法学研究 94 巻 1 号（2021：1）

The Dispute Settlement Mechanism of
ASEAN:
ASEANʼs Efforts to be a Rules-based Organization

PARK, Bokhee
Introduction
ASEANʼs efforts for the constitutionalization of “ASEAN law”
Dispute settlement mechanism of ASEAN
Dispute settlement practiceOutlook on “ASEAN will be a more rules-based organization?”
Conclusion

Introduction
Since its establishment, the Association of Southeast Asia Nations

1）(ASEAN) has evolved as a key player of international relations and it has been
often referred to as the second most successful regional organization after theEuropean Union (EU). However, there are quite significant differences between
these two prominent regional organizations. The EU is a supranationalorganization, in which the member states have voluntarily agreed to give up
their sovereignty in part. By contrast, ASEAN is an inter-governmentalorganization. ASEAN Member States (AMS) have not established themechanism like the European Commission, which is able to exercise the pooled

1） When ASEAN was founded on 8 August 1967, it was to set up for fostering mutual
trust among the original five countries: Indonesia, Malaysia, Philippine, Singapore, Thailand. Soon after the independence from United Kingdom in 1984, Brunei became the sixth
member state of ASEAN. Entering 1990s, Vietnam (1995), Laos and Myanmar (1997),
and Cambodia (1999) joined ASEAN consecutively. At present, these ten states are making up ASEAN. According to Article 31 of the ASEAN Charter, the Chairmanship of
ASEAN shall rotate annually, based on the alphabetical order of the English names ofMember States. As of 2020, Vietnam is the chair of ASEAN.
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sovereignty on behalf of the member states.
Focusing on the dispute settlement mechanism, while the EU has aEuropean Court of Justice, a court is absent within ASEAN. It is not likely toestablish an independent judiciary system, which supersedes each memberʼssovereignty in the near future.
The decision-making process of ASEAN, which is known as ʻASEAN Wayʼ- a somewhat loosen way to arrive at implicit agreements through consultationand consensus. The ASEAN way has presented the image of ASEAN to theinternational society as it is a group of sovereign nations operating on the basisof ad hoc understanding and informal procedures rather than within the2）framework of binding agreements arrived at through formal processes.

It was rather pronounced in the early years of the organization. The
Bangkok Declaration of August 1967, a fundamental document for thefoundation of ASEAN, was a mere declaration of two pages setting forth theends and means of Southeast Asian cooperation. The foreign ministers, not the3）heads of states, of the five founding states signed it. It required no ratification.

It took almost ten years to conclude the first legally binding treaty. The
heads of states of ASEAN adopted the Declaration of ASEAN Concord (orBali Concord as renowned) in 1976 and concluded the first legally binding treaty -the Treaty of Amity and Cooperation (TAC). The Bali Concord declared that
“Member states, in the spirit of ASEAN solidarity, shall rely exclusively on
peaceful processes in the settlement of intra-regional differences.” The member
states renounced the use of force and committed themselves to the settlement ofdifferences or disputes by peaceful means in accordance with Article 2 of the
TAC.
Entering 1980s, ASEAN concluded relatively minor agreements of apractical nature. The Agreement for the Promotion and Protection of
Investment and the agreement on the standstill and rollback of non-tariff

2） Address by Rodolfo C. Severino, Secretary-General of ASEAN, “The ASEAN Way andthe Rule of Law” (3 September 2001) <http://asean.org/?static_post=the-asean-way-andthe-rule-of-law>.
3） ibid.
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barriers were concluded at the third ASEAN Summit in 1987. Besides, there
were the 1977 ASEAN currency swap arrangement, the 1979 agreement on thefood security reserve, the 1985 agreement on the mutual recognition of driversʼ
licenses, and the 1986 establishment of the petroleum security reserve.
At the 1992 ASEAN Summit, the Agreement of the Common Effective
Preferential Tariff for the ASEAN Free Trade Area (AFTA) was concluded. Thisis the significant launching of ASEANʼs economic integration. Under thisagreement, the first six members of ASEAN (Brunei, Indonesia, Malaysia,
Philippine, Singapore, Thailand) are legally committed to reducing tariffs on theirtrade with one another to a range of zero to five percent by the beginning of
2002. The tariff reductions are to be carried out through national legal
enactments by each party to the agreement in accordance with an agreed
4）schedule.

On the security realm, ASEAN leaders signed the Southeast Asia Nuclear
Weapons-Free Zone Treaty (SEANWFZ) in 1995, which legally commits theirstates not to develop, manufacture or otherwise acquire, possess or have control
over nuclear weapons. AMS are obligated not to allow others to do so in theirrespective territories. They also undertook certain obligations pertaining to thenon-proliferation of nuclear weapons and the peaceful uses of atomic energy.

