This article is based on a chapter of his Master thesis in Australian National

1 This article is based on a chapter of his Master thesis in Australian National

I. Introduction

Facing the second decade of the century, ASEAN is still well-attached to its reputation for being ‘long on talk, short on action (Caballero- Anthony, 2008). This means that ASEAN had many commitments but that these were minimal in manifestation. In this regard, ASEAN’s reliance on persuasive norms was considered to be inadequate. Persuasive norms refer here to norms, which do not incorporate a carrot and stick approach to stimulate compliance. The incentives

that they provide for member states to fulfil their commitments in practice are unclear.

This essay is ofering an alternative explanation behind the slow yet decorative progress of ASEAN. It will unpack the competing articulations of order contained in the very foundation of the current ASEAN, the ASEAN Charter. It argues that there were three competing conceptions of order at this historical juncture, which were: a normative-contractual order, a thin solidarist security order,

and a solidarist security order. Among them, the thin solidarist security order which was articulated by Malaysia, Singapore, and

Brunei Draussalam was the most dominant. This impeded eforts to draft the ASEAN charter in a manner which would enhance ASEAN’s

capabilities in addressing challenges in the next decade of the 21 st century.

To demonstrate this, the discussion is divided into four parts: (1) introducing the analytical framework; (2) elaboration of old and new challenges to Southeast Asia at the beginning of the 21 st century; (3) identifying the competing conceptions of order in the drafting of the ASEAN Charter; and (4) analysing then the contribution of the most dominant conception of order in the signing of the ASEAN Charter.

II. An analytical framework: Understanding ASEAN through the English School’s spectrum of order

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In this essay, ‘the principal conceptions of order’ will be revealed through identifying the key ideas of order, which are articulated and desired by actors involved in the evolution of ASEAN. This conceptions of ‘order’ is considered as one of essential dimensions of ASEAN’s image, as recommended in leading literatures on ASEAN, such as

in Leifer’s and Acharya’s. 2 The principal ideas of order that animate debate in ASEAN evolution may or may not be the most dominant idea of order at the conclusion of each stage of the ASEAN negotiations. However, they are the ones which present powerful visions of order used to support or resist order change.

Hedley Bull, one of the most prominent scholars in the English School, defines order as a purposive ‘pattern of activity that sustains the elementary goals of the society of states’ which are ‘limitations of

violence…, the keeping of promises, and the stability of possessions…’ (Bull, 1977). With this definition, Bull contends that order is a product

of social construction. It is a result of states’ conscious eforts to reduce unpredictability through social norms and interactions. The main

elements of order are ‘goals, pathways, and instruments (Bull, 1977). Goals refers to the articulation of purpose in ASEAN, such as political survival or prosperity; pathways refer to ‘arrangements’ to maintain or establish order, such as the/a balance of power or community building; and instruments refer to the ‘means’ by which order will be enforced, such as norms, war, or diplomacy (Alagappa, 2003). In the empirical parts of this essay, these three elements of order will reveal actors’ conformity to a particular conception of order. This will reveal the extent to which ASEAN order has evolved across time.

Hedley Bull developed a spectrum of order based on the depth

2 See Amitav Acharya, Constructing a Security Community in Southeast

Asia: ASEAN and Problems of Regional Order, London, Routledge, 2001, p.10.; Joseph Chinyong Liow and Ralf Emmers, op. cit.; and David Martin Jones and Michael L.R.Smith, ‘Making Progress, not Process: ASEAN and the Evolving East Asian Regional Order, International Security, Vol. 32, No. 1, Summer 2007, pp. 148-184.; Yuen Foong Khong, ‘The Elusiveness of Regional Order: Leifer, the English School and Southeast Asia, the Paciic Review, Vol. 18, No. 1, March 2005, p. 25.

of social interactions between states and between other actors in international society. He identified three major spheres in this spectrum: an international system; an international society; and

a world order. Total anarchy is located at one extreme point of this spectrum of order; it is located at the weakest degree of social interactions in ‘international systems’ where interaction among states is driven solely by power considerations. The development of social norms is very weak and security dilemma drives state behavior at this point. This is envisaged as a highly state-centric system. All states only mind their own survival in a zero-sum logic: one’s security is a threat to others’ security. The states keep accumulating power to ensure they have adequate military force to defend their interests. Meanwhile, at the other extreme point of the spectrum of order is ‘world order’ where individuals no longer need states to represent the domestic community at the international level. Here, interstate order is obsolete because individuals can pursue justice and their own ideals without states. The state system is replaced by ‘a great society of all mankind’ (Bull, 1977).

