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Understanding The Different Thinkers and the Issue of Compliance in ASEAN

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Photo: Joshua Rawson-Harris/Unsplash

Authors: Harsh Mahaseth and Shubhi Goyal*

Over the years the issue of compliance has been seen through various lenses with its role and function in international law evolving. There has been a transformation in the characterization of compliance with international law which has restructured the maturities and complexities of it. International Law is seen as legitimate due to its clarity, its validation by formal processes, it’s conceptual coherence, and conformity to normative hierarchy of the International rule system. This article draws on the theory of Managerial approach espoused by Abram Chayes and Antonia Chayes and the Legitimacy theory given by Thomas Franck to understand why the ASEAN states have some of the lowest levels of compliance with international law and the possible policy changes to rectify the same.

There are several reasons for why States obey international law: it is in their best interests, they believe in the system, to improve reputation or credibility, for recognition as an international legal person, pressure from the international community, fear of repercussions or retaliation, or to maintain peace and security.

The approach adopted by Abram Chayes and Antonia Chayes, termed as the managerial approach, relies on a cooperative approach to compliance and states that while substantive legal norms and lawyers are important, the law is rarely determinative in international affairs. They see international law as a system to manage international affairs. This legal process will allocate the competence for decision-making between several national and international actors and also restrain and organize the behavior and its interactions with the political, economic, and cultural setting. States, under this theory, obey international law not because of punitive sanctions but because of three factors- (a) compliance reduces transaction costs and increases efficiency, since the need to recalculate the costs and benefits of a decision is eliminated; (b) they are persuaded to comply by the treaty regimes themselves, since they are consent based instruments and therefore intended to serve the need of the participating states; and (c) a general norm of compliance in treaty regimes, furthers compliance. They espouse coordination building efforts such as transparency and clarity in the terms of the treaties as a way to improve compliance, rather than punishment or sanctions. Dispute resolution under this model is only a forum for communication and for expectations to be cleared.

Thomas Franck’s work emphasizes on the transformation of international law post-World War II which has accompanied the transformation of sovereignty. His work is not limited to treaty-based law, like Chayes and Chayes, but also extends to the power of customary rules. He observed that the international system has an abundance of specialized law with very little to do with the law of international organizations or the constitutional law of the global system. He acknowledges that nations obey rules when the benefits of complying exceed the costs; however, he bases this on communitarian peer pressure rather than a multitude of cost-benefit calculations regarding particular rules. His theory, popularly known as the legitimacy theory provides four factors that determine whether a State will comply with international law- coherence, adherence, determinacy and symbolic validation. Franck in his work had emphasized on a lexical priority of legitimacy over justice which should be the prime goal of an international rule system. According to Franck a moral order is manifested in the belief of the right process rather than the substantive outcomes. However, Franck does not delve more into the various modes of institutional interaction that lead to interpretation of norms, nor does he delve into the mode by which international norms are internalized into domestic legal systems.

Franck and Chayes and Chayes understand international law more as a process rather than as a system of rules. Though through different methodologies, Franck and Chayes and Chayes reach the same intuitive answer on why nations obey. They recognize transnational actors to be more likely to comply with international law when it is accepted through some legitimate internal process. Franck says that if nations perceive a rule to be fair then they will obey it, while Chayes and Chayes say that nations will voluntarily comply with norms that regularly justify their actions to treaty partners in terms of treaty norms.

According to Chayes and Chayes there is an issue with compliance due to lack of clarity of rules and capacity. ASEAN has several treaties and agreements, all of which can be found on the ASEAN website, however, most of them are non-binding agreements which were entered into just for the satisfaction of the Member States. The countries making up the ASEAN is an area of extreme diversity. The region has representation from all three of the world’s largest religions- Christianity, Buddhism and Islam. There are countries like Singapore, with a per capita income of around USD 82,000 and frequently counted as among the richest countries in the world, and those like Cambodia, with a per-capita income of USD 3,300. Due to the ASEAN Way several affairs were conducted in a loose and informal way, unclear with their nomenclature with few legally-binding arrangements and weak institutions.