ASEANʼs efforts for the constitutionalization of “ASEAN law”
Entering the 2000s, the AMS had been endeavoring the constitutionalization of “ASEAN law”. The leaders or ministers of the AMS had in common
the aspiration of transforming the ASEAN into a more systemized and rulesbased organization. They regarded the ASEAN Charter as the key tool ofdispute settlement mechanism among the member states.
The 9th ASEAN Summit (October 2003) adopted the Declaration of
ASEAN Concord II (also known as Bali Concord II) , which called for the
improvement of the existing dispute settlement mechanism to ensure expeditious
and legally binding resolution of any economic disputes. The next year, at the4） ibid.
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10th ASEAN Summit (November 2004), ASEAN leaders adopted the ASEAN
Security Community Plan of Action. The Annex of this Plan of Action
commits to work towards the development of ASEAN Charter. The Charter
will reaffirm ASEANʼs goals and principles in inter-states relations, in particular,
the collective responsibilities of all AMS in ensuring non-aggression and respectfor each otherʼs sovereignty and territorial integrity: the promotion andprotection of human rights: the establishment of the effective and efficientinstitutional framework for ASEAN.
In 2005, the ASEAN leaders issued the Declaration on the Establishmentof the ASEAN Charter at the 11th ASEAN Summit. The declared aim of theCharter was to create the legal and institutional framework for ASEAN. To thisend, an Eminent Persons Group (EPG) was set up and tasked with re-imaging
ASEAN as an institution. The EPG was specifically asked to look into effective
5）

conflict resolution mechanisms.

The EPG Report was submitted to the leaders at the 12th ASEAN Summit
in Cebu, the Philippines (January 2007). The Cebu Declaration on the Blueprint
for the ASEAN Charter was issued, endorsing the EPG Report and setting up a
High Level Task Force (HLTF) for the drafting of the ASEAN Charter. The
Charter was presented by HLTF and was adopted at the 13th ASEAN Summit
in Singapore (November 2007). The next year the Charter came into force.
Indeed, after the ASEAN Charterʼs entry into force on 15 December 2008,
ASEAN could be regarded as a rules-based organization. Diane A. Desierto
argues that ASEAN cooperation in the pre-Charter era featured more legislative(law-making) and executive (law-implementing) functions, rather than formal
6）

judicial oversight or interpretation.

However, with the new Charter, theASEAN laid the foundation to transit from a loose intergovernmentalorganization to a normative and institutional one. The fourteen Principles of theASEAN Charter not only include pre-Charter norms from the formative5） Walter Woon SC, “Dispute Settlement the ASEAN Way”, Center for International Law,
Faculty of Law, National University of Singapore, p7 (2012).
6） Diane A. Desiero, ASEANʼs Constitutionalization of International Law: Challenges to
Evolution under the New ASEAN Charter, SSRM, p16 (2010).
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instruments underlying ASEAN as an intergovernmental cooperation of states,
but also formally set as key ASEAN Principles contemporary multilateral
norms on free trade, democratic government, and the promotion and protection
7）of human rights.

Dispute settlement mechanism of ASEAN
The ASEAN Charter was designed to create the legal framework for
ASEAN as a rules-based organization and includes the framework for thesettlement of disputes ― Chapter VIII of the Charter. The chapter VIII
enunciates three categories of disputes and the way of settling each category.
First, disputes which do not concern the interpretation or application of
any ASEAN instrument are to be resolved in accordance with Treaty of Amity
8）

and Cooperation (TAC).

Secondly, economic disputes will be settled by recourse to the ASEAN
9）

Protocol on Enhanced Dispute Settlement Mechanism (the Vientiane Protocol).

Thirdly, as for other sorts of disputes, the Protocol to the ASEAN Charteron Dispute Settlement Mechanisms (the DSM Protocol) is applied.
(1) The Treaty of Amity and Cooperation(TAC)
As the first legally binding treaty, the TAC includes some articles on the
Pacific Settlement of Disputes in chapter IV.
Article 10 of the TAC states that “Each High Contracting Party shall not inany manner or form participate in any activity which shall constitute a threat tothe political and economic stability, sovereignty, or territorial integrity of
another High Contracting Party.” Article 13 of the TAC also states that “theHigh Contracting Parties shall refrain from the threat or use of force and shallsettle such disputes among themselves through friendly negotiations”. The
dispute settlement mechanism under the TAC consists of a High Council

7） ibid, p2.
8） ASEAN Charter, article 24(2).
9） ASEAN Charter, article 24(3).
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comprising one representative at ministerial level from each ASEAN member
states together with representatives of non-ASEAN member states which are
directly involved in the dispute.

