The challenges for ASEAN: the South China Sea, investment protection, and Myanmar.

Author:Davenport, Tara
Position:Association of Southeast Asian Nations - International Law in a Multipolar World

This panel was convened at 12:30 pm, Friday, April 5, by its moderator, Edmund W. Sim of Appleton Luff, who introduced the panelists: Tara Davenport of the Centre for International Law, National University of Singapore; Michael Ewing-Chow of the Centre for International Law, National University of Singapore; Arif Havas Oegroseno, Ambassador of Indonesia to the European Union; and Tan Hsien-Li of the Centre for International Law, National University of Singapore.


From its initial formation during the Cold War in 1967 by Indonesia, Malaysia, the Philippines, Singapore, and Thailand, the Association of Southeast Asian Nations (ASEAN) has stood at the crossroads of Asia. With the addition of Brunei, Cambodia, Laos, Myanmar, and Vietnam, ASEAN straddles vital geopolitical and economic routes, with its members encompassing diverse peoples, religions, and polities.

ASEAN's leaders have set the end of 2015 for the formation of three communities that make up the so-called "pillars" of the ASEAN Community: the ASEAN Political-Security Community, the ASEAN Economic Community, and the ASEAN Socio-Cultural Community. This afternoon I am joined by several colleagues from the National University of Singapore Law School's Centre for International Law, each of whom will address how ASEAN is dealing with each of these pillars. How ASEAN balances its traditional consensus-driven approach with its increasing use of formal rules mandated by the ASEAN Charter will affect the development of the ASEAN Community as well as the implementation of international law in Asia.

* Co-Chair, Law in the Pacific Rim Region Interest Group; Partner, Appleton Luff; Adjunct Associate Professor, National University of Singapore Law School.


By Tara Davenport ([dagger])

Southeast Asia is a distinctively maritime region, (1) and the maritime character of the region has been described as the "first and primary unifying factor of Southeast Asia." (2) Nine out of the ten Southeast Asian states which make up the Association of Southeast Asian Nations (ASEAN) are coastal states, (3) and two of these (the Philippines and Indonesia) are the world's largest archipelagic states. Consequently, most of these states have extensive maritime interests. Further, due to the fact that the region sits astride key access routes between the Indian and Pacific Ocean, the region is also economically and strategically important to the economies of Northeast Asia, the United States, and other Western maritime powers. (4) All ASEAN states, with the exception of Cambodia, are parties to the 1982 United Nations Convention on the Law of the Sea. (5)

Southeast Asia has a complex maritime geography. Virtually all Southeast Asian waters are enclosed as territorial seas, exclusive economic zones (EEZs), or archipelagic waters. (6) This "geographical congestion has produced overlaps between the jurisdictional claims of neighbouring States, generating disputes, and even conflicts, that would not have arisen in a diffuse region such as the Southwest and Central Pacific Ocean." (7) Further, coastal configurations are also "complicated with gulfs that penetrate deeply into the mainland, a multitude of large and small islands and wide and narrow [continental] margins." (8) All these factors have posed challenges to maritime boundary-making, and the overlapping claim areas have posed a constant irritant to bilateral and regional relations and hindered effective management of ocean resources.

Despite these challenges, ASEAN member states have made considerable progress in resolving their maritime boundary disputes. Southeast Asia has been described as the "scene of very active and innovative ocean boundary diplomacy," (9) as reflected by the number of agreements that have been concluded. Since the end of the colonial period, thirty-nine maritime boundary arrangements have been concluded in Southeast Asia during 1969-2009. These maritime boundary arrangements can be categorized into two categories: (1) Delimitation Agreements whereby a boundary is agreed upon, (10) or (2) Provisional Arrangements whereby no boundary is agreed upon, and where states have agreed to some form of joint exercise of jurisdiction and management of resources. (11) There have been twenty-nine Delimitation Arrangements and ten Provisional Arrangements concluded to date. (12)

On the other hand, states in Southeast Asia have not often used binding dispute settlement mechanisms to settle their maritime boundary disputes. To date, there has been only one delimitation dispute involving an ASEAN member state that has been submitted to third-party binding dispute settlement, namely the dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal. (13)

