resolving disagreements without being disagreeable.

How Disputes are Settled Take the analogy of a quarrel between neighbours, as so often arises when people live close to one another. It may be over the sitting of a fence on the boundary line between their properties, or perhaps about the smoke from one neighbour’s bonﬁre when he burns leaves, or about how much each is to pay for shared services. If nothing is done, disagreement will turn into dispute and dispute into quarrel. The bad blood would prevent them from working together in harmony for the betterment of both. In extreme cases, there might be a spiral 70

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of provocation and counter-provocation that could ultimately lead to violence. No civilised society could countenance this. That is why every member of ASEAN — indeed, every civilised society — has a formal means of settling such domestic disputes before they get out of hand. In domestic law, such a dispute might be settled in several ways. Firstly, the parties might attempt to talk matters over with a view to clearing up the disagreement. Alternatively, a relative or friend might offer to mediate. In some societies, the village headman or clan elder might be called in to arbitrate. Finally, the parties might decide that the quickest and most decisive way is to submit the matter to a court for a binding judgement. This commonsense approach to dispute settlement is mirrored in the ASEAN Charter. One starts with the general principle in Article 22(1) that “Member States shall endeavour to resolve peacefully all disputes in a timely manner through dialogue, consultation and negotiation”. As part of this process, the disputing states may agree to resort to good ofﬁces, conciliation or mediation at any time. They may request the Chairman or the Secretary-General of ASEAN to provide such good ofﬁces, conciliation or mediation. This basically means that the Chairman or Secretary-General will offer to help bridge the differences between the parties. There was some discussion among the High Level Task Force (HLTF) as to whether the Charter should empower the Chairman or Secretary-General to offer good ofﬁces, conciliation or mediation without being requested. In the end, it was decided that it would be better to let the parties make a request rather than have others attempt to get involved 71

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against the will of the disputants. To continue the analogy above, it does not usually help if interfering relatives try to butt into a dispute between neighbours. Such a course often exacerbates rather than ameliorates the dispute. Far better that well-intentioned relatives wait to be asked at a time when the parties are ready to be assisted.

Formal Dispute Resolution It would be unrealistic to pretend that all disagreements can be resolved through dialogue, consultation and negotiation. The experience of other organisations, and of ASEAN itself, does not support the thesis that these are invariably effective. Something more is needed. This is why Article 22(2) requires that “ASEAN shall maintain and establish dispute settlement mechanisms in all ﬁelds of ASEAN cooperation”. Where speciﬁc ASEAN instruments contain dispute settlement mechanisms, it is logical that disputes within the purview of the instrument should be settled in the manner stipulated. This is provided in Article 24(1) of the Charter. Thus, for instance, the Framework Agreement on Enhancing ASEAN Economic Cooperation 1992 provides in Article 9 that “any differences between Member States concerning the interpretation or application of this Agreement … shall, as far as possible, be settled amicably between the parties. Where necessary, an appropriate body shall be designated for the settlement of disputes”. This Article was signiﬁcantly expanded by a Protocol on Dispute Settlement Mechanism in 1996, which was in turn superseded by the ASEAN Protocol on Enhanced Dispute Settlement Mechanism of 2004 (the “Vientiane Protocol”). 72

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The Vientiane Protocol is the most signiﬁcant of the ASEAN dispute settlement mechanisms. It basically covers ASEAN economic agreements. Article 24(3) of the Charter reiterates this: “where not otherwise speciﬁcally provided, disputes which concern the interpretation or application of ASEAN economic agreements shall be settled in accordance with the ASEAN Protocol on Enhanced Dispute Settlement Mechanism”. The heart of the Vientiane Protocol is the provision for the establishment of a panel to look into and objectively assess the dispute, make ﬁndings and recommend how it would best be resolved. The exact mechanics of this are beyond the scope of this chapter. The important thing to note is that in the case of economic agreements, there is a formal, comprehensive method for resolving disputes. Paradoxically, the success of such a dispute settlement mechanism can be measured not by the number of disputes settled but rather by the scarcity of such cases. This is because where such a mechanism exists, the parties will often make the extra effort to come to terms with rather than push the matter to adjudication. Continuing with the analogy of a domestic dispute between neighbours, the knowledge that either party can ultimately have recourse to the courts is a powerful incentive for the disputants to come to an amicable settlement rather than risk a penalty and possible loss of face should the case go for adjudication. This is a phenomenon well-known to lawyers; clients can often be persuaded to settle rather than incur the risk of litigation, with all its attendant uncertainties. In the case of disputes not involving an ASEAN instrument, Article 24(2) of the Charter provides that the modes of dispute settlement prescribed in the Treaty of Amity and 73

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Cooperation in Southeast Asia (TAC) and its rules of procedure will be used. The TAC envisages that disputes threatening peace should be referred to a High Council consisting of representatives from each of the High Contracting Parties. However, this can only be done if the parties to the dispute agree. The alternative is for the parties to have recourse to the modes of peaceful settlement contained in Article 33(1) of the Charter of the United Nations. This of course includes reference to the International Court of Justice in The Hague. Settling disputes by reference to an international court is the civilised way of doing things. Not all ASEAN instruments contain dispute settlement mechanisms, hence the need to establish some sort of mechanism to cover such areas. Otherwise, there would be an obvious lacuna. Thus, Article 25 states that “appropriate dispute settlement mechanisms, including arbitration, shall be established for disputes which concern the interpretation or application of this Charter and other ASEAN instruments”. The exact form of the dispute settlement mechanism under this Article has yet to be determined. The Report of the Eminent Persons Group on the ASEAN Charter recommended that the mechanism should be similar to the Vientiane Protocol. There was some discussion by the HLTF on whether to provide for adjudication as well as arbitration. It was decided that, on balance, ASEAN is not quite ready yet for a formal court. Much remains to be done to build legal capacity among ASEAN states. At the present stage of development, something along the lines of the Vientiane Protocol is more appropriate. However, Article 25 allows ASEAN to create a court should that prove to be necessary in future. 74

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It will be noted that the Charter itself does not set up any mechanism for resolution of disputes regarding interpretation of the Charter. This was deliberate. Many, if not most, of the queries regarding interpretation of the Charter will relate to practical problems of implementation rather than disputes between member states. Where there is a question, Article 51(1) provides that the ASEAN Secretariat shall undertake the task of interpretation. The procedure for reference to the Secretariat is to be determined by the ASEAN Coordinating Council. It is only where a member state disputes the interpretation made by the Secretariat or proposed by another member state that reference will be made to the dispute settlement mechanism established under Article 25. This will probably be the exception rather than the rule.

The Role of the ASEAN Summit If after application of the appropriate dispute settlement mechanisms the matter remains unresolved, Article 26 provides that it will have to be referred upwards to the highest organ of ASEAN, the ASEAN Summit. The procedure for this has yet to be determined. As the Summit is not a judicial body, presumably the most practical way to dispose of an unresolved dispute would be to have it referred to international arbitration or even to adjudication, where appropriate. In any case, member states always have the right to use the modes of dispute settlement prescribed by Article 33(1) of the Charter of the United Nations. This is explicitly set out in Article 28 of the Charter. Once a decision has been rendered in a dispute, the Secretary-General is entrusted with the task of monitoring 75

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compliance. He has to submit a report to the Summit. A member state which is affected by non-compliance with the ﬁndings, recommendations or decisions resulting from an ASEAN dispute settlement mechanism may refer the matter to the Summit for decision. It will be for the Summit to prescribe what measures should be taken to ensure respect for the decision. Needless to say, refusal to comply would be an extremely serious breach of the obligations of an ASEAN member state. It would undermine the whole concept of rule of law, which is one of the key principles of ASEAN.

Conclusion The question uppermost in everyone’s mind is: will it work? One can take heart from the example of the European Union. At the beginning of the 20th Century, European powers were the most aggressive on the planet. The century began with British intervention in South Africa, a European expeditionary force in China, and French, German and Italian adventures in Africa, until the assassination of the Austrian Archduke Franz Ferdinand in Sarajevo lit the European powderkeg. The resultant explosion set off a second Thirty Years’ War (1914– 1945) which devastated the Continent (and much of the rest of the world) more thoroughly than the ﬁrst Thirty Years’ War (1618–1648). After dragging themselves out of the rubble and ashes, the Europeans forswore war as a continuation of policy by other means and consciously set out to build a system based on peaceful resolution of disputes. In the last ﬁfty years they have been conspicuously successful in this endeavour. The prospect of war between members of the European Union is 76

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unthinkable. If the Europeans, with their history of bellicosity and imperialism, can achieve this in the space of less than two generations, there is no reason why ASEAN cannot do the same. The key to this is the creation of a formal system for the peaceful settlement of disputes, and the cornerstone of the dispute settlement regime of ASEAN is the Charter.

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The Thai Perspective* Pradap Pibulsonggram Pradap Pibulsonggram is currently the Thai Ambassador in Rome and is responsible for Albania, Cyprus, Order of Malta and San Marino. He entered the Thai Ministry of Foreign Affairs in October 1973. During the past 35 years, his tasks covered nearly all aspects of the foreign service. He has been head of many key departments beginning with the Department of European Affairs, followed by the Departments covering ASEAN, Information, Economic, Development Cooperation, and Administration as well as serving in the ofﬁce of the Foreign Minister. Pradap has served in Cairo, Washington DC and as ambassador in Hungary (covering Croatia and Bosnia) and Switzerland (also Holy See and Lichtenstein). He was Deputy Permanent Secretary in charge of the Economic, International Organisations and Personnel clusters, while drafting the Charter as the Thai HLTF member.

The Family of Ten: The Time to Change Thailand was the birthplace of ASEAN. On 8 August 1967, ﬁve like-minded countries — Indonesia, Malaysia, the Philippines, Singapore and Thailand — came together and adopted the “Bangkok Declaration”, establishing the Association of Southeast Asian Nations or ASEAN. * The author appreciated the input and comments received from the Deputy Director-General Manasvi. I thank Kanita for her coordination with the ASEAN Department. I thank Lip Li especially for spending such a lot of time and effort in editing this chapter, as well as giving me many useful points of view. Lastly, I enjoyed working with the Singaporean team, Sze Wei and Li Lin, and welcomed their ﬁnal touch. 79

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Over the course of the last forty years, ASEAN has experienced a multitude of changes. Many members of the High Level Task Force (HLTF) on the Drafting of the ASEAN Charter have witnessed the development of ASEAN since its inception. Some members of the Eminent Persons Group (EPG) on the ASEAN Charter were involved in the drafting of the Bangkok Declaration itself as well as in ASEAN activities throughout these decades. The Cabinets and Foreign Ministers of ASEAN member states have made valuable contributions to the growth of ASEAN in varying degrees. Most importantly, after forty years ASEAN has become a “Family of Ten”. Ideological rifts have given way to friendship, and friends have become closer partners, while a “sense of belonging” has emerged among ASEAN peoples. Indeed, the ASEAN family is united by “one vision, one identity, one community”. Thailand, as one of the founders, is proud of ASEAN’s achievements to date and conﬁdent about its bright future. The ASEAN Charter is truly the dedicated effort of the ten ASEAN member states. With the adoption of the ASEAN Charter by the Leaders in 2007 at the Singapore Summit, there is now no distinction between the old and new member states. All ten of them could now equally claim ownership of this regional organisation.

Consultations: The Key Players ASEAN has made a deep and wide-ranging impact on Thai society. Government agencies, the business sector, academia, and social and community and civil society groups have sent their representatives to attend tens of thousands of ASEAN 80

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meetings over the past four decades. The Thai Parliament spends hours each year deliberating the budget for Thailand’s participation in the multi-faceted work of ASEAN. There are countless stakeholders which beneﬁt from Thailand’s active role in ASEAN integration. ASEAN activities cover all of Thailand’s ministries and the many line agencies under their respective responsibilities. The Thai Parliament attaches a high priority to the development of ASEAN and plays an active part in promoting ASEAN cooperation among its stakeholders. Many of Thailand’s social, community and civil society groups, as well as non-governmental organisations advance their goals and objectives through the ASEAN network. All these bodies naturally demanded that their voices be heard in the making of the ASEAN Charter. The Thai Foreign Ministry gladly acknowledged and regularly reached out to them for inputs. Thailand adopted an inclusive approach towards developing a strategy on the drafting of the ASEAN Charter. Each step that the Thai team took at the drafting sessions was, therefore, the product of a long process of national consultation and consensus-building with our stakeholders. Thailand’s drafting team, through the ASEAN Department of the Ministry of Foreign Affairs, sought useful inputs from meetings with the following groups: National Legislative Assembly especially the Foreign Relations Committee, business and private sector groups, particularly the Thai Chambers of Commerce and Industry, academia and Track II institutions, the media, students, and local community and civil society groups, as well as the civilian and defence institutions of the Thai government. 81

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The Parameters: The Main Issues The HLTF was assigned the monumental task of drafting the ASEAN Charter in 2007. It was clear from the outset that the HLTF had to operate within the parameters laid down by the Eminent Persons Group on the ASEAN Charter, as adopted by the ASEAN Leaders at the ASEAN Summit in Cebu in January 2007. Their task was undertaken with the close guidance, advice and oversight of the ASEAN Foreign Ministers who always had the interests of other line ministries and civil groups in mind. Both the ASEAN Leaders and the EPG recommended that the HLTF transform ASEAN into an inter-governmental organisation with a legal personality and a rules-based regime. They had recommended that the ASEAN structure be streamlined into three pillars comprising the ASEAN PoliticalSecurity Community, ASEAN Economic Community and the ASEAN Socio-Cultural Community. Moreover, ASEAN should have a human rights mechanism; should adhere to the principles of democracy and good governance; and should adopt a more ﬂexible decision-making process. These were some of the key features of the “new ASEAN” that ASEAN Leaders and the EPG wanted to have incorporated in the Charter. Thailand strongly supported the effort to restructure ASEAN, as the four ten-year phases since its inception had evidently exposed ASEAN’s weaknesses. Thailand was acutely aware that ASEAN, with the new composition of ASEAN member states, was badly in need of reform.

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The Four Phases of ASEAN During “phase one” (1967–1977), the ﬂedgling regional organisation of ﬁve Southeast Asian nations struggled along to maintain its independence and bargaining power while confronted with the superpower rivalry. At the same time, each of the ﬁve member states saw a need to enhance good neighbourliness, mutual conﬁdence, unity and solidarity, ASEAN provided a convenient platform for cooperation towards regional peace and security, as each Southeast Asian nation would have had less bargaining power with the global players had they chosen to operate alone. The “second phase” (1977–1987) witnessed the consolidation of ASEAN as a regional grouping and the rise of the “Asian Economic Miracle”. At the same time, the regional security setting turned Thailand into a “frontline state”, while the region was entering the end game of Cold War rivalry. Strategic friends became economic trouble-makers, and ASEAN member states were penalised because of its economic successes and booming exports to the rest of the world. ASEAN had to learn to cope with the changing external environment and was compelled to get up to speed on the latest international trade jargons such as “Jenkins Bill”, “Farm Bill”, “Anti-dumping”, “Countervailing duties”, “301” and “super 301 watch list” to keep pace with the major trading partners’ protectionist policies and laws. The geo-political landscape had changed rapidly, and Thailand found it increasingly necessary to adapt fast to the changing world. The “third phase” (1987–1997) was “1967 déjà vu”. The Berlin Wall had fallen, and the smaller countries in Southeast Asia once again found the need to maintain their 83

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independence, unity and solidarity, and strengthen their alliance with partners in the region. The Asian Development Bank had taken the initiative in forging greater conﬁdence among old adversaries in Southeast Asia by creating a new subregional grouping called the Greater Mekong Subregion (GMS) comprising Cambodia, the People’s Republic of China, Lao PDR, Thailand and Vietnam. As the new wave of regionalism grew, the membership of ASEAN had expanded from the original ﬁve to embrace the current ten ASEAN member states: Brunei Darussalam, Cambodia, Lao PDR, Indonesia, Malaysia, Myanmar, the Philippines, Thailand, Vietnam and Singapore. The “fourth phase” (1997–2007) has been a steep learning curve for the ASEAN family. ASEAN’s importance and resilience as a regional grouping soon became evident as it collectively tackled successfully a series of crises starting from the 1997 ﬁnancial crisis, which triggered domestic political instability in many ASEAN member states; the Severe Acute Respiratory Syndrome or SARS; the crisis of September 11; the Tsunami; and ever-increasing oil prices. However, the sharing of experience through ASEAN activities among ASEAN member states also revealed that an overhaul of the regional grouping was in order, especially if the regional grouping was to ensure its continuing relevancy. Thailand believes that in order for ASEAN to survive the enlargement of its membership and remain relevant in this era of globalisation, ASEAN has to gain the trust of its peoples while strengthening its credibility as an organisation and as the spearhead of the ASEAN community-building process. To this end, Thailand has pushed for three overriding objectives to be reﬂected in the ASEAN Charter. 84

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Thailand’s Three Objectives First, in order for ASEAN to become a more “rules-based” organisation, membership in ASEAN must carry with it both rights and obligations. As far as obligations were concerned, Thailand was of the view that ASEAN member states are expected to comply with all agreements and decisions, and that the Secretary-General of ASEAN is in the best position to monitor compliance with ASEAN agreements and report on the progress of the implementation of these agreements. Should problems arise, disputes ought to be settled amicably through agreed dispute settlement mechanisms, failing which appropriate measures for redress, or even sanctions should be invoked. Second, in order for ASEAN to become a more effective and efﬁcient body, ASEAN has to undergo extensive organisational restructuring. The three pillars of the ASEAN Community should henceforth serve as the overarching basis of the ASEAN organisational structure, with each of the ministerial or senior level bodies belonging to one of the three Pillars, and be accountable to and work in support of their respective pillars. ASEAN Leaders should also meet more frequently, at least twice per year, to steer the communitybuilding process and to engage with external dialogue partners. Third, the most important issue for Thailand was to ensure that the ASEAN Charter should transform ASEAN into a more “people-centred” organisation. People must feel a sense of ownership and belonging to the ASEAN Community, and must be the direct beneﬁciary of and have their voices heard in the community-building process. Therefore, the ASEAN 85

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Community must not only provide the peoples of ASEAN with the opportunity to prosper, but closer ASEAN integration must also secure an improvement in the quality of life and human security of the ASEAN peoples. Moreover, ASEAN has to give prominence to the promotion of democracy, good governance, human rights and fundamental freedoms as shared values. Thailand thus pushed for the establishment of an ASEAN human rights body in the ASEAN Charter. We are extremely gratiﬁed that all ASEAN member states agreed to have these issues incorporated in the Charter.

The Drafting Process: The Art of Diplomacy My long years in the diplomatic service have taught me that successful multilateral negotiations depend, inter alia, on the nature of the issues at hand, the political will of the drafters, timing, quality of the inputs and interventions, negotiation skills, atmosphere and the personalities of the negotiators. The HLTF began the drafting process with a considerable advantage for several reasons. The setting necessary for a positive outcome was favourable and there was a comfortable atmosphere of camaraderie in place for the HLTF to embark on the challenge of delivering a decent and well-accepted ASEAN Charter. However, the HLTF also faced the challenge of balancing their pragmatism with the high expectations and interventions from civil society groups and a number of disparaging journalists.

A United “Family” The HLTF members are all veterans of ASEAN. We began the drafting process as familiar faces to one another, as most of 86

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us knew each other well through our years of interaction in ASEAN circles or our postings in other parts of the world. Collectively, HLTF members have a vast body of experience in ASEAN affairs and in the shaping of our respective foreign and national policies. The composition of the HLTF members remained virtually the same until the end, except for the HLTF members from Thailand, Ambassador Sihasak Puangketkeow and Vietnam’s Ambassador Nguyen Trung Thanh (Tommy V), who were given foreign postings. It was heartening to witness the ASEAN spirit and the sense of belonging to the same family permeated throughout the drafting process. It created a friendly working atmosphere, although idealism and the shared commitment to craft a realistic and workable Charter often constrained the HLTF’s negotiations on the difﬁcult issues. The Chairpersons, ﬁrst the “iron-lady” Ambassador Rosario Manalo and later the “diplomatic guru” Ambassador Tommy Koh, each shouldered the additional burden of having to hold the family of drafters together to complete the assignment within the tight time frame, without compromising on the essence of the historic document.