10）

If no solution is reached through direct

negotiations, the High Council may recommend appropriate means of11）settlement such as good offices, mediation, inquiry or reconciliation.

As above-mentioned, the TAC is the first legally binding treaty in the realmof addressing political disputes among ASEAN states and has been regarded as
the basic guideline for dispute settlement resolution from any potential or
unexpected fallout.
However, there are three drawbacks in the mechanism of the TAC. Firstly,
article 14 and article 15 do not apply unless the parties to the dispute agree. The
non-mandatory nature of the procedure means that it would be used only ifthere is a significant change in the political mindset of the High Contracting
12）

Parties in favor of objective dispute settlement.

Secondly, the TAC procedure allows non-ASEAN member states to get
involved in the dispute settlement process. Non-ASEAN member states may be
13）

Regional disputes

represented as observers at meetings of the High Council.

need to be resolved regionally, but the AMS could not reach the consensus on
excluding non-member states from the dispute settlement process.
Thirdly, there is no explicit provision for arbitration or adjudication by acourt or tribunal. Good offices, mediation, inquiry and conciliation essentiallyare non-legal modes of dispute settlement. Any dispute settlement under the14）

TAC will have to be consensual rather than confrontational.

In consideration of these weaknesses of the TAC mechanism, the TAC islikely to be just used as an inspirational document, committing the High
15）

Contracting Parties to a peaceful settlement of their disputes.

The dispute10） Treaty of Amity and Cooperation, article 14.
11） Treaty of Amity and Cooperation, article 15.
12） Walter Woon SC, “Dispute Settlement the ASEAN Way”, Center for InternationalLaw, Faculty of Law, National University of Singapore, p12 (2012).
13） ibid, p13.
14） ibid, p13.
15） ibid, p14.
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between Malaysia and Indonesia over the islands of Sipada and Ligitan, forexample, was referred to the ICJ instead of the TAC mechanism. It is interesting
to see the Special Agreement for submission of the case to the ICJ stated thatthe parties desired that this dispute should be settled in the spirit of friendly
relations existing between the Parties as enunciated in the TAC.
(2) Economic Disputes
The 1992 Framework Agreement of Enhancing ASEAN Economic
Cooperation provided for the establishment of a dispute settlement mechanism.
For the creation of an ASEAN Economic Community, some means of settling
disagreements among the member states over interpretation and implementationof various economic agreements were essential and indispensable. At the 11th
ASEAN Summit in 2005, the economic ministers signed the ASEAN Protocol
on Enhanced Dispute Settlement Mechanism (the Vientiane Protocol).
Article 4 of the Protocol provides for good offices, conciliation or
mediation. It is specifically provided that the Secretary-General of ASEAN may
offer good offices, conciliation or mediation with a view to assisting insettlement of a dispute.
The core of the dispute settlement mechanism is the mandatory procedure
prescribed by the Vientiane Protocol.

16）

If there is any dispute under the covered agreements, the aggrieved party
will request consultations. The other party must reply within 10 days and enter
17）

into consultations within 30 days.

If it fails to do so or if consultations do no

result in a satisfactory resolution within 60 days, the matter may go to the Senior
Economic Officials Meeting (SEOM). A panel will be established at the meetingof the SEOM. The function of the panel is to make an objective assessment of18）

the dispute, and its findings and recommendations in relations to the case.

The panel is obliged to submit its report and recommendations within 60 days.
SEOM must adopt the report within 30 days unless there is a consensus not to16） ibid, p15.
17） Protocol, article 3(4).
18） Protocol, article 7.
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do so or a party notifies its decision to appeal.
An Appellate Body is established by the ASEAN Economic Ministers
Meeting. An appeal must be concluded within 60 days. The Appellate Bodyʼsreport shall be adopted by SEOM within 30 days. The disputing parties are
obliged to accept the report unconditionally and comply with 60 days of thereport of the Appellate Body.
The Vientiane Protocol has similarities to the dispute settlement procedureof the WTO, especially with its strict timelines and provisions to ensure that thepanel and appellate reports are adopted. However, even though the WTO
Dispute Settlement Mechanism has been invoked by member states (Singapore
vs. Malaysia, Singapore vs. the Philippines and the Philippines vs. Thailand), theASEAN Mechanism has never been invoked, and no assessment of its
effectiveness can be made. If ASEAN member states are eager to create an
economic community, they need to take the Vientiane Protocol seriously whendisagreements arise.
(3) Non-economic Disputes
ASEAN foreign ministers signed the Protocol to the ASEAN Charter on
Dispute Settlement Mechanisms (DSM Protocol) in 2010. The Protocol covers
other disputes that do not fall within the scope of the TAC or the VientianeProtocol.
Article 5 of the Protocol says that a complaining party may request a
consultation with a responding party and the latter shall enter into consultation
within 60 days. The consultation shall be completed within 90 days, or any otherperiod mutually agreed by the Parties to the dispute from the date of the requestof consultation.
According to article 6, the Parties to the dispute may at any time agree togood offices, mediation or conciliation, and may request the Chairperson of
ASEAN or the Secretary-General of ASEAN to provide good offices, mediationor conciliation.
In addition, the complaining party may request for the establishment of anarbitral tribunal to resolve the dispute if the consultation does not result in
19）

