The Search for Alternative Regionalism in Southeast Asia

by Jenina Joy Chavez

When the Association of Southeast Asian Nations (ASEAN) was formed in 1967, the original members did not have an a priori vision of what they wanted the Association to be. It would take another 30 years before the vision of an ASEAN Community1 would emerge. ASEAN members are now preparing to flesh this out in an ASEAN Charter.2

The ASEAN Charter has drawn a lot of interest among civil society and social movements who see the process as an opportunity to bring to the regional arena aspects of their advocacy that are regional in nature. Throughout 2006, many civil society groups expressed their aspirations for regionalism by submitting inputs to the Charter. Despite limited engagement with ASEAN in the past, the submissions were put together with relative ease because they are based on existing local, national and global advocacy.

It remains to be seen to what extent civil society input will be included in the Charter. ASEAN has largely been inaccessible to civil society, and is not known for initiatives that directly target broad sections of the ASEAN population. Many groups therefore question the value of engaging the ASEAN Charter process, or ASEAN itself.

The skepticism with ASEAN, however, is not generalised to the idea of regionalism and regional integration. Outside of Southeast Asia, there are many attempts at regional cooperation and integration. Recent examples from South America suggest that it may be possible to have “an integration of, and for, the peoples.” 3

This idea of alternative regionalism provides the motivation to engage ASEAN. Civil society members’ approach to ASEAN should be the same as their approach to their government, because they lay as much claim to what it does in ASEAN as in their country. With ASEAN, two major weaknesses provide the starting point for engagement. First, ASEAN has failed to identify a clear vision to guide regional integration. Second, ASEAN has also failed to act appreciably on issues requiring regional response. Addressing these weaknesses would be the first step towards building a regional community.

Integration without a Clear Vision

At 40, ASEAN is considered one of the most established regional groupings in the world. However, this staying power veils the absence of a clear vision for the region. ASEAN still has no strong identification with or articulation of regional interest despite its years. It has achieved success in cozy diplomatic relations that serves the interest and provides comfort to the political leadership of its members, but accomplishes little for its peoples. When it started to take economic cooperation seriously, objectives were limited to developing the region as a platform for third country exports and to attracting foreign investments into the region through trade liberalisation. Broader objectives beyond opening up were left behind. Initial dreams of regional import substitution or the development of regional production bases were abandoned. Most regional initiatives cater to big business, but there were no projects directly targeting basic producers and workers. As a result, ASEAN has yet to establish itself as a popular concept, and failed to elaborate its rhetoric to popular consciousness.

In its first 25 years, political security rather than economic cooperation had been ASEAN’s main focus. A voluntary preferential trading arrangement introduced in the late 1970s covered a measly two percent and five percent of intra-ASEAN trade in 1980 and 1986, respectively.4 It was not until 1993 that a more comprehensive ASEAN Free Trade Area (AFTA), through the Common Effective Preferential Tariff (CEPT) Scheme, was established as the key economic project of ASEAN. AFTA’s goal is the complete abolition of tariffs for the ASEAN-65 by 2010 and 2015 for the newer members, with flexibility on some sensitive products until 2018. To date, more than 99% of tariff lines in the inclusion list of ASEAN-6 are within the 0-5% range; almost two-thirds of which have 0% tariff. More notably, with the full inclusion of Malaysia’s completely built-up and completely knocked-down automotive units in 2004, there are no more ASEAN-6 products temporarily excluded from the CEPT scheme.6 A short list of highly sensitive agricultural products (e.g., rice for Indonesia, Malaysia, and the Philippines) has until 2010 to be integrated in the trade arrangement. Average tariff for the ASEAN-6 under the CEPT Scheme is now down to 1.87%.7

Yet even with AFTA, there had been marginal increases in intra-ASEAN trade since the 1990s. Intra-ASEAN trade as a percentage of total ASEAN trade is 22.5% in 2004.

Japan, the United States (US), the European Union (EU), China and Korea remain ASEAN’s largest trading partners, together accounting for more than 51% of ASEAN trade in 2003.8 Though CEPT tariff levels are generally far lower than those committed by ASEAN Members to the World Trade Organisation (WTO), intra-ASEAN trade is limited and the Association has not really paid attention to addressing such limitation. From its inception, AFTA was not seen as a vehicle to address the sluggish intra-ASEAN trade. Rather, it was designed to boost the competitiveness of ASEAN and to attract foreign investments into the region. The preferential nature of AFTA was not the main interest for ASEAN members. This is the reason why in some instances, WTO commitments are realigned to CEPT rates, as in the case of Singapore (complete liberalisation) and the Philippines (some CEPT rates become the most favored nation9 rates).

Another indication that a bigger intraregional market network is not the raison d’etre for AFTA or ASEAN is its involvement in a network of trade and investment arrangements outside the immediate economic integration initiatives the Association itself has initiated. Individual ASEAN member countries are involved in a total of 128 free trade agreements (FTAs) in varying stages of development. Almost two out of five of these agreements have either been signed or are under implementation. Singapore, Thailand and Malaysia have the most number of FTAs proposed, signed or implemented (See Table 1a). Outside of AFTA, ASEAN as a bloc is involved in six other FTAs with Australia and New Zealand,China, the EU, India, Japan and South Korea. The FTAs with Australia and New Zealand, India and Japan are under negotiation (with Framework Agreements signed with India and Japan). The ASEAN-China FTA is being implemented, initially with an Early Harvest Programme for Indonesia, the Philippines and Thailand; while the ASEAN-Korea FTA has been signed and is due for implementation in January 2007. The FTA with the EU is still under study. An East Asia Free Trade Area, covering the Plus Three countries (China, Japan and South Korea) and the other East Asian Summit countries (India, Australia and New Zealand), has also been proposed (See Table 1b).

That ASEAN seems to be uninterested in developing its own internal market is rooted in the extreme competition among its members. ASEAN’s response to the low level of complementarity in the region is to invite foreign investors and use the region as a platform for production and export. Meanwhile, national industries are eaten up by foreign capital, weakened or decimated, further diluting the possibility that ASEAN as a bloc would someday be able to speak of a regional capital and production base. While there are dreams for an ASEAN brand, it is not necessarily a dream for having regionally integrated production using regional capital selling to the region and using the region’s vast human and knowledge resources. Rather, it is to consolidate regional production networks that will make it possible for foreign investors to base all the different stages of production in the region, selling both to the region and outside.

Nor is ASEAN able to play a significant role in the different trade initiatives entered into by its members. In the WTO, ASEAN is not known to carry common positions even as some ASEAN members are part of various coalitions.10 ASEAN members in the WTO only came together to support the appointment of Dr. Supachai Panitchpakdi as Director General in 2002; and in December 2005 there was a joint proposal11 by ASEAN WTO members on the services negotiations. The Association was not, for example, able to provide substantial assistance to Cambodia in its accession process. In the end, Cambodia had to offer more than what existing WTO members offered initially, and give up many of the flexibilities it was entitled to as a least developed country (LDC). Overall, Cambodia “accepted limitations not only with respect to trade policies, but also limitations in other areas…associated with…rights to benefit from special and differential treatment.”12

 

 

TABLES...

 

 

 

How do ASEAN members’ appetites for bilateral FTAs affect initiatives like AFTA? Do they strengthen or dilute them? The signed FTAs13 approximate the ambitions of AFTA and other ASEAN economic initiatives14 within periods very close to ASEAN targets, a clear indication that whether in trade, investments or services, ASEAN does not prioritise the region but uses it as the platform to get more deals from outside the region.

In short, the importance of engaging ASEAN on these issues lies not just on what it does, but also on what it does not.

Signing bilateral agreements is a country’s prerogative, but the absence of institutions in ASEAN to facilitate better coordination among members erodes not only ASEAN’s relevance as a bloc, but also weakens the negotiating position of its members. For the ASEAN-China Free Trade Area (ACFTA), there is an absence of mechanism for common positions to be developed, and most negotiations are done on a bilateral basis. This was the case when China separately negotiated terms of the Early Harvest Program with Indonesia, the Philippines,and Thailand. Lacking is the mechanism by which ASEAN members can process among themselves how concessions and/or commitments should be made, and how the group as a whole can be more supportive of the more hesitant or otherwise more economically vulnerable members. It is this deficiency that makes it difficult for ASEAN to develop harmonised region-wide positions in multilateral fora. It is even more difficult to come up with common policies to present to external partners, whether ASEAN is negotiating as a bloc or the members negotiating individually.

ASEAN places its strategic sights on steering East Asian regionalism, wanting to be a “winning gate to Asia”15 by securing linkages with the bigger Asian economies through the different FTAs. As mentioned, an East Asian FTA had been proposed, amidst thorny debates on whether or not non-Asians (particularly Australia and New Zealand) should be part of it. The proposal is already being challenged by yet another proposal for an Asia Pacific Free Trade Area, pushed as deserving serious consideration by no less than US President George W. Bush himself during the November 2006 Asia Pacific Economic Cooperation (APEC) Summit in Vietnam. While ASEAN and most of its East Asian partners led by Japan would want to consolidate East Asia first, the US is adamantly against it. The US view is articulated by former US Assistant Treasury Secretary Fred Bergsten who believes that instead of “draw(ing) a line down the middle of the Pacific”, both EAFTA and the Asia Pacific FTA should be implemented simultaneously.16 Now it becomes not just a question of whether ASEAN can be an effective driver for East Asia. It is also a question of whether ASEAN can stand up to the US and thwart its attempts to foil the already limited East Asian consolidation it hopes to steer.

