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RSUIJCG Vol. 3 No. 1 (January - December 2016)
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The Deadlock of ASEAN Dispute Settlement
Mechanisms and Why ASEAN Cannot Unlock It?
Nattapat Limsiritong
School of Law, Assumption University, Thailand
E-mail: nattapat_ov71@hotmail.com
Abstract
The objective of this work is to answer the questions that “What is the deadlock of ASEAN
Dispute Settlement Mechanisms (ASEAN DSMs)?” and “Why can’t ASEAN unlock it?” by
comparative study between ASEAN DSMs and European Union Dispute Settlement
Mechanisms (EU DSMs). A result of this work found that a positive consensus in decision
making mode of ASEAN Summit under Article 20 of ASEAN Charter (Charter), which is
seriously designed to protect the political security of ASEAN, also created a deadlock of
ASEAN DSMs as a whole. Finally, in order to bypass this dead-end, the ASEAN needs to
reverse the process by using the model of reverse consensus (negative consensus). However,
even the Charter opens a gap to unlock its deadlock by re-interpreting of law, the ASEAN
Summit still keep seriously staying on an ASEAN way to protect the political security. Hence
the deadlock of ASEAN DSMs cannot be solved in practice until the political mindset of
ASEAN is changed.
Keywords: ASEAN DSMs, ASEAN Charter, Consensus of ASEAN Summit
Introduction
The ASEAN was officially established in 1976 and turned to be the rule-based regional inter-
governmental organization by launching the ASEAN Charter in 2008. The Charter consisted
of 13 chapters, 55 articles. The ASEAN DSMs is cited under Chapter VIII (Settlement of
Dispute) since Article 22 to Article 28, which were designed to link up between an existing
ASEAN DSMs instruments before the Charter such as the Treaty of Amity and Cooperation
in Southeast Asia (TAC 1976) and ASEAN Protocol on Enhanced Dispute Settlement
Mechanism (EDSM 1996), and the new ASEAN DSMs instruments such as Protocol to the
ASEAN Charter on Dispute Settlement Mechanisms (PDSM 2010), Instrument of
Incorporation of Rules for Reference of Unresolved Disputes to ASEAN Summit (2010),
Instrument of Incorporation of the Rules of Non-Compliance to the ASEAN Summit (2012),
Rules for Reference of Non-Compliance to the ASEAN Summit (2012), Rules of Procedure for
the Interpretation of the ASEAN Charter (2012). However, the fact obviously shows that in the
history of ASEAN, any disputes among the ASEAN Member States has never been applied the
ASEAN DSMs under Chapter VIII of the Charter even once. (KOH, 2008; NALDI, 2014)
The dispute of Preah Vihear Temple (Thailand Vs Cambodia, 2003) as well as Pedra Branca,
Middle Rocks and South Ledge case (Malaysia Vs Singapore, 2003), Case Concerning
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia Vs Malaysia 1997), Case
Concerning land Reclamation by Singapore in and around the Straits of Johor (Malaysia Vs
Singapore, 2003) were settled by the International Court of Justice (ICJ). The cases study on
economic dispute such as Case on Prohibition of Imports of Polyethylene and Polypropylene
(Singapore Vs Malaysia, 1995) and Case on Customs and Fiscal Measures on Cigarettes from
the Philippines (Thailand Vs Philippines, 2008) were also settled by the WTO DSU instead.
According to the research question that “What is the deadlock of ASEAN DSMs?” and “Why
can’t ASEAN unlock it?”, the objective of this work is (1) to comparative study the system of
ASEAN DSMs and EU DSMs, (2) to address the deadlock of ASEAN DSMs, and (3) to
propose a way to unlock it through the advantage of EU DSMs.
RSUIJCG Vol. 3 No. 1 (January - December 2016)
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Methods
The methodology of this work is the comparative study in a field of law based on a
documentary research through a series of core ASEAN DSMs instruments such as ASEAN
Charter (2007), Treaty of Amity and Cooperation in Southeast Asia (1976, 1987, 1998, 2010)
and ASEAN Protocol on Enhanced Dispute Settlement Mechanism (1996, 2004) as well as
an updated amendments such as Protocol to the ASEAN Charter on Dispute Settlement
Mechanisms (2010), Instrument of Incorporation of Rules for Reference of Unresolved
Disputes to ASEAN Summit (2010), Instrument of Incorporation of the Rules of Non-
Compliance to the ASEAN Summit (2012), Rules for Reference of Non-Compliance to the
ASEAN Summit (2012), Rules of Procedure for the Interpretation of the ASEAN Charter
(2012), and Rules of Procedure of the High Council of the Treaty of Amity and Cooperation
in Southeast Asia (2001).