At the middle of the spectrum of order is international society. This is present when states are ‘conscious’ of their ‘common values, interests, and goals (Bull, 1977). States start to develop norms to manage their relations and therefore to sustain order. International society is ‘via media’ between an ‘international system’ and a ‘world order;’ it is an intermediary zone between state centric and human centric order

(Bull, 1977). It can also be defined as a sphere of order where ‘the element of state of war and of transnational solidarity’ compete and

negotiate in achieving goals (Bull, 1977). The English School recognises two diferent types of order in

international society: a pluralist and a solidarist order. The former is closer to an international system; its principles and main pathways to order share similarities with classical realism, which lays greater emphasis on states, state co-existence, and respect for sovereignty as the source of order. States have intact authorities to control their

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people and territory and, therefore, non-interference norms are the main instrument of order. States are ‘capable of agreement only for certain minimum purposes (Wheeler and Dunne, 1996). The extent to which states would comply with international norms depends on the level of a state’s interest in a given norm. In this essay, pluralist order is also characterised as security order.

On the other hand, the solidarist order’s features of order are closer to a world order; it is a more cosmopolitan vision of order that places the individual, their security, and rights at the centre of order (Bain, 2007). It promotes international law and peaceful instruments of order in maintaining order rather than the use of military force (Wheeler and Dunne, 1996).. In his account of solidarist or moral order, Bull admits that restoring justice is a difficult pathway to order. It might

clash with other goals of society such as ‘peace and security.’ This conflict might happen when restoring justice requires international society to radically violate its existing norms, for example, in the case of humanitarian intervention (Bull, 1983). Bull affirms that those promoting moral order should carefully consider its consequences

for international society. It means that pursuing justice requires

a wise application to avoid causing more harm than good. As Bull argued, progressive politics should always ‘search for a reconciliation between order and justice. 3 A just and prosper society will persuade states and people to be more cooperative in international society because they know that the system will promote a fair distribution of rights and obligations. This will create a more cohesive international order.

In this essay, the problem of moral order is identified as occurring in at least two forms. The first refers to the violation of people’s rights and obligations, and the second refers to competing moral claims between peoples. The former form of moral problem commonly exists when the powerful abuse the rights of the powerless such as

3 As quoted and rephrased by Wheeler and Dunne in Nicholas J. Wheeler and Timothy Dunne, ‘Hedley Bull’s Pluralism of the Intellect and Solidarism of the

in instances of human rights violations. Meanwhile, the problem of competing moral claims of communities commonly results from diverse interpretations of history as in the case of historical

territorial disputes. Diferent communities may have diferent ways of viewing history and of judging whether particular outcomes are

just. For example, one party in a dispute may refer to colonial map in claiming a territory while the other party to pre-colonial kingdom’s

map. Both of them have justifiable claim over the disputed territory based on their history. As history is not only part of states’ order but also people’s source of sense of order, many tensions in territorial disputes occur at people to people level and generated suspicions between neighboring communities.

Muthiah Alagappa argues that the degree of security order is determined by the degree of states’ compliance to norms. The more respectable ‘the rule of law’ for states, the more cohesive the security order will be (Wheeler and Dunne, 1996). Alagappa then develops this assumption into three categorisations of order in international society based on the degree of ‘rule-governed’ interactions. These range from ‘instrumental order’ to ‘normative order’ to ‘solidarist security order’ (Wheeler and Dunne, 1996).