Integrating Southeast Asia economically is a complicated process, one that requires the support of all sectors to succeed. Unfortunately, ASEAN’s way of integration is confined to opening up regionally, and opening up some more to outside the region. While this strategy may satisfy ASEAN’s desire to be integrated with its bigger neighbors, it does not capture the breadth of economic imperatives for the region. Integration success should not be limited to increases in trade or the economic growth rate, but should strengthen the region’s productive sectors. It is in this area that ASEAN fails miserably.

Weakness in Other Significant Trans-boundary Concerns

If in its more developed initiatives ASEAN does not hold a glowing record in terms of community building, it is a disappointment in most other areas. Inequality between and among members, intra-regional migration, internal conflicts and human rights, regional health, and regional identity – these are some of the issues where ASEAN response leaves much to be desired.

Inequality and the Development Gap.

The optimism about ASEAN’s ambitious economic initiatives is tempered by the stark realities in the region. Huge disparities in-country and among member countries exist. ASEAN is characterised by different stages of development and variable economic structures, ranging from the most open economy Singapore, to predominantly agricultural Laos and petroleum-based Brunei. Per capita income ranges between $191 for Myanmar and $25,209 for Singapore;17 while unemployment can be as good as 1.5% in Thailand and as bad as 10.9% in the Philippines.18

The distribution of the in-country growth achieved in the region in the last 20 years had been highly skewed. In the older Asian tigers Japan and South Korea, the richest 10% of the population captures a proportion of income that is only 4.5 times and 7.8 times more than the poorest 10%, respectively. In contrast, in the richest ASEAN countries of Singapore and Malaysia, the proportion is a high 17.7 and 22.1, respectively.19 The difference can be attributed to the relatively broader base of growth and planning in Japan and South Korea, and the narrower financial base of the nouveau prosperity in Malaysia and Singapore.

The lack of a broad vision constrains ASEAN from developing more appropriate, even activist responses to bridge the gap between members. ASEAN needs to better appreciate its own economic history. The fastest growth in Asia came from various experiments in the 1970s, 1980s and until the early 1990s. ASEAN benefited from these patently non-neo-liberal experiments, yet it is more than ready to set aside these lessons because liberalisation is now regarded as the key to growth and development. Not enough attention is given to facilitating the process of preparation and maturation for newer members, or even older members with weaker economies. There are no systematic catch-up mechanisms and/or programs for smaller (e.g., the CLMV countries or Cambodia, Laos, Myanmar and Vietnam) members. The assistance available now pertains mostly to technical assistance to help newer members cope with liberalisation.

ASEAN would do community building a great service if it starts to consider and implement programs that more proactively bring all members to a higher level of development, by seriously pooling alternative sources of development finance, and promoting economic and social policies that integrate the lessons of ASEAN’s own tigers.

Intra-ASEAN Migration. ASEAN has a population of more than half a billion people, and is home to one of the biggest migrant sending countries in the world (the Philippines). The economic changes in the last two decades, and long-standing internal conflicts in some countries, prompt the continuous rise of intra-ASEAN migration, and the increase in the population of undocumented intra-ASEAN migrants. Estimates place the number of undocumented Southeast Asian workers in ASEAN at 2.6 million. Majority of the undocumented migrants (82%) are Indonesians and Filipinos, and 83% of them are in Malaysia and Thailand.20 Aside from workers lacking official credentials to work legally in the countries of destination, refugees fleeing conflicts at home (e.g., Myanmar/Burma, Mindanao in the

Philippines) add to the numbers of undocumented migrants. Migration is an issue that ASEAN conveniently dances around despite its ability to create tensions among its members. There is yet to be a substantive recognition of the contribution of migrant workers to the economy, unless they are skilled and professional talents. ASEAN has initiatives towards mutual recognition arrangements (MRAs) of intra-ASEAN migrant professionals, but is silent on the issue of the mass low and unskilled or otherwise undocumented migration that persists in the region. Discussion of undocumented migration is limited to issues of trafficking in persons, a security concern.

A comprehensive discussion of migration is needed in ASEAN to (1) acknowledge the contribution of migrant workers in the region’s development; (2) address the social impacts of migration, including the need to protect migrants’ rights; and (3) come up with regionally acceptable mechanisms to tackle migration, and promote/protect migrants’ rights. Integration implies greater movements of people across the region, and provides an occasion for the socialisation of an ASEAN identity. And because ASEAN also exports workers to countries outside the region, a regional framework on migration will increase ASEAN members’ capacity to negotiate migration issues with those countries, especially the Plus 3 partners where a sizeable number of Southeast Asian migrants are undocumented.

Internal Conflicts and Human Rights.

Part of what is considered ASEAN success is the Association’s ability to mute political conflicts, and the absence of raging wars between countries in the region.21 This is a feat considering the volatile context surrounding ASEAN’s founding, and the involvement of some members in territorial disputes that have yet to find final resolution.

Yet internal conflicts, punctuated by struggles for self-determination, pervade and persist in the region. Aceh and Irian Jaya/West Papua in Indonesia, the south of Thailand, Mindanao in the Philippines, and Myanmar/Burma are conflict areas that ASEAN have so far neglected to discuss officially. Such internal conflicts affect ASEAN’s overall security, which can only deteriorate unless ASEAN stops hiding behind the principle of non-interference and starts discussing principles and mechanisms that will bind members to certain norms and standards (e.g., human rights). Ironically, some members find motivation to speak about the issue of Myanmar/Burma from the US expressed displeasure over the worsening situation, rather than on a clear commitment to facilitate transition in the country.

The issue of internal conflicts is related to the issue of democracy and human rights. ASEAN is known to have cuddled dictator governments in the past, and at present host two military governments. The concept of human rights is not something expressed explicitly in its official documents, and ASEAN remains the only regional association that has yet to establish a human rights mechanism. In fact not all ASEAN members have national human rights bodies (courts or commissions). Despite persistent advocacy for human rights in the region, ASEAN has not been particularly responsive, yet another reason why ASEAN peoples do not feel a strong affinity with it.

Regional Environment and Health. Southeast Asia is an environmentally diverse region that enjoys abundant land, mineral, forest, and aquatic resources. These resources often become the cause of conflict between governments and/or between their citizens. Increasingly access to these resources is being privatised, and negative externalities related to their exploitation are dealt with market mechanisms (polluter pays, etc.). The ASEAN approach to environmental resources tends to be piecemeal, and often contingent on the exigencies dictated by commercial needs (e.g., need to develop intellectual property regimes). What is needed now is a comprehensive approach that defines not only the rights of access, but also the responsibilities for stewardship, protection, and renewal.

On health, the threat and/or incidence of infectious diseases like HIV/AIDS, severe acute respiratory syndrome (SARS) and avian flu continues to increase in the region. There are various initiatives at the ASEAN level to address this, also in collaboration with its external partners and international institutions. To be more effective, there needs to be sharper focus on the welfare of ASEAN citizens rather than on the negative impact of these diseases to the economy (e.g., bad for tourism or agriculture).

Culture and Identity. The idea of ASEAN has to be explained to the people of the region, and this is best done by emphasising the regional aspects that can bring the peoples of ASEAN together. A common understanding of ASEAN’s proud history and legacy, promoted through the media and national and regional educational institutions, would be a good start. For it to go beyond a public relations campaign, new ideas and trends that define the region (mobility and migration, international labour solidarity) should be incorporated. The search for identity should not turn a blind eye to the phenomenal diversity ASEAN is known for, and instead should celebrate it.

Most importantly, identity is best ensured by common agenda that peoples of ASEAN can identify with. A platform for third country exports and attractor of foreign investments is hardly an appealing identity that will make the peoples of ASEAN support the idea of a regional community. For ASEAN to be truly people-centered or peopleempowered, key terms being mainstreamed in the Association these days, the political leadership of ASEAN needs to give attention to the issues of great concern to them. Mechanisms to ensure the equitable distribution of benefits of, and protection from the negative impacts of, integration; positive assistance from the bigger and stronger to the smaller and weaker members; the establishment of a regional instrument on migration; the establishment of a regional human rights mechanism; the protection of the regional environment; increasing the capacity of members to protect their citizens from regionally pervasive communicable or infectious diseases – these are some of the minimum initiatives ASEAN needs to institutionalise to be relevant to people. Failing this, ASEAN will remain a government-centered Association pursuing a floating dream of community, unable to foster an ASEAN identity that Southeast Asians will happily embrace.

Ways Forward for Southeast Asian Regionalism

Southeast Asia is a region of diverse peoples and cultures, of variable economic and political structures, and of uneven capacities and resources. The region’s diversity is often used as an excuse for many things, from the slow pace of democratisation to the shallowness of economic integration. But Southeast Asia is also home to common threats (e.g., environmental degradation, trans-boundary health problems), aspirations (e.g., rights, democracy), and needs (e.g., social development, economic growth). Developing common agenda around these threats, aspirations, and needs will be a big bold step towards defining a community. Embracing the common agenda is crucial in developing a regional identity. That is, a regional identity can be developed through a common imagination of a regional setup, something the region’s people can build together.