It is clear that ASEAN states have a preference for negotiated agreements as opposed to third-party dispute settlement for maritime boundary disputes. Prima facie, this appears consistent with the wider cultural inclination within ASEAN to resolve disputes through consensus and consultation and a cultural aversion to binding dispute settlement mechanisms. (14) For example, ASEAN itself was initially formed by a series of "informal and ad hoc arrangements," (15) which continued to be the modus operandi of ASEAN until it wanted a more rules-based order and adopted a formal constitution in 2007. The "ASEAN way" is often used as nomenclature to describe a set of procedural norms upon which ASEAN states conduct relations with each other. As noted by one scholar:

This includes the principle of seeking agreement and harmony, the principle of sensitivity, politeness, non-confrontation and agreeability, the principle of quiet, private and elitist diplomacy versus public washing of dirty linen, and the principle of being non-Cartesian, non-legalistic. (16) As mentioned above, this preference for consensus and consultation is coupled with "a dislike of confrontational/adversarial litigation of disputes, particularly third party resolution before a court or tribunal." (17) Possible reasons for this reluctance have been articulated by some scholars, and they include the perception that international law and the jurisprudence of the ICJ reflect a dominant Western philosophy which fails to recognize other cultural traditions, (18) a lack of participation by Southeast Asian judges in international courts, and the belief that many disputes in the region "are not amenable to strictly legal resolution because they involve sensitive questions of sovereignty and domestic policies." (19)

There appears to be an implicit criticism of the reluctance of ASEAN member states to resolve their disputes among each other and their disputes with extra-regional states through binding dispute settlement. Inherent in this criticism is the assumption that judicial settlement of disputes is the best way to resolve disputes, and that the submission of disputes to judicial settlement is the ultimate manifestation of respect for and compliance with international law. While no doubt there is merit in judicial settlement of disputes, it is the opinion of this author that the preference of ASEAN member states for negotiated boundary agreements is in itself a reflection of a desire for a rules-based order and hence an exception to the so-called ASEAN way. First, the bilateral or trilateral negotiation of boundaries between states is a relatively formalized process, and the majority of ASEAN member states have sophisticated machinery and procedures for such negotiations. Second, ASEAN member states have used recognized international law principles of maritime delimitation to frame their negotiations, and the final agreement adopted often reflects such international law principles. Third, it is often forgotten that delimitation agreements and provisional arrangements are legal solutions sanctioned under UNCLOS which clearly set out the respective rights and obligations of states in overlapping claim areas. Indeed, it is this desire for rules-based conduct that has motivated the collective desire of ASEAN to negotiate a binding Code of Conduct with China to manage the disputes in the South China Sea. It is evident that when it comes to issues which affect their economic resources and security interests (which disputes over maritime claims do), ASEAN states have always preferred formal/legal structures or rule-based conduct, even if this does not translate into a desire to use binding dispute settlement mechanisms.

([dagger]) Research Fellow, Centre for International Law, National University of Singapore.

(1) Sam Bateman, Joshua Ho & Jane Chan, Good Order at Sea in Southeast Asia (RSIS Policy Paper, Apr. 2009).


(3) Brunei, Cambodia, Indonesia, Malaysia, Myanmar, the Philippines, Thailand, Vietnam, and Singapore. Laos is land-locked.

(4) Bateman, Ho & Chan, supra note 1, at 11. There are numerous straits used for international navigation in the region including the Straits of Malacca and Singapore, the Lombok/Makassar Straits/Sunda Straits/Philippines Straits. There are also major ports such as Singapore, Port Klang, and Tanjung Pelapas in Malaysia, and Tanjong Priok in Indonesia.

(5) United Nations Convention on the Law of the Sea (UNCLOS), Dec. 10, 1982, 1833 U.N.T.S. 397, 21 I.L.M. 1261 (entered into force Nov. 16, 1994). Cambodia signed UNCLOS on July 1, 1983, but has not ratified it. Brunei ratified UNCLOS on November 5, 1996; Indonesia on February 3, 1986; Laos on June 5, 1998; Malaysia on October 14, 1996; Myanmar on May 21, 1996; the Philippines on May 8, 1984; Singapore on November 17, 1994; Thailand on May 15, 2011; and Vietnam on July 25, 1994.

(6) Bateman, Chan & Ho, supra note 1, at 8.

(7) Douglas M. Johnston & Mark Valencia, Pacific Ocean Boundary...

To continue reading