Franck links compliance with the legitimacy of the rules. This theory lines with the non-compliance of Singapore, Malaysia and Brunei with the International Covenant on Civil and Political Rights as they still have the use of corporal punishment. These countries do not believe in the legitimacy of the Covenant with respect to caning and death penalty and thus did not sign or ratify the same.

Harold Koh talks about norm internalization and how a transnational legal process is required. Compliance comes about when the particular International Law is internalized within the normative structure of the state. The three phases for the same are interaction, interpretation and internalization. The lack of internalization is one of the issues that leads to the low level of compliance among ASEAN states face, their reluctance to internalize international law because of the very less importance given to the written law in such states, as compared to those in the West.

ASEAN has an issue with compliance. In the past only about 30 percent of ASEAN’s agreements were implemented. There are several reasons for non-compliance – lack of capacity, not in line with national interest, (realist and self-interested), procedural issues, ambiguity, ASEAN Way – informal, flexible and non-legalistic, low levels of legalization and institutionalization, path dependence (habituated practice), lack of information, lack of capacity, lack of faith in system, ambiguity, unrealistic and insufficient dispute settlement mechanism, and weak rule of law at national and regional levels.

While the ASEAN Charter under Chapter VIII talks about Dispute Settlement Mechanisms, and there is a 2010 Protocol to the ASEAN Charter on Dispute Settlement Mechanisms, ASEAN is yet to fully establish a functional dispute settlement mechanism. Article 23 of the ASEAN Charter mentions Alternative Dispute Resolution solutions. There are instrument-specific mechanisms which are given under Article 24(1) of the ASEAN Charter. The Treaty of Amity and Cooperation (TAC) of 1976 and the 2004 Protocol on Enhanced Dispute Settlement Mechanism exist as well which are generally used for economic agreements. Article 25 of the ASEAN Charter has a ‘catch-all’ clause for all other disputes that do not fall within the above ambit. However, the TAC is weak, and the 2004 Protocol goes first to consultation and consensus. If it is modelled on the WTO then why is it only efficient to only have 60 days to settle the dispute? According to the theory of Chayes and Chayes this would not be efficient and it is seen that the ASEAN Member States prefer to use other forums such as the International Centre for Settlement of Investment Dispute or the World Trade Organization over ASEAN Charter-sanctioned Dispute Settlement Mechanisms. All ASEAN Dispute Settlement Mechanisms are ad hoc and none are activated.

According to the Report of the Eminent Persons Group on the ASEAN Charter (EPG Report), ASEAN’s problem is not one of lack of vision, ideas, and action plans. The real problem is one of ensuring compliance and effective implementation of decisions. The solution of which is the establishment of dispute settlement mechanisms, inclusion of compliance monitoring, advisory, consultation as well as enforcement mechanisms, and entrusting the Secretary-General with the role of monitoring and reporting cases of non-compliance. The ASEAN Secretariat should collect, analyze the data and do performance reviews. This would ensure greater transparency and information sharing. Further, instead of using only consensus based and informal mechanisms to deal with conflicts, there is a need for collective effort to build a more rules-based community to accelerate regional integration and future response to events.

*Shubhi Goyal is a graduate of NALSAR University of Law, Hyderabad and is currently placed as an In-House Counsel with a private sector bank in India.

Harsh Mahaseth is an Assistant Lecturer at Jindal Global Law School, and a Research Analyst at the Center for Southeast Asian Studies, Jindal School of International Affairs, O.P. Jindal Global University. He is also the Co-Founder of UPeksha Eduservices and the Director of the UPeksha Mentorship Programme which focuses on enhancing law students' legal research, writing, editing, public speaking skills, and professional development.

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Southeast Asia

Transforming Social Protection Delivery in the Philippines through PhilSys

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Social protection helps the poor and vulnerable in a country, especially in times of crises and shocks that may threaten the well-being of families. When COVID-19 hit and quarantines began, the Philippines needed a massive expansion of social protection coverage to mitigate the impacts of the pandemic. Countries that already had good and inclusive digital infrastructure (including internet connectivity, digital identification, digital payments and integrated data ecosystems) were better equipped to quickly adapt their social protection programs to meet urgent needs. They also fared better in maintaining continuity of services when in-person interactions could be moved online.

For the Philippines, it presented a challenge, and strain was felt in the delivery of social assistance under the Bayanihan acts.