ASEAN Secretariat’s Contribution One of the main issues for the HLTF was taking on the challenge of how to reform ASEAN as an organisation. During the drafting process, the inputs, interventions and views of ASEAN Secretary-General Ong Keng Yong carried signiﬁcant weight and facilitated our work a great deal. The ASEAN Secretariat team was impressive and professional. I was often amazed at how their assistant, Teh Lip Li could keep up with 87

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our expressions in different “English dialects”, follow our complicated discussions and yet manage to transcribe them for display on the screen, while the quiet Khun Termsak was on the alert nearby. It must have been a hive of activity for the ASEAN Secretariat behind the scenes, but for us the HLTF, the “honey” was always sweet.

Visiting Each Other’s Home In order to maintain an atmosphere conducive for drafting such a signiﬁcant document, each HLTF member took turns at hosting the meetings. I found that rotating the setting of these meetings had several advantages. They represented a sharing of our efforts and burdens, an opportunity for each HLTF member to showcase his or her country’s attractions, and allowed us to express our common desire for a smooth journey towards the required destination. Despite these pleasantries, however, each HLTF member was never distracted from his or her bottom line. However, the environment we had each created was reminiscent of a big family excursion. At each HLTF meeting, we pooled our resources and knowledge together as we listened to, argued with, teased, tickled, threatened, angered and wore each other out. It was under such circumstances that the HLTF carried out the discussions on weighty issues such as potential sanctions against members on disputes and the ASEAN human rights mechanism. Our burden was lifted somewhat when the mandate on these two issues was agreed upon by the Foreign Ministers at the ASEAN Foreign Ministers’ Retreat in Siem Reap in February 2007, and the ASEAN Foreign Ministers’ Meeting in Manila in July 2007. 88

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Consensus-building in Chiang Mai The ﬁnal agreement on human rights mechanism was perhaps unintentionally set aside for the deliberations in Thailand, the “birthplace” of ASEAN. The Thai team sensed it was coming and made preparations to host the meeting at the charming and cool northern Thai city of Chiang Mai. On day one of the meeting, our dear “iron-lady” Ambassador Manalo made the move by suggesting that the draft agenda be revised so that the HLTF could discuss the human rights body ﬁrst before the other items. The lure of exotic Ping River and northern Thai cuisine and culture notwithstanding, the temperature in the room kept rising, and subsequently, the only item on the agenda that we could adopt that morning was the Agenda. Our “diplomatic guru” Chairman Ambassador Tommy Koh was often required to shuttle back and forth to break the deadlock, while the Thai durian party at sunset on 12 September 2007 was a welcome intermission. After the long and exhausting day, during which all the HLTF members had the opportunity to have a frank discussion on the issue of the human rights body, the HLTF agreed to retreat to their rooms for a welldeserved rest. By the next morning, the HLTF was ready to resume discussions on the Terms of Reference (TOR) for the proposed human rights body. Thailand and Malaysia tabled non-papers supported by the Philippines. Those documents together with the ASEAN Secretariat paper were used as the basis of our discussions on the TOR. The rest of the Chiang Mai meeting focussed on the proposed ASEAN human rights body’s functions. Interestingly, our views on the body were not that too far apart, and it soon emerged that the HLTF did not want the body to partake in 89

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“ﬁnger-pointing” and would prefer it to have an advisory, reporting and monitoring role. The outcome of the discussions reminded me of the passionate comments by Tommy V (the HLTF member of Vietnam from February to September 2007) and Vinh later on, that discussions on human rights are “no longer a taboo, unlike in the early 1990s”. The meeting eventually agreed on a draft provision on human rights for inclusion in the Charter, which was ﬁnally adopted by the Foreign Ministers in New York in September 2007. It has been a truly memorable journey for me with ASEAN. It was in Chiang Mai in 1973, where I had my ﬁrst exposure to ASEAN when I attended a meeting on anti-drug trafﬁcking. The highlight in my dealings with ASEAN was in 2000 when Thailand was the Chair. With the drafting of the ASEAN Charter, it was the personalities and negotiating style of each HLTF member that left a deep impression on me. Indeed the “HLTF title” that we each received in the form of a framed certiﬁcate as a gift in Singapore after our last meeting will always remind me of our historic mission. I will always cherish the memories of the “King of History”, “King of Fresh Insight”, “King of Footnotes”, “King of Happiness”, “King of Clariﬁcations”, “King Who Knows What He Wants to Do”, “King of Brackets”, “King of Questions”, and ”King of Graciousness”. Each of the HLTF members had respective teams consisting of an Assistant or Alternate, and all of us were assisted by a team of indispensable staff, each of whom can be proud that their valuable contributions were recognised and deeply appreciated. I sat at each drafting table always brimming with conﬁdence and assured of the support of my team next to 90

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and behind me, headed by our meticulous Deputy DirectorGeneral of ASEAN Affairs, Khun Manasvi Srisodapol, and ably supported by Supark Prongthura, Narttapon Lertkanongkun, Kanita Sapphaisal and Dr Pornchai Danvivathana.

The Endorsement: Securing Domestic Support After the Foreign Ministers adopted the ﬁnal draft of ASEAN Charter in New York in September 2007 and the HLTF legally scrubbed the text in Vientiane in October 2007, each member of the HLTF had to redouble his or her efforts to secure national endorsement from his or her government. For the Thai HLTF team, the whole effort was redirected to the domestic front. The Thai Cabinet received the document “justin-time” and approved the draft Charter at its last meeting before turning into an interim government. The remaining task, however, was further complicated by two factors. First, as the HLTF was drafting the Charter under the watchful eyes of the ASEAN Foreign Ministers, the Thai National Legislative Assembly (NLA) was drawing up another Constitution for Thailand. Under the previous Parliamentary provisions, the Thai Prime Minister could proceed with the signing of any international treaties and agreements which were approved by the Cabinet, upon which the signed document would then be submitted to the Thai Parliament for ratiﬁcation. However, the new Thai Constitution which came into force before the Charter was completed stipulates that the Parliament will have to give its consent to certain international treaties and agreements prior to the signature by the Head of Government. The Foreign Minister conducted many sessions to deliberate on the issue, “whether the draft 91

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ASEAN Charter comes under the requirement of article 190 of the new Constitution”. Thailand’s domestic politics at the time, coupled with the discontent of some key NLA members over the Thailand-Japan FTA, raised serious anxiety over the possible reactions by the NLA. Second, at the ASEAN Summit in Singapore, the ASEAN Heads of State were scheduled to sign both the ASEAN Charter as well as the new Blueprint for the ASEAN Economic Community. The NLA attaches great importance to the economic agreements and scrutinised the Blueprint intensively. There was a genuine concern among the Thai HLTF team that the NLA might not have sufﬁcient time to deliberate on the Economic Blueprint, which would have indirectly prevented the Thai Prime Minister from signing the ASEAN Charter. The ASEAN Department recognised the gravity of the problem immediately and quickly mapped out a lobbying strategy directed at key members of the NLA, comprising both the supporters and sceptics of ASEAN. Most fortunately, The Thai team had as its ally the NLA’s Foreign Relations Committee, which had received a full brieﬁng after each of the HLTF’s drafting sessions and guided the Thai HLTF team throughout the negotiation. Dr Surin Pitsuwan, then candidate for the new ASEAN Secretary-General, played a very active role in this committee. In the meantime, the Parliamentary Committee on Legislative Coordination, which consisted of members who were familiar with the various ASEAN activities, was kept up to date with the substance of the ASEAN Charter. The Foreign Minister himself, who closely guided and monitored the lobbying effort, directly sought the support from the President of the NLA. 92

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The strategy worked. The NLA adopted the ASEAN Charter unanimously, with only one abstention by a member of the NLA, whose reservation incidentally was not directly related to the Charter. As for the Blueprint of the ASEAN Economic Community, the NLA postponed the decision and scheduled further hearings. The Blueprint was eventually approved on time for the Prime Minister to sign at the ASEAN Summit in Singapore in November 2007. The NLA’s action sent a strong and clear signal to ASEAN member states and partners that the legislative branch ﬁrmly supported the Thai government in the reform of ASEAN and attached great importance to ASEAN activities, and that Thailand would not fail to live up to the high expectations as the birthplace of ASEAN. After the signature by the ASEAN Leaders at the Summit in Singapore, the ratiﬁcation by all ten ASEAN member states is a logical next step for the end of the new beginning in ASEAN’s evolution and growth. In December 2008, Thailand will host the ASEAN Summit. If all ten ASEAN member states ratify the Charter as scheduled, Thailand once again will be given the rare honour of celebrating the full ratiﬁcation of the historic ASEAN Charter by all ASEAN members states in Bangkok, signifying the revival of the “new ASEAN” and the region’s readiness to meet global challenges.

Epilogue I am grateful to all my colleagues and friends at the Ministry of Foreign Affairs of Thailand especially those at the ASEAN Department, Thai Ministries and agencies concerned, key members of the National Legislative Assembly, my Foreign 93

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Minister HE Nitya Pibulsonggram, the Thai Human Rights Caucus, and the ASEAN Secretariat team for the HLTF. I value the warm friendship forged with all HLTF members. Having worked together for such a noble goal and succeeded, I now have more faith in ASEAN and its future.

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The Making of the ASEAN Charter in My Fresh Memories Nguyen Trung Thanh Nguyen Trung Thanh is the Vietnamese Ambassador to Singapore since September 2007. He was Assistant Minister for Foreign Affairs cum Vietnamese ASEAN SOM Leader from 2003 to 2007. He was the Vietnamese representative in the HLTF Task Force on Drafting the ASEAN Charter from January to August 2007. He joined the Foreign Ministry in 1981 and has an extensive background in Asia-Paciﬁc and ASEAN affairs. He earned his Masters Degree in Law and Diplomacy from the Fletcher School of Law and Diplomacy, Tufts University in cooperation with Harvard University in the United States.

The ASEAN Charter, the ﬁrst pivotal legal document of ASEAN signed by ASEAN Leaders at their 13th Summit in Singapore in November 2007, despite both praises and criticism, marks a historic development of the Association after four decades of existence. The process of making the Charter was not easy, of course, but it was truly memorable and a source of immense pride for me and my dear colleagues in the High Level Task Force (HLTF) who were involved in drafting the ASEAN Charter. Looking back at what all of us in ASEAN had gone through before coming up with our end product — the ASEAN Charter, there are so many unforgettable memories.

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The Evolution of the Charter When the idea of building a Charter for ASEAN was ﬁrst tossed out in the early 2000s, there were both pros and cons discussed within the ASEAN ofﬁcials’ circle. Though all members agreed on the need for ASEAN to formalise itself by having an ofﬁcial legal instrument to provide the organisation with a sound legal and organisational framework, it was still unclear then about what sort of a legal instrument that ASEAN should have. It took several meetings for the ASEAN Senior Ofﬁcials to ponder on the idea of establishing a Charter for ASEAN. Finally, the Charter proposal got through the working level and reached the table of ASEAN Leaders. It ﬁrst appeared in the Vientiane Action Programme (2004) as one important step that ASEAN should undertake toward building the ASEAN Community by 2020. Subsequently, the ASEAN Leaders realised the critical need for ASEAN to build a Charter if it is to secure the establishment of the ASEAN Community. Therefore, they showed a strong political will to see the idea of a Charter materialise in their Declaration issued at the 11th ASEAN Summit in Kuala Lumpur in December 2005. An Eminent Persons’ Group (EPG) was summoned consisting of ASEAN’s prominent ﬁgures or “wise men” to deliberate on how the Charter should be best drafted to serve ASEAN’s set objectives. After a year of hard work, the EPG came up with a Final Report containing their recommendations to the ASEAN Leaders on the way a Charter should be shaped. At their 12th Summit in Cebu in early 2007, ASEAN Leaders took another important step to activate the Charter building process in the Cebu Declaration to set up a High Level Task Force (HLTF) to draft the Charter based on their instructions, the 96

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EPG Report and other relevant ASEAN documents. The draft Charter was required to be presented to the ASEAN Leaders by the end of the year, that is, at the 13th ASEAN Summit in Singapore. The Charter was now considered one of ASEAN’s high priorities and member countries were all determined to have the Charter completed as a historic icon to mark the 40th anniversary of ASEAN’s establishment.

ASEAN Charter: Where Do We Start? The High Level Task Force (HLTF) was formed in early 2007 right after the command from ASEAN Leaders was made and consisted of Senior Ofﬁcials mostly involved in ASEAN affairs or having a legal background. When the HLTF ﬁrst met at the ASEAN Secretariat in January 2007, it seemed like everybody was standing in front of the Everest Summit without knowing where to start from. The time frame was set by the Leaders to have the product done within only one year while the requirements for a quality Charter to meet ASEAN’s development objectives were very high. There were three bases for the HLTF to work on, namely the ASEAN Leaders’ instructions, the EPG Report and relevant ASEAN Documents, but these were too broad to build on. The EPG Report contained many good ideas including even a model skeleton for the Charter. Should all of them be used? Each member country, each circle in ASEAN had their own priorities that they wanted to be reﬂected in the Charter. How should these be accommodated? Meanwhile, there were high expectations for the Charter from both within and outside ASEAN to bring about a new breakthrough for ASEAN. The HLTF members were under a lot of pressure. 97

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After long deliberations, the HLTF ﬁnally came up with a “wise” drafting tactic of starting from the easier parts ﬁrst while leaving the difﬁcult ones for later discussions. A common approach was also adopted by HLTF members as guiding principles for the drafting process, that is: • The Charter should be a visionary and inspiring document; • It should be brief but comprehensive; • The Charter is not a plan of action, but an enabling instrument of ASEAN that will be used as a legal framework; • The Charter should be written in clear and unequivocal statements; and • It should be ﬂexible to be both an enduring document while being able to adapt to changing circumstances and developments. A detailed Work Plan was also developed, setting the time frame for the HLTF’s work according to which each meeting would cover a particular issue/chapter of the draft Charter. Having developed such a clear-cut and professional working method, the HLTF got it right from the start.

Dealing with the “Big Questions” Even when the Charter idea was still an embryo, many questions were raised as to what the Charter should bring about for ASEAN: • As a leading legal instrument guiding the whole operations of the Association, should it transform ASEAN into a supra-national organisation like the EU? 98

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• Would regional concerns prevail over national interests once ASEAN becomes a Community? • What will happen to the existing ASEAN Way, or in particular, the well-known but sometimes controversial principle of non-intervention and the consensus decision-making method? • For ASEAN to be a more rules-based organisation, should any sort of sanctions be applied to violations? • What kind of organisational structure best suits ASEAN? • Should ASEAN change its current scale of ﬁnancial contribution? And many more… Those questions became increasingly “hot” as the Charter idea was developed. The EPG had their own answers to those issues. Although not all of the questions were duly tackled, the bright and talented ASEAN “wise men” (the EPG) helped shed the light to the tunnel for the HLTF drafters. Those with experience in multilateral negotiations would understand the hard work of conciliating various ideas from the discussion table. For such an important document like the Charter, and for an organisation with a diversiﬁed background like ASEAN, the task was no doubt not easy. Each member country came to the meetings with different answers to the above-said questions. The EPG Report was an important source for reference but the HLTF’s mission was not to copy everything from the EPG’s recommendations. The HLTF well understood that the drafting process could not be expedited if those matters of principle could not be dealt with properly. 99

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It was helpful that all of the HLTF members are career diplomats who have worked in the ASEAN sphere for quite a long time, and have in-depth understanding about ASEAN. As frequent fellows in the ASEAN circle, they also know each other’s concerns. All share the common aspirations for ASEAN to thrive and do not want to see ASEAN being weakened by either “too meek” or “too bold” changes. One HLTF member jokingly likened the drafting work with the designing of an underwear for an adolescent. It would not be too tight for him to grow further. They are well aware of the key to ASEAN’s success over the last decades. Therefore, those fundamental issues such as whether the organisation should be of supranational or inter-governmental nature, preserving or modifying ASEAN’s old principles, sanctions or non-sanctions, and so forth, soon had the appropriate answers. Outside critics or those who do not understand much about ASEAN may argue that the Charter is nothing new; it is merely a repetition of what ASEAN has had in previous documents, with no dramatic change introduced and so forth. They are both right and wrong. The Charter has done a great thing of consolidating the traditional bases of ASEAN while still opening the door for practical changes and improvements of ASEAN’s operations. Some examples are as follows. The old ASEAN Way of non-intervention and consensus decision-making is still there, but there are also provisions for member countries to sit down and discuss with each other how to settle matters that affect all. Consensus is still the guiding method of decision-making, but other ﬂexible modes of implementation like the ASEAN minus X formula are 100

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ofﬁcially introduced. The ASEAN Leaders will be the supreme body to decide on non-consensus issues. • ASEAN will not become a supra-national organisation like the EU but it will certainly be more rules-based. Decisions or agreements made have to be honoured. Serious violations will not face sanctions, but have to be brought to the highest level for a decision. • As an inter-governmental body, ASEAN will respect member countries’ national interests but on the way towards a Community, each member will be willing to commit more to ASEAN. • ASEAN members will continue to adhere to the universally recognised principles of respect for each other’s independence, sovereignty and territorial integrity, but will not allow their territories to be used by forces both within and outside ASEAN against any member of the Association. • The new ASEAN organisational structure is basically built on the existing system but is shaped into three main pillars to serve the three Communities that ASEAN is working toward, plus several new features being introduced, that is, the Committee of Permanent Representatives based in Jakarta. Notwithstanding the above, as agreed, the Charter will remain a living document that may be amended to suit the future evolution of ASEAN.

The Technical Issues The work of drafters always involves many technical aspects which may sometimes delay the whole process. Since English 101

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is not the ﬁrst language of all member countries, its usage in an ofﬁcial document like the Charter also creates room for extensive discussions. The fact that some HLTF members are lawyers, and all delegations have legal experts makes the legal discussions sometimes very hot! As a saying goes: “Lawyers can never agree with each other”; it was true to a certain extent during the HLTF’s work. The HLTF assistants, mostly legal experts, usually meet before the formal HLTF meetings to deliberate on the technical or legal aspects of the draft Charter but they seldom could settle matters among themselves, and those issues had to be brought to the HLTF members. As the HLTF tackled those technical matters, everybody had the opportunity to learn more about how many different ways a legal wording should be interpreted, or the various meanings of an English word/phrase!

The Sensitive Issue Human rights is considered a sensitive issue, not only in ASEAN but in many other countries worldwide. The different ways human rights are interpreted and conducted in different countries with different political, historical and cultural backgrounds is one of the main reasons for this. For quite a long time, the human rights issue was not put on the agenda of ASEAN ofﬁcial meetings. It does not mean that ASEAN member countries avoided the issue but it was part of ASEAN’s tactful working way of non-intervention. The protection of human rights is seen as the internal affair of each government and it remains true. However, this fact has been used by some organisations to criticise ASEAN. During the process of drafting the ASEAN Charter, the call from regional NGOs for 102

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the human rights issue to be duly reﬂected in the Charter was strongly voiced. What was the reply of the Charter drafters? Before putting their hands on the issue, the HLTF members had to consult their respective Foreign Ministers for advice, since human rights always has mixed implications. The positive signal was given for the HLTF to proceed with the issue in order to prove that ASEAN had no fear in dealing with this matter. For the very ﬁrst time, ASEAN Senior Ofﬁcials in the HLTF met in person to discuss how to include in the draft Charter an enabling provision on the establishment of a body that serves to protect and promote human rights in ASEAN. A common understanding was agreed that ASEAN needs to establish its own standards for human rights protection and promotion, and that human rights should not be left as an excuse for outsiders to intervene into ASEAN’s own affairs. The HLTF ﬁnally came up with a formulation of the enabling provision in the Charter that was considered the best balanced option that may satisfy both those advocating for the establishment of an ASEAN Human Rights body and those who still have reservations with this idea. Much remains to be done but there is every reason for the HLTF to be proud of their ability to tackle the once very sensitive issue or even a “taboo” in ASEAN.