settlement of the dispute.
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request for the establishment of an arbitral tribunal or fails to respond within
the maximum of 45 days from the date of the notice from the complaining
party, the complaining party may refer the dispute to the ASEAN Coordinating
20）

Council (ACC) ,which comprises the foreign ministers of the ASEAN

members.
The ACC can direct the parties to settle the dispute by good offices,mediation, conciliation or arbitration.

21）

It has a maximum of 75 days to do

22）

this.

If the ACC cannot come to a decision, the dispute will be referred to the23）

Summit as an unresolved one.

Any member state, affected by non-compliance with an arbitral award or
the result of any other dispute settlement mechanism, may refer the matter to
24）

the ASEAN Summit for a discussion, through a notification to the ACC.

The

ACC is to facilitate consultations among the parties to settle the matter without
having to involve the Summit. If the problem cannot be resolved, the matter will
be referred to the Summit within 90 days, or any other timeframe agreed by the25）

Member States that are Parties to the dispute.

The ASEAN Summit is the

final tribunal of appeal from dispute settlement mechanisms. It is imperative toensure that the decision of the Summit is firmly rooted in law in order to realize
the desire of ASEAN Leaders in transforming ASEAN into a rules-basedorganization.
With Singaporeʼs deposit of its instrument of ratification to ASEAN
26）

Secretary, DSM Protocol became in force on 28 July 2017.

The DSM has

19） Protocol to the ASEAN Charter on Dispute Settlement Mechanisms in 2010 Article
8(1).
20） Protocol to the ASEAN Charter on Dispute Settlement Mechanisms in 2010 Article
8(4).
21） Protocol to the ASEAN Charter on Dispute Settlement Mechanisms in 2010 Article
9(1).
22） Protocol to the ASEAN Charter on Dispute Settlement Mechanisms in 2010 Article
9(3).
23） Protocol to the ASEAN Charter on Dispute Settlement Mechanisms in 2010 Article
9(4).
24） Rule1(b) of the 2012 Rules for Reference of Non-Compliance to the ASEAN Summit.
25） Rule5 of the 2012 Rules for Reference of Non-Compliance to the ASEAN Summit.
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never been invoked to date, but it is very important for ASEAN states to makeuse of their own system whether the DSM Protocol is abided by ASEAN states
or not will determine how ASEAN will grow as a rules-based organization in
the future.

Dispute settlement practice
Until now, there has not been formal resort to the types of modalities
written in the TAC or the Vientiane Protocol. The High Council foreseen within
the TAC, as well as the dispute settlement mechanism in the ASEAN Charter,
has never been invoked.
Nevertheless, the conflict between Cambodia and Thailand over the areasurrounding the Preah Vihear Temple in 2011 could be worth being regarded as
the unprecedented effort of utilizing ASEAN mechanism.
The conflict of the Temple of Preah Vihear is a classical boundary dispute
between Cambodia and Thailand, which was brought to the ICJ by Cambodia
in 1959 for the first time. The final decision of the ICJ on 15 June 1962 statedthat the Preah Vihear Temple was located on territory under the sovereignty of
Cambodia and, therefore, Thailand was under obligation to withdraw any
27）

military or police forces or other guards or keepers, stationed at the Temple.

The dispute between two states flared up again when Cambodia applied theruins of Preah Vihear to be recognized as a UNESCO World Heritage site in2008. On 4 February 2011, violent conflict occurred between Cambodia andThailand in the vicinity of Preah Vihear, and it led to the loss of lives on bothsides and the displacement of local populations in the affected border areas.
Facing this conflict, Cambodia has sought to multilateralize andinternationalize this issue and asked for convening the relevant meeting of theUnited Nations Security Council. There were venues for mediating this conflict
28）

other than the UN, among them regional countries and ASEAN itself.

