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Southeast Asia

The Use of The ASEAN Way In Resolving Disputes

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Authors: Harsh Mahaseth and Aadya Narain* 

The Association of Southeast Asian Nations (ASEAN) has a unique method of diplomacy known as the ASEAN Way, based on four principles: non-interference, quiet diplomacy, non-use of force, and decision making through consensus.=The principle of non-interference, considered the most important, necessitates that member countries do not interfere with internal issues. Introduced by Director Termsak, this policy was intended to emphasise that ASEAN is based on voluntary membership, it’s a non-political organisation, and every country is required to preserve its identity and national government. This is concurrent with quiet diplomacy, intended for bilateral tensions. It ensures that members avoid embarrassment by allowing ASEAN leaders to communicate without bringing the discussions into the public view. Many scholars argue that the regional grouping successfully tackled various intra-regional impediments to Southeast Asia’s political stability and regional security. The ASEAN Way is considered reflective of the broader principle of “Asian solutions to Asian problems”, which aims to avoid Western influence in intra-Asian conflicts.

THE USE OF THE ASEAN WAY: HISTORICAL CIRCUMSTANCES

Following the military junta’s coup and subsequent takeover in Burma, 1988, ASEAN adopted constructive engagement and an open-door policy,  as opposed to the United States’ public isolation tactic. The approach had positive long-term consequences, introducing gradual changes in Burma’s leadership towards human rights and democracy. However, the critique posited by western countries and human rights organisations pointed out that ASEAN had granted legitimacy to the military government, with scholars noting that by 1966 the human rights situation was abysmal, the year being judged to be the worst for state abuse.

Cambodia witnessed a violent change of government led by the Prime Minister Hun Sen, ending the coalition administered by the United Nations elections in 1993. Cambodia was not a member of ASEAN, and plans were underway to include it. However, the ASEAN Way was highly unsuccessful, as the organisation was ill-equipped to engage constructively with a non-member country. Moreover, the ASEAN Way’s emphasis on non-military engagement further deteriorated the region’s stability when Vietnam invaded Cambodia.

The ASEAN Way proved to be effective in dealing with Indonesia’s Haze Crisis. In 1997 and 1998, approximately 45, 000 km2 of forest and land burnt on the island of Sumatra and Kalimantan in Indonesia. It resulted in severe pollution of neighbouring member countries causing chronic respiratory diseases such as asthma, bronchitis, impaired visibility, and upper respiratory tract infections. However, it affected Indonesia more severely due to the lack of an integrated air quality monitory network. Despite these repercussions, in 2019, Indonesia became the only country to have built coal energy infrastructure, despite a global move towards avoiding it as a massive source of pollution. During the Haze Crisis, the member countries faced challenges with the principle of non-interference. Simon Tay writes that the ASEAN Way’s principle of non-interference in this crisis is wrongly applied as “the fires have implications for regional and inter-regional politics.” He argues that the state bears responsibility for transboundary harm if the pollution escapes its territory to cause harm to other states including Singapore, Malaysia, parts of Thailand, Brunei, and south of Philippines. Indonesia was the last ASEAN member country to ratify the Transboundary Agreement despite haze pollution reaching alarming levels. However, commentators found that the Agreement has been drafted non-intrusively to accommodate the principle of non-intervention. This is also indicated that no provision exists for reparation to the member country on whose territory the haze pollution escapes. This contravenes the harm principle of the Stockholm Declaration. According to Greenpeace Forest areas greater than the size of Netherlands have been burnt in Indonesia in last five years. Burning of forest and peatland for growing oil palm and pulpwood is illegal in Indonesia under the Forestry Law 41/1999. However, domestic laws do not address transboundary pollution. Singapore’s national legislation, the Transboundary Air Pollution Act 2014, defines haze pollution in Singapore as the pollution of the environment comprising any poor air quality episode involving some from any land or forest fire wholly outside Singapore. Section 5 makes it an offence to engage in conduct which causes or contributes to any haze pollution in Singapore or condones such conduct by other entity or individual. The Act also places civil liability on the breach of the duty which may lead to actionable suit by a person in Singapore who has sustained personal injury, contracts any disease, sustains mental or physical incapacity, or dies due to these three issues as per Section 6(3). The defence from such criminal or civil liability is either grave natural disaster or an act of war under Section 7(1). This national legislation differs from the traditional approach of the ASEAN member countries that have passed laws that do not contradict the principles of ASEAN Way.