Fortunately, the country is moving to address digital infrastructure gaps, including through the development of the Philippine Identification System (PhilSys). PhilSys is one of the most complex – but also game-changing – projects undertaken in the country.

The Philippines is one of only 23 countries without a national ID system. As a result, Filipinos need to present multiple IDs (and often specific IDs that many do not have) when transacting, including with government, creating barriers to services for the most vulnerable among the population. Information across government databases is often inconsistent. These undermine the Philippines’ transition to a digital economy, society and government. The PhilSys will help address this by providing all Filipinos with a unique and verifiable digital ID (and not just a card), while also adopting innovative and practical data protection and privacy-by-design measures.

The new partnership agreement between the Philippine Statistics Authority (PSA) and the Department of Social Welfare and Development (DSWD) for DSWD’s adoption of the PhilSys is a milestone for the Philippines’ social protection and digital transformation journeys. DSWD will be the first agency to utilize the secure biometric and SMS-based identity authentication offered by the PhilSys to uniquely identify and verify its beneficiaries. Pilots with the Pantawid Pamilyang Pilipino Program (4Ps) and Assistance to Individuals in Crisis Situations (AICS) program will begin within the next few months, before PhilSys is used by all DSWD programs.

Adopting PhilSys will enable DSWD to further accelerate its digital transformation. By automating verification and business processes for its programs and services, DSWD will be able to improve the impact while reducing the costs of social protection programs. PhilSys will assist with identifying and removing ghost, duplicate and deceased beneficiaries to address leakages, fraud and corruption, and thus boost transparency and public trust. The unified beneficiary database that DSWD is developing with the help of PhilSys will contain up-to-date and consistent beneficiary information across all programs.

The World Bank is supporting these DSWD initiatives through the Beneficiary FIRST (standing for Fast, Innovative and Responsive Service Transformation) social protection project.

Importantly, these changes will translate to benefits for Filipinos.

Those who interact with the DSWD will face less paperwork, queues, hassle, costs and time. With their PhilSys ID, they will also have better access to a bank or e-money account where they can potentially receive payments directly in the future, promoting financial inclusion. Indeed, more than 5 million low-income Filipinos have already opened bank accounts during PhilSys registration. And the resources that DSWD saves can be redirected to addressing the needs of beneficiaries who live in remote areas without easy access to internet and social protection programs.

Beyond the advantages for social protection, the digital transformation PhilSys will catalyze in the public and private sectors can be fundamental to the Philippines’ pivot to reviving the economy and getting poverty eradication back on track. Success in utilizing PhilSys for social protection will have a significant demonstration effect in accelerating digital transformation by other government agencies as well as the private sector.

But digital transformation is not easy. It is not about simply digitizing things. It is about re-imagining how things can be done for the better, with technology as an enabler. Digitizing bad systems or processes just leads to bad systems or processes digitalized. Digital transformation therefore depends on and can only be as fast as process re-engineering and institutional and bureaucratic changes to overcome inertia.

Digital transformation must also be inclusive to avoid exacerbating digital divides or creating new ones.

The effort will be worth it. And the World Bank is firmly committed to scale up our support to the Philippines’ digital transformation agenda. A digital Philippines will not only be more resilient to future shocks – whether they are natural disasters or pandemics – but also be poised to take advantage of the opportunities brought by COVID-19 (shift of activities online) and those that lie ahead in the post COVID-19 world.
 first published in The Philippine Star, via World Bank

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Southeast Asia

Bringing “the people” back in: Forest Resources Conservation with Dr. Apichart Pattaratuma

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With a lifetime dedicated to forest conservation, Dr. Apichart Pattaratuma reflected back on his career and what forest management means to Thailand. In the year 1978, he received the prestigious United Nations and Ananda Mahidol Foundation Scholarship to attain higher education at the College of Forest Resources, University of Washington, Seattle, USA. After graduating in the year 1985, he returned to Thailand with a commitment to teach and research at the Department of Forest Management, Faculty of Forestry, Kasetsart University until his retirement with full professor position. The excerpts below encapsulated a conversation between Dr. Pattaratuma and Dr. Rattana Lao on forest conservation.