As an institution for regional community building, ASEAN is wanting. Its milestones have been alien to people, because it has proceeded with a very government-oriented perspective and involved highly-specialised groups. However, there are people and community issues involving ASEAN countries, and spaces to respond to these issues should be explored at the regional level. Being an inter-governmental body, ASEAN has the responsibility to represent the region’s people, and it should be taken to task for this responsibility.

In engaging institutions like ASEAN, the operative terms should be stakes claiming and demanding accountability. Evaluating ASEAN should lead civil society and social movements to the conception of alternative regionalism, including what kind of ASEAN will work for them. Presently, the process of creating an ASEAN Charter provides an opportunity for engaging ASEAN organisationally as civil society/social movements clarify what kind of regional alternatives will work for them.

However, the process of engagement should not be limited to and should not stop with the official process. ASEAN’s history is marked by the glaring absence of wide-ranging participation from civil society and social movements, and it is high time that the situation is rectified. The process must be taken to the people, the streets, the schools, the local communities. It is time to wrest the initiative from the political elite, and let the people define what kind of regional governance they want, and to articulate their vision for the region.

To be effective, regional engagement should have strong local and national foundations, and should complement global advocacies. It only makes sense that the issues brought to the regional arena are the same issues that groups promote in their own countries. At the same time, local and national advocacies should be given a regional articulation, not because it is a natural progression in campaigning, but because it can facilitate regional solidarity. Only in the spirit of solidarity can truly regional alternatives emerge.

 

Jenina Joy Chavez is Senior Associate with Focus on the Global South and heads its Philippines Programme. She may be reached at <This email address is being protected from spambots. You need JavaScript enabled to view it.>.

 

This article originaly appeared on “Revisiting Southeast Asian Regionalism,” published by Focus on the Global South in December 2006.

 

Endnotes

1 ASEAN Leaders, “ASEAN Vision 2020,” Jakarta: ASEAN Secretariat, 1997.

2 An Eminent Persons Group (EPG) on the ASEAN Charter was formed in December 2005 to draft recommendations on the content of the Charter. The Solidarity for Asian People’s Advocacy (SAPA) Working Group on ASEAN made three submissions to the EPG in April, June and November 2006. In coordination with SAPA WG on ASEAN partners, seven national consultative processes on the Charter and on general issues of engagement with ASEAN were also held between September and November 2006.

3 “Let’s construct a real Community of South American Nations in order to ‘live well’.” Proposal from President Evo Morales to the head of states and people of South America, October 2, 2006. Available online: http://www.integracionsolidaria.org.

4 See Jenina Joy Chavez, “Economic Integration in ASEAN: In Need of another Miracle” in Asian Exchange, 1997, vol. 13 no. 2, for a discussion of ASEAN’s early trade and economic integration initiatives.

5 ASEAN-6 refers to Brunei, Indonesia, Malaysia, the Philippines, Thailand and Singapore.

6 ASEAN Secretariat, ASEAN Annual Report 2003-2004 (Jakarta: ASEAN Secretariat, 2004).

7 ASEAN Secretariat, ASEAN Annual Report 2005-2006 (Jakarta: ASEAN Secretariat, 2006).

8 ASEAN Secretariat, ASEAN Statistical Pocketbook 2005 (Jakarta: ASEAN Secretariat, 2005).

9 Most Favored Nation (MFN) rates refer to the best tariff rates a country gives to all of its trading partners without discrimination; also WTO rates. This is distinguished from preferential tariffs, which are rates of concession a country extends to a smaller number of countries it has special trade arrangements with.

10 Indonesia, the Philippines, and Thailand are members of the G20, a coalition with strict focus on agriculture, specifically on the reduction of domestic support, tighter controls on export credits, and access to markets of developed countries. Indonesia and the Philippines take the lead in the G33, an alliance for special products and special safeguard mechanisms.

11 Brunei, Indonesia, Malaysia, the Philippines, and Thailand made a joint submission for the retention of the bilateral request and offer process and against the multilateral benchmarking system proposed by the developed countries (led by the EU and Japan). Under benchmarking, developing countries will be compelled to open up a number of sectors from among a few selected sectors. Under the request and offer method, WTO member countries set their own limits and are allowed to liberalise at their own pace.

12 United Nations Commission on Trade and Development, The Least Developed Countries Report 2004 (Geneva: UNCTAD, 2004).

13 FTAs are not limited to trade in goods but also cover services, and in some cases investments.

14 Aside from AFTA, ASEAN has also agreed to establish an ASEAN Investment Area (AIA) which will confer national treatment to ASEAN investors by 2010; and has signed the Framework Agreement on Services (AFAS) which envisions free flow of services by 2020.

15 “ASEAN: A Winning Gate to Asia!,” Address by ASEAN Secretary General Ong Keng Yong, 7^th ASEAN Forum, Jakarta, 6 December 2005. Available online: http://66.102.7.104/search?q=cache:PAjYcG4vOxIJ:www.aseansec.org/ 17985.htm+East+Asian+Free+Trade+Area+ong&hl=en&ct=clnk&cd=6

16 AFP, “US, Asia differ over free trade mechanics,” posted 01 December 2006. Available online: http://66.102.7.104/search?q=cache:_jbHG60GJ5AJ:www.channelnewsasia.com/stories/
afp_asiapacific_business/view/244682/
1/.html+east+asian+free+trade+agreement&hl=en&ct=clnk&cd=11.

17 Data are for 2004. ASEAN Secretariat, ASEAN Statistical Pocketbook 2005 (Jakarta: ASEAN Secretariat, 2005).

18 Data are for 2004. Asian Development Bank, Key Indicators 2005 (Manila: ADB, 2005).

19 United Nations Development Programme, Human Development Report 2003 (New York: UNDP, 2003).

20 Chris Manning and Pradip Bhatnagar, “The Movement of Natural Persons in Southeast Asia: How Natural?” in Working Paper in Trade and Development, No. 02/2004 (Canberra: ANU Research School of Pacific and Asian Studies Division of Economics).

21 For more detailed discussions of internal conflicts and human rights in Southeast Asia, see Herbert Docena, “Raising a Different Flag: Struggles for Self-Determination in Southeast Asia,” and Rashid Kang, “Democracy and Human Rights in ASEAN.”

Moving from Impunity to Accountability

by Rebecca D. E. Lozada

Ancients say, “War is a vanishing point of law, and before arms, the laws fall silent.”

The countries of Southeast Asia know this well. The culture of impunity in times of war and internal conflict has been horrifically evident in the subregion. During the Second World War, the Japanese Imperial Army forced some 2,000 women – mostly coming from Korea and China, and also women from Malaysia, Indonesia, East Timor and the Philippines – into sexual slavery as “comfort women.” More recently, the Khmer Rouge regime in Cambodia laid to waste a million lives in its reign of terror between 1975 and 1979. Today, the peoples of Burma, Aceh, and Manipur among others constantly call for the rule of law to prevail in the midst of turmoil in their lands.

These are tragedies not only to the victims and their families but also to the entire world. While impunity reigns, transgressions of human rights and international humanitarian law will go on threatening human security and peace.

ICC: a new mechanism for justice

The horrors the world has experienced, and continues to experience, in times of conflict and war manifest the need for the International Criminal Court. The ICC is the first permanent international court that can prosecute and pass judgment on individual perpetrators of genocide, war crimes and crimes against humanity. The Court will also have jurisdiction on the crime of aggression once it is defined. (A review conference on the ICC treaty will take up the definition of the crime of aggression in 2009.)

The treaty that created the ICC, the Rome Statute, is a breakthrough in the world’s long struggle for international justice. It was adopted by 120 states taking part in the United Nations Conference of Plenipotentiaries in Rome in 1998 and later signed by 139 states. The Rome Statute came into force in 2002 with the ratification of 60 countries. To date, 104 countries have ratified or acceded to the treaty.

Established only in 2003, the Court now stands as the most important mechanism for human rights protection, the rule of law, and justice for all victims of the most grievous international crimes. The ICC has set new standards in the types of crimes within its jurisdiction, especially on gender crimes, and in judicial processes and structures.

Internal conflicts

Unfortunately, of the 10 member-states of the ASEAN, only Cambodia has so far ratified the Rome Statute. The Philippines and Thailand have signed but have not completed the process of ratification. Asia is in fact the least represented region in the Court. Only Afghanistan, Cambodia, the Republic of Korea, Mongolia and Timor- Leste have ratified or acceded. Governments have explained non-ratification in light of recurrent internal conflicts. They contend that they do not want to be hampered by the Rome Statute in fighting rebellions and defending national security.

Ironically, it is in times of conflict that the rule of law is most needed. Ratification of the ICC treaty protects civilians and both state and non-state actors locked in conflict against atrocities. The citizens of ASEAN countries are deprived of a mechanism for deterrence and justice as a result of inaction or slow action on ratification.

Both Cambodia and Timor- Leste (which is seeking membership in ASEAN) are still seeking justice for the atrocities committed against their people under the rule of the Khmer Rouge and Indonesia respectively. These countries know that moving ahead into a new order that adheres to the rule of law and democracy entails an accounting of the past.