An instrumental order is a category of security order which closely parallels the realists’ power struggle for survival (Wheeler and Dunne, 1996). The main ‘pathways’ to order are balance of power, hegemony, and concert of power. Moral considerations are absent in this order. States mainly pursue their interests through military means while social norms are underdeveloped. Some social institutions exist, but most of them are designed only to promote ‘basic coexistence’ rather

than to ‘resolve political conflicts’. States aggression is often occurs in this sphere of order as there are few limitations on war for states.

The second category of security order, ‘the normative order’, is a combination between force and contract for pursuing coordination among states (Wheeler and Dunne, 1996). In this category, states

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eliminate the potential for cooperation with other states. Pathways to order are designed through the development of social norms and collective order. Military instruments are still relevant, but are constrainted by many principles such as morality and sovereignty. This category of security order is less state-centric than instrumental order since it limitedly recognises the role and interests of non-state actors. It is even tolerates some cases of humanitarian intervention

with the ‘consent of afected states.’ Goals in this order represent compromises between states interests and the community of states’ interests.

The third category of security order is a ‘solidarist security order’ which is the most ‘peaceful,’ prosperous, and ‘rules grounded’ (Wheeler and Dunne, 1996). This is where international society possesses strong social trust and ‘common values’ and ‘collective identities’ regarding not only on the importance of states but also individuals. ‘Trust and obligation’ are the main pathways to order where international law is the primary instrument of order.

Individuals have reliable channels and adequate recognition to fight for their interests and security at the international level. There is also

a functioning supranational governance in the form of a democratic security community to regulate international relations, although it is not a supranational government.

Comparing Bull’s and Alagappa’s spectra of order reveals some overlapping features. Bull’s international system shares similar concerns and principles with Alagappa’s instrumental order. Both of them are highly state-centric system where the state is dominated by zero-sum survival motives as suggested by neo realist order. However, on the other side, instrumental order allowed some norms of basic co-existence to develop. This is why an instrumental order has some characteristics of a pluralist order of international society. Meanwhile, a pluralist order has some elements of a classical realist order when promoting a balance of power as the main pathway to order. It also shares similarities with a normative-contractual order

when promoting cooperation between states, although only with limited scope and commitment.

As illustrated in the figure of the spectrum of order shown below, Alagappa’s solidarist security order is slightly diferent from Bull’s solidarist moral order. Bull agrees with Alagappa that a pluralist order

is more state centric and a solidarist order is more human centric. 4 However, Bull and Alagappa have diferent emphases in defining and explaining the role of ‘moral ideas’. Alagappa tends to reduce

the meaning of justice to ‘compliance to law’ because he attempts to create measurable indicators of order. In contrast, Bull clearly emphasises the importance in order building, of restoring justice

rather than simply constituting law. 5 He argues that ‘considerations of justice…are to be distinguished from considerations of law…’ 6 Justice

goes beyond the formality of international law. Its scope includes so many values such as ‘general justice, particular justice, subtantive justice, arithmetical justice, proportionate justice, commutative

justice and distributive justice.’ 7 These complex multiple dimensions of justice are not discussed in Alagappa’s spectrum. This suggests that Alagappa’s solidarist security order is not as solidarist as Bull’s. Alagappa’s solidarist security order might be located at intermediary zone between pluralist security order and solidarist moral order. For practical reason, this essay named Bull’s solidarist order as solidarist moral order.

This discussion reveals that order in international society ranges from instrumental order, normative-contractual order, solidarist security

order, and solidarist moral order. The following figure illustrates how diferent conceptions of order from Bull’s and Alagappa’s spectra

4 Tim Dunne as quoted by Paul Keal, ‘An International Society?’, in Greg Fry and Jacinta O’Hagan (eds), Contending Images of World Politics, London: MacMillan

Press Ltd., 2000, p. 67.

5 Paul Keal, ‘An International Society?,’ p. 74.

6 Hedley Bull, The Anarchical Society, p. 75.

7 These concepts are explained in Hedley Bull, The Anarchical Society, pp. 74-

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complement one another.