26） http://agreement.asean.org/search/index/3.html?q=instrument%20of%20ratification
27） Sven Mibling, “A Legal View of the Case of the Temple of Preah Vihear” p58, World
Heritage Angkor and Beyond, Gottingen University Press (2011).
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Indonesia, as the chair of ASEAN in 2011, has sent its foreign minister Dr.
Marty Natalegawa to Cambodia and Thailand on 7 and 8 February respectively.
The new ASEAN Charter allows the parties to a dispute ʻto request the
Chairman of ASEAN or the Secretary-General of ASEAN to provide good
office, conciliation or mediation.ʼ
Dr. Marty Natalegawa and the foreign ministers of Cambodia andThailand were invited to the 14 February UNSC meeting. At the meeting, theCouncil President, Brazil, issued a statement calling on ʻthe two sides to display
maximum restraint and avoid any action that may aggravate the situationʼ andʻto establish a permanent ceasefire and resolve the situation peacefully andthrough effective dialogueʼ. It went on: ʻThe Council members expressed support
for ASEANʼs active efforts in this matter and encouraged the parties to continue
to cooperate with the organization in this regard. They welcomed the Meeting29）of ASEAN foreign ministers on 22 February.ʼ

The 22 February ASEAN foreign ministersʼ meeting was hosted andchaired by Indonesia. It resulted in sophisticated compromises among Thailandʼs call for bilateral negotiations, third-party intervention, and ASEANʼs role.
While the statement released at the end of the meeting underscored bilateraltalks, it also referred to Indonesia, which the ministers called on to sendceasefire observers on both sides of the disputed territory in the capacity of
ASEANʼs chair.
This is the first time that the UNSC has called upon ASEAN to ensure aneffective dialogue in search of a lasting solution to the border dispute between
two Member States. The late Secretary-General of ASEAN, Dr. Surin Pitsuwan
once reiterated, “UNSCʼs open and official support for conciliation efforts to the
ASEAN Chair is a sign that the UN has faith in ASEAN to help its Member
30）

States find amicable regional solutions to bilateral problems such as this.”28） K. Kesavapany, ASEAN and the Cambodia-Thailand Conflict, East Asia Forum, ISEAS (March 2011).
29） ibid.
30） ASEAN Secretariat homepage, “Historic Firsts: ASEAN Efforts on Cambodian-Thai
Conflict Endorsed by UNSC” (February 2011) <http://asea.org/historic-firsts-asean-efforts-on-cambodia-thai-conflict-endorsed-by-unsc>.
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Despite these efforts, peace at the affected border area was not permanently
secured. Hostilities resumed on 22 to 23 April 2011, only weeks before theASEAN Summit in May. With the imminent regional insecurity, the ASEAN
leaders adopted the Chairmanʼs Statement titled “Current Situation in the
Cambodia-Thailand Border” in the occasion of the 18th ASEAN Summit in
Jakarta on 7 to 8 May.

31）

The statement says that “we appreciate that Cambodia

and Thailand have agreed on the text of the Terms of Reference on theIndonesian Observer Team in the affected areas following the incidents in
February 2011 and encourage the attainment of an environment conducive totheir assignment. We also expressed our appreciation and support for thecontinuing effort of Indonesia, current Chair of ASEAN, to facilitate theprocess through its appropriate engagement which would help advance ourcollective efforts to attain the ASEAN Community.”
Additional significant international recognition of the role of ASEAN in
maintaining the peace between Cambodia and Thailand came from the ICJ
through its provisional measures announced on 18 July 2011. The ICJ was
unequivocal in calling on the two sides to continue to cooperate within ASEAN
and for the ASEAN observer team to monitor the provisional demilitarized
32）

zone.

The TAC was not officially invoked in addressing the outbreak of borderincidents between Cambodia and Thailand in 2011, but its norms and principles
have been of real relevance. The principles for the peaceful settlement ofdisputes embodied within the TAC were reinforced in a succession of seminal
ASEAN treaties and documents, including the ASEAN Charter (Article 2
Principles). The ASEAN Political-Security Community Blueprint 2025 has given

further weight to such a commitment, including through its requirement to31） ASEAN Secretariat homepage, “Chairʼs Statement of the 18th ASEAN Summit, Jakarta, 7 to 8 May 2011: ASEAN Community in a Global Community of Nations” <http://
asea.org>.
32） ICJ, “Reports of Judgments, Advisory Opinions and Orders. Request for Interpretationof the Judgment of 15 June 1962 in the case concerning the Temple of Preah Viear. Request for the Indication of Provisional Measures. Order of 18 July, 2011” <http://www.icjcij.org>.
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strengthen respect for and recognition of the TAC and to utilize the Protocol to
the ASEAN Charter on Dispute Settlement Mechanisms and its relevant
33）

rules.