Impunity agreements

But there is another reason cited by Asian governments against ratification: the United States government’s opposition to the ICC and pressure on countries to sign bilateral immunity agreements (BIAs). The agreements grant immunity to American nationals from prosecution by the ICC for any crime they may have committed in countries that have forged BIAs with the US. Some 20 governments in Asia, most under fear of cuts in US military aid, have signed BIAs and most of them have been reluctant to ratify and implement the ICC treaty.

Ironically, while only Cambodia has ratified the ICC treaty among the 10 ASEAN members, seven countries have entered into BIAs with the United States.

The US has gone so far as suspending military assistance to those states parties to the ICC that do not sign BIAs, an open attempt at bullying economically vulnerable states like Laos, Indonesia, and other countries. Besides the BIAs, the US Congress adopted the American Servicemembers’ Protection Act

(ASPA), also known as “The Hague Invasion Act,” which restricts US cooperation with the ICC, making US support for peacekeeping missions largely contingent on achieving impunity for all US personnel and even granting the President permission to use “any means necessary” to free US nationals and allies from ICC custody in The Hague, the site of the ICC headquarters.

The US also attempted to get blanket immunity for US peacekeepers through the United Nations Security Council resolutions which passed once in 2002 and was renewed in 2003 despite opposition from a number of states. US withdrew the resolution in 2004 after realising it would not get enough votes for its passage.

What is to be gained

The difficulties notwithstanding, there are many reasons why ASEAN states, including the Philippines, should ratify the Rome Statute of the ICC. These include, among others:

• To provide a venue for justice at the court of last resort to victims of the crimes within the ICC’s jurisdiction;

• To become a part of the Court that serves as a deterrent to heinous crimes such as genocide, war crimes, crimes against humanity;

• To provide protection for nations, especially small and underdeveloped ones, from crimes of aggression [when crime of aggression is defined in 2009 and becomes one of the crimes within the jurisdiction of the ICC];

• To be able to participate in the Court and be part of shaping this new mechanism for justice by being part of the Assembly of States Parties as well as having ASEAN judges, prosecutors and other court personnel appointed to the ICC; and,

• To support the rule of law and contribute to international justice.

 

Though no criminal has been tried and punished so far, ICC’s deterrence effect was felt in countries where the ICC prosecutor conducted investigations on cases.

Since it came into force in 2002, the Court has already made an impact in upholding international justice. Though no criminal has been tried and punished so far, ICC’s deterrence effect was felt in countries where the ICC prosecutor conducted investigations on cases.

The impact on the ground in Uganda and the Republic of Congo was dramatic. In Northern Uganda, crimes committed decreased drastically after arrest warrants were issued against five top commanders of the Lord’s Resistance Army. This resulted in displaced persons leaving camps to return home and tens of thousands of children, formerly vulnerable to being abducted, no longer having to stay in night commuter shelters.

The people of the Democratic Republic of Congo are vigilantly monitoring the first ever proceedings at the ICC against a charged person. In November 2006, the Court started confirmation of charges hearings against Mr. Thomas Lubanga Dyilo with victims, former child soldiers, participating in proceedings through their legal representatives. If the ICC pre-trail chamber judges confirm the charges, the first trial of the Court will be conducted during 2007. As the ICC prosecutor, Mr. Luis Moreno-Ocampo stated soon after the hearings started, regardless of the outcome of this particular case, it will send a message around the world that “using children as soldiers is a very serious war crime that will be prosecuted.”

The ICC prosecutor is also undertaking vigorous investigations on Darfur, Sudan where the worsening situation involves multi-parties and much hope is placed on action from the ICC.

The victims of crimes under the jurisdiction of the ICC demand and should get much more if justice is to be served. The 104 ratifications/accessions to the Rome Statute is a testament to the political will of many peoples, governments, and NGOs that have been campaigning for the Rome Statute and supporting the ICC to help end impunity and to uphold accountability.

Standing with the states parties of the Rome Statute would be an act of solidarity as well as a demonstration of sovereignty for ASEAN members.Parties to the ICC treaty strengthen their own domestic judicial systems through implementing legislations that states are required to adopt when they ratify the Rome Statute. The ICC recognises the primacy of national courts and can only intervene in cases where the states are unwilling and are unable to prosecute.

ASEAN owes it to the victims of atrocious crimes in the subregion to do its part to protect the gains of the Rome Statute...

While ASEAN is still working towards the creation of a viable regional human rights mechanism in the context of the creation of a stronger regional intergovernmental organisation, it should not miss this chance to demonstrate its own commitment to international justice.

ASEAN owes it to the victims of atrocious crimes in the subregion to do its part to protect the gains of the Rome Statute and make the vision of universal ratification a reality. Before arms, law cannot be silent and action is imperative.

Road to the International Criminal Court and Gender Integration in International Law

Among the advances in the ICC is the re-setting of the course of international humanitarian law toward gender responsiveness. The following is a chronology prepared by the Women’s Caucus for Gender Justice:

• At end of World War II (WWII), Allied Powers insist on international military tribunals (IMT) to prosecute war crimes by Nazis (Nuremberg) and Japanese military (Far East)
• Statutes of Nuremberg and Far East tribunals fail to include rape
• Nuremberg Judgment issued
• International community calls for an international criminal code and court [1946-1948: Widespread sexual violence in Europe and Japanese military’s widespread practice of sexual slavery of “comfort women” not addressed by IMTs]
• United Nations Universal Declaration of Human Rights (UNDHR) and Genocide Convention adopted
• Convention calls for international tribunal
• International Law Commission drafts statute for an ICC but Cold War prevents serious efforts to create one
• The four Geneva Conventions adopted, with references to sexual violence in terms of honour and dignity, not listed among grave breaches<
• Additional Protocols (I & II) to the Geneva Conventions adopted
• End of Cold War clears the way for an international court again
• Former “comfort woman” breaks nearly 50 years of silence about her sexual enslavement by Japanese military in WWII, sparking international movement seeking accountability and reparations
• Vienna World Conference on Human Rights recognises need to address grave violations of women’s human rights as part of UN agenda (1993)
• Security Council establishes International Criminal Tribunal for former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), providing more impetus to develop a permanent court (1995)
• General Assembly (GA) sets up Preparatory Committee to prepare draft text of a treaty to establish an ICC
• 4th World Conference on Women in Beijing adopts Platform for Action (BPFA) affirming rape as a war crime (1998)
• ICTR issues Akayesu judgement finding rape a form of genocide; ICTY follows with Celebici and Furundzija judgements finding rape a form of torture
• July 17, 1998: “Rome Statute” of the ICC adopted by a vote of 120-7. Codifies rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, sexual violence as war crimes and crimes against humanity for the first time in history.

Source: http://www.iccwomen.org

Chronology of the International Criminal Court

1945

Establishment of the International Military Tribunal known as the “Nuremberg Tribunal” by the “London Agreement” to try alleged Nazi war criminals.

1946

The Allied Powers of World War II approved the Charter that established the International Military Tribunal for the Far East known as the “Tokyo Tribunal” to prosecute Japanese war criminals.

1947

The United Nations Convention on the Prevention and Punishment of the Crime of Genocide was adopted. Article I of the Convention stated that genocide is “a crime under international law,” and article VI indicated that persons charged with the offense of genocide “shall be tried by a competent tribunal of the State in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction . . .” In the same resolution, the General Assembly invited the International Law Commission “to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide . . .”

1949 – 1954

The International Law Commission prepared several draft statutes for an ICC but differences of opinions forestalled further developments.

1989

In response to a request by Trinidad and Tobago, the United Nations General Assembly requested the International Law Commission (ILC) to resume work on an international criminal court with jurisdiction to include drug trafficking.

1993

The United Nations Security Council established the ad hoc International Criminal Tribunal for the former Yugoslavia, to hold individuals accountable for the atrocities committed as a part of what was known as “ethnic cleansing.”

1994

The International Law Commission completed its work on the draft Statute for an International Criminal Court and submitted the draft statute to the UN General Assembly. To consider major substantive issues arising from that draft Statute, the General Assembly established the ad hoc Committee on the Establishment of an International Criminal Court.

1994

The United Nations Security Council established the International Criminal Tribunal for Rwanda (ICTR) by resolution 955 of 8 November 1994 for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31 December 1994 and Rwandan citizens responsible for the same violations in the territory of neighboring states.

1995

The ad hoc Committee on the Establishment of an International Criminal Court met twice. After the General Assembly had considered the Committee’s report, it created the Preparatory Committee on the Establishment of an International Criminal Court to prepare a widely acceptable consolidated draft text for submission to a diplomatic conference.

1996 – 1998

The Preparatory Committee met over this period and held its final session in March and April of 1998 where it completed the drafting of the text.

17 July 1998

Adoption of the Statute of the International Criminal Court at the United Nations Conference of Plenipotentiaries in Rome with the participation of representatives of 160 states, 33 intergovernmental organisations and a coalition of 236 non-governmental organisations. 120 countries voted in favor, seven against and 21 abstained. The ICC was established not as an organ of the United Nations but as an independent organisation with an independent budget.

16 January 2002

Agreement between the United Nations and the government of Sierra Leone for the establishment of the Special Court for Sierra Leone to try individuals responsible for “those who bear greatest responsibility for crimes committed in Sierra Leone during the country’s violent conflict after 30th November 1996.”

