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Why ASEAN Allergic to a Legally Binding Mechanism?

The Association of Southeast Asian Nations (ASEAN) is known for its often-opted non-binding mechanisms in carry out its member matters or resolving disputes among them. We can name numerous ASEAN agreements that are not enforceable in court. Despite so, it is wrong to perceive ASEAN is totally barren to set up a binding mechanism. Yes, ASEAN can make a legally binding instrument. But it would formulate them only in non-controversial area.

Therefore, it should come as no shock to see that the association bereft of power to establish legally binding particularly to cover crucial issues like human rights abuse in Rohingya and the long-standing conflict of the South China Sea. Both issues are the most disturbing and disrupting. Then why ASEAN still relinquish itself from doing assertive acts on them?

The lack of legally binding mechanisms for necessary issues has been a source of ASEAN criticism. If the organization successfully creates a non-binding one, it would be a flexible and easy-to-broke commitment. It is visualized by ASEAN’s hobby to use nomenclature in agreements, legal instruments, declarations, reports, etc without clearly distinguish between different terms (Mahaseth & Subramaniam, 2021).

On March 21 and 22, the first meeting of the ASEAN SOM Working Group on Decision Making Process (SOM WG on DMP) in Jakarta discussed efforts to enhance ASEAN institutions’ efficiency in decision-making. During this two-day meeting, The ASEAN delegation talked options for creating effective decision-making mechanism to address specific and urgent situations (ASEAN2023.id, 2023).

Having a discussion to strengthen ASEAN decision-making processes portrays ASEAN’s struggle in making impactful decision. Creating a legally binding mechanism is exactly, if not the only one, the most appropriate way to address their problem. Yet, why ASEAN is still reluctance to make one?

Several widely acknowledged reasons can give answers. First, ASEAN is not a supranational organization. It has limited power to force its agenda on member nations. Second, ASEAN is a consensus-based organization. The power for decisions to be adopted held by all member states. Hence, deciding on legally binding processes may be challenging.

Nevertheless, there is still gaps for arguments. To make a legally binding mechanism, ASEAN is not required to be supranational. It is proven by ASEAN’s work on ATHP. Moreover, If ASEAN is a consensus-based organization, then why its member states unable to create a consensus to make a legally binding mechanism? What constrains them to do so? What makes ASEAN often disregards from creating a strict instrument? How can other regions such as Europe with their Schengen Agreement and Eurozone commitment are able to easily create legally binding instruments while Southeast Asia is not?

The members are to blame, not ASEAN

We cannot blame ASEAN for having such a lack of power. Since its beginning, ASEAN’s institutional design was created as an intergovernmental structure with informal decision-making process based on flexible consensus and consultation and minimal delegation to quasi-juridical mechanisms, including a relatively weak secretariat (Acharya, 1997). Therefore, we may consider ASEAN weakness is intentional.

The founding entities deliberately made ASEAN weak and powerless, as evidenced by the upholding of the ASEAN Way principle. The ASEAN Way, a distinctive approach to diplomacy used by ASEAN, is founded on four principles: non-interference, quiet diplomacy, non-use of force, and consensus decision-making. The norm of non-interference becomes the basic reasons why the organization being less in action. When ASEAN put his concern to domestic issues of its member countries, the concerning countries will put this norm in the table, arguing the organization intervene with their home affairs.

Sovereignty: a new treasure to Southeast Asia

The early founders of ASEAN created ASEAN Way as modus operandi to safeguard their sovereignty. Why taking sovereignty to serious? Because sovereignty is a new gem that Southeast Asian countries get. As we know, Southeast Asian countries have been colonized for hundreds of years. From the 14th century to the 20th century, European powers, such as the British, French, Spanish, Dutch and Portuguese, were the main colonizers in the region.

Colonization made Southeast Asian unable to enjoy what sovereignty may offers. The confines of the colonialists limited their space for movement from all sides, especially in political and economic matters. This makes them unable to independently manage what they own, such as territory, natural resources, human resources, etc.

They are bound by colonialism, constrained by the arbitrary authority of the colonizers. This restraint makes them escape from feeling freedom. Therefore, when they get freedom, power to make decision of their own path and destiny, they believe they have acquired a priceless treasure. It is called as sovereignty.

Sovereignty makes them have the power to regulate their own territory, natural resources, and human resources. The pleasure of being free to rule makes them complacent. In their view, it would be a huge loss if the sovereignty were lost again from their hands.

This scenario is what happened to ASEAN countries. When they were released from colonialism, generally in the 1950s, they were very happy because they had received a privilege of sovereignty. When they are faced with the discourse of establishing a regional organization in their region, giving away the wealth (sovereignty) they have just obtained would have been an absurd thing to do.

That is why the history of the establishment of ASEAN is related to ASEAN Way principle, where the organization was established only as a roof to cover members who have their own interests.

In other words, ASEAN members are those that are reluctant to cede their national sovereignty. They are similar to a kind of a poor people who gain power to own houses or cars. When others want to intervene for renovating their house, driving their car, the new rich man will definitely refuse it. He hates when others control the treasure he just got. He wants to fully enjoy what he could never enjoy before without being limited by others. He was quite fed up with the restrictions he had experienced before when he was poor.

What makes Europe different?

Great countries in Europe bows under the European Union (EU). The EU’s member states acquire collective acts by giving authority to the collective institutions (Levy, 2017). The organization’s commission has the authority to bargain on behalf of the Union in trade and other dealings with third parties (Goebel, 2013). As a result, national-level decision-making for their member states to handle these matters is rather equivocal and inconsequential (Menon & Weatherill, 2007). The EU’s legislative framework, established by the 1958 Treaty of Rome and its revisions (the Single European Act of 1987 and the Treaty on European Union of 1993), developed into a striking example of supranationalism, political concept that refers to the process of transferring sovereignty from individual nation-states to an authority standing above them. Then, why Europe willing to surrender its sovereignty while the Southeast Asian would not?

Europe was the main battleground of both World War I and World War II. Not only both World Wars fought mostly in Europe and by Europeans, but also the triggers happened there. Both conflicts left behind a great deal of death and destruction and significantly altered the trajectory of European history.

In addition to the physical destruction, the two world wars also had a significant psychological impact on Europe. The experience of battle caused many to lose trust in the status quo and start looking for alternative worldviews, which is to give their status quo to a governing body that unite them and control their lust of power. It was easy for them not only because the war gave them trauma, but also sovereignty was something they possess for a long time.

At its peak, the European enjoyed sovereignty since they started spreading colonialism. They had power to control both of their domestic wealth and colony’s resources, making them practice sovereignty not only in their land but also others.

For Southeast Asian, they have not felt what sovereignty means since the 1400s. Consequently, asking them to give up even a little bit of their sovereignty, namely by being bound by the ASEAN legally binding agreement, will be very difficult to happen. Like someone who just got food after weeks of not having it, his greedy nature to enjoy the food and relieve his hunger will hold him back from being able to share it a bit.

Source : Moderndiplomacy