Why the use of International Law in tackling the harm caused due to Transboundary Haze Pollution goes against the ASEAN Way?

Transboundary pollution causes climate change, depletion in the ozone layer, loss of flora and fauna, and severe and irreversible damage to health. Thus, responsibility in transboundary harm acquires the status of customary international law. Scholars have noted that the most problematic issue in using the international environmental law framework on transboundary pollution is that the international law requires the state be responsible for causing such environmental degradation and compensate accordingly. This strongly contradicts the principle of non-interference which predominantly respects the sovereignty of member countries in ASEAN. Further, these issues can also be tackled by entering into Multilateral Environmental Agreements such as the Framework Convention on Climate Change, Kyoto Protocol, Convention on Biodiversity etc. These are against international frameworks which will be regulated through an international platform where the discussion on contentious issues will be discussed. However, this would not be suitable to the framework established through the ASEAN Way where member countries try to avoid issues that may cause imbalance in the regional resilience.

Relevance of ASEAN Way in the present context and its disadvantage

The ASEAN Way is considered time consuming and unhelpful in determining concrete goals in terms of economic integration. The exercise of consensus and cooperation that takes place within the ASEAN Way is of the lowest denominator. Most disagreements remain unstated. Further, member countries may conceptualise ASEAN Way principles differently which hampers collective action.

Since member countries strictly follow the principle of non-interference, none of the ASEAN members have spoken against the military coup in Myanmar on the 1st of February 2021. None of them have published a statement condemning the arrest of the State Counsellor and leader of the National League for Democracy Aung San Suu Kyi.

*Aadya Narain is a Research Assistant at the Nehginpao Kipgen Center for Southeast Asian Studies, and a law student at Jindal Global Law School, O.P. Jindal Global University, India. 

Harsh Mahaseth is an Assistant Professor and Assistant Dean (Academic Affairs) at Jindal Global Law School, and a Senior Research Analyst at the Nehginpao Kipgen Center for Southeast Asian Studies, O.P. Jindal Global University, Sonipat, India.

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Southeast Asia

Amending the Malaysian Immigration Law: The Rohingya Refugees in Malaysia

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photo: © UNHCR/Vincent Tremeau

Denied citizenship in Myanmar, the Rohingya refugees fled to various counties including Malaysia. However, the Rohingyas in Malaysia have been challenged by the Malaysian legal system and also the fact that Malaysia is not a signatory to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. So far, Malaysia does not have any formal legislative or regulatory mechanism to protect asylum-seekers and refugees. Due to this, the refugees in Malaysia are labelled as “illegal immigrants” which puts them at risk of refoulement. The Rohingyas in Malaysia have been subjected to harassment, extortion, imprisonment, and even deportation. One such instance was of forty Rohingya men who were imprisoned during the pandemic for entering Malaysia without a valid permit.

There are certain inconsistencies in the Malaysian legal system in meeting the standards set in international law for the treatment of refugees. Malaysia’s Federal Constitution, which provides the main provisions relating to non-discrimination and equality is inadequate as a non-citizen’s right to equality is protected but not their right to non-discrimination. A differentiation between rights available to citizens and non-citizens that are inherent within the Constitution negatively impacts the rights of non-citizens. Malaysia’s lack of proper domestic legislation for the protection of refugees is another inconsistency within the legal system of the country. Malaysia’s immigration law deals with the treatment of refugees. This law does not have principles of international law embedded within it. An example of the same is the principle of non-refoulement. This principle guarantees that no one should be returned to a nation where they might face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. Within domestic law protecting refugees could enhance the domestic laws to a substantial level. Section 6 of the Immigration Act 18959/63 (Act 155) iterates that a person shall not enter Malaysia without a valid permit, and Section 6(3) reiterates that whoever contravenes subsection 1 shall be guilty of an offence and receive due punishment including being liable to whipping of not more than six strokes. In this regard, caning as a punishment imposed on refugees, albeit the factor that only adult males under the age of fifty-five are subjected to caning, would amount to torture, and would also violate human rights. Apart from this, a vast amount of powers are conferred on authorities under the Immigration Act, which could lead to arbitrary actions, and since there is also a lack of opportunity to review or challenge the decisions of the court regarding the status of refugees, this must be addressed. Despite having relief to gain restitution via employment tribunals and civil law lawsuits, there are several impediments to accessing justice along with financial hardships that make it difficult to utilize.