Outlook on “ASEAN will be a more rules-based organization?”
As above-mentioned, the dispute settlement mechanism of ASEAN itself
has not played a direct role in the resolution of bilateral disputes or conflicts asof 2020. Most of all AMS are extremely reticent to be the first to openly flout
34）

the commitment to avail of ASEAN instruments,

but its relevance cannot be

underestimated. The commitment to the non-use of force enunciated within the
TAC has had a critical restraining effect on the behavior of AMS involved in thedisputes.
Despite the current situation, it is expected ASEAN to be transformed into
more rules-based organization in the future not only by the geopolitical or intrastates agenda but also by its own voluntary will.
There are some issues or agenda faced by AMS, which are potentiallythreatening the regional peace and security: for example, the maritime claims in
the South China Sea, transboundary haze pollution, territorial disputes among
AMS, and so on.
On the issue of the South China Sea, four ASEAN member states (Brunei,
Philippines, Malaysia, and Vietnam) are the claimants, and all AMS and China areparticipating the substantive negotiations towards the early conclusion of aneffective and substantive Code of Conduct (COC) in the South China Sea. With
the deteriorating situation of the US-China conflict, this issue could betriggering complex frictions which possibly entangle the related ASEAN states
into a New Cold War in the regional context.
Because ASEAN countries have to continuously rely on both the US and33） ASEAN Secretariat homepage, “ASEAN Political-Security Community Blueprint2025” <http://asea.org>.
34） Marty Natalegawa, “Does ASEAN Matter?”, p28, ISEAS-Yusof Ishak Institute in2018.
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China for trade and investment, they tend to have a balanced approach indealing with the rivalry between the two major powers. While ASEAN claimant
states have continuously criticized Chinaʼs aggressive behaviors in the South
China Sea, ASEAN as a whole is reluctant to castigate China by name in theirofficial statements or communiques, recently as observed at the 36th ASEAN
Summit in June 2020.
ASEAN seems likely to find out the peaceful resolutions from its own
established dispute settlement mechanism, not to mention the participation ofnegotiation of COC. In the case of outbreak of unplanned encounters likefishing boat collision, ASEAN could invoke the TAC mechanism because
China, along with India, was accessed to the TAC in 2003 as the first nonASEAN state.
On the contrary to the South China Sea case, transboundary haze pollution
is a mainly regional environmental issue, especially among the three specificnations, namely Indonesia, Malaysia and Singapore. While the ASEAN
Agreement on Transboundary Haze Pollution (AATHP) was concluded in 2002,
the establishment and operationalization of the ASEAN Coordinating Centre
for Transboundary Haze Pollution Control has not been implemented by the
conflict between Indonesia and Singapore.
Besides, there are still some territorial disputes among AMS. The
Philippinesʼ Sabah Claim against Malaysia, the Ligitan and Sipidan dispute(Malaysia vs. Indonesia), the Pedra Branca dispute (Malaysia vs. Singapore) are theexamples. These unresolved territorial disputes are not comparatively serious,and are stably managed by related states. However, nationalistic domestic fervor
and dynamics may make territorial disputes complex. Considering thesensitiveness of territorial sovereignty, the preemptive preparedness for future
conflicts or unexpected disputes in a regional way cannot be overemphasized.
Above all, ASEAN itself has been striving for being a systemized and rulesbased organization since the adoption of the ASEAN Charter in 2007. The
ASEAN Political-Security Community Blueprint 2025 includes the key elementsof the rules-based, people-oriented, people-centered community. In particular, it
states that “ASEAN resolves differences and disputes by peaceful means, inaccordance with the ASEAN Charter and principles of international law,283(50)

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including refraining from the threat or use of force as well as adopting peaceful35）

dispute settlement mechanisms”.

ASEAN is also persuading as many as non-ASEAN member states to be
the contracting party of the TAC. Starting from China in 2003 to Republic of
Peru in 2019, twenty-seven countries already be accessed to the TAC. Moreover,
ASEAN leaders continuously reaffirm the importance and enduring value of
the TAC as a vital instrument in the promotion of an ASEAN-centered regionalarchitecture, and a foundation for the maintenance of regional peace andstability. ASEAN leaders welcomed the adoption of the ASEAN Foreign
Ministersʼ Statement on the Occasion of the 40th Anniversary of the TAC by
the 49th ASEAN Ministersʼ Meeting in Vientiane in July 2016 which, among
others, reiterates their firm commitment to uphold the purposes and principlesof the TAC and explores a legally binding instrument building upon the TAC
for the wider region.