Each sphere of order in this spectrum represents a particular conception of order which might be articulated diferently at diferent

times by diferent actors. This spectrum is therefore a useful analytical tool that may be used to identify the types of order desired by actors in Southeast Asia. Further, this spectrum can also explain how ideas of order may change across time and context, and can help to shed light on/understand a discussion about which conception of order has been dominant at particular points in time and the consequences

of this.

III. Challenges to ASEAN at the New Millennium

The ASEAN Charter was one of responses to some member states’ pessimism about ASEAN’s ability to deal with challenges in the 21 st century. ASEAN was expected to do more than just maintain good diplomatic relations between its members (Nischalke, 2002). It was challenged to provide real solutions for old territorial disputes and to mitigate the negative impacts of non-traditional security issues. For this, ASEAN needed stronger commitments from its members in their implementation of regional agreements. The ASEAN charter was a response to this concern.

There were at least three new challenges, in addition to the existing problems, which finally drove ASEAN to draft a charter. The first new challenge arose in the aftermath of the Asian Financial Crisis in 1997.

This crisis generated economic and social setbacks in Southeast Asia, particularly in Indonesia, Malaysia and Thailand (Emmerson, 2008).

Inflation was out of control and many people lost their jobs. Social unrest occurred in many places. The impact also took on a political dimension as an Indonesian democratic movement found the momentum to depose Suharto. In Malaysia, a reform movement also rose but failed to bring about changes (Emmers, 2005). For ASEAN,

this crisis forced them to admit ASEAN’s incapacity to respond to regional challenges. The crisis might not have been a severe if ASEAN had facilitated better regional coordination in multi sectors.

The second new challenge which contributed to the drafting of the ASEAN Charter was the continuing dilemma of Burma’s membership. ASEAN received condemnation from its Western dialogue partners for its inability to promote political change in Burma. Since 2003, ASEAN’s constructive engagement approach to Burma had been transformed into enhanced consultation. That is, ASEAN would provide advice on

domestic issues which afected the common interests of all member states. However, the approach was considered to be useless because the Burmese Junta still did not give clear targets as to when and how

a pathway to democracy would be accomplished. 8 Thailand was also concerned by this since Burmese refugees kept crossing into Thailand and this caused insecurity along the Thai-Burma border. Burma’s domestic instability had increasingly disadvantaged the whole region.

The third new challenge behind the drafting of ASEAN Charter was transnational terrorism. Since the US war on terror in 2001 and the Bali Bombing in 2002, ASEAN states were alarmed by the close threat of terrorism in Southeast Asia. Both external pressures and intra- regional awareness of the transnational dimension of this threat motivated ASEAN to enhance its coordination in the intelligence and military sectors. As one of the root causes of terrorism was human

8 Amitav Acharya, ‘ASEAN at 40: Mid-Life Rejuvenation?’ Foreign Affairs,

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insecurity in such forms as ‘poverty and injustice,’ ASEAN started to design a more ‘comprehensive’ approach to enhance regional

security (Emmers, 2005). The organisation realised that there should

be real action and not just empty commitments in responding to this challenge.

Therefore, together the old and new challenges consisted of: old territorial disputes, the economic crisis, the dilemma of Burma, terrorism, and non-traditional problems, suggested that ASEAN needed a better compliance mechanism to bind member states to

the regional agenda. ASEAN could not be an efective organisation if it could not do anything when member states deferred or violated

their commitments. In this regard, ASEAN needed to design legalistic rules. A set of regulative norms with a clear distribution of rights and obligation were required, which would also provide clear rewards, as well as punishments as a disincentive for non-compliance.