Given the limited protections in Malaysia, in my research I have proposed the following legislative amendments:

-The Malaysian Government should consider granting refugees basic rights and not penalising them under the Immigration Act. Punishments such as caning should not be given to the refugees.  Since revisions were made to the Immigration Act in 2002, a total of 47,914 migrants have been subjected to caning for immigration violations.

-The Malaysian Government should ensure the protection of women and children refugees through protective measures against sexual abuse and violence. Such a concern has been seen in detention centres. As Malaysia is a part of the United Nations Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women, it needs to provide certain protective provisions. For women and children, alternatives for detention must also be provided under the Immigration Act. Detention should not be seen as the first practice, but rather as the last resort. Detention has an impact on the health and psychological well-being and alternatives such as placement with host families, bail schemes, and support from guarantors or sponsors should be looked into. Even if detention remains the practice, the period of time should be shortened, and there should be a right to appeal.

-Ratifying the Refugee Convention and the accompanying Protocol, or passing a law that governs refugee issues would contribute to the betterment of Rohingya refugees in Malaysia.

In conclusion,  while the Malaysian government has experimented with a variety of policy approaches, more coherence and protection are needed. The Government should consider these amendments and work toward a successful approach to protect the Rohingya refugees which could also lead to the betterment of society in Malaysia.

The report can be accessed on this link

MAHASETH, H., & BANUSEKAR, S. (2022). Living in the Shadows: Rohingya Refugees in Malaysia. Asian Journal of International Law, 1-8. doi:10.1017/S2044251322000091

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Expanding the India-ASEAN Cyber Frontiers

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The recently concluded India-ASEAN Foreign Minister’s Dialogue (also known as the ‘Delhi Dialogue’) celebrated thirty years of the India-ASEAN relationship. The current year, designated as the ASEAN-India Friendship Year, highlights the significance of strengthening the partnership in an increasingly dynamic regional and geopolitical landscape. For India, ASEAN stands at the core of its vision for the Indo-Pacific,  as well as for its Act East Policy. For the ASEAN, India presents the solution for solidifying strategic autonomy as the great power competition between the US and China unfolds in the region.

It is argued that the great power competition is now about ‘technology’. According to this view, power transition theories emphasize the ‘innovation imperative’, and technological progress determines the viability for the ‘continuous rise’ of the rising powers. For India and ASEAN, capability and capacity building in this domain is now paramount to securing national interests.  

At the Delhi Dialogue, the Foreign Minister of Singapore remarked that the digital revolution is creating a complete revamp of the means of production and wealth generation for the future. He stressed that “if ASEAN can complement India’s natural leader in the arena, the two can remake not just the next two decades, but at least the next half-century”.

In the cyber domain, India and ASEAN face common challenges and vulnerabilities. While digital infrastructure in Southeast Asia (SEA) has been regularly exploited as launchpads for cyber-attacks worldwide, India has been at the top of the list of victims.

India-ASEAN in the cyber domain

Indian and ASEAN strategies in the cyber domain converge to a great extent. In discussions related to cyberspace governance in the United Nations (UN), both have adopted a balanced approach. Like India, the ASEAN countries want to safeguard cyber sovereignty (the view led by China and Russia), while supporting the multi-stakeholder approach (the view led by the US and Europe). It has been argued that ASEAN countries’ policies are focused more on avoiding social disruptions and controlling the spread of disinformation, than on technology issues. While the latter remains important, the former aspect has gained increasing significance for New Delhi in recent years.

Unlike the US and some of the Western allies, ASEAN countries have so far refrained from using cyber attribution as a political tool. This is similar to India’s policy which has not yet adopted the ‘naming and shaming’ approach towards its cyber adversaries, despite a few instances of indirect inferences by officials and leaders.