36）

Facing the increasing rivalry between the US and China, ASEAN is trying
to balance its position and not to be swayed by the major powers. As an act of
diplomatic and political assertion by ASEAN, the Leaders adopted the ASEAN
Outlook on the Indo-Pacific at the 34th ASEAN Summit in 2019 which will
help guide ASEANʼs engagement and cooperation in the wider Indo-Pacificregion. They reaffirmed ASEAN centrality, inclusiveness, complementarities, arules-based order anchored upon international law, and commitment toadvancing economic engagement in the region as the main principles of the37）

ASEAN Outlook on the Indo-Pacific.

The Leaders also encourages external partners to work with ASEAN inpromoting the principles as contained in the ASEAN Outlook on the IndoPacific and to undertake cooperation with ASEAN on the four key areas ofcollaboration, namely maritime cooperation, connectivity, sustainable
development and economic cooperation, in order to realize practical projects.

35） ASEAN Political Security Community Blueprint 2025, p22.
36） Chairmanʼs Statement of the 28th and 29th ASEAN Summits Vientiane, 6 to 7 September 2016.
37） Chairmanʼs Statement of the 34th ASEAN Summit, Bangkok 2019.
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The Outlook is of tremendous importance as it reaffirms ASEANʼs outward38）

looking perspective beyond Southeast Asia.

With a population exceeding 642 million and an area of more than 1.7
million square kilometers, ASEAN represents a market with immense potential,
a dynamic economy and a bright spot in the global economy.

39）

ASEAN hasbeen vigorous becoming a major economic force in Asia and a driver of global
growth. ASEAN is expected to be the fourth largest market after the EU, the US
and China by 2030 if it keeps at current growth rates.

40）

With its increasing

visibility in international relations and potential capacities as a regionalorganization, ASEAN will be likely to express its centrality and to exert its
diplomatic tactics with other countries.
In the meantime, ASEAN high-level officials have been pressured to takethe lead on their neighborʼs or regional issues. One of the hot issues faced by
ASEAN is the treatment of the Rohingya in Rakhine State, which could be thelitmus test for whether ASEAN can demonstrate its integrated capacity of theresolution of regional affairs.
The Organization of Islamic Cooperation(OIC) and the UN Council on
Human Rights criticized Myanmar to violate the provisions of the Genocide
Convention and requested a safe return to Myanmar of the victims of theRohingya. In particular, the Gambia, on behalf of the OIC, filed a case at the
ICJ and called for provisional measures on 11 November 2019. Because ASEAN
has been grappling with the Rohingya case, it should have offered constructive
and positive support to Myanmar. However, ASEAN could not ensure theinternational society, especially the UN, that it has the will and capacity toaddress the crisis.
38） Marty Natalegawa, “Reinforcing ASEANʼs Core Whilst Going Global”, ASEAN Focus Issue4/2019, p17, ASEAN Studies Center of ISEAS-Yusof Ishak Institute (20 August2019).
39） Deputy Prime Minister and Minister of Foreign Affairs of Vietnam Pham Binh Minh,“ASEAN Chairmanship 2020 for a cohesive and responsive ASEAN”, Vietnam News on
23 January 2020.
40） Investing in ASEAN 2013-2014 <http://www.usasean.org/system/files/downloads/investmentinASEAN2013-2014>.
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Facing the pressure from the OIC and the UN, Myanmar tends to dependon the support from its ASEAN colleagues. In the case of unexpected clashes orconflicts, Myanmar may provoke the TAC mechanism. For other ASEAN
member states, it is imperative to build the appropriate “comfort level” among
the Myanmar authorities in regard to the neighboring countriesʼ concern andengagement on the issue.