Further, none of the above challenges could be solved through unitary and state-centric actions. They required partnership between states and peoples. This suggests that people were important subjects in regional security. Ignoring their aspirations could generate insecurities in the region. Actually, ASEAN had developed the ASEAN People’s Assembly (APA) in 2000. However, it excluded some people

such as minority groups and government oppositions. 9 The APA was also a weak initiative because there was no clear ‘link’ between this forum and ASEAN’s decision-making process. 10 People still possessed

9 This was also called as the Track III diplomacy. Hadi Soesastro, ‘Introduction and Summary,’ in Report of the Second ASEAN People’s Assembly, Challenges Facing

the ASEAN People, Jakarta: Centre for Strategic and International Studies, 2003, p. 1.

10 It was also criticised for being dominated by the ASEAN Institute of Strategic and International Studies (ASEAN-ISIS), a network of research institutions which

had close relations with ASEAN statesmen since 1988.This was called as the track II diplomacy. Helen E. S. Nesandurai, ‘ASEAN and Regional Governance after the Cold

an insubstantial role and status in ASEAN. 11

Realising the need for a compliance mechanism and a more people centric ASEAN, Malaysia proposed the drafting of an ASEAN Charter. It was an initiative to move towards a more people oriented and legalistic ASEAN. Malaysia proposed this idea in 2004, and in the following year ASEAN declared it part of the regional agenda at the Eleventh ASEAN Summit (Caballero-Anthony, 2008). Indeed, this idea raised considerable controversy within ASEAN between those states with diferent conceptions of order, as the next section will discuss.

IV. Negotiating Order

The drafting of the ASEAN Charter was controversial since adding both legal and human-centric elements could change the principal conceptions of order in the organisation. For some states, this change could be problematic. They sought new compromises in debates between diferent conceptions of order. Interestingly, societal and non-governmental representatives also participated in these debates. ASEAN formed The Eminent Persons Group (EPG) to draft

a people’s recommendation for the ASEAN Charter. In drafting the recommendation, the EPG was to consult with civil society actors.

The final draft would be sent to the High Level Task Force (HLTF), a body of government officials and former diplomats who had the duty

of drafting the charter. 12 This inclusion of civil society in the drafting of ASEAN Charter added more complexity to the debate between

diferent conceptions of order. There were at least three diferent conceptions of order that

animated the debate over ASEAN community building. The first was

a normative-contractual order. Its proponents insisted that the main

11 Kamarulzaman Askandar, Management and Resolution of Inter-State

Conlicts in Southeast Asia, Malaysia: Southeast Asian Conlict Studies Network, 2002.

12 Pavin Chachavalpongpun (ed.), The Road to Ratiication and Implementation

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purpose of order should be the preservation of sovereignty despite the risk of prolonging uncertainties in the region. A consideration of people’s political aspirations should be excluded at regional level because this was fell within the realm of domestic issues. Instead,

order should continue to be maintained through the balance of power management and the economic cooperation pathways to order. Those holding this conception of order basically resisted reforming the imperative of status quo norms as the main instruments of order. They were unwilling to adopt a more legalistic norms as such as the ASEAN Charter.

Burma was the main supporter of this conception of order. As a regime with problematic legitimacy domestically, this government preferred the strict application of status quo norms, and particularly

non-interference norms (Nesandurai, 2009). The modification of non-interference norms with ASEAN’s constructive engagement and

enhanced interactions were already placing Burma under political pressure (Nesandurai, 2009). More regulative and legal norms would

require the Junta to fulfil its commitments since joining ASEAN, which included restoring democracy in Burma. In this regard, it was apparent that the Junta’s interests extremely against people’s interests.

Vietnam and Laos were not as inflexible as Burma in defending non-interference principle, but these states also favoured ASEAN’s conventional practices. These states were concerned that, after Burma, they would be the next targets of ASEAN’s condemnation for their human rights violations. Cambodia also held this state-centric conception of order, but it was not an assertive actor. As a weak democratic country, it was still unconfident about it its domestic stability. Its commitment to protection of human rights was also still vulnerable.