Results
The first question addresses that “What is the deadlock of ASEAN DSMs?”. According to
Article 22 to Article 28 of the Charter, there are mainly problems of ASEAN DSMs as (1) the
weak of interpretation of ASEAN instruments, (2) the lack of finalized-findings and decisions
by each ASEAN DSMs, (3) the lack of power to enforce decisions or compliance, and lastly
(4) an inflexible decision making mode method of the ASEAN Summit in case of dispute
settlement.
Figure 1 ASEAN DSMs Problem Framework
As shown on Figure 1, the problems are classified into two levels. The first level problems
(P1-P3) are related to an unclear provisions of the ASEAN Charter and the lack of applicable
provisions such as enforcement and compliance while the second level problem (P4) is
related to the ineffective decision making system in DSM.
This work found that, in order to solve the first level problems, the current method of solving
problems by interpretation, amendment, adjustment, or even enacting new law instruments, is
not sufficient because the featured factor in the first level problem is the fact that there is no
independent legal tool or institution which has absolute judicial power to make decisions on
legal grounds only and thus effectively settle a dispute. (Phan, 2013; Limsiritong, 2014)
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Moreover, First level problems are directly linked to the second level problem as whenever
the first level problem arises, the system will pass the burden of making a decision to the
ASEAN Summit as a matter of unresolved dispute under Article 26.
Whenever a dispute occurs on a legal matter, the Charter and ASEAN DSMs instruments
refer all unresolved and non-compliance disputes to the ASEAN Summit as the last judge
under Article 26. According to Article 22, the ASEAN Summit is a political body whose
decision making system is based on the ASEAN way (consultation and consensus). In
practice, the ASEAN Summit seeks consensus with all ASEAN Member States. This policy
of seeking consensus gives equal voting rights to the ASEAN Member States without regards
to the size of a country’s economy, land, population or any other factors. Hence, in a political
sense it creates a well-balanced system concerned primarily with the balance of powers
between all ASEAN Member States. (Severino, 2005; Tan, 2008; Lin, 2010)
Nonetheless, regarding dispute settlements which ought to be supported by a legal order and not a
political one, it leads more often than not to a deadlock. Indeed, when the dispute cannot be
settled by ASEAN DSMs these unresolved and non-compliance disputes are then passed on to
the ASEAN Summit under Article 26. The issue with this is that the ASEAN Summit itself is not
designed to protect the legal order, but to balance the power between the ASEAN Member States
based on political interests and this is why the ASEAN Summit decision making is based on
consensus which is inappropriate when dealing with dispute settlements. (Sim, 2008; Leviter,
2010)
There is also a big conflict of interest in case the dispute is submitted to the ASEAN Summit
as it is hardly conceivable that the ASEAN Members States who are also a party to the
dispute will vote against themselves. (Sim, 2008; Phan, 2013) Hence this is the reason why
the ASEAN Summit can rarely reach a consensus-based decision.
The next question is “Why can’t ASEAN unlock it?. In order to see the contrast, the
researcher decided to choose the EU DSMs, which is effective and reliable DSM in a level of
regional organization, not on a question of “which one is better?” but “how to see the
contrast?”. (Koh, Manalo & Woon, 2009; Vergano, 2009; Woon, 2012)
As shown on Figure 2, it mainly shows that the characteristics of ASEAN DSMs are inherent
to the aims of the establishment of ASEAN in the past to protect political security. In order to
guarantee political security, the intergovernmental model was established with the central
power being the ASEAN Summit. The ASEAN way, as a soft law, guarantees that no
ASEAN Member States will interfere in the activities of another no matter what the situation
is and all of ASEAN decisions will be decided by consensus. This fundamental principal
explains why ASEAN DSMs is based on political interests rather than relying on the legal
order. (Haacke, 2003, 2009)
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ASEAN DSMs EU DSMs
Figure 2 Comparative Analysis Result between ASEAN DSMs and EU DSMs
On the other hand, the characteristics of EU DSMs originate essentially from the aims of the
establishment of EU, developing from an economic to a political union through a
supranational organization whose three powers are independent from each other to maintain a
balance of power. In order to protect this supranational power, protection of the legal order is
needed and to guarantee this, a legally supported institution (the ECJ) is needed. Accordingly,
this explains why the EU DSM is based on the legally binding decisions of the ECJ.