Conclusion
ASEAN was established as a regional organization for enhancing mutual
trust at first. However, as it went through the more than fifty yearsʼ history,
ASEAN has transformed itself into a more systemized organization, and it isrequested to play more significant roles not only in the regional agenda but also
in international issues. ASEAN leaders of the all sectors encompassing politicalsecurity and socio-economic affairs seem to envision affirmative ASEAN in
common as indicated in respective statements, communiques, blueprints, plansof action, etc. How to manage intra-ASEAN issues that may have global
repercussions will be the litmus test for the future of ASEAN.
If ASEAN is rooted for becoming a rules-based organization, it isprerequisite to set up as independent legal body. This body needs to be entitledto advise the leaders on the basis of the rule of law, not on the basis of thepolitical recommendations. Besides, because all ASEAN states have depositedtheir instrument of ratification to ASEAN Secretariat, the Dispute Settlement
Mechanisms of the ASEAN Charter is an appropriate tool for addressing every
kind of disputes and conflicts from small trade friction to integral national
interests among ASEAN countries.
In general, states are often reluctant to bring their internal or bilateralissues to either multilateral or international arenas. With the declaration of thestart of the ASEAN Community in 2015, AMS are on-demand to feel solidarity
or commonality as family. The concerns of the ASEAN family on mattersrelating to one of its own should not be reviewed as interference or an
unfriendly act, but rather one stemming from genuine goodwill as neighbors
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belonging to a common community.

If ASEAN is to truly make irreversible(53)280

The Dispute Settlement Mechanism of ASEAN

the transformation of the trust deficit to strategic trust, the continued reticence
for the use on the ASEAN dispute settlement mechanism needs to be changed.
In other words, AMS must have trust in, and entrust, the various mechanismsthat they themselves have created.
Moreover, ASEAN has to enhance a sense of common ownership andparticipation and will have to keep raising awareness of ASEAN among its
peoples. All ASEAN states are to make collaborative efforts of thedissemination of information about ASEAN and practical achievements
through ASEAN by making use of their own newspapers, TV programmes,
social media and so on.
ASEAN also needs to strategically nurture third-party non-state entities inaddressing their own conflicts or disputes. AMS have to consider maintaining aroster of conflict-resolution experts to whom they could turn to facilitate theprevention, management and resolution of disputes. Before a dispute or conflictis exacerbating, related countries shall make consultations with their regional
experts on how to reach a peaceful resolution of the disputes.
It is critical that the ASEAN Secretariat be provided with the facilities,
resources and systems commensurate with the increased expectation placed
upon it. Despite the regular expression of support for the work of the ASEAN
Secretariat, the reality is that it has been under-resourced. AMS are required toensure vigorous follow-up of agreements to strengthen the capacities of theASEAN Secretariat.
Because the ASEAN Charter emphasizes

42）

the roles of the Secretary-

General of ASEAN in the dispute settlement process among AMS, it is timethat the ASEAN Secretariat should be equipped with qualified staffs ofinternational laws and regulations. Most of all, ASEAN leaders have realized
the necessity of more systemized and professional Secretariat like the UN
Secretariat and have called upon the strengthening the ASEAN Secretariat on
behalf of ASEAN itself. In order to be seen as a “neutral breaker” in the41） Marty Natalegawa, “Does ASEAN Matter?”, pp55-56, ISEAS-Yusof Ishak Institute in
2018.
42） Article 23 of the ASEAN Charter.
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company of Great Powers in East Asia, ASEAN would have to transform itself
by revamping its Secretariat into a powerful and knowledgeable body and by
43）

empowering a high profile Secretary-General for ASEAN.

With the increasing economic exchanges and cooperation among ASEAN
countries, the possibility of trade friction and economic feud seems to beconsiderably high. Making use of ASEAN dispute settlement mechanism by
AMS from the trade issues is a good starting point for making ASEAN own
system meaningful and materialized because economy-related issues are
relatively less affecting the basic national pride and interests in comparison withterritorial sovereignty.
Dr. Marty Natalegawa, the former foreign minister of Indonesia, argues“the most significant change that has taken place since the establishment of
ASEAN, is a critical paradigm shift; an opening for ASEAN to concern itself
with issues that would have been considered to be the exclusive preserve of its
44）

sovereign member states”.

With the adoption of ASEAN Community Vision

2025 in 2015, ASEAN leaders declared its vision of becoming a people-oriented,
people-centered ASEAN. In order to transit from a state-centric to a more
people-centric ASEAN, member states must be willing to put them into effectand to empower the capacities they have established.

45）

ASEAN are to berecommended as a “constructive engagement” player. It is essential that ASEAN
constantly refines such an approach.
By contrast to the reality of ASEAN, the ASEAN Charter may be
excessively ambitious. However, adherence to the rule of law as an aspirational
goal is quite important for the future development of ASEAN. It is closely
connected with and will contribute to the transformation of ASEAN into apeople-oriented, people-centered ASEAN.

43） Joshua Kurlantzick (2012), “ASEANʼs Future and Asian Integration”, Council on Foreign Relations.
44） Marty Natalegawa, Does ASEAN Matter?, p212 (ISEAS- Yusof Ishak Institute 2018).
45） Ibid, p217.
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