The Unforgettable Moments: From Table Tapping to Teddy Bears The intensity of the work (meetings every month, some lasting for nearly a week) sometimes exhausted the energies of HLTF members and their assistants. However, even during the most difﬁcult negotiating periods, when the hard issues 103

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“burned” the heads of the drafters, some funny anecdotes were wisely and timely told to lighten the tense atmosphere. After almost a year working together, each HLTF member was given a nickname describing his/her own character at the drafting table. Messers “Footnote” and “Square Brackets” are more than often-heard names. The sweet birthday cakes presented to some HLTF members, and the cute Teddy Bears prepared by the host country to help refresh the minds of HLTF representatives after discussing a difﬁcult chapter will be memories that will never fade away. Above all, the historical moment when the Charter was inked by ten ASEAN Leaders at their 13th Summit in Singapore in 2007 undoubtedly shook the hearts of the HLTF members who were present to witness the signing ceremony.

Vietnam and the ASEAN Charter Vietnam always wants to have a strong ASEAN. Therefore Vietnam is seriously committed to the idea of a high quality Charter right from the beginning. More than a decade of membership in ASEAN has meant much for Vietnam and we have also done our best for the constant growth of ASEAN. During the whole process of drafting the ASEAN Charter, from the EPG to the HLTF, Vietnam has always taken high responsibilities in working creatively with fellow ASEAN members in order to produce the best possible draft that serves ASEAN’s requirements. After Prime Minister Nguyen Tan Dung signed the Charter together with other ASEAN Leaders in Singapore last year, Vietnam became one of the ﬁrst countries to ratify the ASEAN Charter. The Charter, of course, will need the full ratiﬁcation of all ten members before it can 104

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be implemented. We stand ready to work with other ASEAN colleagues to bring the Charter fully to life. As one of the shapers of the Charter, I wish to see it become a really useful “Bible” for ASEAN, one that will help ASEAN successfully attain its Community-building objective and move farther beyond. The sooner the better.

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At Close Quarters with the Drafting of the ASEAN Charter Ong Keng Yong Mr Ong Keng Yong is Ambassador-at-Large in the Ministry of Foreign Affairs and Director of the Institute of Policy Studies in Singapore. He was Secretary-General of ASEAN (the Association of Southeast Asian Nations) from 2003 to 2007. From 1998 to 2002, he was Press Secretary to the Prime Minister while concurrently Deputy Secretary at the Ministry of Information, Communications and the Arts. Mr Ong also served as the Chief Executive Director of the People’s Association in Singapore from 1999 to 2002. Prior to 1998, Mr Ong was Ambassador to India and Nepal, and had served in various diplomatic posts in Saudi Arabia (1984–1988), Malaysia (1989– 1991) and the USA (1991–1994). From 1981 to 1983, he pursued his postgraduate study at Georgetown University in Washington DC in the USA and received his MA in Arab Studies. Mr Ong joined the diplomatic service of Singapore in 1979, after graduating from the University of Singapore with an LLB (Honours).

Why ASEAN Needs a Charter After 40 years of co-existence and cooperation without a formal and legal regime, the ten member states of the Association of Southeast Asian Nations (ASEAN) decided that an ASEAN Charter will be the next concrete step to strengthen their organisation. To be sure, this expression of collective purpose and institutionalisation is not a new idea. Such a move was 107

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contemplated in one form or another over the past four decades, but all the previous efforts resulted in indecision. Mutual trust and conﬁdence had not reached a level of comfort and common endeavour. The national ego was strong and regional institution-building failed to generate sufﬁcient support and urgency. In particular, the bureaucratic agencies in the member states were reluctant to commit to region-wide initiatives for fear of losing their national independence of action.

The Decisive Moment Incrementally, however, each attempt at developing a more institutionalised ASEAN had helped to establish a stronger rationale for a more solid regime of accountablitity, predictability and transparency for the grouping. The decisive moment of action came when the forces of globalisation eroded the competitive edge of the ASEAN economies and weakened ASEAN’s ability to remain on the centre-stage of regional affairs and development. By acting together and staying more cohesive, ASEAN member countries believe that they would be in a better position to inﬂuence other people’s policies towards ASEAN. To convince the external parties that the ten diverse countries of ASEAN are serious about exerting collective strength, a concrete new modus operandi is required.

Need to Reassure ASEAN’s Partners Continuity and certainty in dealing with ASEAN is a comparative advantage. Regional programmes and projects with consistency in implementation and clear-cut measurements of outputs are needed for donors’ continued commitment. This is especially important in managing region-wide challenges 108

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like communicable diseases, environmental degradation, natural disasters and social dislocations and deﬁciencies. An ASEAN Charter, with speciﬁc principles of cooperation and co-existence, and modalities of regional development, is increasingly regarded as essential for the intensive community building envisaged and promoted by ASEAN member states. It will inspire and reassure ASEAN’s constituencies of support, and strengthen the basis of joint initiatives with ASEAN. Legislative developments in many partner countries of ASEAN have also started to prescribe a more legal and judicial format as a precondition for cooperation with ASEAN.

Balancing the Collective and National Concerns On another level, ASEAN member states need more reassurances as they deepen and widen their mutual cooperation. They have matured and their socio-economic conditions have stabilised. All of them have advanced from the status they were at when they ﬁrst joined ASEAN. Every member state harboured a wish to re-write some, if not all, of the rules of membership in ASEAN. This is particularly important as they have all agreed to integrate their respective economies to establish the ASEAN Economic Community. This means that a certain degree of their independence in policy-making at the national level will be diminished as ASEAN economic integration takes precedence over national economic concerns. An ASEAN Charter which spells out the member states’ obligations and responsibilities will ensure a common understanding of the collective commitment for the future. For example, the principle of non-supra-nationality should be reiterated so that the political/security cooperation, economic 109

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integration, and socio-cultural development (comprising the three pillars of the ASEAN Community to be realised by 2015) can be pursued without the fear of losing individual sovereignty beyond the acceptable degree.

Impact of the EPG Report The task of drafting the Charter was delicate and tedious. We were told to honour the past (in other words, not to forget those time-tested principles and norms used by ASEAN to date), celebrate the present (that is, implement those activities and programmes already agreed to in various agreements and treaties), and innovate for the future (meaning to introduce new ideas and mechanisms to institutionalise and modernise ASEAN). Our assignment was to do all these without upsetting the balance ASEAN has constructed to take care of the multitudes of national interests and sensitivities. This is notwithstanding the Report of the Eminent Persons Group (EPG) on establishing the ASEAN Charter wherein sacred cows, like the principle of non-interference in domestic affairs, were qualiﬁed. The EPG Report provided the starting point for the drafting of the Charter. At the same time, it was a constant source of dilemma. What the EPG recommended was not what the High Level Task Force (HLTF) could include in the draft ASEAN Charter without contention. When the HLTF members debated the issues, more questions and even outright reservations on what should go into the Charter arose.

Strong Personalities and Drafting Tactics The drafting work was hampered throughout by mundane and quirky matters, arising mainly from the colourful backgrounds 110

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and clever antics of the respective HLTF members. The varied working styles of the ASEAN member countries also contributed to the time-consuming deliberations. The use of the English language as the working language of ASEAN produced an unintended outcome! There is a multiplicity of grammatical and spelling preferences orginating from the peculiar usage of English in each member state. At the Charter drafting sessions, such differences delayed a quick consensus on wording and many formulations had to be put in square brackets (to be revisited later).

Giving ASEAN a Legal Personality Further, the Charter was intended to be a legal document, creating a distinct legal personality for ASEAN as an intergovernmental regional organisation. The legal jargon and import used in each member state is different and unfamiliar to the others. The protocol requirements differ too, especially in the treatment of the Secretary-General of ASEAN and other ofﬁcial functionaries of the ASEAN Secretariat by each member state. All such differences must be harmonised and agreed to by every member of the HLTF. Constant research into objective standards adopted elsewhere, particularly by other regional and international organisations, had to be undertaken and then suitable adaptation recommended for consideration by the HLTF.

Role of the Secretary-General and the Assistants As Secretary-General of ASEAN, I was the “resource person” for the HLTF. I was required to give the background, history and institutional development for any issue/point in contention 111

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or in consideration. From time to time, I intervened to urge consensus after prolonged debates on speciﬁc issues or particular forms of words. The encyclopaedic mind of Special Assistant to the Secretary-General of ASEAN, Termsak Chalermpalanupap, and his passion for the work involved made my task easier. Very often, each chapter of the Charter was ﬁrst drafted by the ASEAN Secretariat and then considered by the Assistants of the HLTF members. These Assistants were specialists from the respective Foreign Ministries or experts from concerned agencies in the ASEAN member states. They performed the critical tasks in preparing the papers for discussions and maintaining the notes/records of meetings. Usually, the Assistants paved the way for the settlement of controversial paragraphs through their sheer diligence and never-say-die attitude. They deserve commendation medals for their untiring efforts and outstanding cooperative spirit.

Dealing with the Media The media caused frequent distractions in the work of the HLTF. The mandate given to the HLTF was to draft the Charter and to submit it to the ASEAN Leaders by the Singapore Summit in November 2007. As such, the HLTF would not engage the media. Since it was not possible to obtain details of what transpired at the drafting sessions, the inquisitive journalists speculated on what was discussed and agreed upon at each meeting. Most of the time, they were off the mark. The focus was always on the human rights issue at the expense of other worthy elements to be included in the Charter. Given the intense interest of the media and to correct wrong impressions created by the misleading reports, the Secretary-General of 112

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ASEAN put out fact sheets from time to time, giving updates on the progress. The ASEAN Secretariat’s website was used to disseminate such information to a wider audience. On hindsight, there should be a more concerted public messaging approach on major initiatives of ASEAN in the future. The media can be helpful in bringing to the citizens of member states what ASEAN wants to do.

Prominence of the CLMV A striking feature of the HLTF’s deliberations over almost one year is the proactive and, occasionally, competitive roles of the representatives from Cambodia, Lao PDR, Myanmar and Vietnam (the CLMV). They pushed for their respective formulation of words, cajoled other member states’ representatives to accept their concern about the unbridled future direction of ASEAN, and handled the reactions to their negotiation tactics in a manner reminiscent of the Ramayana drama on stage: slow and steady, and unyielding on the fundamentals. The strategic vision for ASEAN and the political acumen displayed by the respective CLMV Leaders in managing the ASEAN agenda were digested by the CLMV members on the HLTF. Yet, these drafters did not want to miss the opportunity to stamp their own imprimatur on such an important document like the ASEAN Charter. They clearly impressed all involved in the process that ASEAN is a collective body where each and every member state has a stake, a voice and a political wallop (to be used judiciously vis-a-vis fellow members when needed). To me, this display of dexterity and diplomacy means that ASEAN has come of age, as a grouping of equals, and it coincided with the timely establishment of the ASEAN Charter. 113

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Role of the Foreign Ministers Ultimately, it was the tight timeline set by the ASEAN Leaders and a shrewd balance of cost and beneﬁt by the HLTF members that delivered an expedited draft of the Charter. In addition, the Foreign Ministers of ASEAN played an instrumental role. They provided political guidance at critical junctures of the drafting process to overcome obstacles encountered during the discussions in the HLTF meetings.

Expediting the Drafting Process The HLTF’s approach of moving the drafting process forward and leaving contentious issues for subsequent follow-up discussions (often at the Assistants-level) also helped in keeping the drafting schedule more or less on course. The use of appropriate alternative wordings to present important concepts and notions provided the necessary ﬁg leaves to prevent still-born situations. The ASEAN Secretariat’s frequent reminders on keeping to the agreed language from previous agreements, declarations and treaties instead of “reinventing the wheel” for each formulation in the Charter enabled the HLTF to compromise and proceed, after the interested members had made their respective grandstanding statements. In my view, the favourable public opinion and positive reactions of ASEAN, and ASEAN’s Dialogue Partners to the establishment of the ASEAN Charter also facilitated a smoother process. At one stage, however, the media’s overplay on the human rights issue, and the consequent public discourse generated in some capital cities of ASEAN member states on how this matter should be addressed in the Charter, threatened to unravel the 114

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delicate balance by the HLTF to seal an early consensus on the draft Charter.

The Future of the Charter Looking ahead, the Charter is still a work-in-progress. Ratiﬁcation is on-going and some ASEAN member states are ﬁnding difﬁculties clearing the signed Charter through uncooperative national legislatures. Moreover, controversial provisions in the Charter have not been fully settled. This means that hard negotiations lie ahead, for example, on how to bring into operation the proposed human rights body in ASEAN. The terms of reference for this body will not be easy to conclude. Nevertheless, the ASEAN Charter is a rational outcome of many years of visionary leadership, unique Southeast Asian diplomacy and evolutionary regional institution-building even though it is not the perfect document to the civil society and some Parliamentarians. Everything in ASEAN is a balance of interests and timing. The so-called “charteritis” of the past two years might have stressed the personal health of policy-makers in ASEAN but it has produced the antidote for an obsolescence and malaise in regional cooperation and community-building.

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In Defence of the ASEAN Charter Termsak Chalermpalanupap1 Mr Termsak Chalermpalanupap is Director of Research and Special Assistant to the Secretary-General of ASEAN. He assisted HE Ong Keng Yong, Secretary-General of ASEAN, who was the resource person to both the High Level Task Force on the Drafting of the ASEAN Charter, and the Eminent Persons Group on the ASEAN Charter.

Too many unfair criticisms have been heaped on the ASEAN Charter 2 soon after the historic agreement was signed by Leaders of the 10 member states of ASEAN, on 20 November 2007, during the Thirteenth ASEAN Summit in Singapore. Some have even called for a boycott of its ratiﬁcation. In their haste to belittle the ASEAN Charter, these critics seldom bother to get all the facts right. This article is intended to tell the other side of the story, based on ﬁrst-hand facts that I have seen in serving both the Eminent Persons Group (the EPG) on the ASEAN Charter and

1

This essay is written in the author’s personal capacity. Please visit the website of the ASEAN Secretariat at: www.asean.org. ASEAN documents mentioned in this paper (as shown in bold italics) are available on the website. 2

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the High Level Task Force (the HLTF) on the Drafting of the ASEAN Charter.

ASEAN’s Importance to Southeast Asia Though this is not the occasion to justify the existence of ASEAN, I would contend that the overall achievement of ASEAN is invaluable to Southeast Asia and its peoples — although too few of them are aware of what ASEAN has accomplished. At least, there can be no dispute that ASEAN has managed to strengthen peace and security in Southeast Asia and kept all the countries in this region in its fold,3 at peace with one another and with the rest of the world, working hand-in-hand in building the ASEAN Community. The mere fact that ASEAN has existed for 40 years and is growing steadily must have frustrated quite a few critics, who tend to doubt that Southeast Asian governments and their political leaders can do anything good together for their peoples. The ASEAN Charter may be yet another big surprise to these detractors.

Ten Important Things About the ASEAN Charter The following are ten things about the ASEAN Charter that most of the critics either do not know or choose to ignore. With this information, I hope more people who care about ASEAN can evaluate the ASEAN Charter more objectively and come to appreciate it better.

3

Timor Leste, which gained independence in May 2002 and became the newest independent nation in Southeast Asia, is now actively preparing for the ASEAN membership in the hope of joining ASEAN within the next ﬁve years. 118

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1. The ASEAN Charter is Not a New Idea The ASEAN Charter is actually not a new idea. As far back as in the early 1970s, the ﬁve founding member states of ASEAN (Indonesia, Malaysia, the Philippines, Singapore, and Thailand) considered the possibility of developing some agreement to formalise the establishment of ASEAN. The Association of Southeast Asian Nations (ASEAN) was established on 8 August 1967 through the signing in Bangkok of the ASEAN Declaration, which is also known as the “Bangkok Declaration”. Strictly speaking, the 1967 ASEAN Declaration was merely a political document announcing the aspiration of the ﬁve founding fathers to work together under ASEAN. They might not have been very conﬁdent whether their ASEAN experiment would work, let alone produce satisfactory results over the next four decades. After all, regional cooperation was quite alien to most in Southeast Asia in the mid-1960s when conﬂict, ideological confrontation and war were the unpleasant realities. The discussions on some constitutional framework for ASEAN in the early 1970s did not result in any ASEAN constitution or ASEAN charter. But it did lead to the signing, at the First ASEAN Summit, in Bali on 24 February 1976, of the Treaty of Amity and Cooperation in Southeast Asia, which is also known as “the TAC”. In addition, in the Declaration of ASEAN Concord also issued by ASEAN Leaders at the Bali Summit, it was stated that, as part of the measures to improve ASEAN machinery, ASEAN member states would undertake “Study of the desirability of a new constitutional framework for ASEAN”. 119

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2. Indonesia and Malaysia’s Leadership in Reviving the Charter Idea Fast forward to the 21st century. In the early 2000s, the ten ASEAN member states (Vietnam joined ASEAN in 1995, Laos and Myanmar in 1997, and Cambodia in 1999) started revisiting the old idea of formalising the establishment of ASEAN in order to better equip ASEAN and reposition it to achieve new and more ambitious objectives, as well as to meet modern-day challenges. Eventually, during the ASEAN Chairmanship of Indonesia, at the Ninth ASEAN Summit in Bali, in October 2003, ASEAN Leaders agreed to embark on building the ASEAN Community, consisting of political security, economic and ﬁnance, and socio-cultural community pillars.4 At ﬁrst, the goal was to complete building the ASEAN Community by the year 2020. Subsequently, ASEAN Leaders, in their Twelfth ASEAN Summit in Cebu in January 2007, agreed to accelerate and complete the (ﬁrst phase of) ASEAN Community by the year 2015. As a follow-up to the 2003 Summit decision on building the ASEAN Community, the Vientiane Action Programme (VAP)5 was developed as the ﬁrst six-year roadmap (2004– 2010) for cooperation in each of three community pillars. In the course of formulating the VAP, Malaysia came up with a paper on “Review of ASEAN Institutional Framework: 4

See details in the Declaration of ASEAN Concord II (Bali Concord II) on the ASEAN Secretariat’s website. 5 The VAP is being superseded by three separate Blueprints for each of the three Community pillars. The Blueprint for the ASEAN Economic Community was already adopted by ASEAN Leaders during the Thirteenth Summit in Singapore. The Blueprints for the other two pillars are expected to be ready for consideration by ASEAN Leaders in the Fourteenth Summit in Bangkok, scheduled for 15–18 December 2008. 120

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Proposals for Change”. One of Malaysia’s recommendations in the paper called for the transformation of ASEAN into a “legal regime with the signing of an ASEAN Treaty or Charter incorporating all the basic documents; …”. It may be disclosed here that soon after HE Ong Keng Yong took over the post of the Secretary-General of ASEAN in early January 2003, the ASEAN Charter idea was one of the key urgent issues that his senior staff at the ASEAN Secretariat presented to him for consideration, and he enthusiastically endorsed it. Subsequently, he contributed to the ASEAN Charter process by serving as the resource person to both the EPG and the HLTF. In the ASEAN Security Community pillar, the VAP included, in the section on Shaping and Sharing of Norms, the following cooperation measures: 1.2.1 Work towards the development of an ASEAN Charter and in 1.2.2.1 Setting up relevant mechanisms to formulate an ASEAN Charter. At the Eleventh ASEAN Summit in Kuala Lumpur in December 2005, ASEAN Leaders reiterated, in the Kuala Lumpur Declaration on the Establishment of the ASEAN Charter, their commitment to go for an ASEAN Charter. In this 2005 Kuala Lumpur Declaration, ASEAN Leaders also announced the establishment of the Eminent Persons Group (EPG) on the ASEAN Charter.6 The EPG was mandated to study ASEAN and recommend what should go into an ASEAN Charter. Led by HE Tun Musa Hitam, former Deputy Prime Minister of Malaysia, the EPG members presented their EPG Report to ASEAN Leaders at

6

The EPG Report is available on the ASEAN Secretariat’s website at: www.aseansec.org. 121

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the Twelfth ASEAN Summit in Cebu, the Philippines, on 12 January 2007.