The second approach to order proposed a solidarist security order. Here law was to be the main instrument of order in establishing

protections for people’s rights. The main pathway to order was the expansion of a liberal democratic regional community where peoples and states were partners. This revealed a desire to change ASEAN’s purposes and instruments from a state-oriented to people-oriented approach, and from a voluntary to a more legalistic approach. There were at least two consequences of this conception of order:

the first was that ASEAN was expected to adopt mechanisms of sanction for non-compliance; and the second was that the principle of sovereignty was to be redefined. Sovereignty would be understood

as ‘a responsibility to protect’ rather than rights to rule. 13 It meant that interference would be acceptable in a case where a state failed to protect its citizens.

The main supporter of this main conception of order was the Eminent Persons Group (EPG) as a representative body of civil

societies in the region. This body consulted with many diferent civil society groups in the region, including those who were outside

APA. 14 In its recommendation to the HLTF, the EPG proposed many institutional innovations such as: the establishment of a regional human rights mechanism, adoption of the responsibility to protect principle, a ‘non-consensus based decision-making process,’ the establishment of ‘consultative mechanism between people and ASEAN,’ the establishment of a sanction mechanism, and opposing ‘the unconstitutional change of government (Morada, 2008). The proposal reflected high expectations in civil society in Southeast Asia that ASEAN would substantially change its conception of order to be more people oriented.

Other supporters of this second aspiration for regional order were Indonesia, Thailand, and the Philippines. As democratic countries, these states were influenced by their people’s opinions. Thailand and

13 Noel Morada, ‘ASEAN at 40: Prospects for Community Building in

Southeast Asia, Asia-Paciic Review, Vol. 15, No. 1, 2008, p. 43.

14 There was a coalition of civil society actors outside APA namely Solidarity for Asian People’s Advocacy (SAPA) which mainly represented civil societies and

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the Philippines had proposed a reform of ASEAN’s non-interference principle since 1998 through the idea of ‘flexible engagement,’ a mechanism to allow ASEAN to become involved in promoting

solutions to member states’ domestic problems. 15 They sought a more efective mechanism for ASEAN to address regional problems. Among these states, Indonesia was the main supporter of the establishment

of a regional human rights body, democratisation, promoting good governance and human security in Southeast Asia. 16 It desired a

regional order which could support its own democratisation . The third vision of order in the drafting of the ASEAN Charter was

a combination between a normative-contractual security order and a solidarist security order, described here as a thin solidarist security order. This conception of order entailed the protection and

enhancement of individual rights and the elimination of conflict as the main purpose of order, but it did not include a non-compliance

mechanism. Legal regulation was acceptable for supports of a thin solidarist security order, but it would only contain a distribution of rights and obligations; it would not include rewards and punishments. The main pathway to order in a thin solidarist security order was expansion of democratic community, but this was not a liberal democratic community. Although there would be a partnership between states and peoples, states would still have the stronger bargaining positions. State centrism was not problematic in this conception of order, as long as states could ensure that human security problems within their countries did not undermine regional security. People issues which had fewer regional implications would

be excluded from legal arrangements, which indicated that pro status quo norms and state coexistence were also important goals and instruments of order. People issues were important because of their implications for order, but not because they were the main

15 Donald K. Emmerson, ‘The ASEAN Black Swans,’ op. cit. p. 77.

16 Rabea Volkmann, ‘Why does ASEAN Need a Charter? Pushing Actors and

‘stakeholders’ of order. 17 A thin solidarist security order suggested that ASEAN should be more people oriented but not as completely

people oriented as in a liberal democratic community. Malaysia, Singapore, and Brunei Darussalam were the main supporters

of this conception of order. While these states were aware that ASEAN needed better instruments to promote regional security, they were also cautious that ‘a people oriented ASEAN’ would stimulate democracy and human rights domestic movements. Ferguson argued that Malaysia and Singapore asserted that states’ legitimacy was derived

from ‘output efects’ such as ‘economic growth, political stability and contained ethnic or minority tensions.’ 18 Brunei Darussalam had the

same view with them. These states desired to improve their domestic human security conditions through improved economic welfare, but not through greater political liberty for their citizens.