A major challenge for India and ASEAN has been China’s exploitation of cyberspace. Over the years, China-based threat actors have wreaked havoc in cyberspace, with motives ranging from commercial espionage to political espionage. An exponential increase in China-linked cyberattacks is witnessed in India and SEA countries whenever disagreements and conflict arise on borders (e.g., the Galwan valley clashes) or in the maritime domain (e.g., the South China Sea dispute).

India-SEA cyber relationship has broadened and deepened over the past decade, both on bilateral and ASEAN levels. India has been part of deliberations on cybercrime, Information and Communications Technology (ICT) security, and emerging technologies at the ASEAN Digital Minister’s Meeting and the ASEAN Defence Minister’s Meeting.

Bilaterally, India-Singapore relations have significantly improved, with the Indian Prime Minister hailing the ‘warmest and closest’ relationship between the two lions (countries). Singapore is among the most active SEA countries in cybersecurity discussions at the UN. It participates in both the UN Group of Governmental Experts (UNGGE) and the Open-Ended Working Group (OEWG) on ‘Developments in the Field of Information and Telecommunications in the context of international security’.

India-Malaysia relations have also improved since the new leadership took reign in 2021. In April 2022, the two countries reviewed the entire gamut of bilateral relations and agreed on a faster revival of ties in the post-covid period. Malaysia is deemed ‘neither a technology powerhouse nor a prolific hacker’. However, Malaysia has worked towards developing a strong national cyber strategy and uses global cooperation mechanisms for enhancing its capabilities in fields like foreign intelligence gathering.

As a natural leader in SEA, Indonesia has championed the ASEAN Outlook on the Indo-Pacific (AOIP). Though Indonesia lacks a comprehensive national cybersecurity strategy, Indonesia’s leadership in the ASEAN framework remains important for developing frameworks for collective cyber resilience. For India, these present excellent case studies for developing an active cyber diplomacy approach and fostering global cooperation mechanisms in the cyber domain.

Way Ahead

ASEAN provides the SEA countries with an avenue for advancing strategic autonomy in an increasingly competitive Indo-Pacific. The ASEAN centrality in the region is respected by the West which now seeks to engage the ASEAN countries diplomatically, economically, and politically.  ASEAN centrality has also meant that Chinese aggressiveness has driven other regional middle powers like India, Australia, and Japan towards ASEAN, thus elevating its stature further. However, in recent decades, China has made significant inroads in the SEA markets and is now seen as an important political partner as well. Despite concerns over increasing Chinese imprints on SEA’s digital domain, Chinese technological capabilities and policies attract several SEA countries.

The US-China rivalry puts India and SEA at risk in cyberspace as the rivalry will percolate towards allies and partners. In this light, the need is for developing a third way in the cyber domain – a Cyber Non-Aligned Movement (NAM). India-ASEAN engagement can address the technological gaps and cybersecurity issues, without being drawn into the rising great power competition in the region. The partnership can encompass digital infrastructure, 5G technology, cyberspace governance, and the       construction of a new South-South paradigm in cyberspace.

As fears of a ‘Digital Cold War’ emerge in the Indo-Pacific, a Cyber NAM can be a significant diplomatic effort towards a peaceful and secure cyberspace.

(Views are personal)

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Vietnam’s role in eliminating Khmer Rouge in Cambodia

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Khieu Samphan (left) and Nuon Chea in the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC). File photo. Photo: ECCC

Right from the time of Ho Chi Minh, Vietnam has adopted a liberal socialist welfare state emulating the erstwhile USSR. Within the historical narrative related to Indochina region the atrocities committed by Khmer Rouge has been listed as one of the darkest periods of history in Cambodia. Khmer Rouge after coming to power were suspicious of Vietnamese intentions and has developed an antagonistic attitude towards Vietnam. There have been skirmishes between the armed forces of the two countries and Khmer Rouge was strongly supported by China at that time. The establishment of People’s Republic of Kampuchea after the defeat of Pol Pot which was a replacement for the authoritarian Pol Pot regime. Led to the re institution of the state institutions and the protection of the religion and trade. The support which was given to the other opposition parties by the US which have fled Cambodia and shortage refuge in Thailand. 