3. Five Good Reasons to have the ASEAN Charter Now There are at least ﬁve good reasons to have the ASEAN Charter. First of all, building the ASEAN Community and at the same time narrowing the development gap within the ASEAN membership, will require a stronger and more efﬁcient organisational structure. ASEAN needs to transform itself into a more rules-based organisation with a legal personality of its own. ASEAN also needs to restructure its expanding mechanisms and improve coordination, decision-making process, and dispute settlement. The second reason is that to be successful in building the ASEAN Community, every member government must incorporate ASEAN priorities into its national agenda. Every member government must commit to implementing ASEAN Summit’s decisions and ASEAN agreements promptly. ASEAN will become a whole new entity which is larger than the previous self. But the symbiotic relations between ASEAN and its member states will continue to grow. ASEAN, as a regional organisation, can regionally contribute to each of its member states’ national development. At the same time, each of the member states can contribute nationally to ASEAN’s community-building. This is a win-win relationship. Third, the building of the ASEAN Community, while narrowing the development gap, will require a great deal of resources. Mobilising more resources needs popular support. The ASEAN Charter can be the new rallying point to attract public attention and popular support, hence the inclusion of 122

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the promotion of ASEAN identity and symbols in Chapter XI of the ASEAN Charter. ASEAN must try harder in raising public awareness of its agenda and objectives and explain to nearly 600 million Southeast Asians how they can beneﬁt from ASEAN. The dilemma is that substantial resources are needed to produce important concrete results, but no such resources are available unless the peoples of the ASEAN countries are willing to pay for more substantive cooperation activities in ASEAN. Fourth, as an entity in its own right, ASEAN will be able to play a more proactive role in safeguarding and promoting regional common interests, as well as in promoting ASEAN’s external relations and cooperation with all friends and partners. The Charter provides for the establishment of the Committee of Permanent Representatives to ASEAN in Jakarta. ASEAN’s friends and partners will be encouraged to appoint their Ambassadors to ASEAN to work with the Committee on a regular basis.7 This, in the long run, can help cut down the travel expenditure of ASEAN member governments in their participation in ASEAN, as more and more meetings can be conducted in Jakarta and attended to by these Permanent Representatives and their support staff. And ﬁfth, the Charter is a ﬁtting noble gift to ASEAN from its ten member governments for the 40th founding anniversary of the organisation in 2007.

7

The Bush Administration in April 2008 appointed Mr Scot Marciel, Deputy Assistant Secretary of State for Southeast Asia, as the ﬁrst US Ambassador to ASEAN. The USA became the ﬁrst Dialogue Partner of ASEAN to have done so. 123

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4. No Dilution of the EPG’s Recommendations One prevailing misunderstanding is that the EPG’s recommendations on what should go into the ASEAN Charter have been largely “diluted” in order to achieve consensus by meeting the demand of the lowest common denominator. This is not true. It should be emphasised here that the EPG was not mandated to draft any ASEAN Charter. Therefore, the EPG only examined ASEAN and recommended how to improve ASEAN to be more efﬁcient and to reposition ASEAN to better meet new challenges in the 21st century. The EPG did present their recommendations in the format of a draft charter, as shown in Part III of the EPG Report. One must bear in mind that the EPG members, though appointed by their respective governments, and some are senior Cabinet members, served on the EPG in their private personal capacity. They neither represented their respective governments nor countries. They were given full liberty to “think outside of the box”. On the other hand, the drafters of the ASEAN Charter — they are mostly senior Ministry of Foreign Affairs ofﬁcials — represented their respective governments, acting under strict ofﬁcial instruction from their superiors; they did not have the liberty to deviate from their mandate. Moreover, the EPG members were not concerned about how to implement what they recommended; they would rather leave this operational question to bureaucrats. The drafters, on the other hand, were fully aware of the need to ensure implementation of and compliance with every provision in the Charter. They would be held responsible if they put in something that turned out to be too idealistic and impracticable. 124

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Another important point to note is that the EPG’s recommendations represented just one of the nine main sources of inputs in the drafting of the ASEAN Charter. The other eight were: (1) directives from ASEAN Leaders; (2) existing commitments in various ASEAN milestone documents and agreements since 1967; (3) guidance from ASEAN Foreign Ministers (because the HLTF was established by them); (4) written inputs from ASEAN Economic Ministers; (5) consultations with the High Level Task Force on Economic Integration; (6) suggestions from other Ministers; (7) consultations with Senior Ofﬁcials from all ASEAN sectoral bodies; and (8) consultations with other stakeholders outside the ASEAN ofﬁcial circles. Comparing the ASEAN Charter with the EPG’s recommendations, one can easily ﬁnd many good ideas of the EPG written all over the ASEAN Charter. These included: • Show understanding and commitment to democracy, respect for human rights and fundamental freedoms, and the rule of law, including international humanitarian law; • People-oriented ASEAN, which the EPG called “peoplecentred Organisation”; • Legal personality for ASEAN; • Summit meetings at least twice a year; • Three ASEAN Community Councils; • Member states’ Permanent Representatives to ASEAN; • Enhance the role of the Secretary-General, especially in monitoring and reporting progress (as well as delays and non-compliance) in the implementation of Summit decisions and ASEAN agreements; 125

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• 4 DSGs (though only 2, not all 4, will be openly recruited); • DSG at the rank of Deputy Minister; • ASEAN minus X formula for ﬂexible participation in economic cooperation; • Single ASEAN Chairmanship; • Dialogue Partners’ Ambassadors to ASEAN; • ASEAN motto: “One Vision, One Identity, One Community”; • ASEAN anthem (ASEAN shall have one); and • Keep English as the ofﬁcial working language in ASEAN. However, it is true that a few of the EPG’s other ideas have been dropped during the drafting of the ASEAN Charter. They were the following: • No mentioning of ASEAN Union as the ultimate goal; • No provisions for suspension, expulsion and withdrawal from the ASEAN membership; • No voting (actually the EPG recommended voting only in non-sensitive areas if consensus cannot be achieved); • No ASEAN Institute; and • No Special Fund for narrowing the development gap. On balance, I believe, a good part of the EPG’s recommendations have been adequately incorporated into the ASEAN Charter. It should also be pointed out that the drafters (with guidance of ASEAN Foreign Ministers) even outdid the EPG members by coming up with the provision for the establishment of an ASEAN human rights body as a new ASEAN organ in Chapter IV, Article 14. The EPG members 126

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found the issue too hot to handle and thus did not attempt to work out any speciﬁc recommendation. Moreover, the drafters also enhanced the idea of ASEAN’s becoming people-oriented by inserting Chapter V to institutionalise interactions with “entities associated with ASEAN”. The ASEAN Chair as well as the Secretary-General of ASEAN can now be requested by disputing parties to provide good ofﬁces, conciliation or mediation (Chapter VIII, Article 23, Paragraph 2). Therefore the oft-repeated gripes about the alleged “dilution” of the EPG’s ideas should now end.

5. Drafting under Time Constraints the ASEAN Way Two important directives from ASEAN Leaders for the HLTF appeared in the Cebu Declaration on the Blueprint for the ASEAN Charter issued at the Twelfth ASEAN Summit in January 2007: The ASEAN Charter “will serve as a ﬁrm foundation in achieving one ASEAN Community by providing an enhanced institutional framework as well as conferring a legal personality to ASEAN”; and to complete the drafting “in time for the 13th ASEAN Summit in Singapore in November 2007”. The HLTF consisted of ten members appointed by their respective governments. Essentially, they drafted the ASEAN Charter the ASEAN Way: through consultations and decisionmaking by consensus. This means none of the ten drafters could have his or her own way all the time. At best, some of the more persuasive ones could convince their colleagues some of the time. A great deal of discussion, persuasion and reconsideration was involved in the give-and-take spirit of friendly collaboration. 127

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The drafting was done in 13 meetings in all the ten member states from January to October 2007. At ﬁrst the drafters met for only two days in each meeting. Later on, they expanded their meetings to three days each; they also involved their legal assistants in preparing the groundwork and going over draft summary records of discussions and other papers. Still they found they were running out of time and had to convene three extra meetings to try to meet the drafting deadline. On the last day of the drafting meeting in Vientiane on 20 October 2007, the drafters had to accept a new ground rule: one single objection would lead to the dropping of any new suggestion or idea. Finally, the draft was completed just before midnight, just in time for the Thai delegation to bring the draft home and translate it into Thai for presenting it to the Thai Cabinet on 22 October 2007, which was the last working day for the Cabinet to take a policy decision, 60 days before the impending general elections on 23 December 2007. The Charter is certainly imperfect. None of the drafters is completely satisﬁed with the outcome. Anything done by consensus would certainly not be the most desirable. But this is how ASEAN keeps every member state on board, moving together at a pace comfortable to all. No one is left behind unhappy.

6. Other Stakeholders Consulted As mentioned earlier, the drafters had to follow ofﬁcial instruction from their respective superior and struggled to cope with the tight schedule. But they did ﬁnd time to consult other stakeholders outside the ofﬁcial ASEAN circles as often as their 128

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limited time could accommodate. They met representatives of the ASEAN Inter-Parliamentary Assembly (AIPA), the national human rights institutions of Indonesia, Malaysia, the Philippines, and Thailand, the informal Working Group for an ASEAN Human Rights Mechanism, civil society organisations, business organisations, and think-tanks. Some of the drafters also undertook national consultations, in which representatives of civil society organisations and think-tanks were involved. In many of the drafting meetings, one delegation included a human rights expert who is an active member of the informal Working Group for an ASEAN Human Rights Mechanism. The drafting was, therefore, not really done in total secrecy without some public inputs. But public participation in the drafting was not possible, because the drafting was in effect a government-to-government negotiation exercise. Revealing the work in progress for public scrutiny would be counterproductive, because every drafter needed some room and time to give and take and to consult his or her superior. Any drafter taking an explicit public position on any controversial idea would have little room for tactical compromise. It is true that after the draft was completed, the document was kept conﬁdential. This is prudent courtesy as the draft was being conveyed to each of the Head of Government/State through the ASEAN Foreign Minister of each member state. Why should the media have a copy of the draft before the ASEAN Leaders have a chance to read the ASEAN Charter? It is also true that there will be no referendum on the ASEAN Charter in any ASEAN member state. Can anyone really tell how such a referendum could be carried out in the 129

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ASEAN region? How much resource and time will be needed to do it fairly and democratically?

7. Many New and Signiﬁcant Initiatives Those who try to ﬁnd fault with the ASEAN Charter just simply miss the big picture that having the ASEAN Charter, after 40 years of ASEAN, is in itself a signiﬁcant new great leap forward. It signiﬁes a paradigm shift in the policy of all the member states. Through the ASEAN Charter, they will “codify organic Southeast Asian diplomacy” (in the words of HE Ong Keng Yong). This is also a historic moment to reiterate their commitment to community-building in a legally binding agreement. After the ASEAN Charter has entered into force, it will be registered with the UN Secretariat as an international agreement. Drafting the ASEAN Charter was a completely new exercise in ASEAN. Ideally, the Charter should be visionary, inspiring, enduring and enriching, a historic agreement that all in ASEAN can truly be proud of. But it is unrealistic to expect the ASEAN Charter to recreate ASEAN in a “Big Bang”. ASEAN has to continue to evolve and build on its existing foundation. Instinctively and quite sensibly, every member government was cautious and realistic in drafting the Charter. Another important underlying fact to bear in mind is that ASEAN has no political criteria of membership (unlike in the EU where before a European state can apply for the EU membership, it must be able to prove that it is a functioning pluralistic democracy with a good human rights protection record). The political diversity among the ASEAN member states is a unique reality. No member government can, and I 130

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believe no one wants to, try to change the political system of any other member government in ASEAN through the ASEAN Charter. If critics examine the ASEAN Charter with an open mind, they will ﬁnd the following new and signiﬁcant initiatives: the legal personality for ASEAN; the ASEAN human rights body as a new organ in the ASEAN organizational structure; the Committee of Permanent Representatives to ASEAN; Dialogue Partners’ Ambassadors to ASEAN; and the Chapter V on Entities Associated with ASEAN. If these are not yet enough to satisfy them, I would suggest to them to consider the following: • Reafﬁrmation of ASEAN’s recognition of democratic values, human rights, fundamental freedoms, and rule of law; • Promotion of a “people-oriented” ASEAN; • Principle of “shared commitment and collective responsibility”; • Principle of “enhanced consultations on matters seriously affecting the common interest of ASEAN”; • ASEAN Summit to handle cases of “serious breach”; • Secretary-General of ASEAN to have an enhanced role in monitoring progress in the implementation of ASEAN agreements and decisions; • Two openly-recruited deputies to assist the SecretaryGeneral, in addition to the current two deputies who are nominated by member governments; • The ASEAN Foundation to be accountable to the Secretary-General; 131

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• ASEAN Chairman and Secretary-General may be asked to provide good ofﬁces, conciliation or mediation in settlement of disputes; • Unresolved disputes (on ASEAN matters) to be referred to the ASEAN Summit for its decision; and • Single ASEAN Chairmanship.

8. ASEAN and EU Not Comparable Inevitably, many critics would compare ASEAN with the EU. This is like comparing a mom-and-pop store with the giant Carrefour international supermarket chain. The ASEAN Secretariat survives on a meagre budget of US$9.05 million in its current ﬁnancial year, whereas the European Union and its Commission have nearly 129 billion euros (that is, about US$190 billion!) for its annual operations. The EU is an inspiration but not a model. ASEAN can learn from the EU. From the European experience, we can learn, for example, that economic integration is easier to achieve than political integration. Political will, leadership and vision are essential to drive regional cooperation forward. Occasional setbacks will happen. Strong, efﬁcient, impartial and well-funded central institutions are necessary to serve as the foundation for a rules-based regional organisation. For the sake of argument, I would venture to mention the following points in which ASEAN compares favourably with the EU: the ASEAN Charter (only 53 pages) is much shorter than both the aborted Treaty Establishing a Constitution for Europe (482 pages) and its replacement in the Reform Treaty of Lisbon (around 250 pages); a single working language (English) in ASEAN; the ASEAN motto; and the ASEAN 132

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anthem (in the near future). The EU could only dream of using one ofﬁcial language, and it had to drop the proposed motto “United in diversity” and proposed anthem “Ode to Joy” from the Ninth Symphony by Ludwig van Beethoven because some EU members saw them as trappings of a “super European State”.

9. The ASEAN Charter is Not Cast in Stone From the beginning, the drafters had a common understanding that, because of the tight schedule, they would not attempt to tackle existing problems beyond their drafting mandate. Neither would they try to address issues that should be handled by existing ASEAN bodies. They would avoid wasting time on details, because they were not going to draft a plan of action. Thus, Chapter II on the legal personality has no details of what ASEAN can and cannot do with its legal personality. (In the Treaty Establishing a Constitution for Europe, Article I.7 on legal personality for the EU simply said: “The Union shall have legal personality”.) Another important understanding was that the ASEAN Charter would not be “cast in stone”. In fact, any member state may propose amendments (Article 48) as soon as the ASEAN Charter enters into force. The ASEAN Charter is also due for a review ﬁve years after its entry into force, or as otherwise determined by the ASEAN Summit (Article 50).

10. The ASEAN Charter is Good Enough for the Time Being On 7 January 2008, Singapore became the ﬁrst member state to deposit its instrument of ratiﬁcation of the ASEAN Charter 133

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with the newly-installed Secretary-General of ASEAN, HE Dr Surin Pitsuwan, a former Foreign Minister of Thailand. Receiving the Singapore’s instrument became the ﬁrst ofﬁcial duty of Dr Surin in his capacity as the Secretary-General. He has stated his intention to lobby every of the other nine member governments to speed up the ratiﬁcation process. As at the time of my writing this paper (25 April 2008), altogether six member states have deposited their instruments of ratiﬁcation.8 While it is important to show due respect to every member state’s constitutional procedure, it is also important to start undertaking as soon as follow-up actions as required in the ASEAN Charter, in order to build greater momentum. Some of the Charter provisions can be implemented by consensus while awaiting the full ratiﬁcation; for example, the appointment of member states’ respective Permanent Representatives to ASEAN and the recruitment of two additional deputy secretariesgeneral.9

Good Enough to Deserve a Chance In the ﬁnal analysis, the ASEAN Charter does have shortcomings. But, I would contend that overall, it is certainly good enough to be given a chance to serve as the new legal and institutional framework for community-building in ASEAN. Over time, it can and will deﬁnitely be improved.

8

Brunei Darussalam on 15 February 2008; Malaysia and Laos on 20 February 2008; Vietnam on 19 March 2008; and Cambodia on 18 April 2008. 9 ASEAN Foreign Ministers agreed during their retreat in Singapore on 20 February 2008 to the appointment of the Permanent Representatives by 1 January 2009 and to recruit the two additional DSGs to take ofﬁce by 1 November 2008. 134

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The ASEAN Charter is like a glass that is half-full. It can be gradually ﬁlled with more new ideas for a better ASEAN Community.10 The ASEAN Charter deserves understanding and support from everyone who wants ASEAN to succeed.

10

Many good ideas that can be further considered include, for example ASEAN citizenship; ASEAN economic and social consultative council; ASEAN court of justice; ASEAN parliament; ASEAN ombudsmen; some steady ﬂows of income for ASEAN; ASEAN anti-corruption convention; ASEAN human rights convention; and so forth. 135

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A Long Journey Dian Triansyah Djani Dian Triansyah Djani is currently the Director-General for ASEAN Cooperation at the Department of Foreign Affairs, Republic of Indonesia serving also as the Indonesian Head of Delegation to the ASEAN Standing Committee. He is the Indonesian representative to the ASEAN High Level Task Force on the Drafting of the ASEAN Charter. He joined the Indonesian Foreign Ministry and served at the Indonesian Permanent Missions to the United Nations in New York and in Geneva as well as in various capacities in the Department of Foreign Affairs, among others, as the Director for Multilateral Trade and Industry, the Director for Asia, Paciﬁc, Africa Intra Region Cooperation, and the Director for ASEAN Economic Cooperation. He represented Indonesia in various multilateral fora including the United Nations, G-77, World Trade Organisation, UNCTAD, UNIDO, UNDP, UNFPA, APEC, ASEM, AMED, Paciﬁc Islands Forums, Southwest Paciﬁc Dialogue, Asia Africa Summit, NonAligned Movements, and ASEAN Regional Forum, as well as ASEAN meetings.

The Beginning In 1967, at a beach resort in Bang Saen near Bangkok, Adam Malik, Presidium Minister for Political Affairs and Minister for Foreign Affairs of Indonesia and one of the founding fathers of ASEAN, presented Indonesia’s vision of a Southeast Asia as being a region that can be on its own feet, strong enough to defend itself against any negative inﬂuence from outside the region. Such a vision, he stressed, was not wishful thinking, 137

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if the countries in the region effectively cooperate with each other. He underlined that there are differences that could be overcome through goodwill and understanding, faith and realism, hardwork, patience and perseverance. Such was the vision of Adam Malik, and it took hard work, patience, and perseverance to create a Charter that would bind ten nations that are geographically situated in the Southeast Asian region. Contrary to what many have thought, the idea to have an ASEAN Charter dated back to the early 1970s. The ground was laid when ASEAN became closer as a grouping with the signing of the Treaty of Amity and Cooperation (TAC) and the Declaration of ASEAN Concord (Bali Concord I) in the ﬁrst ASEAN Summit held in Bali, Indonesia, on 24 February 1976. It was decided that the desirability of a new constitutional framework for ASEAN should be studied.