This debate reveals the three main conceptions of order which competed in shaping the final draft of the ASEAN Charter, namely:

a normative-contractual order, a solidarist security order, and a thin solidarist security order. Arguably, the idea of the ASEAN Charter was problematic for most ASEAN states because it included the element of people and legal sanctions. Even Malaysia, who was the initiator of the charter, was cautious of providing too much space for people’s aspirations in ASEAN. It seemed that the slogan of ‘a people oriented ASEAN,’ which dominated ASEAN rhetoric in the lead up to the signing of the charter, was interpreted in diferent ways by diferent member states. Democratic countries such as Indonesia, Thailand, and the Philippines perceived the ‘people’ as the main constituent of order, while the rest of the states perceived civil society as potential

17 The term ‘stakeholders of a community’ is borrowed from Michael E. Jones, ‘Forging an ASEAN Order: The Challenge to Construct Shared Destiny,’ Contemporary

Southeast Asia, Vol. 26, No. 1, 2004, pp. 140-154.

18 R. James Ferguson, ‘ASEAN Concord II: Policy Prospects for Participant Regional “Development”,’ Contemporary Southeast Asia, Vol. 26, No. , 2004, pp 400-

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sources of instability in the region to be assuaged. This wide gap in conceptions of order influenced the final draft of ASEAN Charter, as will be discussed in the next section.

V. ASEAN Charter: A Legal Instrument without Legal Consequences

The final draft of the ASEAN Charter was signed by the ten member states at the 13 th ASEAN Summit in Singapore in November 2007. The

charter then became the subject of ratification in each member state. It confirmed ASEAN’s commitment to pursue states’ coexistence, the elimination of conflict, a people oriented community, and the

promotion of democratic values as the main purposes of order. It adopted community building as main pathway to order; and pro status quo norms and human rights principle as main instrument

of order. 19 This human rights clause was a new theme in ASEAN documents. ASEAN also declared it would develop a regional body to materialise this principle. Another major instrument of order in the Charter was the enhanced consultation approach to address issues

which had regional implications. This legalised ASEAN’s earlier eforts in undertaking intense dialogue to urge political change in Burma.

In addition to ASEAN’s traditional purposes, which were mainly concerned with regional peace and stability, the charter affirmed ASEAN’s commitment to promoting poverty alleviation, sustainable

development, and a comprehensive security approach. This legalised what had already declared in ASEAN Vision 2020 and Bali Concord

II. Importantly, the language of the charter was vague, particularly

on the clauses about people and rules. 20 It mentioned only that ASEAN would establish a people oriented community, but there

was no further framework for the role of people in ASEAN. Also, a

19 The Association of Southeast Asian Nations, The ASEAN Charter, Jakarta: ASEAN Secretariat, 2008.

mechanism of punishment for violations of agreement was absent. The charter stated that ASEAN would refer the decision to the ASEAN Summit in responding to non-compliance issues and unresolved dispute settlements. This revealed that most security matters would

be addressed as they were in the past, which was through political compromises between statesmen.

With this final draft, there are at least three important points to

be clarified about the principal conceptions of order which was contained in it. Firstly, it was obvious that a thin solidarist security order outweighed other conceptions of order. Some clauses of the charter demonstrated that the first and foremost ASEAN principle would be the upholding of the pro status quo norms as the main

instruments of order, that the non-compliance mechanism would be decided by the ASEAN Summit, and that human security would be addressed by ASEAN without an obligation to consult with people. These clauses suggested that the main pathway to order was still a community of states, rather than a partnership between states and people. It seemed that the charter and its practices were a victory for semi authoritarian states in the region such as Malaysia, Singapore and Brunei Darussalam.

Secondly, while a thin solidarist security order was the most dominant conception of order in the drafting of ASEAN Charter, its conception in the draft was not intact. Thin solidarist security order made compromise with solidarist security order particularly on the clause of human rights principle as the main principle of order.

