From Community to Compliance? The Evolution of Monitoring Obligations in ASEAN by Simon Chesterman (review)

The book is a commendable, though initial, effort to study monitoring in ASEAN. During the first four decades of ASEAN’s inception, monitoring had not been taken seriously by the governments of member countries. Its importance only gained traction recently, when the level of regional cooperation was raised to systematic community-building.

During the research process, the author and his research assistants found a dearth of information on the topic — which is to be expected. The information provided in the book is slightly outdated since this study was done in 2012. ASEAN has since moved on, going beyond the official “establishment” of the ASEAN Community in 2015 to crafting a new ASEAN Community Vision 2025 Roadmap. Nevertheless, the book provides an interesting conceptual framework to study monitoring in ASEAN (Chapter 2). Researchers interested in this topic can adopt the author’s approach while conducting additional studies on monitoring, reporting, and compliance in the post-2015 ASEAN Community.

Although conceptually interesting, Chesterman’s understanding of the “ASEAN Way” (pp. 8 and 94) is rather limited. The “ASEAN Way” is more than policy-making through consultation and consensus. It includes: the preference of a low level of institutionalization (no ASEAN Secretariat during the first ten years of ASEAN; no new entities outside of the ASEAN Secretariat except for the ASEAN Regional Forum; the ASEAN Plus Three or the East Asia Summit); quiet diplomacy; emphasis on the positive (including no naming or shaming of any member government in public); more flexibility for newcomers (Cambodia, Laos, Myanmar, and Vietnam); and equal contribution to the annual budget of the ASEAN Secretariat. All these finer details of the “ASEAN Way” have influenced how monitoring in ASEAN has developed, or, in some cases, failed to ensure compliance.

Since adopting the ASEAN Charter in 2007, two substantive components remains non-operational: the legal personality of ASEAN in Article 3; and the Dispute Settlement Mechanisms (DSMs) in Article 23 (good offices, conciliation, and mediation) and in Article 25 (arbitration). The long and continuing delays for certain countries to ratify their domestic laws have raised serious doubts among observers on the willingness of governments to make ASEAN more rule-based — let alone to accept more compliance. In this connection, the three questions presented on assessing a monitoring mechanism (p. 62) are extremely relevant.

The book correctly takes note of the growing acceptance of monitoring in the ASEAN Economic Community (AEC). This change is welcomed and arises from the need to give confidence to the international business community, as ASEAN still heavily depends on trade and foreign direct investment to drive growth. However, the book could have delve further into the issue by examining the reasons for the delay for the twenty AEC agreements awaiting full ratification.

Despite efforts to improve monitoring in ASEAN, there is no effective peer pressure for slow-moving member governments to comply with this crucial obligation under the Charter’s provision. As a matter of fact, Article 5 Paragraph 2 of the ASEAN Charter states that “Member States shall take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of this Charter and to comply with all obligations of membership”. Another example of an enacted regulation experiencing a lack of usage is the 2004 ASEAN Protocol on an Enhanced Dispute Settlement Mechanism. Although it has been in force for nearly twelve years, no legal case has been raised thus far. This reflects another trait of the “ASEAN Way”: avoidance of cumbersome litigation and preference for political consultations to settle an economic dispute quietly.

ASEAN Finance Ministers made a decision in 2011 to set up the ASEAN+3 Marcoeconomic Research Office (AMRO) in Singapore (p. 31), on the ground that the ASEAN Secretariat lacked the human and financial capacities to undertake the highly technical job. That was and still is the case. Alternatively, the ASEAN Secretariat could have considered strengthening internal resources to increase its technical capability.

With the...