ASEAN dispute settlement mechanism: Anything new?

Lina A. Alexandra , Jakarta Fri, 04/09/2010 9:16 AM Opinion

In the upcoming ASEAN Summit that runs from April 9-11 in Hanoi, ASEAN will sign a historic draft agreement of the ASEAN Dispute Settlement Mechanisms (DSM). It is said that these dispute mechanisms would specifically address disputes arising from the differences in the interpretation and application of the Charter as well as other ASEAN instruments (The Jakarta Post, Feb. 26, 2010).

Six years ago, the ASEAN Protocol on Enhanced Dispute Settlement Mechanism, which is aimed specifically at dealing with disputes concerning interpretation and implementation of ASEAN economic agreements, was signed by the leaders of the Southeast Asian member countries.

While there is no doubt that this agreement signifies another major achievement for ASEAN, there has not yet been any clear indication that this DSM will trigger any major breakthrough from current procedures currently being conducted by ASEAN.

As pointed out by the Indonesian Foreign Ministry official, further negotiation on the possibility to apply sanctions to noncompliant members would be conducted later after the signing of the agreement. It is important to scrutinize later whether this promise has been formally addressed as one of the provisions in the agreement, preferably with a clear timeline.

Elaborations on the dispute settlement mechanisms are stated in Chapter VI of the Treaty of Amity and Cooperation (TAC), established in 1976. Basically, the treaty requires the parties to adopt determination and good faith in preventing disputes from arising and shall refrain from the use of force and resort to negotiations if disputes do occur.

The chapter also mentions the constitution of an ad-hoc entity, the High Council, which comprises representatives from the ministerial level. What should be highlighted are the functions of the High Council, which are limited only to taking cognizance in disputes and recommending appropriate means of settlement, i.e. good offices, mediation, inquiry or conciliation, where the Council may offer to become a mediator with the consent of the disputing parties.

It was reported that this new agreement would include arbitration as well as the potential involvement of third parties, certainly after seeking approval from the disputing parties. No further explanation is provided on whether this third party refers only to the High Council or can be any party that is related to the problem at hand.

However, it was interesting when an NGO friend quickly picked up on a slight — what she called a “Freudian slip” up of putting the word “arbitrary” instead of “arbitration” in the comment made by one official from the Indonesian Foreign Ministry, as quoted in the news.

All though it is necessity to confirm that “arbitration” was in fact the intended word, the slip-up unintentionally reminds us about the arbitrariness of process, particularly relating to dispute settlement mechanisms that have been within ASEAN.

The “arbitrary” process, as we all know, is a logical consequence of the practice of the “ASEAN Way”, which underlines the importance to apply consultation and consensus in decision-making processes within ASEAN, including those attempting to settle any kinds of conflict.

If we examine closely Chapter VIII of the Charter on Settlement of Disputes, it differentiates between general disputes and disputes concerning the interpretation or application of ASEAN instruments.
Article 25 specifically mentions that for disputes that concern the interpretation or application of the Charter and other ASEAN instruments may use appropriate mechanisms, including arbitration.
Outside of those particular disputes, the options are limited to good offices, conciliation and mediation as part of peaceful mechanisms in accordance to the TAC.

According to the general definition, arbitration is one of the dispute resolutions that is only one level below the court. The disputing parties may seek the assistance from a third party or parties to become arbiter or arbiters that will review the case and then impose a decision which is binding for the parties.

Can ASEAN actually reach that stage where member states are willing to allow third parties the chance to decide for them? Before rushing to answer this question, we might want to know what sort of problems could potentially invoke disputes among the member states that concern the interpretation and application of the Charter and other instruments, and how ASEAN has handled those problems.
So far, the new principles within the Charter, which are the principal adherence to the principles
of democracy and also the promotion and protection of human rights, will most likely be interpreted and applied differently by member states.

These principles — despite generally having been supported by member states — are still considered challenges to the comfort zone that has been enjoyed by ASEAN countries so far and have been built upon the strict maintenance of sovereignty and non-interference principles. In this case, the national interest, which as ever exists within the ASEAN mechanism, prevails over the regional interest.
The Charter and the subsequent establishment the ASEAN Intergovernmental Commission on Human Rights (AICHR) certainly cannot stop the continuing human rights violations conducted by the military junta in Myanmar or ensure better human rights protection for Indonesian migrant workers and Hmong refugees from Laos.

Meanwhile, the AICHR has been denied the ability to accept individual or group complaints concerning serious human rights violations, in addition to the initial rejection by some member countries of giving the commission the mandate to conduct fact-finding missions or monitor functions when human-rights abuses are suspected to have occurred within certain member states.

In addition, since member states have agreed that ASEAN should become a people-oriented community, up until now they have not agreed to increase access to civil society organizations to engage in various important meetings of ASEAN, including the AICHR, because it is “intergovernmental” in nature.

From these descriptions, ASEAN is ostensibly still unable to settle discrepancies in the interpretation and application of the principles of its Charter.

Worse than that, the willingness is also lacking because the member states largely enjoy making decisions via a consensus involving all member states without exception, despite the fact that certain member states have been seen to misinterpret or even reject such principles.

A system of imposing sanctions would be one of the best alternatives and would help to improve ASEAN’s credibility. This idea, in particular the suspending of rights and privileges of the ASEAN Council to respond to any serious breach by any member state of ASEAN declarations, agreements, concords and treaties as well as the norms and values adhered to ASEAN, was actually proposed earlier in 2006 by the Eminent Persons Group of the ASEAN Charter.

But, then the Charter refers to the ASEAN Summit in making decisions regarding the compliance issue, where once again, consensus would be applied.

Finally, leadership is desperately needed within ASEAN to implement an effective dispute settlement process. Will Indonesia take up the challenge?

The writer is a researcher at the Department of Politics and International Relations, CSIS, Jakarta.

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