Rising Momentum The idea to create a Charter was not new but the process drew momentum during the chairmanship of Indonesia at the 2003 Bali Summit. Altogether, it took 23 years from 1976 to the ASEAN Summit in Bali in 2003 for ASEAN to raise the stake, by adopting the Bali Concord II, containing the commitment of ASEAN to create an ASEAN Community in 2020, which was subsequently accelerated to 2015 at the Cebu Summit. The thinking was that, in order to create a community, there should be a balance between economic progress and cooperation in the political-security and social-cultural realms. ASEAN should create a community that encompasses its three pillars of cooperation, namely the ASEAN Security Community, ASEAN Economic Community and ASEAN 138

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Socio-Cultural Community. And, in order to build an ASEAN Community, ASEAN needs to transform itself, and thus the need for a Charter. As a follow up to the Bali Concord II, under Minister Dr N Hassan Wirajuda’s guidance, the Indonesian delegation made a major contribution towards the adoption of an ASEAN Security Community Plan of Action (ASC PoA) which underlined the importance of political development, shaping and sharing of norms, conﬂict prevention, conﬂict resolution, and postconﬂict peace building. The concept of shaping and sharing of norms, the brainchild of Minister Hassan Wirajuda, was an important one which became the basis for development of the Charter. The idea is quite simple. Without a single set of rules that represent ASEAN norms/values and principles within a legal framework acceptable to all, it would be hard to build an ASEAN community, noting the differing situations of member states and complexities of issues facing the region. After tedious negotiations, a paragraph was ﬁnally agreed in the ASC PoA, under the rubric of norm shaping and norm sharing that clearly mandated the development of an ASEAN Charter, which many, particularly in Indonesia, expected would be completed in a short span of time. This was not the case. Although the Indonesian delegation presented a full draft of the ASEAN Charter in the ASEAN SOM meetings in 2004 to expedite discussions, some ASEAN members were still reluctant for different reasons. It took another three years, with the establishment of an Eminent Persons Group (EPG), followed by a High Level Task Force (HLTF) before the ASEAN Charter was completed and signed by ASEAN Leaders in November 2007. 139

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The Conditions It is without question that if ASEAN wishes to prosper, ASEAN should be a regional player that could ensure peace and stability in the region. It should make itself relevant to the outside world and be ﬂexible enough to be able to adapt to regional and global challenges. More importantly it should be a credible organisation that not only caters to the needs of its members but also be able to contribute to the global agenda. Such were the formidable tasks. Early on, there were many quarters, not only within the ASEAN family but also within Indonesia, that were yet to be convinced of the need for a Charter. The argument was always that for 40 years of its existence, ASEAN has always been able to grow and become a safe region free from the threat of outright war, due to its ﬂexibility as an association and due to the “ASEAN Way” of doing things. The fear of losing an inch of sovereignty and the suspicions of one’s neighbour still linger on. Questions of interference and problems arising from border disputes remained unresolved and were swept under the carpet. At the same time, it was also evident in many quarters in Indonesia that the time had come to have a Charter in ASEAN so as to preserve ASEAN’s relevance as a regional player. The emergence of ASEAN’s neighbours, the challenges of globalisation and the need to enhance integration within ASEAN, raised the stake to expedite the transformation of ASEAN into a formal organisation, with a legal personality and a stronger structure and mechanism.

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Needs of Indonesia As Indonesia has changed dramatically in the past years after the fall of the New Order Regime, the quest to have a Charter that reﬂects the norms and values of the new Indonesia became more and more evident. As the third largest democracy in the world, a Charter that will bind the Government and people of Indonesia would certainly have to have the approval of many layers of Indonesia’s society. Not only the Indonesian Parliament, which has the task of ratifying the Charter, but also the people en masse would need to be involved in the process. The task of the Indonesian negotiator, thus, would not be an easy one. From the very beginning of the drafting process of the ASEAN Charter, the wisdom of HE Ali Alatas, former Minister of Foreign Affairs and Indonesia’s EPG member, as well as the advice of a senior diplomat, Ambassador Wiryono Sastrohandoyo, were sought. Countless interactions with civil societies, academicians, politicians and other stakeholders in many fora ranging from seminars/workshops to personal approaches were undertaken to get views and positions that would capture the needs of Indonesia and ensure a smooth process of ratiﬁcation. Noting the large size of Indonesia, the more interactions and contacts undertaken, the more varied the interests of the many stakeholders emerged. Nevertheless, based on the inputs derived from domestic stakeholders, there were several important issues/elements that were continuously pursued and championed by the Indonesian negotiator to be included in the ASEAN Charter, in order for the Charter to be “sale-able” to the Indonesian public. Among these, the principle of democracy, good 141

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governance, fundamental freedoms, rule of law and constitutional government as well as promotion and protection of human rights, were imperative. Abstention from the usage of one’s territory to threaten the sovereignty and territorial integrity of other ASEAN member states is an important principle that should also be underlined. It should also be noted that for matters seriously affecting the common interest of ASEAN, enhanced consultation can be undertaken and should not be construed as interference, particularly since ASEAN is considered as a family of nations. Moreover, it is also important for Indonesia that in creating a single market and single production base in ASEAN, the important contribution of labour in general, including migrant workers, should be duly recognised and their rights protected. Several other issues are no less important, such as regional resilience, comprehensive security, transnational crimes and trans-boundary challenges, sustainable development, and so forth. Enhanced involvement of the peoples of ASEAN so as to have a sense of ownership and belonging is also a matter of priority. These are issues that the Indonesia of today hold dear and near, which should be the basis for ASEAN as an organisation so as to be credible and in tune with the present situation.

The Jimbaran Meeting Noting that Asia is the only continent that does not have a human rights body/mechanism, it would be hard to envision an ASEAN Charter that does not have any mention of a mechanism/body to promote and protect human rights. Therefore, this has been our main mission when the turn came 142

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to host the HLTF meeting. I chose Bali, particularly Jimbaran, to have the Seventh Meeting of the HLTF on 26 to 28 June 2007, which was slated to be the last meeting before members of the HLTF met in Manila to prepare its report to the ASEAN Ministerial Meeting in Manila. An opportune moment in time. Jimbaran is noted for its tranquility and peaceful atmosphere, an ideal setting to discuss an important and yet sensitive issue, such as human rights. The approach has to be taken in a tactful manner so as not to offend and yet achieve the desired result, namely to create a common understanding of what is best for ASEAN as an organisation and for its people. As some ASEAN countries have already in place National Human Rights Commissions such as in Indonesia, Thailand, Malaysia and the Philippines, it would greatly help if their members could share their views and expectations with the members of the HLTF. Mr Marzuki Darusman, member of the Indonesian Parliament and member of the Working Group on ASEAN Human Rights Mechanism and a notable expert on human rights, made an eloquent speech in support of an ASEAN human rights mechanism. The consultation between HLTF members and these human rights experts greatly assisted in the deliberations among the HLTF members that ensued in a frank and open manner in the serene setting of Jimbaran. In my opinion, many issues relating to the promotion and protection of human rights had been discussed at length from every angle that consequently paved the way for the Ministers to decide on the establishment of an ASEAN Human Rights Body to promote and protect human rights. The draft Terms of Reference (TOR) for the ASEAN Human Rights Body 143

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which was discussed by the HLTF in Jimbaran, although not completed, presented a starting point for the High Level Panel tasked to draft the TOR of an ASEAN Human Rights Body.

Balancing Interests and Managing Expectations The difﬁculty of representing a democratic country as vast as Indonesia is to be able to balance the needs and interests of stakeholders. In every decision during the process of negotiations of the Charter, the Indonesian HLTF member took into account: • the need to balance the interests of Indonesia’s stakeholders with regional realities; • the need to balance the interests of many sectoral bodies/institutions in Indonesia which expected all their interests to be included while, on the other hand, the Charter should not be a “laundry list of issues”; • balancing a step-by-step/building block approach with the need to move faster to achieve an ASEAN Community so as to stay ahead of other regional organisations; • external pressures on speciﬁc issues in a changing world with regional conditions/limitations; and • the ambition to create a 21st century organisation with limited available resources. Noting the high proﬁle domestic media coverage in the course of the negotiations of the Charter, the general public’s expectations ran high. Some intellectuals and thinktanks expected a Charter that was audacious enough to include expulsion and suspension of membership, while others understood that expulsion rarely existed in a regional 144

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treaty/charter and suspension only covered the suspension of facilities (documents or voting rights) in a particular organisation/regional grouping and unrelated to membership status. Some wanted to have a clear mention of a decisionmaking process which included voting, while others understood that inclusion of voting could also be a doubleedged sword, whereby a member as large as Indonesia could be outvoted by a simple majority. In the HLTF discussion, I was consistently reminded that the concept of “consultation” and “consensus” originated from Indonesia from the very beginning of ASEAN and came from the Indonesian language (bahasa Indonesia) namely “musyawarah” and “mufakat”. The Charter ﬁnally referred that: “as a basic principle, decision making in ASEAN shall be based on consultation and consensus. And where consensus cannot be achieved then the Summit may decide how a speciﬁc decision can be made”, thus opening the possibility of voting if the Summit so decided. The civil society also wanted to be included in the ASEAN process, not only as a beneﬁciary and participant but also in the decision-making process. There were differing opinions as to how deep the involvement of civil society in ASEAN decision-making should be, taking into account the fact that signatories to any legal document between countries are undertaken by governments which have clear accountability and responsibility under the law, unlike NGOs. Nevertheless, the current thinking is that ASEAN should be a peopleoriented organisation and therefore the Charter should ensure that there is an interaction between all stakeholders by having 145

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a particular chapter in the Charter on “Entities Associated with ASEAN”.

The Ratiﬁcation Process In the course of drafting the Charter in 2007, the Indonesian HLTF had undertaken seminars/workshop/brainstorming sessions as well as personal contacts with many stakeholders, including Parliamentarians. Just before the signing of the Charter by Leaders in October 2007, Minister N Hassan Wirajuda and the Indonesian HLTF held an informal breakfast meeting on the draft ASEAN Charter, to brief members of Commission I of the Indonesian Parliament (Dewan Perwakilan Rakyat — DPR) representing various political parties or factions of DPR. This was an effort to ensure closer cooperation between the executive branch and the legislative branch on international issues, and to foster a better understanding of the Charter. Immediately after the signing of the Charter by President Dr Susilo Bambang Yudhoyono on 20 November 2007 in the Singapore Summit, starting from the early 2008 to October 2008, massive campaign efforts were undertaken by the Department of Foreign Affairs. Visits and discussions were made with 16 editors of newspapers/television stations/ electronic media. Lectures were given to 38 universities; 67 schools; 10 pesantrens/madrassah (Islamic schools) in Palu and East Java; and seminaries/schools of theology in Pematang Siantar. More than 14 seminars/workshops were held with intellectuals/international experts and 23 dialogues were held with various members of societies including NGOs, businessmen and political parties. Interactions with 146

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government ministries/institutions and local governments numbered around 26. Forty-two cities/locations in 25 provinces in Indonesia were covered, from Banda Aceh in the northern part of Sumatra to the city of Manokwari, Papua, in the eastern part of Indonesia. Altogether, almost 200 activities were undertaken all over the Indonesian islands in a course of the nine-month period. This was an enormous effort of not only socialising the content of the Charter to the Indonesian public, but also to seek the support and views of all layers of the Indonesian society before the government presented the Charter to the Parliament for ratiﬁcation. From all the interactions during the socialisation campaign, it can be concluded that the vast majority of Indonesians supported the ratiﬁcation of the Charter. Although in the media there were constant ﬂows of articles against the ratiﬁcation of the Charter, many articles were also in support of the Charter. This clearly shows that in democratic Indonesia, every view has a place. With regard to the process in the Parliament, on 4 February 2008 Pak Ali Alatas as member of the EPG, as well as experts from think-tanks and universities were invited to a preliminary hearing of Commission I of the DPR, responsible for, among others, foreign affairs. On 18 February 2008, as the Indonesian representative to the HLTF, I was invited to present the government’s views to the members of Commission I in a preliminary hearing session, accompanied by the Senior Ofﬁcials from the Ofﬁce of the Coordinating Ministry for Economic Affairs and the Ministry of Trade as well as the Indonesian members of ABAC. These were occasions to elaborate on the detailed content of the Charter after its signing. 147

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Only in early September 2008 did the Government of Indonesia (GOI) ofﬁcially present the Charter for ratiﬁcation by the Parliament when Foreign Minister N Hassan Wirajuda accompanied by Minister for Trade Mari Pangestu and the Director-General for Legislation, representing the Minister for Law and Human Rights, made a presentation on the Charter in front of Commission I of the DPR on 9 September 2008. It took some time after the signing of the Charter for it to be ofﬁcially submitted to the Parliament, not only because efforts had to be taken to socialise and garner public support, but also due to the process of ratiﬁcation in Indonesia whereby a legal document had to be translated into Bahasa Indonesia and discussed thoroughly from the substantive and legal aspect by an inter-departmental committee. Democracy was in the making when the Parliament established a Special Committee chaired by Mr Marzuki Darusman from the Golkar Party and consisting of representatives of all the political parties sitting in Parliament, to discuss, in detail, with the representatives of the GOI, represented by the Minister for Foreign Affairs, Minister for Trade and Minister for Law and Human Rights. Minister Hassan Wirajuda was quite instrumental in defending the Charter by providing its raison d’être and valid arguments in front of members of the Parliament in many hearings/meetings of the Special Committee. On 21 October 2008, the Plenary Session of the Parliament (Dewan Perwakilan Rakyat) heard the views of ten factions ( fraksi) of the DPR and eventually agreed to ratify the ASEAN Charter by consensus. On the substantive part, after the signing of the Charter in November 2007, the process of ratiﬁcation was marked 148

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A Long Journey

with several occurrences in the Southeast Asian region which, in one way or another, have affected public opinion in Indonesia — issues of human rights and border disputes among ASEAN member countries, to name a few. Hence, during the discussion at the Parliament, several political parties stressed the importance to continue to pursue the promotion and protection of human rights, particularly the establishment of the ASEAN Human Rights Body, as well as strengthening sanctions for serious breach and non-compliance. The need to enhance public involvement in ASEAN activities was emphasised.

Conclusion After the dust has settled, the Department of Foreign Affairs of the Republic of Indonesia presented the instrument of ratiﬁcation to the ASEAN Secretariat on 13 November 2008, two days before the agreed deadline so that the Charter could enter into force by the 14th ASEAN Summit in Bangkok. Thus, Indonesia became the ninth ASEAN country that deposited the instrument of ratiﬁcation. Much still needs to be done to ensure that the Charter is duly implemented, in spirit as well as in letter. At least, more than 28 activities have been identiﬁed as follow-up to the Charter. From a simple task of creating an ASEAN anthem to more substantive efforts in establishing an ASEAN Human Rights Body, of which we could all be proud and which can protect the rights of the people in the ASEAN Community. It has been a long journey since 1967. History will be the judge of whether what we have done has answered the needs and expectations of the ASEAN people. At the very 149

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least, it is a very good start, after 40 years without a Charter. I am honoured and proud to have played a humble part in the making of the Charter and hope that the dream of Adam Malik and other ASEAN founding fathers will become a reality.

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A Personal Reﬂection* Kao Kim Hourn Kao Kim Hourn is Secretary of State, Ministry of Foreign Affairs and International Cooperation of Cambodia for the second term. He is also the President and Founder of the University of Cambodia, and Professor of Political Science at the university. A member of the Board of Directors of the Cambodian Institute for Cooperation and Peace, Dr Kao is also Secretary-General of the Asia Economic Forum and the Asia Faiths Development Dialogue. He also sits on a number of international councils and boards. Dr Kao was the Cambodian representative to the ASEAN High Level Task Force on the Drafting of the ASEAN Charter. Prior to his political appointment, Dr Kao was a member of the Supreme National Economic Council of Cambodia and the Executive Director of the Cambodian Institute for Cooperation and Peace. Born in Cambodia and educated in the United States, where he holds a PhD degree in political science from the University of Hawaii at Manoa, Dr Kao has contributed to the development of Cambodia and ASEAN. He is also widely published.

First, there is no doubt that the process of drafting the ASEAN Charter is as important as the outcome of the Charter itself, given the many inputs and the signiﬁcant contributions from many different sectors of society in ASEAN as well as from *Certainly, given its signiﬁcance and historic nature, much could be written about the ASEAN Charter, from many different angles and perspectives, covering all the possible issues related to the Charter. This is not the intent of the contributor of this article. The view expressed in this article does not necessarily reﬂect the view of his government. Instead, it is his own personal reﬂection, which covers the following nine issues related to the ASEAN Charter. 151

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all ASEAN member states. From the Eminent Persons Group (EPG) to the High Level Task Force (HLTF) on the Drafting of the ASEAN Charter, to the many meetings of the HLTF assistants, the Charter was drafted with an open mind and by an inclusive process to ensure that the different sectors of ASEAN, including not only Track I but also those of the Track II as well. All views, suggestions and recommendations by those who wish to contribute to the ASEAN Charter were considered to ensure that we would have the “best” ASEAN Charter. The drafting of the ASEAN Charter was carried out under tremendous time pressure, as it was tasked to complete it within a period of one year and to be ready for signing by the ASEAN Leaders in Singapore, in November 2007. Nevertheless, I believe that the main challenge in the drafting of the ASEAN Charter was to ensure a full consensus on all issues and a steady progress against our tight deadline. It was undoubtedly a daunting task for the HLTF. With the ASEAN spirit of friendship and cooperation by all members of the HLTF, as well as the good chairmanship by both Ambassador Rosario Manalo of the Philippines and Ambassador Tommy Koh of Singapore, we were able to deliver the ﬁnal draft of the Charter to the ASEAN Foreign Ministers for endorsement and with its subsequent submission to the ASEAN Leaders for signing. It is worth noting that the ASEAN Foreign Ministers had provided valuable guidance and instructions during the course of the drafting of the ASEAN Charter. At the same time, the HLTF beneﬁted tremendously from the draft Charter as well as the recommendations of the EPG, in addition to the various 152

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inputs and comments provided by the sectoral bodies of ASEAN as well as the ASEAN civil society organisations. Second, from the moment that the ASEAN Leaders agreed to have the ASEAN Charter in Kuala Lumpur, in 2005, to the time when the Charter itself went into effect, people from all walks of life had high expectations of the ASEAN Charter. In fact, they wanted to include all possible issues in the Charter. They wanted to have a “perfect” ASEAN Charter. Anything less is not good enough. At the same time, some had even questioned the relevance and meaning of the ASEAN Charter, when its ﬁnal version was released into the public domain. To be fair and balanced, the ASEAN Charter was drafted from a long-term perspective and with a comprehensive and holistic approach to ensure that all ASEAN member states are on board. From the very beginning, all members of the HLTF were of the view that there was no way that the Charter could be a “perfect” or “near-perfect” document. The Charter, as all members of the HLTF agreed, was not written in stone. Therefore, it was expected that it may be amended from time to time, based on experience and the changing realities. Therefore, one of the most important things for ASEAN in the postCharter period is to ensure that the ASEAN Charter is able to reﬂect and accommodate the rising expectations of our people. Third, it is critically important for ASEAN to overcome the old thinking of dividing ASEAN into old and new members. During the negotiation process for the ASEAN Charter, members of the HLTF were sometimes split into two groups, between the so-called old members and new members on certain issues, such as human rights. This old thinking and mentality do not and will not serve ASEAN well. In fact, it 153

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could undermine ASEAN unity. In this context, ASEAN’s leadership must act quickly and decisively, in order to keep ASEAN united and strong. Thus there is the need to distinguish between domestic political pressures and a new layer of regional responsibilities, and thereby a plan to reconcile these two conﬂicting sets of demands for the beneﬁt of all. This requires acumen in the international arena, rather than simply a reﬂexive bowing to internal populist, reactionary forces. Fourth, despite all the shortcomings, no one could reasonably disagree on the importance of the Charter for ASEAN today and tomorrow. The Charter will make ASEAN stronger, more effective, more inﬂuential, and more credible. With legal personality, stronger institutional framework, more resources, and greater priority given to ASEAN by all its member states, ASEAN has been and will be effectively transformed from an “Association” to a “Community,” with its own uniqueness and identity. Moreover, ASEAN will have to continue its important priority of enhancing ASEAN integration and the community building process, as well as in increasing its active engagement with external powers. In this regard, ASEAN has strategically raised its proﬁle and standing as well as increased its own value and importance at all levels — from local to national, from regional to international. At the same time, it is expected that ASEAN, with its Charter now in effect, will be able to engage more dynamically and more effectively with all its dialogue partners within the various frameworks of cooperation and dialogue, especially the ASEAN Plus One, the ASEAN Plus Three, the East Asia Summit, and the ASEAN Regional Forum, along with other countries, regional groupings and international organisations. 154

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Fifth, I am of the view that the ASEAN Charter is not just for the ten governments in Southeast Asia alone. The Charter will greatly beneﬁt the people from every walk of life, because it seeks to promote development and the well-being of all people in all countries in ASEAN. Therefore, whatever ASEAN does is expected to directly or indirectly beneﬁt the people of ASEAN as a whole, as ASEAN is now building up to become the ASEAN Community of three pillars — political and security, economic, and social and cultural dimensions — by 2015. Sixth, while ASEAN had made many important achievements in just a little over four decades, I personally feel that the ASEAN Charter provides a renaissance — literally a re-birth — and a new hope for ASEAN in the new era of development, transformation and progress in today’s globalised world. To be sure, the ASEAN Charter is a product of the ten member states of ASEAN, as all members of the HLTF worked together and fully negotiated for this fundamental document to promote, protect and advance the shared interests of ASEAN, both collectively and individually. Seventh, with the Charter in force, there is no doubt that ASEAN remains committed to its spirit of solidarity, unity, and consensus building. In many parts of the Charter, those key words were repeatedly stated, despite the inclusion of some new elements of ASEAN’s policy. It remains to be seen how the ASEAN Charter will affect the nascent community’s spirit of solidarity, unity and consensus building over time, especially when the Charter has gone into effect and with full implementation. Eighth, on the ASEAN Way, I believe that it will have to be adapted with time, to the effect of the ASEAN Charter which 155

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calls for compliance and effective implementation. While the ASEAN Way stands for ﬂexibility, pragmatism, consensus building and gradualism, the Charter seeks to promote and advance the goal of ASEAN’s common interests in all areas of cooperation. Over time, I feel that the ‘traditional’ ASEAN Way with its tolerance of diversity will have to evolve in a positive way, so that it can be adapted to work in ASEAN’s interest to foster a more unitary body. Finally, as the way forward, the Charter provides optimism, hope, a sound legal document, and a forwardlooking approach for ASEAN to engage itself internally and with the outside world. The future of ASEAN is a shared destiny of the ten member states working closely together to advance the common interests of all, with a continuing priority on ASEAN integration, community building process, and external engagement in order to confront the growing challenges ahead. It is, however, a valuable new compass to guide us to our bright future. In more than forty years, ASEAN has come a long way in this turbulent, even chaotic, world of uncertainties, and now it is in the process of metamorphosing into the ASEAN Community. However, in closing, it is necessary to say that we need to be realistic and recognise that the ASEAN Charter is not automatically a panacea for all ASEAN’s present and future problems and challenges: rather it is more like an adjuvant, to supplement and otherwise underpin a still-evolving united, communal approach to the problems ahead. A key requirement will be strong and capable, democratically-elected governments — both amongst ‘old’ and ‘new’ members — who have a mandate and who understand what they are doing 156

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(including the implications of their actions in a broader context, as a riposte to criticisms from outsiders); those who fail to comprehend and act upon this basic principle are selfserving and will only undermine the future progress of ASEAN. Therefore, it is important for each and every member state to work toward realising the ASEAN’s aspirations and goals as a regional entity by implementing the ASEAN Charter in both the spirit and the letter.