The government instituted by Vietnam and the government in exile with Norodom Sihanouk as president and his deputy as Prime Minister, were seen as the two power centres. Vietnam has supported the re-establishment and restoration of public life in Cambodia in the late 1980s because of economic hardships and strong economic boycott adopted by the United States has led to more hardships to the Cambodian citizens. As a result of which Vietnam has justified its intervention in Cambodia to protect the citizens and the hardships brought about by Pol pot regime. Subsequently Vietnam withdraw its forces from Cambodia in 1989. In terms of protection of religion particularly Buddhism and restoration of monasteries large number of Vietnamese have helped Cambodians to adhere to the religion. However, withdrawal of Vietnamese forces led to a power struggle between different factions of Cambodia. 

Following the negotiations in 1991 there was a agreement between different fractions which led to the formation of the coalition government under supreme National Council which was headed by Norodom Sihanouk and brought about representatives of the three factions representing different political orientations and royal representatives.  The effective control of Cambodia was in the hand of the Phnom Penh regime and the conclusion of a peace agreement in 1991 led to first establishment of peace and protection of human rights across Cambodia. 

The disarming of Cameroon was a major issue for the UN operations particularly UN Security Council and therefore it was thought that is structured de-weaponization of the rival factions should be done. Under the UNSC and its mandate way back in 1992-93 the national elections were held in July 1993. These were seen as one of the most free and fair elections across Cambodia. The election of FUNCINPEC led to the return of Prince Norodom Sihanouk to the seat of power. The Khmer Rouge resistance was eroded because of the lack in foreign funding and subsequently thousands of supporters defected to the government and joined Cambodian army. Vietnam has been instrumental in looking into the safe transition and exchange of power between different factions. 

While much of the history has been documented but the Vietnamese army sacrifices to free Cambodians from brutal Khmer Rouge regime was not celebrated in the way it should have been. It was seen that more than 30,000 Vietnamese troops were killed before final withdrawal in September 1989. The Vietnamese soldiers underwent serious hardships and were supported by the Cambodians who were helping them in a limited way.  

Vietnam’s sending of troops to Cambodia in late 1978 was primarily to protect the millions of Cambodians who have fled the urban centres to rural locations because more than 202 million people have died and executed by the Khmer Rouge regime. The Vietnamese army despite limited rations and supplies have tried to protect the population and because of the Vietnamese attack the Pol Pot fled from Cambodia. Immediately after driving US from Saigon, the engagement of Vietnam in Cambodia was seen as the draining of Vietnamese resources as many of the refugees had started trickling into Vietnamese borders. While Vietnam has fought against French and the Americans their role in Cambodia has been underplayed and many of the Vietnamese soldiers who returned from Cambodia felt that they were not given due recognition by new Cambodian government. 

Even Cambodia has been ignorant of the fact that Vietnam was the one country which rescued them from the hardships of regime. In fact, the friendship monument in Phnom Penh clearly reflects the Vietnam’s role in driving Pol pot away. It was also a redemption of Vietnam’s glory and history which showcased that Vietnam could play a significant role in the Indochinese history. If one investigates the four years that they had ruled Cambodia, the brutal regime was responsible for forcing millions of people to work in community farms, but this forced social engineering was detrimental to the society and economy of Cambodia. The bloodshed also had aftereffects because many families died from exhaustion, disease, and starvation. 

One of the important aspects of Pol pot regime was the support from the hill tribes and they are known respect for Buddhism as a religion. Pol pot was instrumental in isolating people and abolished money, religion, and private properties. In the history of Cambodia Khmer Rouge regime, the South 21 jail in the capital was seen as notorious because more than 17,000 men, women and children were detained in that centre during the rule of the regime. The full horrors of the regime were discovered when the documented stories and oral history narrated by people in their diaries and verbal communication highlighted the deplorable conditions of living and the killing fields which brought Cambodia to the verge of complete economic downturn and retreating the country to the primitive age. 

The UN established tribunal decided and brought Khmer Rouge leaders to justice. In November 2018 the UN administered tribunal give sentences to Pol pot brother Khieu Samphan for crimes against humanity and genocide. The Pol pot regime also conducted ethnic genocide against Cham  and Vietnamese minorities. In fact, the role that Vietnam has placed in computing history needs to be revisited and loaded for its efforts in protecting the Cambodians as well as other ethnic minorities. 

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