(Fontaine, 2010; Ewing-Chow & Hsien-Li, 2013)
From the comparative examination in Figure 2, it consequently appears that the ASEAN
establishment was influenced by the fear of foreign threats (fears of communism) and
decided to be an regional organization in the shape of an intergovernmental organization
which relied on the ASEAN way (Non-interference and consensus decision making).
(Katsumata, 2003; Haacke, 2003, 2009) ASEAN has no separation of powers between
legislative, executive and judicial, and is a top-to-down organization lead by the ASEAN
Summit as its supreme body. On the other hand, the establishment of the EU was influenced
by an ideal of maintaining peace amongst its member states through the delegation of
sovereignty to a supranational or sui generis authority (European Union). With a separation
of the three powers, executive, legislative and judicial in order to maintain a balance of these
powers. (EU, 2012)
For the rules of law, the ASEAN’s rules of law rely on the ASEAN way and most of ASEAN
DSM laws are non-legally binding and are more diplomatic in their approach. Importantly,
the compliance to ASEAN’s DSM is mainly based on the ASEAN way and no DSMs can
apply against the will of any of the parties. (Severino, 2006) Thus the ASEAN DSMs is
designed to protect the political order rather than the legal order. On the other hand, the EU’s
rules of law were designed to be legally binding in order to guarantee the protection of the
legal order of the Union which is a supranational body. Moreover, the EU legally established
the Court to be responsible for securing the enforcement of EU law and developing and
interpreting the provisions of EU law. (Borchardt, 2010; EU, 2012)
RSUIJCG Vol. 3 No. 1 (January - December 2016)
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In conclusion this results shows that the ASEAN DSMs will never has real legally supported
institution to settle disputes unlike the ECJ in the EU. Instead, the ASEAN DSMs is mostly
the prerogative of the ASEAN Summit which is the supreme body of ASEAN and is
composed of the heads of state of each Member State who mostly take decisions based on
political interests.
All of this happens because the classic ASEAN’s norm behind the Charter to protect the
political security made the ASEAN to put all weighs on a side of political security more than
the legal binding dispute settlement, and it was also a main reason why they use the positive
consensus in a decision making mode of the ASEAN Summit in case of dispute settlement.
So the deadlock of ASEAN DSMs will not be changed until this ASEAN’s norm is changed.
Conclusion and Recommendation
In conclusion, the consensus decision making mode of ASEAN Summit is a deadlock of
ASEAN DSMs because it is conservatively based on positive consensus which required the
voting of all ASEAN Member States, included the ASEAN Member States who are in
conflict. And it was also pure designed as a safeguard to full protect their political security.
So it is impossible for the ASEAN Summit to unlock it even they sometimes are not happy
with it and this deadlock of ASEAN DSMs still keep locking until there is some change of
their political mindset.
For recommendation, in order to unlock this deadlock, it needs to reinterpret the Charter and
bypass the deadlock. As mentioned above, the ASEAN DSMs is currently ineffective because
of the decision making mode of the ASEAN Summit which is based on consensus (positive
consensus). This decision making mode appears not to be designed to settle a dispute, but
rather to maintain a political balance, thus the conflict of interest between the right to vote of
the ASEAN Member States on one hand and the need to settle disputes effectively on the
other hand. In order to bypass this dead-end, the ASEAN needs to reverse the process by
using the model of reverse consensus (negative consensus).
Figure 3 The Model of Reverse Consensus
This model would enable the ASEAN Summit to reach a decision no matter what the
issue is. For example, if the parties relating to a dispute do not agree to an ASEAN
Arbitration, it would then be referred to the ASEAN Summit to make a decision on the
suitability of this arbitration. A consensus (positive consensus) would imply all ASEAN
Member States voting yes. Thus in this sense, the parties relating to the dispute would not
vote against themselves and it would automatically block the ASEAN Summit from reaching
a decision. On the other hand, applying the model of reverse consensus (negative consensus)
instead of consensus (positive consensus), this deadlock would be automatically unlocked
unless all ASEAN Member States didn’t agree and voted “no” which would be unlikely. This
negative consensus would thus help the ASEAN Summit to reach a decision whatever the
circumstances and enabling ASEAN DSM to be more effective. However, based on the
balance of interest between the ASEAN Member States, the ASEAN should apply this model
to the very limited scope of ASEAN DSMs and all issues relating to the ASEAN DSMs
RSUIJCG Vol. 3 No. 1 (January - December 2016)
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instruments. Moreover, this model will not solve all problems but rather unlock a door to
other problems like open the Pandora box, thus another burden of ASEAN Summit will be to
find a way to solve other issues such as unclear provisions and the lack of appropriate laws,
and to plan for the development of ASEAN DSMs in the long run.
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