11 April 2002

Sixty ratifications of the Statute of the International Criminal Court were required before the Statute could be enforced. The 60th instrument of ratification was deposited with the United Nations Secretary General when 10 countries simultaneously deposited their instruments of ratification as provided by Article 126 of the Rome Statute.

1 July 2002

The Statute entered into force on 1 July 2002. Anyone who commits any of the crimes under the Statute after this date is liable for prosecution by the Court (As of 26 February 2003, with 139 signatories, 89 states have ratified or acceded the Rome Statute). In order to prepare for a smooth and timely beginning for the Court once its officials were elected, an advance team of experts began work in The Hague, The Netherlands, seat of the Court. The team was responsible for the first practical arrangements for the coming into operation of the Court. The team consisted of eight technical experts in, among other things, human resources, finance, building and facilities management, information technology, legal matters, and security. With the host state, the team did preparatory ground work to enable the Court to start recruiting and commence its basic operations when it formally begins its work. As mandated, the advance team also acted as a custodian for all information addressed to the Court. Systems were put in place to allow the team to take possession of such material, register it in accordance with international standards, and store it in a safe place until it can be given to the prosecutor. The mandate of the advance team ceased on 31 October 2002.

August 2002

The first session of the Assembly of States Parties to the Rome Statute adopted the budget of euro 30 million for the first financial period of the Court (ICC-ASP/1/Res.12) and adopted various instruments including the “Rules of Procedure and Evidence” and “Elements of Crimes.” In addition, a Director of the Division of Common Services was appointed, becoming the first senior officer of the ICC responsible for leading the process to allow the Court to become operational.

15 October 2002

The Director of the Division of Common Services formally took over the functions carried out until then by the advance team. The Division was established with the intention to maximise efficiency and economy within the parameters of the strict division of powers set out in the Statute between the judiciary and the Office of the Prosecutor. The Division provides the judiciary, the Office of the Prosecutor, the Registry and the Defence with administrative services that are a common requirement of all four.

3-7 February 2003

The resumed session of the first Assembly of States Parties elected the first 18 judges to serve the Court.

11 March 2003

Inauguration of the ICC and swearing-in of the judges before the President of the Assembly of States Parties HRH Prince Zeid Ra’ad Zeid Al Hussein. The inaugural public session was held at the Hall of Knights in The Hague. The ceremony was attended by Her Majesty Queen Beatrix of the Kingdom of The Netherlands, in Her capacity as Head of the host state of the Court and by the United Nations Secretary-General Mr. Kofi Annan.

21-23 April 2003

Second resumption of the first session of the Assembly of States Parties. Mr. Luis Moreno-Ocampo from Argentina elected by consensus as first Chief Prosecutor of the International Criminal Court.

16 June 2003

Mr. Luis Moreno-Ocampo pledged his solemn undertaking during an open session of the Court presided by Judge Philippe Kirsch, President of the ICC, and witnessed by the President of the Assembly of States Parties, HRH Prince Zeid Ra’ad Zeid Al-Hussein of Jordan. The solemn ceremony was held at the Great Hall of the Peace Palace in The Hague and was followed by a two-day public hearing and debate on the policies of the Office of the Prosecutor.

 

Rebecca Lozada is a program associate of the Coalition for the International Criminal Court-Asia office.

 

This paper was presented at the 2ndASEAN Civil Society Conference, 10-12 December 2006, Motebello Hotel, Cebu, Philippines.

Status Of ICC Process in Asia

 

Sub-region	No. of States	Signature	Ratification (r) Accession (a)	Drafting of implementing legislation	Bilateral Immunity Agreement (BIA)	Agreement on Privileges and Immunities (APIC)
Southeast Asia	11	2	2	2 stalled	7
South Asia	8	1	1	1 on-going	8
Northeast Asia	5		2	2 on-going	1	2
Central Asia	6	2	1		5
Total	30	5	6	3 on-going 2 stalled

 

Burma’s choice, ASEAN’s dilemma: “Disciplined Democracy” vs.“Diversity in Democracy”

by Khin Ohmar

Introduction

There has been a protracted political impasse in Burma between a military regime on the one hand and an ethno-nationalist and pro-democratic political opposition on the other. This stalemate rests on fundamentally opposing visions of the democratic system that should emerge: “disciplined democracy” or “diversity in democracy.”

Resolution of this stalemate can only be achieved if the root causes of political tension are fully recognised. While any emergent form of democracy in Burma that respects the human rights of all citizens will face serious challenges as it grows, the disciplined democracy espoused by the ruling State Peace and Development Council (SPDC) will only perpetuate national and regional insecurity and instability. Therefore, taking seriously this dilemma requires a substantial political shift, particularly in governments of the ASEAN region, from a narrow focus on the SPDC’s process of forging a “disciplined” democracy to acknowledging Burma’s opposition forces’ demand for a federal model of democracy that embraces ethnic diversity.

It may be argued that such a “diversity in democracy” model poses political challenges to many Southeast Asian states. Nevertheless, for Burma’s decades-old political opposition, this approach presents the only durable solution to the profound human insecurity resulting from Burma’s ongoing political impasse and the legacies of colonialism. Sixty years of insurgency and counter-insurgency has proven that where widespread oppression continues, struggles for justice will always find ways to return, find other spaces in which to reinstate themselves.

While the SPDC seeks “reconsolidation” of so-called national unity through force, for which the sole purpose is to ensure the permanent role of the army in Burmese national politics, the Burmese opposition seeks genuine national reconciliation among all ethnic nationalities that constitute the Burmese nation-state in its modern form.

The primary intention of the SPDC is to reconsolidate the state of Burma in its current structure of militarydominated central governance. Reconsolidation of this nature reinforces nation-building policies that perpetuate social, economic, political, and cultural divisions while enforcing legal and military unity.

The Burmese opposition forces, which include ethnic-nationalities leadership and pro-democratic forces inside Burma, in border areas and diasporically in developed nations, have drafted an alternative constitution based on a federal system that guarantees the rights of Burma’s minority ethnic nationalities. In the process of drafting this federal democratic constitution, the opposition movement has developed strategies to politically, not violently, address key factors which currently underlie the nation-state’s security.

The adoption of a federal constitution under the current political circumstances poses a significant challenge for the opposition forces given the decades of anti-federalism propaganda by the military regime. Nevertheless, the principles articulated in this draft remain pivotal to the possibility of peace and security. The important question is: which form of democracy will be the most resilient?

Four Factors Necessary for a Resilient Democracy

Though this list is far from exhaustive, I will focus on four factors necessary for a resilient democracy in Burma. These are a mechanism for national reconciliation, a genuine acceptance of ethnic diversity, a fostering of practices of political citizenship, and an economic transformation to prevent further draining of human resources through forced migration.

Analysing each factor in relation to the two competing approaches to democracy highlights the inability of the SDPC to achieve political stability through its proposed “disciplined democracy.” While the opposition’s demands for an inclusive and rights-based democratic system faces considerable challenges in implementation, it promises to be the more resilient model because it addresses the root causes of Burma’s insecurities.

First, in the context of decades-long state perpetrated human rights violations, a democratic Burma needs a reconciliation process that deals with past grievances in genuine ways. Such a process must do more than allow for reconciliation between SPDC and ethnic nationalities leaders at the elite level. It must deal with both the rationale and the actual practices of these violations at the individual and local community levels. This is especially important when there is a history of communities (violently) mistrusting each other. It is not possible to develop a larger community without trust. Fundamentally, this is a state that cannot be forced or imposed – it must come genuinely from the people themselves. For this to occur, all people need to know what happened in the country. Why the Panglong Agreement of federal union formation was not honoured and turned to violence and a five-decades long civil war. Why rape and sexual violence against ethnic minority women have been systematically and widely practiced by army troops with impunity in its war against ethnic oppositions. Why thousands of peaceful pro-democracy activists in the 1988 nationwide uprising were killed and hundreds imprisoned. Why there has been systematic massive forced replacement of civilians that uprooted an estimated one million peoples’ livelihood, leading them to become internally displaced, running and hiding in the jungles. Why forced labour was imposed and arbitrary killings took place. As the experience of South Africa has shown, addressing the root causes of conflict and seeking justice for human rights violations demands national reconciliation. There can be no healing without truth, no reconciliation without truth, and no peace without justice.

...a democratic Burma must genuinely embrace the country’s ethnic diversity in the political structures of the state.

Second, a democratic Burma must genuinely embrace the country’s ethnic diversity in the political structures of the state. Burma’s history of ethnic minority oppression through cultural and religious discriminatory practices and rejection of any degree of self-determination has ensured that ethno-political insurgent groups such as the Karen National Union (KNU), the Shan State Army (SSA) and the Karenni National Progress Party (KNPP) will never stop fighting until justice has been achieved. We, the democratic political opposition, will never stop until peace and justice prevail. The political reality that cannot be ignored is the strength, determination, and resilience of our demands for justice and rights. Without agreed arrangements for self determination and equality for all democratically enshrined, it is not possible for the SPDC to claim a genuine appreciation of social diversity. For a democracy to survive given the ethnic diversity existing in Burma, equal rights and opportunity must be enabled through a federal system of governance.