Beyond the classroom: An anthropological perspective

I dedicated my life to study the anthropological aspect of forest management to His Majesty King Bhumibol Aduyadej of Thailand. I studied cultural dimensions of forest management in many areas of Thailand. I began with Huay Hin Dam with Karen hill tribe (Pra-ka-ker -yor) Suphanburi Province. I tried to review the international literature on land use and combine it with in-depth interviews with the hill tribes to understand the cultural dimensions of their livelihoods. I observed how they built their houses and how their managed their forest. There are three characteristics of the Karen tribe. Firstly, they lived on small plots of lands and their houses are very small. Secondly, they conserve their forest land with water resources. Thirdly, they refrain from using pesticides. Culturally, there is a clear division of labor amongst men and women. While men will clear the lands, women will cultivate agricultural goods such as papaya, guava and banana. There is limited drugs use.

It’s liberating to do research beyond the classrooms. To observe real live, real changes. I learnt more than I set out to do and they are all interrelated to a bigger picture.

Intersectionality between culture, migration and forest management

Karen hill tribes migrate in a cluster. There are more than 3 families migrating together to the new fertile forest land. They will migrate together when land is exhausted. This is most evident in the borderland between Thailand and Myanmar. Back then they did not have official documentation but slowly they do. There has been an influx of hill tribes from Myanmar to Thailand due to political conflicts from Myanmar. From my observation, they are very conscious about forest conservation and resources management. They said: “no forest, no water”. They are compelled to protect the forest from pesticides in order to keep the water clean and their health well. They are very logical. Although they grow rice, it’s very subsistent and only for household consumption. They don’t grow rice for commercial purpose. This is the land use for Karen hill tribe.

I also studied in Kampeangpetch, Nan, Chiang Rai, Phrae and Lumphun. Each place is diverse and the situation is really different. Some local tribes are preserving of the forests, others are more detrimental. We need an in-depth study to understand the cultural dimension of land use for each tribe.

The heart of forest management

People. It’s the people. People must particulate in the forest management. Otherwise, it is very difficult. When we go into each location, we must approach people and bring them into the conversation. I have tried to do all my life. Civil servants must approach people, not other way around. People are looking up to our action. They look into our sincerity and commitment. If they see that we are committed to study about their livelihood, they will share the right information and they will help.

Indonesia is a good example of successful forest management. The state get people involved. In every kilometer, there are four actors involved in protecting the forest: soldiers, policemen, villager and forester. They help each other protecting the wildlife and forest resources.

Can legal change help the people?

Legal relaxation can help lessen the pressure between man and forest. Before the legal requirement was very strict. Any kind of forest intrusion would be caught including small hunters gatherers. I think that is too strict. That put people against the law. People should be able to go into the forest and pick up some mushroom and bamboo and some wild products to lessen their poverty and hunger.

As long as people are still hungry, it’s very hard to manage the forest. There must be a way to balance the two: people livelihood and forest management.

Capitalists invasion

Much of the legal attention is paid to small farmers use of the forests. However, the real issue is big corporations invade the forest. This is very significant. Deforestation happens mostly from large scale corporation rather than small scale farmers. There are many loopholes in the system that lead to systemic corruption and mismanagement of land use. Many wealthy houses are built on large scale timber to exemplify wealth and status. It saddens me.

Would the next generation get to see large tree in the forest?

Less likely.

What can we do to protect the forest?

There are many organizations that responsible for the forest protection such as Royal Forest Department, Department of National Parks, Wildlife and Plant Conservation and Department of Marine and Coastal Resources. But the manpower are not sufficient to cover the large area of forest in Thailand. There are not enough permanent manpower to go on the ground and protect forest resources, while the intruders to National Parks are equipped with more advanced weaponry.

To protect the forest, the state must be committed and the people must participate in the process.

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Southeast Asia

Possibilities for a Multilateral Initiative between ASEAN-Bangladesh-India-Japan in the Indo-Pacific

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In the Indo-Pacific context, there are multiple partners all aiming for economic fulfillment along with maritime security and safety. Countries ranging from the Indian Ocean to the South China Sea seem to be more worried about the freedom of navigation and overflight as Chinese aggressiveness is rampant and expansionist is a scary idea. The region from India to Bangladesh has a huge potential of interconnectedness and if connected to the Southeast Asian countries, it would also help in India’s Act East Policy and India’s neighbourhood first policy and further help out in strengthening relations to the far East as in Japan. All these countries combined can create an interconnected chain of mutual and common interests with balanced ideas of economic, military, social, political and people to people exchanges which would in turn help develop a multilateral.