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A New Turning Point in the Relations Among the Southeast Asian States Bounkeut Sangsomak Bounkeut Sangsomak is a Vice-Minister of Foreign Affairs of the Lao People’s Democratic Republic. A professional diplomat, Bounkeut has served in the Permanent Mission of the Lao PDR to the UN in New York and in the Embassy of the Lao PDR in Washington. He was also Laos’ Ambassador to Thailand, Singapore and the Philippines. He served for many years as the ASEAN Senior Ofﬁcials (SOM) Leader for the Lao PDR. Bounkeut was Laos’ representative on the High Level Task Force to draft the ASEAN Charter.

History of the Relations among the Southeast Asian States Throughout the last two thousand years, inter-state relations in Southeast Asia had undergone circumstantial changes of the epoch — up and down, peace and wars, cooperation and confrontation, strategic alliances and foes, common and conﬂicting ideologies. Globalisation has driven the ten countries in Southeast Asia closer together. The year 1999 marked a new milestone of the Association of Southeast Asian Nations (ASEAN) with all ten member states in the region. The integration of ASEAN 159

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became a historical event of Southeast Asia unheard of in its history. It was a new turning point and a new era of the regional family which shares a common destiny and future. Besides, the integration helped forge cohesiveness, strength and added values to the grouping’s external relations. This integration also reﬂected the strong and visionary political will of the brilliant ASEAN Leaders in utilising ASEAN’s potentials and geo-strategic importance to its optimal beneﬁts for Southeast Asia. ASEAN Ten, despite its vast diversity, has the will power, desire, and vision to prosper ASEAN. On the other hand, its unity and cohesiveness is still weak and fragile, and there is a danger that it may divide. ASEAN also faces other challenges such as the different political systems, economic disparity, diverse cultures and geographical locations. The basic documents of ASEAN need improvement. These documents were produced during the time when ASEAN comprised only six member countries, and they were written during the Cold War, which does not reﬂect and respond to the realities of all ten ASEAN member states today. The aspiration and principles of ASEAN must be reﬁned in accordance with the political, economic and social realities of all its member states.

The Birth of the ASEAN Charter The ASEAN Charter was not born by chance, but as a response to the policy aimed to improve ASEAN’s fundamentals, heal the historical wounds and help ASEAN deal with the current challenges. 160

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The Lao PDR became a member of ASEAN by the end of the 20th century and had the aspiration that ASEAN should enter into the 21st century and the new Millennium with a new vision, structure and legal status, and new principles and external relations. To achieve that goal, Laos had prepared itself from 1999 to 2002, during which ASEAN had intense deliberations on establishing an ASEAN Community. At that time, Laos proposed that ASEAN members could sign a non-aggression treaty. Some ASEAN member countries disagreed to the proposal and named the proposed document as a charter instead of a treaty. The idea of a charter in 2002 coincided with ASEAN’s preparation for the ASEAN-Japan Commemorative Summit which marked the 30th Anniversary of their relations with Japan, and there was a proposal to sign an ASEAN-Japan Charter. Subsequently, a series of ASEAN Senior Ofﬁcials’ meetings were convened to determine the structure of an ASEAN Charter. Until the 10th ASEAN Summit in Vientiane, the decision was made to draft the ASEAN Charter. Three years later, the ASEAN Charter was adopted at the 13th ASEAN Summit in Singapore. On 15 January 2009, the ASEAN Charter entered into force. The ASEAN Charter is an important legal document which determines the legal personality of ASEAN after 40 years of ASEAN’s existence. Given the signiﬁcance, the negotiations to draft the ASEAN Charter were intense and active, and the drafting team had a great responsibility to do it well. The members of the High Level Task Force (HLTF) on the Drafting of the ASEAN Charter were all friends, acquaintances and colleagues in the ASEAN circuit. They 161

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worked co-operatively. This strong collaboration enabled the discussions to be constructive, candid, open and ﬂexible. The HLTF was under high pressure from their divergent positions, national interests and the drafting deadline. The drafting had to be completed by 2007. The negotiations were sometimes intense and forceful but always based on the spirit of amity and mutual respect. The outcome was the ASEAN Charter. Although not perfect, it is a good charter.

The Charter Determines a New Nature for ASEAN The ASEAN Charter is a historical achievement of ASEAN. It is the outcome of shared political will, strengthened solidarity and far-sighted vision.

The Charter Ensures Durable Peace The Charter binds all ASEAN member states to safeguard and maintain peace. Peace is ASEAN’s noble goal and strategy. The ASEAN Leaders were determined to turn ASEAN’s back to its historical wounds from past armed conﬂicts and wars. One important emphasis of the Charter was placed on fostering peace-oriented attitudes in the consciousness of the peoples of ASEAN to ensure ASEAN’s future of tranquility.

The Charter Ensures Lasting Security The Charter enforces ASEAN member states with different political systems to mutually assure state and government security by refraining from undermining, overthrowing governments, supporting or assisting any persons or groups to undermine any governments as well as allowing such 162

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persons or groups to use their territory as a base for subversive and insurgency activities against the security and stability of neighbouring ASEAN member countries. Thus, it is hoped that the Charter will gradually reduce suspicion and promote mutual understanding and conﬁdence among ASEAN member states.

The Charter Respects the Right of Every Member State to Lead Its National Existence In ASEAN there are large and small states. Some are strong while others are vulnerable. The Charter, which stipulates the right of every member state to freely choose its own political, economic and social development, has responded well to the principles of sovereignty and the right to determine one’s own destiny. The above principle, which was consistent with the principle of non-interference in one another’s internal affairs, was widely discussed. The debate was on whether or not to maintain it, and eventually, the consensus was reached to maintain this principle so as to ensure independence and unity within ASEAN.

The Charter is Against Aggression The Charter recognises the principles of non-aggression. This is a new principle for ASEAN, which can ensure a high level of comfort in co-existence. The stipulation in the Charter of this principle demonstrates the renunciation of the use or threat of use of force in conducting relations. The Charter also stipulates the principles of peaceful settlement of disputes by mentioning such mechanisms in reasonable details. 163

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The Charter Prohibits an ASEAN Member State to Conspire with Another State to Sabotage Other ASEAN Member States It is laudable for ASEAN to establish and recognise this new principle. The adherence to this principle has signiﬁcantly healed the historical wounds stemmed from proxy wars in Southeast Asia. The HLTF had intense and lengthy discussions over this issue. Each country used different forms of negotiation and varied tactics, but ﬁnally all ten countries reached a consensus. The recognition of this new principle has further enhanced the unity of ASEAN and has implanted the sense of solidarity in a truly one ASEAN family. Besides, this new principle constitutes a preventive measure against a third country to directly or indirectly interfere in ASEAN’s internal affairs, which in turn will lead to disunity among ASEAN members.

The Charter Establishes an ASEAN Human Rights Body The Charter establishes an ASEAN human rights body which is a new body for ASEAN. The HLTF intensely deliberated at length on this issue. It was not because of any disagreement over the creation and protection of human rights within ASEAN but over the different views on the concept of human rights. Some were of the view that ASEAN should adhere to the universal value while others argued that ASEAN should uphold the value of Southeast Asia since almost all ASEAN member states used to be under colonial rule and had gained independence only three to four decades ago. The political 164

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institutions of those countries were relatively weak, and they were only in the initial stages of their nation-building.

The Charter Stipulates the Principle of ‘Prosper Thy Neighbours’ The concept of ‘Prosper Thy Neighbours’ has encouraged and supported the new member states of ASEAN. This principle would also serve to accelerate the pace of narrowing the development gaps and deepen regional integration. With this in mind, by 2015, ASEAN will be a well-balanced community, existing in harmony.

The Charter Creates a New Structure for ASEAN ASEAN structure under the ASEAN Charter consists of a number of new agencies and sectoral bodies. This new structure will meet with some difﬁculties in implemention at the early stage, but it will be strong and effective in the longterm once it has been settled.

Future Direction of ASEAN The ASEAN Charter, which was born after 40 years of existence of ASEAN, is a turning point for ASEAN. ASEAN still has a very heavy burden to maintain peace, prosperity and be centrality organised when dealing with external partners. Moreover, ASEAN should make important contributions to turn the 21st century into a century of peace and prosperity for Asia. Additionally, ASEAN should also take into consideration the signing of the non-aggression pact with its dialogue partners as well as take the necessary measures to make a war 165

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an illegal act, so ASEAN could become a great example as a truly peace-loving organisation. Lastly, I wish to commend all who were involved in the drafting process of this Charter — the Senior Ofﬁcials, Eminent Persons, members of the High Level Task Force and the Foreign Ministers and Leaders of ASEAN. History will remember the important contributions they have made to ASEAN.

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Annex 1 Charter of the Association of Southeast Asian Nations PREAMBLE WE, THE PEOPLES of the Member States of the Association of Southeast Asian Nations (ASEAN), as represented by the Heads of State or Government of Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam: NOTING with satisfaction the signiﬁcant achievements and expansion of ASEAN since its establishment in Bangkok through the promulgation of The ASEAN Declaration; RECALLING the decisions to establish an ASEAN Charter in the Vientiane Action Programme, the Kuala Lumpur Declaration on the Establishment of the ASEAN Charter and the Cebu Declaration on the Blueprint of the ASEAN Charter; MINDFUL of the existence of mutual interests and interdependence among the peoples and Member States of ASEAN which are bound by geography, common objectives and shared destiny; INSPIRED by and united under One Vision, One Identity and One Caring and Sharing Community; 167

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UNITED by a common desire and collective will to live in a region of lasting peace, security and stability, sustained economic growth, shared prosperity and social progress, and to promote our vital interests, ideals and aspirations; RESPECTING the fundamental importance of amity and cooperation, and the principles of sovereignty, equality, territorial integrity, non-interference, consensus and unity in diversity; ADHERING to the principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms; RESOLVED to ensure sustainable development for the beneﬁt of present and future generations and to place the well-being, livelihood and welfare of the peoples at the centre of the ASEAN community building process; CONVINCED of the need to strengthen existing bonds of regional solidarity to realise an ASEAN Community that is politically cohesive, economically integrated and socially responsible in order to effectively respond to current and future challenges and opportunities; COMMITTED to intensifying community building through enhanced regional cooperation and integration, in particular by establishing an ASEAN Community comprising the ASEAN Security Community, the ASEAN Economic Community and the ASEAN Socio-Cultural Community, as provided for in the Bali Declaration of ASEAN Concord II; HEREBY DECIDE to establish, through this Charter, the legal and institutional framework for ASEAN, AND TO THIS END, the Heads of State or Government of the Member States of ASEAN, assembled in Singapore on the historic occasion of the 40th anniversary of the founding of ASEAN, have agreed to this Charter.

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CHAPTER I PURPOSES AND PRINCIPLES ARTICLE 1 PURPOSES The Purposes of ASEAN are: 1.

To maintain and enhance peace, security and stability and further strengthen peace-oriented values in the region;

2.

To enhance regional resilience by promoting greater political, security, economic and socio-cultural cooperation;

3.

To preserve Southeast Asia as a Nuclear Weapon-Free Zone and free of all other weapons of mass destruction;

4.

To ensure that the peoples and Member States of ASEAN live in peace with the world at large in a just, democratic and harmonious environment;

5.

To create a single market and production base which is stable, prosperous, highly competitive and economically integrated with effective facilitation for trade and investment in which there is free ﬂow of goods, services and investment; facilitated movement of business persons, professionals, talents and labour; and freer ﬂow of capital;

6.

To alleviate poverty and narrow the development gap within ASEAN through mutual assistance and cooperation;

7.

To strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN;

8.

To respond effectively, in accordance with the principle of comprehensive security, to all forms of threats, transnational crimes and transboundary challenges;

9.

To promote sustainable development so as to ensure the protection of the region’s environment, the sustainability of its natural resources, 169

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the preservation of its cultural heritage and the high quality of life of its peoples; 10. To develop human resources through closer cooperation in education and life-long learning, and in science and technology, for the empowerment of the peoples of ASEAN and for the strengthening of the ASEAN Community; 11. To enhance the well-being and livelihood of the peoples of ASEAN by providing them with equitable access to opportunities for human development, social welfare and justice; 12. To strengthen cooperation in building a safe, secure and drug-free environment for the peoples of ASEAN; 13. To promote a people-oriented ASEAN in which all sectors of society are encouraged to participate in, and beneﬁt from, the process of ASEAN integration and community building; 14. To promote an ASEAN identity through the fostering of greater awareness of the diverse culture and heritage of the region; and 15. To 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.

ARTICLE 2 PRINCIPLES 1.

In pursuit of the Purposes stated in Article 1, ASEAN and its Member States reafﬁrm and adhere to the fundamental principles contained in the declarations, agreements, conventions, concords, treaties and other instruments of ASEAN.

2.

ASEAN and its Member States shall act in accordance with the following Principles: (a) respect for the independence, sovereignty, equality, territorial integrity and national identity of all ASEAN Member States; (b) shared commitment and collective responsibility in enhancing regional peace, security and prosperity; 170

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(c) renunciation of aggression and of the threat or use of force or other actions in any manner inconsistent with international law; (d) reliance on peaceful settlement of disputes; (e) non-interference in the internal affairs of ASEAN Member States; (f) respect for the right of every Member State to lead its national existence free from external interference, subversion and coercion; (g) enhanced consultations on matters seriously affecting the common interest of ASEAN; (h) adherence to the rule of law, good governance, the principles of democracy and constitutional government; (i)

respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice;

(j)

upholding the United Nations Charter and international law, including international humanitarian law, subscribed to by ASEAN Member States;

(k) abstention from participation in any policy or activity, including the use of its territory, pursued by any ASEAN Member State or non-ASEAN State or any non-State actor, which threatens the sovereignty, territorial integrity or political and economic stability of ASEAN Member States; (l)

respect for the different cultures, languages and religions of the peoples of ASEAN, while emphasising their common values in the spirit of unity in diversity;

(m) the centrality of ASEAN in external political, economic, social and cultural relations while remaining actively engaged, outwardlooking, inclusive and non-discriminatory; and (n) adherence to multilateral trade rules and ASEAN’s rules-based regimes for effective implementation of economic commitments and progressive reduction towards elimination of all barriers to regional economic integration, in a market-driven economy. 171

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CHAPTER II LEGAL PERSONALITY ARTICLE 3 LEGAL PERSONALITY OF ASEAN ASEAN, as an inter-governmental organisation, is hereby conferred legal personality.

CHAPTER III MEMBERSHIP ARTICLE 4 MEMBER STATES The Member States of ASEAN are Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam.

ARTICLE 5 RIGHTS AND OBLIGATIONS 1.

Member States shall have equal rights and obligations under this Charter.

2.

Member States shall take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of this Charter and to comply with all obligations of membership.

3.

In the case of a serious breach of the Charter or non-compliance, the matter shall be referred to Article 20.

ARTICLE 6 ADMISSION OF NEW MEMBERS 1.

The procedure for application and admission to ASEAN shall be prescribed by the ASEAN Coordinating Council. 172

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2.

Admission shall be based on the following criteria: (a) location in the recognised geographical region of Southeast Asia; (b) recognition by all ASEAN Member States; (c) agreement to be bound and to abide by the Charter; and (d) ability and willingness to carry out the obligations of Membership.

3.

Admission shall be decided by consensus by the ASEAN Summit, upon the recommendation of the ASEAN Coordinating Council.

4.

An applicant State shall be admitted to ASEAN upon signing an Instrument of Accession to the Charter.

CHAPTER IV ORGANS ARTICLE 7 ASEAN SUMMIT 1.

The ASEAN Summit shall comprise the Heads of State or Government of the Member States.

2.

The ASEAN Summit shall: (a) be the supreme policy-making body of ASEAN; (b) deliberate, provide policy guidance and take decisions on key issues pertaining to the realisation of the objectives of ASEAN, important matters of interest to Member States and all issues referred to it by the ASEAN Coordinating Council, the ASEAN Community Councils and ASEAN Sectoral Ministerial Bodies; (c) instruct the relevant Ministers in each of the Councils concerned to hold ad hoc inter-Ministerial meetings, and address important issues concerning ASEAN that cut across the Community Councils. Rules of procedure for such meetings shall be adopted by the ASEAN Coordinating Council; 173

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(d) address emergency situations affecting ASEAN by taking appropriate actions; (e) decide on matters referred to it under Chapters VII and VIII; (f) authorise the establishment and the dissolution of Sectoral Ministerial Bodies and other ASEAN institutions; and (g) appoint the Secretary-General of ASEAN, with the rank and status of Minister, who will serve with the conﬁdence and at the pleasure of the Heads of State or Government upon the recommendation of the ASEAN Foreign Ministers Meeting. 3.

ASEAN Summit Meetings shall be: (a) held twice annually, and be hosted by the Member State holding the ASEAN Chairmanship; and (b) convened, whenever necessary, as special or ad hoc meetings to be chaired by the Member State holding the ASEAN Chairmanship, at venues to be agreed upon by ASEAN Member States.

ARTICLE 8 ASEAN COORDINATING COUNCIL 1.

The ASEAN Coordinating Council shall comprise the ASEAN Foreign Ministers and meet at least twice a year.

2.