Third, a resilient democracy depends on the people’s capacity to practice political citizenship through civil society empowerment. The SPDC has said in a press release, “every citizen of Burma can participate in the process of peace and stability of the country.” However, people who express their political views are still arrested and imprisoned. Some of my close friends, the student leaders of 8888 democracy uprising who had already spent 14 to 16 years in prison were re-arrested three months ago for their peaceful initiatives towards national reconciliation.

Fourth, poverty is widespread and the economy has continued to suffer the effects of a growing deficit, skyrocketing inflation, shortfalls in energy supplies and foreign exchange, poor education, HIV/AIDS and drug problems. These disproportionately impact the life and livelihood of women, children, and the poor, particularly in ethnic, forced relocation and military operation areas. The chronic deterioration of Burma’s economy is at the root of massive human insecurity leading to widespread displacement through refugee flight and other forms of forced migration. This represents a profound loss of human resources for the economy and society. People must have economic opportunities to survive but also to return to Burma. A democratic system must provide the political stability and foster hope sufficient to reverse this destabilising trend and foster conditions for post-conflict reconstruction.

Suggested Policy Directions for a Genuine Democratic Transition

First, the ASEAN governments must support the development of a strong civil society inside Burma, among its exiled opposition forces as well as across the ASEAN region. They must also back a transformation of ASEAN values towards a rights-based focus rather than a “cultural” relativist one, and a recognition of the true and full nature of Burma’s conflict and political stalemate.

The non-interference policy runs counterproductive to many of ASEAN’s own espoused commitments, including the protection of women and their rights.

Second, the non-interference policy of ASEAN should no longer be applied to situations of human rights violations and human insecurity in Burma and its spillover effects in the region. The non-interference policy runs counter-productive to many of ASEAN’s own espoused commitments, including the protection of women and their rights. For example, the ASEAN declaration to stop violence against women has yet to be effectively implemented by any ASEAN government. These same governments are also failing to implement the articles of the Convention on the Elimination of Discrimination against Women (CEDAW) or to take action on the UN Security Council’s 2000 Resolution 1325 concerning the protection of women in situations of armed conflict. Several reports on the systematic rape of ethnic minority women in Burma by the military dictatorship’s soldiers have provoked strong responses from governments around the world, yet no ASEAN government has raised these with the military regime.

Finally, there is an urgent need to recognise the essence of Burma’s conflict. This means engaging with Burma’s opposition forces. To date, our democratic opposition movement has been largely ignored by ASEAN. We urge their inclusion and consultation in visits by state representatives who can demand meetings with Burma’s pro-democratic opposition parties.

ASEAN Civil Society to Contribute towards Democratisation

Burma presents a strong case for ASEAN democratisation and stability as there already exists a strong, resilient, and viable political opposition to authoritarian rule. Yet, the “disciplined democracy” the SPDC is trying to establish maintains its authority by limiting people’s rights and perpetuating discriminatory practices. This includes a constitutionally enshrined permanent leadership role for the military in politics. I want what Daw Aung San Suu Kyi wants – democracy with compassion, which means embracing diversity and allowing people to care for one another and enjoy their freedoms.

The challenge of transition is how to enable the emergence of a democracy that recognises ethnic diversity as constitutive of a peaceful, stable, and sustainable political community. As the struggle for political transition belongs to the people of Burma, the choice is ultimately ours. However, increasing regional integration means that ASEAN nations’ political, economic, social, and environmental security is also at stake. This makes the issue of transition to democracy in Burma a serious dilemma for ASEAN.

I am a political activist whose life is committed to struggle for a democracy that respects human rights. I am also a civil society actor representing a community living in displacement in Burma’s borderlands and whose lives depend on the form of political transition that takes place in Burma. As those directly affected by the conflict and instability, we demand that our experiences and opinions be counted. We strongly urge the ASEAN community, both the governments and civil society sectors, to look beyond Rangoon for the reality of Burma’s political struggles and join hands with us, the democratic opposition, to help bring about democratic change. Burma’s victory will not belong to the Burmese people alone. It will be ours/yours. Now is the time for us, the people of ASEAN, to take responsibility, mobilise people power and prove with our collective solidarity to the leaders of our region and the ASEAN that we are the stakeholders and decision makers in our lives and it is our role and responsibility to transform life in our own region and this decision making process must be left in our hands.

 

Khin Ohmar is a Policy Board Member of the Forum for Democracy in Burma (FDB). She is also the Coordinator of the Asia Pacific Peoples’ Partnership on Burma (APPPB).

This paper was presented at the 2nd ASEAN Civil Society Conference, 10-12 December 2006, Motebello Hotel, Cebu, Philippines.

 ASEAN’s Emergency Rice Reserve Schemes:Current Developments and Prospects for Engagement

by Elenita Daño

The Association of Southeast Asian Nations (ASEAN) adopted a food reserve scheme to ensure food security in the face of unexpected instabilities in supply and production brought by a gamut of factors, through the ASEAN Emergency Rice Reserve in 1979. While the model was never actually put into practice through its 27 years of existence, it has inspired the South Asia Association for Regional Cooperation (SAARC), another regional group, to adopt a similar scheme in 1987. More recently, the biggest trading partners of the ASEAN in East Asia, namely Japan, China, and South Korea, comprising the so-called “ASEAN Plus-Three,” have pumped life into the dormant scheme by expanding the ASEAN Emergency Rice Reserve into the East Asia Emergency Rice Reserve (EAERR) guided by the same objectives with some structural and operational changes.

Emergency Rice Reserve: ASEAN Scheme vs. East Asia Scheme

The ASEAN Emergency Rice Reserve was originally established as part of the implementation of the ASEAN Food Security Reserve Agreement (AFSR) signed by the ASEAN Ministers of Foreign Affairs in 1979. Under the AFSR, Member Countries have committed to voluntarily provide rice— the primary staple food in Southeast Asia— into a common regional stockpile for the purpose of meeting emergency requirements resulting from severe fluctuations in rice supply and

production at the national level. After more than 25 years since its establishment, the ASEAN Emergency Rice Reserve only stood at a measly amount of 87,000 metric tons, or equivalent to not even the half-day combined consumption volume of the 10 ASEAN countries.1 Notably, the total commitment of ASEAN governments to the Emergency Rice Reserve did not actually go substantially past the initial volume of 50,000 tons originally earmarked in the AFSR, and the initial commitments of the member-states in 1979 were not increased, utilised, nor replenished.2 Due to the insignificant volume of its rice reserve, and perhaps, because of the onerous request and delivery procedures, the ASEAN Emergency Rice Reserve did not at all work to address any of the food emergencies that struck the region since the scheme was established, such as the serious rice shortage in Indonesia in 1997.3

The idea to improve the implementation of the ASEAN Emergency Rice Reserve scheme was crystallised in a special workshop on Food Security Cooperation and Rice Reserve Management System in East Asia held in Nakhon Pathom, Thailand in April 2001, funded by the government of Japan. The workshop recommended that a study team be established to review the possibility of establishing a new rice reserve scheme in East Asia, beyond the original ASEAN coverage. The proposal was endorsed by the Senior Officials Meeting-ASEAN Ministers on Agriculture and Forestry (SOM-AMAF) “Plus-Three” that includes South Korea, China, and Japan.4

The East Asian scheme is also geared more towards intra- and inter-regional rice trade and developing the international competitiveness of the member countries through technology transfer, regional cooperation, and private sector participation, over and above the food security objective.

The study team, supported by the Japan International Cooperation Agency (JICA), came out with a proposal for a three-year pilot project of an East Asia rice reserve scheme, approved in October 2003. It was understood that this scheme—the EAERR—should be in line with the original set-up and scheme adopted by the ASEAN in 1979.5

The shift in the paradigm from 1979, when the concern of ASEAN in establishing an emergency rice reserve is largely on food security as a key to attaining political stability, to the agricultural trade liberalisation 25 years hence can be clearly gleaned from the mechanisms for the implementation of the EAERR. While largely maintaining the scheme established in the 1979 ASEAN Emergency Rice Reserve, the breadth and coverage of the EAERR is essentially broader, covering emergency situations as well as normal times, and maintaining physical stocks rather than mere earmarked stocks. The East Asian scheme is also geared more towards intra- and inter-regional rice trade and developing the international competitiveness of the membercountries through technology transfer, regional cooperation, and private sector participation, over and above the food security objective. The EAERR has also adopted more concrete mechanisms and measures to implement the ideals of the ASEAN Emergency Rice Reserve scheme in ensuring food security in the sub-region and towards strengthening the rice trade linkages among the member-countries and with the rest of the world.

To see through the implementation of the pilot scheme, Japan has taken on the role of Coordinator-Country of the EAERR Pilot Project and has provided about $ 380,000 (Yen 40 million) to finance the EAERR Secretariat’s expenses in 2004 and 2005. The original ASEAN Emergency Rice Reserve scheme did not assign any principal responsibility to a specific Member Country to coordinate the scheme, although the chairpersonship of the ASEAN Food Security Reserve Board is rotated among its members representing all the member-states. With Japan playing the pivotal role in the EAERR, and even allocating resources for its initial implementation, the pilot phase at least would expect concrete results that would shape the future mechanisms and processes that will be adopted by ASEAN Plus Three in operationalising its revised model of regional emergency rice reserve.