Thirdly, while states who proposed a normative-contractual order failed to reject the inclusion of human rights principles, democracy, and a people oriented ASEAN as the primary principles and purposes of order in ASEAN, they were also accommodated. The ASEAN Charter made little change to how state practices within ASEAN would be conducted. Both state-centrism and persuasive norms remained the central features of the charter. Other new commitments could not

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It is important to acknowledge that a thin solidarist security order was the dominant conception in this drafting of the ASEAN Charter. People oriented goals, a state community pathway, state centrism, pro status quo norms, and persuasive norms were the main features of regional order.

The following discussion analyses the extent to which the thin solidarist security order present at the signing of the ASEAN Charter could address the four (old and new) key challenges in the region

discussed in the first part of this essay: (1) territorial disputes; (2) economic crisis; (3) Burma’s political dilemma; and (4) terrorism

and non-traditional crimes. It will also analyse the potential of a thin solidarist security order to address the moral dimension of these four problems, which were: (1) violations of people’s rights; and (2) competing moral claims.

Firstly, employing a pluralist framework which was mainly concerned with states’ security, a thin solidarist security order was the main conception at the signing of the ASEAN Charter. This contributed almost no improvement to ASEAN’s potential ability to addressing the four challenges in the new millennium. Most of its clauses were restatements of both the ASEAN Vision 2020 and also the features of

order which ASEAN had already put into practice. The diference was that the old conception of order was repackaged into the form of a

legal charter. In the charter, human rights, democracy, and people oriented

principles were part of the main instruments and purposes of order. While these new additional purposes of order added greater potential for addressing political dilemma of Burma and some of the root causes of terrorism, these principles belonged to a solidarist security order rather than thin solidarist security order. Therefore the future

of their application would again difficult because the thin solidarist security order was the most dominant conception of order in this charter. This difficulty in application was illustrated in the case of

signed ASEAN Charter. The Burmese Junta angered international society by blocking international assistance to many of victims of the cyclone. This indicated that the commitment to promote people centered ASEAN was still far from present.

Secondly, in a solidarist or a moral order framework, a thin solidarist security order improved acknowledgement of people’s rights through the compromise with a solidarist security order and the adoption of human rights principles as one of the main instruments of order. This initiated a potential for the development of a regional framework to protect people’s rights in the future. Indeed, with the current arrangement, the design of a regional framework would tend to conform semi authoritarian states who were the main proponents of thin solidarist security order in the signing of ASEAN Charter. The extent to which this potential would develop is currently highly dependent on the political will of various states.

Thirdly, in framing a thin solidarist security order in the ASEAN Charter through a moral order, this conception of order did little to contribute to a resolution of the competing moral claims in the region. The clause on dispute settlement mechanism in the ASEAN Charter was again overly reliant on compromises at the elite level while competing moral claims between communities at people to people level were left unaddressed. The tensions between Malaysian and Indonesian people illustrates these competing moral claims. Until

now, the slogan of ‘crush Malaysia’ which was first used by Sukarno in Konfrontasi in 1960s was still alive in Indonesian public oration;

there was also blog war on the internet every time Malaysia had problems with Indonesia, for example in 2004 when Malaysiawon Sipadan-Ligitan from Indonesia. 21 This revealed that a sense of

21 Kompas Cyber Media, Aktor Piet Pagau Ajak Rakyat untuk Ganyang

Malaysia (Piet Pagau Calls Indonesian People to Crush Malaysia), 9 March 2005, accessed through http://www2.kompas.com/gayahidup/news/0503/09/181933.htm, on 4 June 2009; Donald K. Emmerson, ‘Security, Community, and Democracy in Southeast Asia: Analysing ASEAN,’ Japanese Journal of Political Science, Vol. 6, No. 2, p. 175.;

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injustice continued to pervade people despite a dispute settlement at the elite level.

This discussion suggests that the only significant contribution that the thin solidarist security order produced was in adopting people oriented purposes from a solidarist security order. Many agree that the adoption a thin solidarist security order as the main conception of order in the ASEAN Charter was a setback (Chachavalpongpun, 2009). The charter only redefined what ASEAN had already put in practice without further reforms.