The ASEAN Coordinating Council shall: (a) prepare the meetings of the ASEAN Summit; (b) coordinate the implementation of agreements and decisions of the ASEAN Summit; (c) coordinate with the ASEAN Community Councils to enhance policy coherence, efﬁciency and cooperation among them; (d) coordinate the reports of the ASEAN Community Councils to the ASEAN Summit; (e) consider the annual report of the Secretary-General on the work of ASEAN; 174

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(f) consider the report of the Secretary-General on the functions and operations of the ASEAN Secretariat and other relevant bodies; (g) approve the appointment and termination of the Deputy Secretaries-General upon the recommendation of the SecretaryGeneral; and (h) undertake other tasks provided for in this Charter or such other functions as may be assigned by the ASEAN Summit. 3.

The ASEAN Coordinating Council shall be supported by the relevant senior ofﬁcials.

ARTICLE 9 ASEAN COMMUNITY COUNCILS 1.

The ASEAN Community Councils shall comprise the ASEAN PoliticalSecurity Community Council, ASEAN Economic Community Council, and ASEAN Socio-Cultural Community Council.

2.

Each ASEAN Community Council shall have under its purview the relevant ASEAN Sectoral Ministerial Bodies.

3.

Each Member State shall designate its national representation for each ASEAN Community Council meeting.

4.

In order to realise the objectives of each of the three pillars of the ASEAN Community, each ASEAN Community Council shall: (a) ensure the implementation of the relevant decisions of the ASEAN Summit; (b) coordinate the work of the different sectors under its purview, and on issues which cut across the other Community Councils; and (c) submit reports and recommendations to the ASEAN Summit on matters under its purview.

5.

Each ASEAN Community Council shall meet at least twice a year and shall be chaired by the appropriate Minister from the Member State holding the ASEAN Chairmanship. 175

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6.

Each ASEAN Community Council shall be supported by the relevant senior ofﬁcials.

ARTICLE 10 ASEAN SECTORAL MINISTERIAL BODIES 1.

ASEAN Sectoral Ministerial Bodies shall: (a) function in accordance with their respective established mandates; (b) implement the agreements and decisions of the ASEAN Summit under their respective purview; (c) strengthen cooperation in their respective ﬁelds in support of ASEAN integration and community building; and (d) submit reports and recommendations to their respective Community Councils.

2.

Each ASEAN Sectoral Ministerial Body may have under its purview the relevant senior ofﬁcials and subsidiary bodies to undertake its functions as contained in Annex 1. The Annex may be updated by the Secretary-General of ASEAN upon the recommendation of the Committee of Permanent Representatives without recourse to the provision on Amendments under this Charter.

ARTICLE 11 SECRETARY-GENERAL OF ASEAN AND ASEAN SECRETARIAT 1.

The Secretary-General of ASEAN shall be appointed by the ASEAN Summit for a non-renewable term of ofﬁce of ﬁve years, selected from among nationals of the ASEAN Member States based on alphabetical rotation, with due consideration to integrity, capability and professional experience, and gender equality.

2.

The Secretary-General shall: (a) carry out the duties and responsibilities of this high ofﬁce in accordance with the provisions of this Charter and relevant ASEAN instruments, protocols and established practices; 176

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(b) facilitate and monitor progress in the implementation of ASEAN agreements and decisions, and submit an annual report on the work of ASEAN to the ASEAN Summit; (c) participate in meetings of the ASEAN Summit, the ASEAN Community Councils, the ASEAN Coordinating Council, and ASEAN Sectoral Ministerial Bodies and other relevant ASEAN meetings; (d) present the views of ASEAN and participate in meetings with external parties in accordance with approved policy guidelines and mandate given to the Secretary-General; and (e) recommend the appointment and termination of the Deputy Secretaries-General to the ASEAN Coordinating Council for approval. 3.

The Secretary-General shall also be the Chief Administrative Ofﬁcer of ASEAN.

4.

The Secretary-General shall be assisted by four Deputy SecretariesGeneral with the rank and status of Deputy Ministers. The Deputy Secretaries-General shall be accountable to the Secretary-General in carrying out their functions.

5.

The four Deputy Secretaries-General shall be of different nationalities from the Secretary-General and shall come from four different ASEAN Member States.

6.

The four Deputy Secretaries-General shall comprise: (a) two Deputy Secretaries-General who will serve a non-renewable term of three years, selected from among nationals of the ASEAN Member States based on alphabetical rotation, with due consideration to integrity, qualiﬁcations, competence, experience and gender equality; and (b) two Deputy Secretaries-General who will serve a term of three years, which may be renewed for another three years. These two Deputy Secretaries-General shall be openly recruited based on merit. 177

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7.

The ASEAN Secretariat shall comprise the Secretary-General and such staff as may be required.

8.

The Secretary-General and the staff shall: (a) uphold the highest standards of integrity, efﬁciency, and competence in the performance of their duties; (b) not seek or receive instructions from any government or external party outside of ASEAN; and (c) refrain from any action which might reﬂect on their position as ASEAN Secretariat ofﬁcials responsible only to ASEAN.

9.

Each ASEAN Member State undertakes to respect the exclusively ASEAN character of the responsibilities of the Secretary-General and the staff, and not to seek to inﬂuence them in the discharge of their responsibilities.

ARTICLE 12 COMMITTEE OF PERMANENT REPRESENTATIVES TO ASEAN 1.

Each ASEAN Member State shall appoint a Permanent Representative to ASEAN with the rank of Ambassador based in Jakarta.

2.

The Permanent Representatives collectively constitute a Committee of Permanent Representatives, which shall: (a) support the work of the ASEAN Community Councils and ASEAN Sectoral Ministerial Bodies; (b) coordinate with ASEAN National Secretariats and other ASEAN Sectoral Ministerial Bodies; (c) liaise with the Secretary-General of ASEAN and the ASEAN Secretariat on all subjects relevant to its work; (d) facilitate ASEAN cooperation with external partners; and (e) perform such other functions as may be determined by the ASEAN Coordinating Council. 178

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ARTICLE 13 ASEAN NATIONAL SECRETARIATS Each ASEAN Member State shall establish an ASEAN National Secretariat which shall: (a) serve as the national focal point; (b) be the repository of information on all ASEAN matters at the national level; (c) coordinate the implementation of ASEAN decisions at the national level; (d) coordinate and support the national preparations of ASEAN meetings; (e) promote ASEAN identity and awareness at the national level; and (f) contribute to ASEAN community building.

ARTICLE 14 ASEAN HUMAN RIGHTS BODY 1.

In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body.

2.

This ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting.

ARTICLE 15 ASEAN FOUNDATION 1.

The ASEAN Foundation shall support the Secretary-General of ASEAN and collaborate with the relevant ASEAN bodies to support ASEAN community building by promoting greater awareness of the ASEAN identity, people-to-people interaction, and close collaboration among the business sector, civil society, academia and other stakeholders in ASEAN. 179

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2.

The ASEAN Foundation shall be accountable to the Secretary-General of ASEAN, who shall submit its report to the ASEAN Summit through the ASEAN Coordinating Council.

CHAPTER V ENTITIES ASSOCIATED WITH ASEAN ARTICLE 16 ENTITIES ASSOCIATED WITH ASEAN 1.

ASEAN may engage with entities which support the ASEAN Charter, in particular its purposes and principles. These associated entities are listed in Annex 2.

2.

Rules of procedure and criteria for engagement shall be prescribed by the Committee of Permanent Representatives upon the recommendation of the Secretary-General of ASEAN.

3.

Annex 2 may be updated by the Secretary-General of ASEAN upon the recommendation of the Committee of Permanent Representatives without recourse to the provision on Amendments under this Charter.

CHAPTER VI IMMUNITIES AND PRIVILEGES ARTICLE 17 IMMUNITIES AND PRIVILEGES OF ASEAN 1.

ASEAN shall enjoy in the territories of the Member States such immunities and privileges as are necessary for the fulﬁlment of its purposes.

2.

The immunities and privileges shall be laid down in separate agreements between ASEAN and the host Member State.

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ARTICLE 18 IMMUNITIES AND PRIVILEGES OF THE SECRETARYGENERAL OF ASEAN AND STAFF OF THE ASEAN SECRETARIAT 1.

The Secretary-General of ASEAN and staff of the ASEAN Secretariat participating in ofﬁcial ASEAN activities or representing ASEAN in the Member States shall enjoy such immunities and privileges as are necessary for the independent exercise of their functions.

2.

The immunities and privileges under this Article shall be laid down in a separate ASEAN agreement.

ARTICLE 19 IMMUNITIES AND PRIVILEGES OF THE PERMANENT REPRESENTATIVES AND OFFICIALS ON ASEAN DUTIES 1.

The Permanent Representatives of the Member States to ASEAN and ofﬁcials of the Member States participating in ofﬁcial ASEAN activities or representing ASEAN in the Member States shall enjoy such immunities and privileges as are necessary for the exercise of their functions.

2.

The immunities and privileges of the Permanent Representatives and ofﬁcials on ASEAN duties shall be governed by the 1961 Vienna Convention on Diplomatic Relations or in accordance with the national law of the ASEAN Member State concerned.

CHAPTER VII DECISION-MAKING ARTICLE 20 CONSULTATION AND CONSENSUS 1.

As a basic principle, decision-making in ASEAN shall be based on consultation and consensus.

2.

Where consensus cannot be achieved, the ASEAN Summit may decide how a speciﬁc decision can be made. 181

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3.

Nothing in paragraphs 1 and 2 of this Article shall affect the modes of decision-making as contained in the relevant ASEAN legal instruments.

4.

In the case of a serious breach of the Charter or non-compliance, the matter shall be referred to the ASEAN Summit for decision.

ARTICLE 21 IMPLEMENTATION AND PROCEDURE 1.

Each ASEAN Community Council shall prescribe its own rules of procedure.

2.

In the implementation of economic commitments, a formula for ﬂexible participation, including the ASEAN Minus X formula, may be applied where there is a consensus to do so.

CHAPTER VIII SETTLEMENT OF DISPUTES ARTICLE 22 GENERAL PRINCIPLES 1.

Member States shall endeavour to resolve peacefully all disputes in a timely manner through dialogue, consultation and negotiation.

2.

ASEAN shall maintain and establish dispute settlement mechanisms in all ﬁelds of ASEAN cooperation.

ARTICLE 23 GOOD OFFICES, CONCILIATION AND MEDIATION 1.

Member States which are parties to a dispute may at any time agree to resort to good ofﬁces, conciliation or mediation in order to resolve the dispute within an agreed time limit.

2.

Parties to the dispute may request the Chairman of ASEAN or the Secretary-General of ASEAN, acting in an ex-ofﬁcio capacity, to provide good ofﬁces, conciliation or mediation. 182

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ARTICLE 24 DISPUTE SETTLEMENT MECHANISMS IN SPECIFIC INSTRUMENTS 1.

Disputes relating to speciﬁc ASEAN instruments shall be settled through the mechanisms and procedures provided for in such instruments.

2.

Disputes which do not concern the interpretation or application of any ASEAN instrument shall be resolved peacefully in accordance with the Treaty of Amity and Cooperation in Southeast Asia and its rules of procedure.

3.

Where not otherwise speciﬁcally provided, disputes which concern the interpretation or application of ASEAN economic agreements shall be settled in accordance with the ASEAN Protocol on Enhanced Dispute Settlement Mechanism.

ARTICLE 25 ESTABLISHMENT OF DISPUTE SETTLEMENT MECHANISMS Where not otherwise speciﬁcally provided, appropriate dispute settlement mechanisms, including arbitration, shall be established for disputes which concern the interpretation or application of this Charter and other ASEAN instruments.

ARTICLE 26 UNRESOLVED DISPUTES When a dispute remains unresolved, after the application of the preceding provisions of this Chapter, this dispute shall be referred to the ASEAN Summit, for its decision.

ARTICLE 27 COMPLIANCE 1.

The Secretary-General of ASEAN, assisted by the ASEAN Secretariat or any other designated ASEAN body, shall monitor the compliance with the ﬁndings, recommendations or decisions resulting from an ASEAN dispute settlement mechanism, and submit a report to the ASEAN Summit. 183

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2.

Any Member State affected by non-compliance with the ﬁndings, recommendations or decisions resulting from an ASEAN dispute settlement mechanism, may refer the matter to the ASEAN Summit for a decision.

ARTICLE 28 UNITED NATIONS CHARTER PROVISIONS AND OTHER RELEVANT INTERNATIONAL PROCEDURES Unless otherwise provided for in this Charter, Member States have the right of recourse to the modes of peaceful settlement contained in Article 33(1) of the Charter of the United Nations or any other international legal instruments to which the disputing Member States are parties.

CHAPTER IX BUDGET AND FINANCE ARTICLE 29 GENERAL PRINCIPLES 1.

ASEAN shall establish ﬁnancial rules and procedures in accordance with international standards.

2.

ASEAN shall observe sound ﬁnancial management policies and practices and budgetary discipline.

3.

Financial accounts shall be subject to internal and external audits.

ARTICLE 30 OPERATIONAL BUDGET AND FINANCES OF THE ASEAN SECRETARIAT 1.

The ASEAN Secretariat shall be provided with the necessary ﬁnancial resources to perform its functions effectively.

2.

The operational budget of the ASEAN Secretariat shall be met by ASEAN Member States through equal annual contributions which shall be remitted in a timely manner. 184

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3.

The Secretary-General shall prepare the annual operational budget of the ASEAN Secretariat for approval by the ASEAN Coordinating Council upon the recommendation of the Committee of Permanent Representatives.

4.

The ASEAN Secretariat shall operate in accordance with the ﬁnancial rules and procedures determined by the ASEAN Coordinating Council upon the recommendation of the Committee of Permanent Representatives.

CHAPTER X ADMINISTRATION AND PROCEDURE ARTICLE 31 CHAIRMAN OF ASEAN 1.

The Chairmanship of ASEAN shall rotate annually, based on the alphabetical order of the English names of Member States.

2.

ASEAN shall have, in a calendar year, a single Chairmanship by which the Member State assuming the Chairmanship shall chair: (a) the ASEAN Summit and related summits; (b) the ASEAN Coordinating Council; (c) the three ASEAN Community Councils; (d) where appropriate, the relevant ASEAN Sectoral Ministerial Bodies and senior ofﬁcials; and (e) the Committee of Permanent Representatives.

ARTICLE 32 ROLE OF THE CHAIRMAN OF ASEAN The Member State holding the Chairmanship of ASEAN shall: (a) actively promote and enhance the interests and well-being of ASEAN, including efforts to build an ASEAN Community through policy initiatives, coordination, consensus and cooperation; 185

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(b) ensure the centrality of ASEAN; (c) ensure an effective and timely response to urgent issues or crisis situations affecting ASEAN, including providing its good ofﬁces and such other arrangements to immediately address these concerns; (d) represent ASEAN in strengthening and promoting closer relations with external partners; and (e) carry out such other tasks and functions as may be mandated.

ARTICLE 33 DIPLOMATIC PROTOCOL AND PRACTICES ASEAN and its Member States shall adhere to existing diplomatic protocol and practices in the conduct of all activities relating to ASEAN. Any changes shall be approved by the ASEAN Coordinating Council upon the recommendation of the Committee of Permanent Representatives.

ARTICLE 34 WORKING LANGUAGE OF ASEAN The working language of ASEAN shall be English.

CHAPTER XI IDENTITY AND SYMBOLS ARTICLE 35 ASEAN IDENTITY ASEAN shall promote its common ASEAN identity and a sense of belonging among its peoples in order to achieve its shared destiny, goals and values.

ARTICLE 36 ASEAN MOTTO The ASEAN motto shall be: “One Vision, One Identity, One Community” 186

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ARTICLE 37 ASEAN FLAG The ASEAN ﬂag shall be as shown in Annex 3.

ARTICLE 38 ASEAN EMBLEM The ASEAN emblem shall be as shown in Annex 4.

ARTICLE 39 ASEAN DAY The eighth of August shall be observed as ASEAN Day.

ARTICLE 40 ASEAN ANTHEM ASEAN shall have an anthem.

CHAPTER XII EXTERNAL RELATIONS ARTICLE 41 CONDUCT OF EXTERNAL RELATIONS 1.

ASEAN shall develop friendly relations and mutually beneﬁcial dialogue, cooperation and partnerships with countries and subregional, regional and international organisations and institutions.

2.

The external relations of ASEAN shall adhere to the purposes and principles set forth in this Charter.

3.

ASEAN shall be the primary driving force in regional arrangements that it initiates and maintain its centrality in regional cooperation and community building.

4.

In the conduct of external relations of ASEAN, Member States shall, on the basis of unity and solidarity, coordinate and endeavour to develop common positions and pursue joint actions. 187

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5.

The strategic policy directions of ASEAN’s external relations shall be set by the ASEAN Summit upon the recommendation of the ASEAN Foreign Ministers Meeting.

6.

The ASEAN Foreign Ministers Meeting shall ensure consistency and coherence in the conduct of ASEAN’s external relations.

7.

ASEAN may conclude agreements with countries or sub-regional, regional and international organisations and institutions. The procedures for concluding such agreements shall be prescribed by the ASEAN Coordinating Council in consultation with the ASEAN Community Councils.

ARTICLE 42 DIALOGUE COORDINATOR 1.

Member States, acting as Country Coordinators, shall take turns to take overall responsibility in coordinating and promoting the interests of ASEAN in its relations with the relevant Dialogue Partners, regional and international organisations and institutions.

2.

In relations with the external partners, the Country Coordinators shall, inter alia: (a) represent ASEAN and enhance relations on the basis of mutual respect and equality, in conformity with ASEAN’s principles; (b) co-chair relevant meetings between ASEAN and external partners; and (c) be supported by the relevant ASEAN Committees in Third Countries and International Organisations.

ARTICLE 43 ASEAN COMMITTEES IN THIRD COUNTRIES AND INTERNATIONAL ORGANISATIONS 1.

ASEAN Committees in Third Countries may be established in nonASEAN countries comprising heads of diplomatic missions of ASEAN Member States. Similar Committees may be established relating to international organisations. Such Committees shall promote 188

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ASEAN’s interests and identity in the host countries and international organisations. 2.

The ASEAN Foreign Ministers Meeting shall determine the rules of procedure of such Committees.

ARTICLE 44 STATUS OF EXTERNAL PARTIES 1.

In conducting ASEAN’s external relations, the ASEAN Foreign Ministers Meeting may confer on an external party the formal status of Dialogue Partner, Sectoral Dialogue Partner, Development Partner, Special Observer, Guest, or other status that may be established henceforth.

2.

External parties may be invited to ASEAN meetings or cooperative activities without being conferred any formal status, in accordance with the rules of procedure.

ARTICLE 45 RELATIONS WITH THE UNITED NATIONS SYSTEM AND OTHER INTERNATIONAL ORGANISATIONS AND INSTITUTIONS 1.

ASEAN may seek an appropriate status with the United Nations system as well as with other sub-regional, regional, international organisations and institutions.

2.

The ASEAN Coordinating Council shall decide on the participation of ASEAN in other sub-regional, regional, international organisations and institutions.

ARTICLE 46 ACCREDITATION OF NON-ASEAN MEMBER STATES TO ASEAN Non-ASEAN Member States and relevant inter-governmental organisations may appoint and accredit Ambassadors to ASEAN. The ASEAN Foreign Ministers Meeting shall decide on such accreditation.

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CHAPTER XIII GENERAL AND FINAL PROVISIONS ARTICLE 47 SIGNATURE, RATIFICATION, DEPOSITORY AND ENTRY INTO FORCE 1.

This Charter shall be signed by all ASEAN Member States.

2.

This Charter shall be subject to ratiﬁcation by all ASEAN Member States in accordance with their respective internal procedures.

3.

Instruments of ratiﬁcation shall be deposited with the SecretaryGeneral of ASEAN who shall promptly notify all Member States of each deposit.

4.

This Charter shall enter into force on the thirtieth day following the date of deposit of the tenth instrument of ratiﬁcation with the Secretary-General of ASEAN.

ARTICLE 48 AMENDMENTS 1.

Any Member State may propose amendments to the Charter.

2.

Proposed amendments to the Charter shall be submitted by the ASEAN Coordinating Council by consensus to the ASEAN Summit for its decision.

3.

Amendments to the Charter agreed to by consensus by the ASEAN Summit shall be ratiﬁed by all Member States in accordance with Article 47.

4.

An amendment shall enter into force on the thirtieth day following the date of deposit of the last instrument of ratiﬁcation with the Secretary-General of ASEAN.