...the scheme is a clever means for Japan to comply with its international trade commitment under the World Trade Organisation (WTO) to open up its domestic rice market while at the same time protecting the interest of its own rice producers against the onslaught of imported cheaper rice.

The pilot phase of the EAERR scheme was originally meant to run up to March 2007, but the most recent meeting of the ASEAN Ministers of Agriculture and Forestry (AMAF) in November 2006 held in Singapore has agreed to extend the initial project period and to ultimately adopt it as a permanent mechanism. Insiders in the ASEAN observed that among the Member Countries only Thailand has shown enthusiasm over the EAERR, together with Japan which has the greatest interest in the scheme. As the world’s top rice exporting-country, Thailand regards the scheme as a prospective market for its rice export especially in the midst of the cut-throat competition in the international rice market.

Overall, however, Japan is seen as the party that will benefit the most from the EAERR once it gets permanently adopted by the ASEAN Plus Three. Observers note that the scheme is a clever means for Japan to comply with its international trade commitment under the World Trade Organisation (WTO) to open up its domestic rice market while at the same time protecting the interest of its own rice producers against the onslaught of imported cheaper rice. The scheme could serve as a mechanism for Japan to absorb imported rice coming in through its minimum access volume (MAV) requirement under the WTO and physically keep the imported stocks in other locations within the ASEAN, thus ensuring that the price of domestically-produced rice will not be adversely affected by any upsurge of rice imports. The physical stocks kept in locations around the ASEAN could also provide as source for Japan’s rice food aid to countries in the region in times of emergencies. On balance, Japan gains from the arrangement by safeguarding the interests of local rice farmers while complying with its trade commitments, and at the same time maintains its generously altruistic image among its poor neighbors.

Prospects for Engagement

Food Security as Priority

The most immediate and explicit challenge that the 1979 ASEAN Emergency Rice Reserve scheme aimed to address is ensuring food security among its member countries. This challenge remains after more than two decades, albeit in the midst of higher food production across the region, less turbulent political situations and higher trade competition among neighbors. An important concern involved in the food security challenge is how the ASEAN, and subsequently ASEAN Plus Three, define the concept of food security. None of the documents adopted by either scheme define what “food security” is, but it is clear from the two schemes that ensuring self-sufficiency at the national level is not part of their agenda. While the 1979 AFSR may have touched on the factors that need to be addressed at the national level to ensure food security, it has not gone past the prescription and did not provide any mechanism to operationalise the proposals. With liberal references to bilateral and regional trade in rice, it is not difficult to assume that food security, as referred to in the ASEAN Emergency Rice Reserve and the subsequent EAERR, is not about developing the capacity of local rice farmers to make decisions in their farms and production nor increasing the capacity of each member-country to produce its own food, as defined by many civil society groups working on food security.

The continued reliance of ASEAN countries on international rice food aid, in the midst of increasing rice exports by its neighbors, is a glaring example of how the capacity of a country-in-need to purchase rice from fellow-members through the emergency rice reserve could spell the success or failure of such scheme. The key reason why the original ASEAN rice reserve model did not take off is primarily the bilateral nature of the process of request and releases of earmarked rice stocks which would mean leaving the terms and price of the transaction at the mercy of the market, to avoid preferential treatments and price distortions that may be harmful in the implementation of regional and international trade regimes. The EAERR, on the other hand, presents a model where food aid for national emergencies would be readily accessible with physical stocks kept in actual locations, while the costs of handling and distribution will still be borne by the country-in-need.

In reality, however, countries that would need emergency assistance in providing rice supplies for its people would most likely be the ones without sufficient financial resources to provide for their own needs. Without sufficient resources to purchase the required rice stockpile and without active support from the ASEAN (considered as a mechanism that promotes regional cooperation and collective self-sufficiency), any emergency rice reserve model that is solely premised in facilitating rice trade and availability will defeat its purpose of providing safeguards for food security among Member Countries. Otherwise, such a regional emergency rice reserve model would always remain as

The bilateral nature of negotiations for the terms in tapping the rice reserve under a supposedly multilateral scheme also puts a country-in-need at the mercy of a more powerful rice-surplus neighbor, thus making multilateral financial or development institutions as a more attractive option to run to in times of food emergencies.

an option of last resort, and would be rendered useless as it leaves Member Countries at the mercy of lending institutions and restrictive trade regimes. Still, even with rice food aid coming its way for free in times of emergencies, the high costs of distributing and handling the stocks that would have to be borne by the country-in-need might potentially defeat the purpose of the scheme in the end.

Fairer Rice Trade

A key challenge underlying the objectives of the ASEAN Emergency Rice Reserve scheme which was even more highlighted in the EAERR is rice trade. East Asia and Southeast Asia combined is the world’s center of origin and diversity of rice. It is no wonder that it is also the home of world’s biggest rice producers and exporters, namely, Thailand, Vietnam, and China. Ironically, among the world’s biggest rice-deficit and importing countries are also found in the region, such as the Philippines, Malaysia, and until recently, Indonesia. Least-developed countries in the region such as Cambodia, Laos, and Myanmar are perennially dependent on rice food aid, which may not necessarily be due to shortage in rice production but more often because of problems in distribution, poor infrastructures, and political instability. The ASEAN Emergency Rice Reserve therefore occurs in the midst of obvious inequality in terms of rice production and trade among its members.

In close scrutiny, the ASEAN Emergency Rice Reserve scheme actually addresses the challenges of rice trade, in a situation characterised by vast differences in rice production among its members, in a schizophrenic manner. The rice reserve can only be tapped in emergency situations beyond the usual rice deficit experienced by a country member, which could be a reason why it was not utilised in its 27 years of existence. Any politically-shrewd government would not admit to its neighbors that it is experiencing an emergency situation which may aggravate domestic unrest and will put the country in a weak political position in the region. The bilateral nature of negotiations for the terms in tapping the rice reserve under a supposedly multilateral scheme also puts a country-in-need at the mercy of a more powerful rice-surplus neighbor, thus making multilateral financial or development institutions as a more attractive option to run to in times of food emergencies. This was clearly the case in Indonesia in 1997. Rather than tapping the ASEAN rice reserve to address the serious rice crisis it was facing, the Indonesian government opted for International Monetary Fund- World Bank (IMF-WB) loans to import food from other countries. Indonesia might have even purchased rice from Thailand and Vietnam at that time, but that was on a normal bilateral trade arrangement and outside the ASEAN Emergency Rice Reserve scheme. After all, the scheme does not offer any preferential or special terms for fellow members at all, but in the end leaves the terms to bilateral negotiations.

Beyond the trappings of regional cooperation, the EAERR is more straightforward on the trade-related objectives of the scheme.

Beyond the trappings of regional cooperation, the EAERR is more straightforward on the trade-related objectives of the scheme. Fluctuations in rice production and supply are attributed more to low levels of production technologies, infrastructures, and investments in the rice sector and less on natural calamities, thus interventions are more geared towards technology-transfer and increasing investments in the sector to improve international competitiveness. The prospective winners from the scheme would not be difficult to predict. Japan, with its obvious motive to protect the interest of its domestic rice farmers while complying with its commitments in the WTO to open up its rice sector, is an obvious winner. The major riceexporters in the region such as Thailand and Vietnam are also projected to benefit from the scheme. Without any built-in mechanism to ensure fairer rice trade in the region, the perennial rice-importing members of the ASEAN will remain so, while the least-developed countries dependent on rice food aid would be encouraged to sustain their dependence under the scheme.

Trumping Japan’s Trade Motives

A potential threat that the ASEAN needs to watch out for is Japan’s motive in initiating the resuscitation of the emergency rice reserve scheme, which one cannot just dismiss as unfounded suspicion. Japan is a rice-exporter, but mainly from the US and Thailand, both of which can still manage to compete in the Japanese market despite the excessively high tariffs imposed by the Japanese government on imported rice. By nurturing the position of ASEAN as a key production and export hub for rice for the rest of the world and ensuring its leadership position in the process of reviving the regional emergency rice reserve scheme, Japan can protect its long-term interest in ensuring rice security for itself. The recent moves of Japanese development and aid agencies and agri-business companies to establish areas for production of the sticky japonica rice varieties, which is widely consumed by the Japanese people, in some countries in Southeast Asia especially in Indo-China/Mekong region, is another clear indication of Japan’s prospects in rice production and trade to serve its domestic interests. In Laos, for example, small Japanese agri-agribusinesses have established production areas for japonica rice in locations with appropriate agro-climatic conditions.

Informants in the ASEAN note that only Japan and Thailand are the ones strongly pushing for the adoption of the EAERR scheme while the rest are taking part in the pilot phase out of diplomacy and to maximise the resources made available by Japan. It is very evident to the Member Countries and the other Plus- Three partners, China and South Korea, that Japan’s agenda behind the scheme is to safeguard its domestic interest in rice trade in view of its obligations to the WTO to open up its market to imported commodities, including rice, which is heavily protected in Japan. Since allowing a considerable stock of imported rice in its market will seriously hurt Japanese rice farmers, the EAERR scheme is a very convenient mechanism to allow it to keep a reliable stock of rice elsewhere which it can run to as domestic demand dictates while at the same time comply with its multilateral trade obligations. By reviving the ASEAN rice reserve scheme and introducing changes that would suit its interests while nurturing an international image of a generous neighbor, Japan strategically gains from its investments on the East Asia rice reserve scheme.