Who can lead this Multilateral Initiative and Why?

Japan can be the prime crusader for this multilateral as it has excellent relations with all the parties and is the pioneer of the free and open Indo-Pacific. Japan has excellent diplomatic, economic and infrastructural relations with all the possible partners as it provides ODA loans, aid and assistance. Japan being the pioneer of Free and Open Indo-Pacific can be guiding force for this multilateral in the maritime domain which would help create a new regional grouping consisting of South Asia and Southeast Asia primarily based on maritime. Japan is the only developed country among all the other players and with its expertise, it can surely guide, help, support and take along all the countries. Japan most importantly is a non-aggressive nation and believes in mutual respect unlike China. Japan has no dept trap issue unlike China. Japan is known for quality in infrastructural development and with their expertise in science, technology and innovation can well lead these countries. Japan’s reputation of honesty, no corruption and extreme detailed paper work is commendable.

What are the benefits from this Multilateral Initiative?

This multilateral would help connect the Indian Ocean (India) to Bay of Bengal (Bangladesh) to the South China Sea (ASEAN) and the East China Sea (Japan)- would help in the creation of water interconnected network from South Asia to Southeast Asia. This could be the first regional maritime grouping covering South Asia to Southeast Asia. This maritime grouping can create a network of ports which could also become an economic hub and intersecting points of investment and infrastructural development (already Japan is investing in a big way in all these countries). India’s Northeast would get a greater economic, infrastructural and people-to-people exchange as it would connect India to Bangladesh and Myanmar. Mekong Ganga Economic Corridor already exists and could pave the way for Bangladesh and Kolkata greater port exchange which could be developed as nodal points in Bay of Bengal and would help in easy and cheaper freight. These countries can also aim for the strengthening of defence and security relations in the domain of maritime and can also aim for a logistics support agreement and a network from Indian Ocean to Bay of Bengal to South China Sea to East China Sea and would help tackle Chinese aggressiveness and China has been mapping the waters in all these waters and so, to protect one’s territorial sovereignty and integrity, defence relations must be build.

An ecosystem based on Digitalization, Science, technology and Innovation can be formed which would help create a united cyber security law and all this could ultimately lead to the 4th Industrial Revolution. South Asia and Southeast Asia would be lucrative markets and labour distribution and generation of employment can be done through the ports, logistics network, economic and trade exchanges and interactions. This multilateral would form a resilient supply chain in the region of South Asia and Southeast Asia in the domain of Indo-Pacific. Marine economy can be a major factor of this multilateral initiative as it would be a major success in the maritime domain. This multilateral can also work on vaccine diplomacy and work on future health hazards mechanisms.

Why Bangladesh must think of adopting the Indo-Pacific Strategy?

Bangladesh must adopt the Indo-Pacific strategy and create its own objects and call it the SAMODHRO NITI. Bangladesh has the capability of being an excellent maritime power and it is a major leader in the Bay of Bengal and to be an effective part of this multilateral. The Bay of Bengal Industrial Growth Belt (BIG-B) would be a key binder. Bangladesh must realise that China by building dams on the Brahmaputra River would actually create issues for Bangladesh’s fishery catchment areas as it would get inundated with salt water and to stop that Bangladesh must work to strengthen its position to tackle China. Also, China could also create water issues for Bangladesh and Bangladesh must look at ways to safe guard its water resources. Thereby, Bangladesh must work towards countries who face similar issues with China. The Indo-Pacific Economic Corridor is an excellent example of cooperation but this Multilateral if formed can be a stronger initiative and Bangladesh benefits from it as being a hub of textile, leather and pharmaceuticals and this Multilateral has all the efficiency of becoming an economic hub which would benefit Bangladesh too. If Bangladesh adopts an Indo-Pacific Policy, then its market in Japan, the US and Europe would become stronger due to shared interests and can also sign a Free Trade Agreement with EU like Vietnam did.

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