190

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ARTICLE 49 TERMS OF REFERENCE AND RULES OF PROCEDURE Unless otherwise provided for in this Charter, the ASEAN Coordinating Council shall determine the terms of reference and rules of procedure and shall ensure their consistency.

ARTICLE 50 REVIEW This Charter may be reviewed ﬁve years after its entry into force or as otherwise determined by the ASEAN Summit.

ARTICLE 51 INTERPRETATION OF THE CHARTER 1.

Upon the request of any Member State, the interpretation of the Charter shall be undertaken by the ASEAN Secretariat in accordance with the rules of procedure determined by the ASEAN Coordinating Council.

2.

Any dispute arising from the interpretation of the Charter shall be settled in accordance with the relevant provisions in Chapter VIII.

3.

Headings and titles used throughout the Charter shall only be for the purpose of reference.

ARTICLE 52 LEGAL CONTINUITY 1.

All treaties, conventions, agreements, concords, declarations, protocols and other ASEAN instruments which have been in effect before the entry into force of this Charter shall continue to be valid.

2.

In case of inconsistency between the rights and obligations of ASEAN Member States under such instruments and this Charter, the Charter shall prevail.

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ARTICLE 53 ORIGINAL TEXT The signed original text of this Charter in English shall be deposited with the Secretary-General of ASEAN, who shall provide a certiﬁed copy to each Member State.

ARTICLE 54 REGISTRATION OF THE ASEAN CHARTER This Charter shall be registered by the Secretary-General of ASEAN with the Secretariat of the United Nations, pursuant to Article 102, paragraph 1 of the Charter of the United Nations.

ARTICLE 55 ASEAN ASSETS The assets and funds of the Organisation shall be vested in the name of ASEAN.

192

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Done in Singapore on the Twentieth Day of November in the Year Two Thousand and Seven, in a single original in the English language.

For Brunei Darussalam:

HAJI HASSANAL BOLKIAH Sultan of Brunei Darussalam

For the Kingdom of Cambodia:

SAMDECH HUN SEN Prime Minister

For the Republic of Indonesia:

DR SUSILO BAMBANG YUDHOYONO President

For the Lao People’s Democratic Republic:

BOUASONE BOUPHAVANH Prime Minister

193

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For Malaysia:

DATO’ SERI ABDULLAH AHMAD BADAWI Prime Minister

For the Union of Myanmar:

GENERAL THEIN SEIN Prime Minister

For the Republic of the Philippines:

GLORIA MACAPAGAL-ARROYO President

For the Republic of Singapore:

LEE HSIEN LOONG Prime Minister

For the Kingdom of Thailand:

GENERAL SURAYUD CHULANONT (RET.) Prime Minister 194

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For the Socialist Republic of Viet Nam:

NGUYEN TAN DUNG Prime Minister

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Annex 2 ASEAN Sectoral Ministerial Bodies I. ASEAN POLITICAL-SECURITY COMMUNITY 1.

ASEAN Foreign Ministers Meeting (AMM) • ASEAN Senior Ofﬁcials Meeting (ASEAN SOM) • ASEAN Standing Committee (ASC) • Senior Ofﬁcials Meeting on Development Planning (SOMDP)

2.

Commission on the Southeast Asia Nuclear Weapon-Free Zone (SEANWFZ Commission) • Executive Committee of the SEANWFZ Commission

3.

ASEAN Defence Ministers Meeting (ADMM) • ASEAN Defence Senior Ofﬁcials Meeting (ADSOM)

4.

ASEAN Law Ministers Meeting (ALAWMM) • ASEAN Senior Law Ofﬁcials Meeting (ASLOM)

5.

ASEAN Ministerial Meeting on Transnational Crime (AMMTC) • Senior Ofﬁcials Meeting on Transnational Crime (SOMTC) • ASEAN Senior Ofﬁcials on Drugs Matters (ASOD) • Directors-General of Immigration Departments and Heads of Consular Affairs Divisions of Ministries of Foreign Affairs Meeting (DGICM)

6.

ASEAN Regional Forum (ARF) • ASEAN Regional Forum Senior Ofﬁcials Meeting (ARF SOM) 197

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II. ASEAN ECONOMIC COMMUNITY 1.

ASEAN Economic Ministers Meeting (AEM) • High Level Task Force on ASEAN Economic Integration (HLTF-EI) • Senior Economic Ofﬁcials Meeting (SEOM)

2.

ASEAN Free Trade Area (AFTA) Council

3.

ASEAN Investment Area (AIA) Council

4.

ASEAN Finance Ministers Meeting (AFMM) • ASEAN Finance and Central Bank Deputies Meeting (AFDM) • ASEAN Directors-General of Customs Meeting (Customs DG)

5.

ASEAN Ministers Meeting on Agriculture and Forestry (AMAF) • Senior Ofﬁcials Meeting of the ASEAN Ministers on Agriculture and Forestry (SOM-AMAF) • ASEAN Senior Ofﬁcials on Forestry (ASOF)

6.

ASEAN Ministers on Energy Meeting (AMEM) • Senior Ofﬁcials Meeting on Energy (SOME)

7.

ASEAN Ministerial Meeting on Minerals (AMMin) • ASEAN Senior Ofﬁcials Meeting on Minerals (ASOMM)

8.

ASEAN Ministerial Meeting on Science and Technology (AMMST) • Committee on Science and Technology (COST)

9.

ASEAN Telecommunications and Information Technology Ministers Meeting (TELMIN) • Telecommunications and Information Technology Senior Ofﬁcials Meeting (TELSOM) • ASEAN Telecommunication Regulators’ Council (ATRC)

10. ASEAN Transport Ministers Meeting (ATM) • Senior Transport Ofﬁcials Meeting (STOM) 11. Meeting of the ASEAN Tourism Ministers (M-ATM) • Meeting of the ASEAN National Tourism (ASEAN NTOs)

Organisations

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12. ASEAN Mekong Basin Development Cooperation (AMBDC) • ASEAN Mekong Basin Development Cooperation Steering Committee (AMBDC SC) • High Level Finance Committee (HLFC) 13. ASEAN Centre for Energy 14. ASEAN-Japan Centre in Tokyo

III. ASEAN SOCIO-CULTURAL COMMUNITY 1.

ASEAN Ministers Responsible for Information (AMRI) • Senior Ofﬁcials Meeting Responsible for Information (SOMRI)

2.

ASEAN Ministers Responsible for Culture and Arts (AMCA) • Senior Ofﬁcials Meeting for Culture and Arts (SOMCA)

3.

ASEAN Education Ministers Meeting (ASED) • Senior Ofﬁcials Meeting on Education (SOM-ED)

4.

ASEAN Ministerial Meeting on Disaster Management (AMMDM) • ASEAN Committee on Disaster Management (ACDM)

5.

ASEAN Ministerial Meeting on the Environment (AMME) • ASEAN Senior Ofﬁcials on the Environment (ASOEN)

6.

Conference of the Parties to the ASEAN Agreement on Transboundary Haze Pollution (COP) • Committee (COM) under the COP to the ASEAN Agreement on Transboundary Haze Pollution

7.

ASEAN Health Ministers Meeting (AHMM) • Senior Ofﬁcials Meeting on Health Development (SOMHD)

8.

ASEAN Labour Ministers Meeting (ALMM) • Senior Labour Ofﬁcials Meeting (SLOM) • ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers 199

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9.

ASEAN Ministers on Rural Development and Poverty Eradication (AMRDPE) • Senior Ofﬁcials Meeting on Rural Development and Poverty Eradication (SOMRDPE)

10. ASEAN Ministerial Meeting on Social Welfare and Development (AMMSWD) • Senior Ofﬁcials Meeting on Social Welfare and Development (SOMSWD) 11. ASEAN Ministerial Meeting on Youth (AMMY) • Senior Ofﬁcials Meeting on Youth (SOMY) 12. ASEAN Conference on Civil Service Matters (ACCSM) 13. ASEAN Centre for Biodiversity (ACB) 14. ASEAN Coordinating Centre for Humanitarian Assistance on Disaster Management (AHA Centre) 15. ASEAN Earthquakes Information Centre 16. ASEAN Specialised Meteorological Centre (ASMC) 17. ASEAN University Network (AUN)

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Annex 3 Entities Associated with ASEAN I. PARLIAMENTARIANS ASEAN Inter-Parliamentary Assembly (AIPA)

II. BUSINESS ORGANISATIONS ASEAN Airlines Meeting ASEAN Alliance of Health Supplement Association (AAHSA) ASEAN Automotive Federation (AAF) ASEAN Bankers Association (ABA) ASEAN Business Advisory Council (ASEAN-BAC) ASEAN Business Forum (ABF) ASEAN Chamber of Commerce and Industry (ASEAN-CCI) ASEAN Chemical Industries Council ASEAN Federation of Textiles Industries (AFTEX) ASEAN Furniture Industries Council (AFIC) ASEAN Insurance Council (AIC) ASEAN Intellectual Property Association (ASEAN IPA) ASEAN International Airports Association (AAA) ASEAN Iron & Steel Industry Federation ASEAN Pharmaceutical Club ASEAN Tourism Association (ASEANTA) Federation of ASEAN Economic Associations (FAEA) 201

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Federation of ASEAN Shippers’ Council US-ASEAN Business Council

III. THINK TANKS AND ACADEMIC INSTITUTIONS ASEAN-ISIS Network

IV. ACCREDITED CIVIL SOCIETY ORGANISATIONS ASEAN Academics of Science, Engineering and Technology (ASEAN CASE) ASEAN Academy of Engineering and Technology (AAET) ASEAN Association for Clinical Laboratory Sciences (AACLS) ASEAN Association for Planning and Housing (AAPH) ASEAN Association of Radiologists (AAR) ASEAN Chess Confederation (ACC) ASEAN Confederation of Employers (ACE) ASEAN Confederation of Women’s Organisation (ACWO) ASEAN Constructors Federation (ACF) ASEAN Cosmetics Association (ACA) ASEAN Council for Japan Alumni (ASCOJA) ASEAN Council of Teachers (ACT) ASEAN Federation for Psychiatric and Mental Health (AFPMH) ASEAN Federation of Accountants (AFA) ASEAN Federation of Electrical Engineering Contractors (AFEEC) ASEAN Federation of Engineering Organisation (AFEO) ASEAN Federation of Flying Clubs (AFFC) ASEAN Federation of Forwarders Associations (AFFA) ASEAN Federation of Heart Foundation (AFHF) ASEAN Federation of Land Surveying and Geomatics (ASEAN FLAG) ASEAN Federation of Mining Association (AFMA) ASEAN Fisheries Federation (AFF) ASEAN Football Federation (AFF) 202

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ASEAN Forest Products Industry Club (AFPIC) ASEAN Forestry Students Association (AFSA) ASEAN Handicraft Promotion and Development Association (AHPADA) ASEAN Kite Council (AKC) ASEAN Law Association (ALA) ASEAN Law Students Association (ALSA) ASEAN Music Industry Association (AMIA) ASEAN Neurosurgical Society (ANS) ASEAN NGO Coalition on Ageing ASEAN Non-Governmental Organisations for the Prevention of Drugs and Substance Abuse ASEAN Oleochemical Manufacturers Group (AOMG) ASEAN Orthopaedic Association (AOA) ASEAN Paediatric Federation (APF) ASEAN Para Sports Federation (APSF) ASEAN Ports Association (APA) ASEAN Thalassaemia Society (ATS) ASEAN Valuers Association (AVA) ASEAN Vegetable Oils Club (AVOC) Asian Partnership for Development of Human Resources in Rural Asia (AsiaDHRRA) Committee for ASEAN Youth Cooperation (CAYC) Federation of ASEAN Consulting Engineers (FACE) Federation of ASEAN Public Relations Organisations (FAPRO) Federation of ASEAN Shipowners’ Associations (FASA) Medical Association of Southeast Asian Nations Committee (MASEAN) Rheumatism Association of ASEAN (RAA) Southeast Asia Regional Institute for Community and Education (SEARICE) Southeast Asian Studies Regional Exchange Program (SEASREP) Foundation Veterans Confederation of ASEAN Countries (VECONAC) 203

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V. OTHER STAKEHOLDERS IN ASEAN ASEANAPOL Federation of Institutes of Food Science and Technology in ASEAN (FIFSTA) Southeast Asian Fisheries Development Centre (SEAFDEC) Working Group for an ASEAN Human Rights Mechanism

204

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Annex 4 ASEAN Flag

The ASEAN Flag represents a stable, peaceful, united and dynamic ASEAN. The colours of the Flag — blue, red, white and yellow — represent the main colours of the ﬂags of all the ASEAN Member States. The blue represents peace and stability. Red depicts courage and dynamism. White shows purity and yellow symbolises prosperity. The stalks of padi represent the dream of ASEAN’s Founding Fathers for an ASEAN comprising all the countries in Southeast Asia bound together in friendship and solidarity. The circle represents the unity of ASEAN. 205

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The speciﬁcation of Pantone Colour adopted for the colours of the ASEAN Flag are: Blue: Pantone 19-4053 TC Red: Pantone 18-1655 TC White: Pantone 11-4202 TC Yellow: Pantone 13-0758 TC For the printed version, the speciﬁcations of colours (except white) will follow those for the colours of the ASEAN Emblem, i.e.: Blue: Pantone 286 or Process Colour 100C 60M 0Y 6K Red: Pantone Red 032 or Process Colour 0C 91M 87Y 0K Yellow: Pantone Process Yellow or Process Colour 0C 0M 100Y 0K The ratio of the width to the length of the Flag is two to three, and the size speciﬁcations for the following Flags are: Table Flag: 10 cm × 15 cm Room Flag: 100 cm × 150 cm Car Flag: 10 cm × 30 cm Field Flag: 200 cm × 300 cm

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Annex 5 ASEAN Emblem

The ASEAN Emblem represents a stable, peaceful, united and dynamic ASEAN. The colours of the Emblem — blue, red, white and yellow — represent the main colours of the crests of all the ASEAN Member States. The blue represents peace and stability. Red depicts courage and dynamism. White shows purity and yellow symbolises prosperity. The stalks of padi represent the dream of ASEAN’s Founding Fathers for an ASEAN comprising all the countries in Southeast Asia bound together in friendship and solidarity. The circle represents the unity of ASEAN. The speciﬁcation of Pantone Colour adopted for the colours of the ASEAN Emblem are: 207

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Blue: Pantone 286 Red: Pantone Red 032 Yellow: Pantone Process Yellow For four-colour printing process, the speciﬁcations of colours will be: Blue: 100C 60 M 0Y 6K (100C 60M 0Y 10K) Red: 0C 91M 87Y 0K (0C 90M 90Y 0K) Yellow: 0C 0M 100Y 0K Speciﬁcations in brackets are to be used when an arbitrary measurement of process colours is not possible. In Pantone Process Colour Simulator, the speciﬁcations equal to: Blue: Pantone 204-1 Red: Pantone 60-1 Yellow: Pantone 1-3 The font used for the word “ASEAN” in the Emblem is lower-case Helvetica in bold.

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Annex 6 Members of the High Level Task Force (HLTF) on the Asean Charter January to November 2007 Brunei Darussalam

Pengiran Dato Osman Patra Permanent Secretary ASEAN SOM Leader Ministry of Foreign Affairs and Trade

Cambodia

Dr Kao Kim Hourn Secretary of State ASEAN SOM Leader Ministry of Foreign Affairs and International Cooperation

Indonesia

Mr Dian Triansyah Djani Director-General, ASEAN-Indonesia Department of Foreign Affairs

Lao PDR

Mr Bounkeut Sangsomak Deputy Minister ASEAN SOM Leader Ministry of Foreign Affairs

Malaysia

Tan Sri Ahmad Fuzi Haji Abdul Razak Ambassador-at-Large Ministry of Foreign Affairs

209

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Myanmar

U Aung Bwa Director-General, ASEAN-Myanmar Ministry of Foreign Affairs

Philippines HLTF Chairperson (January–August 2007)

Amb Rosario G Manalo Special Envoy for the Drafting of the ASEAN Charter

Singapore HLTF Chairperson (August–November 2007)

Prof Tommy Koh Ambassador-at-Large Ministry of Foreign Affairs

Thailand (January–March 2007)

Mr Sihasak Phuangketkeow Deputy Permanent Secretary Ministry of Foreign Affairs

Thailand (April–November 2007)

Mr Pradap Pibulsonggram Deputy Permanent Secretary Ministry of Foreign Affairs

Vietnam (January–August 2007)

Mr Nguyen Trung Thanh Assistant Minister ASEAN SOM Leader Ministry for Foreign Affairs

Vietnam (September–November 2007)

Mr Pham Quang Vinh ASEAN SOM Leader Ministry for Foreign Affairs

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Annex 7 Meetings of the High Level Task Force on Drafting the ASEAN Charter January–November 2007 13 January 2007 (12th ASEAN Summit) Shangri-La Mactan Cebu, the Philippines

Informal HLTF Meeting

5–6 February 2007 ASEAN Secretariat Jakarta, Indonesia

1st HLTF Meeting

28 February–1 March 2007 Angkor Century Hotel Siem Reap, Cambodia

2nd HLTF Meeting

1 March 2007 (ASEAN Foreign Ministers’ Retreat) Sokha Angkor Hotel Siem Reap, Cambodia

First Progress Report to the ASEAN Foreign Ministers

7–15 March 2007 Berlin, Germany Brussels, Belgium

Working visit of HLTF and EPG members to Berlin and Brussels

27 March 2007 Hyatt Hotel Manila, the Philippines

Dialogue with Civil Society Organisations

211

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28–29 March 2007 Grand Hyatt Manila, the Philippines

3rd HLTF Meeting

9 April 2007 Sedona Hotel Yangon, Myanmar

Dialogue with ASEAN High Level Task Force on Economic Integration 4th HLTF Meeting

19–20 April 2007 Hanoi Horison Hotel Hanoi, Vietnam

5th HLTF Meeting

15 May 2007 ASEAN Secretariat Jakarta, Indonesia

Dialogue with senior ofﬁcials attending the ASEAN SocioCultural Community Coordination Conference

17 May 2007 Rasa Sayang Resort Penang, Malaysia

Dialogue with representatives of the ASEAN Inter-Parliamentary Assembly

17–19 May 2007 Rasa Sayang Resort Penang, Malaysia

6th HLTF Meeting

25–27 June 2007 Ritz-Carlton Resort Bali, Indonesia

7th HLTF Meeting

26 June 2007 Ritz-Carlton Resort Bali, Indonesia

Dialogue with representatives of National Human Rights Institutions from Indonesia, Malaysia, the Philippines and Thailand, and informal Working Group for an ASEAN Human Rights Mechanism

212

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Annex 7 Meetings of the HLTF on Drafting the ASEAN Charter

11 July 2007 ASEAN Secretariat Jakarta, Indonesia

Dialogue with senior ofﬁcials attending the ASEAN Security Community Coordinating Conference

13 July 2007 Asian Development Bank Manila, the Philippines

Informal Meeting with the Asian Development Bank

22–26, 28, 30–31 July 2007 Philippine International Convention Center Manila, the Philippines

8th HLTF Meeting

30 July 2007 (40th ASEAN Ministerial Meeting) Philippine International Convention Center Manila, the Philippines

Second Progress Report to the ASEAN Foreign Ministers

24–26 August 2007 Shangri-La Hotel Singapore

9th HLTF Meeting

10–14 September 2007 Soﬁtel Riverside Chiang Mai, Thailand

10th HLTF Meeting

26 September 2007 Permanent Mission of Brunei to the United Nations New York, USA

11th HLTF Meeting

27 September 2007 (Informal ASEAN Ministerial Meeting) United Nations New York, USA

Third Progress Report to the Foreign Ministers

213

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3–5 October 2007 Empire Hotel Bandar Seri Begawan, Brunei Darussalam

12th HLTF Meeting

18–20 October 2007 Don Chan Palace Hotel Vientiane, Laos

13th HLTF Meeting

19 November 2007 Shangri-La Hotel Singapore

Presentation of the ASEAN Charter to the ASEAN Foreign Ministers

20 November 2007 Shangri-La Hotel Singapore

ASEAN Leaders Sign the ASEAN Charter

214

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