The restrictive rules in the Agreement on Agriculture (AoA) of the WTO remain as the major threat in operationalising the spirit of regional cooperation and collective self-sufficiency embodied in the AFSR.

Challenging Multilateral and Bilateral Trade Rules

The restrictive rules in the Agreement on Agriculture (AoA) of the WTO remain as the major threat in operationalising the spirit of regional cooperation and collective self-sufficiency embodied in the AFSR. While the Member Countries and the ASEAN itself still uphold these ideals, their hands are tied in fully implementing these due to the commitments they made in the WTO. Among the ASEAN members, only Laos and Myanmar remain outside of the WTO, with Vietnam about to complete its accession process. The ASEAN too has adopted the rules and restrictions set in the WTO in its own ASEAN Free Trade Agreement (AFTA), which could be a reason behind the lack of interest in fullyimplementing food security ideals to assist members facing food emergencies and the reluctance of members themselves to utilise the scheme.

While specific preferences, such as those provided in regional free trade agreements, are allowed in the WTO rules, mechanisms that would cause price distortions are strictly prohibited. Among all potential implications of fully implementing a genuine emergency rice reserve is the distortion of prices of rice, which the AFSR and even the EAERR pilot phase are carefully preventing. Being too cautious in this regard and leaving the operationalisation of the rice reserve scheme to bilateral negotiations, the original scheme has been rendered useless. Thus, the innovations in operating the scheme through regional mechanisms and maintaining physical stocks are noteworthy mechanisms that could test the limits of the flexibilities in the current trade regimes with regard to ensuring food security at the national level. Another threat in the region is the proliferation of free trade agreements (FTAs). Besides creating a regional FTA among them, the ASEAN is keen on establishing strategic and economic linkages with its neighbors and other socalled “dialogue partners.” In fact, ASEAN is seen as a “hub” for a number of regional FTAs not only with East Asian countries (viz., China, Japan and South Korea), but also with countries outside the region (viz., India, Australia and New Zealand, and even regional formations such as the European Union).6

The proliferation of FTAs in East and Southeast Asia could give rise to a host of technical and administrative complications including mismatches in the phasing of tariff reductions under overlapping arrangements and implementation of different rules of origin under separate FTAs.

The proliferation of FTAs in East and Southeast Asia could give rise to a host of technical and administrative complications including mismatches in the phasing of tariff reductions under overlapping arrangements and implementation of different rules of origin under separate FTAs. This is the so-called “spaghetti-bowl effect” which may actually turn out to be a stumbling block to regional economic integration rather than a facilitator of it. Uncoordinated proliferation could also lead to inconsistent provisions between FTAs, especially on the rules of origins, hampering the cross-border production networking process, which has been crucial to the region’s economic development.7

The opportunities presented by a wellintegrated East and Southeast Asian region, especially in the area of food security are enormous, giving rise to political and economic stability which will provide the base for a higher level of economic development in the years to come. Japan, which has provided substantive economic and political leadership in this scheme to push the ASEAN to make some changes in its rice reserve system, stands to gain also by way of accessibility to the markets in the region for its own manufactured products, be it in food or in industrial goods.

Another bounty from this project presents itself through the information gathered in the way food is produced, distributed, marketed, and consumed in the region, through the establishment of a Food Security Information System which is another key project alongside the EAERR Pilot Project. This information is crucial in determining the possible strengths and weaknesses of the countries in the region in terms of achieving food security aside from enabling food producers to align their production and marketing methods based on the trends gathered through the information system.

Platforms for Engagement in the ASEAN

Aside from the windows of opportunities for engagements on the issues arising from the current effort to revive the ASEAN Emergency Rice Reserve scheme under the aegis of the ASEAN Plus Three’s regionally bigger EAERR, there are a number of platforms for engagements in the ASEAN that civil society organisations may want to put efforts on. True, there are doubts among some groups on the relevance of engaging the ASEAN especially in the area of trade with its steadfast commitment towards neoliberal economic integration. But the recent renewed interests of the ASEAN on food security issues, as may be gleaned from its adoption of an Action Plan specifically on food security as well as the revival of the emergency rice reserve scheme albeit through the instigation of Japan, provide sound reasons to engage the ASEAN as these interventions will have strategic implications on the food, agriculture, and trade situations across the region. The current pilot phase of the EAERR is a good opportunity for civil society to understand the process and plan on how to influence its adoption and full implementation in the short-term.

Just like the rest of the ASEAN, the institutional mechanism that implements the emergency rice reserve scheme has been an inconspicuous body that does not fall within the radar of civil society organisations monitoring food security and trade concerns.

This section provides initial ideas for platforms of engagement in the ASEAN which interested civil society organisations may take on to influence the shaping of rice trade and food security in Southeast Asia. These platforms would clearly require efforts and investments in terms of time, expertise, and resources from civil society groups that would decide on the importance of engaging the ASEAN on this specific area of intervention in food security.

Monitoring the AFSRB

Just like the rest of the ASEAN, the institutional mechanism that implements the emergency rice reserve scheme has been an inconspicuous body that does not fall within the radar of civil society organisations monitoring food security and trade concerns. The ASEAN Food Security Reserve Board (AFSRB), comprised of the heads of national food agencies from the Member Countries, meets annually to discuss trends in production, distribution, supply, demand, prices, and stocks of rice across the region but does not really make any significant decisions pertaining to the emergency rice reserve simply because the scheme did not really function beyond concepts. Under the EAERR, AFSRB will be strengthened and bestowed with more powers to decide on the regional rice reserve including deciding on the locations of the physical stocks and coordinating the sourcing, supply, and terms of emergency rice needs of Member Countries.

Civil society organisations may start to know who the members of the decision-making bodies are under the EAERR, whose pilot phase has recently been extended until March 2008. Discussions with the government officials involved may be initiated at the national level to know the positions, interests, and commitments of national governments in the scheme, and also to explore opportunities to influence the scheme both at the national and regional levels. As experiences in lobbying the ASEAN have shown, the most effective way to influence decisions in specific regional bodies is through establishing good relationship with national officials built on substantive contribution from civil society organisations.

Following the EAERR Pilot

Implementation

Understanding the scheme and monitoring the processes right at the pilot stage would provide an edge to civil society groups intending to influence the direction of the process in the near future. Establishing civil society presence in discussions on the rice reserve scheme, or at least make the ASEAN know that civil society is monitoring the implementation of the scheme, would pressure the AFSRB and the ASEAN Plus Three partners involved in the emergency rice reserve scheme to observe the principles of transparency and accountability. Monitoring may be done through the ASEAN Secretariat or directly to the government officials involved in the decision-making bodies on the emergency rice reserve scheme. Civil society monitoring may even help bolster the position of the representatives of the ASEAN Member Countries in relating with their more powerful and well-funded counterparts from Japan and the rest of the ASEAN Plus Three.

Hounding the AMAF

Serious monitoring of the emergency rice reserve scheme should not be limited to hounding the specific coordinating or decision-making bodies directly involved in operationalising the scheme. The emergency rice reserve scheme falls under the overall mandate of the ASEAN Ministers of Agriculture and Forestry (AMAF), comprised of agriculture, food, and forestry ministers of the Member-Countries, which makes the strategic decisions on food and agriculture matters in the regional body. While it is the more specialized bodies that would have specific knowledge and more solid understanding of the issues involved in the rice reserve scheme, it is the AMAF that makes and adopts the decisions on the overall direction and objectives of the interventions. The political decisions regarding the emergency rice reserve scheme are eventually made by the AMAF.

Civil society organisations may attempt to influence the political decisions concerning the emergency rice reserve scheme by choosing to work directly with the AMAF, mainly through high-level contacts at the national level. Providing substance in specialised discussions on specific issues concerning the rice reserve scheme, done at the levels of working groups and specialised bodies such as the AFSRB, however, remains indispensable to have a more nuanced understanding of the issues and appreciation of the dynamics within and among these bodies in the ASEAN.

 

Elenita “Neth” C. Daño is an independent researcher who has extensive experience in development work, especially on issues affecting community-based conservation and development of plant genetic resources in Southeast Asia. She is currently an Associate of the Third World Network working mainly on agriculture and bio-safety issues in Asia.

Endnotes

1 Ministry of Agriculture, Forestry and Fisheries of Japan, Toward a World Free of Starvation and Poverty (Introductory Information on the International Food Stockholding Scheme and East Asia Emergency Rice Reserve), from http://www.maff.go.jp/eaerr.pdf
2 Agreement on the ASEAN Food Security Reserve, New York, 4 October 1979.
3 Ministry of Agriculture, Forestry and Fisheries of Japan, Toward a World Free of Starvation and Poverty (Introductory Information on the International Food Stockholding Scheme and East Asia Emergency Rice Reserve), from http://www.maff.go.jp/eaerr.pdf
4 From http://www.eaerr.org/history
5 For more detailed information regarding the EAERR, visit http://www.eaerr.org
6 Denis Hew, Economic Integration in East Asia : AN ASEAN Perspective, UNISCI Discussion Paper No. 11, May 2006, Institute of Asian Studies, Singapore, from http://www.ucm.es/info/unisci/UNISCI11Hew.pdf
7 Ibid.