Special note: The Roadmap toward the Creation of ASEAN Secutirity Community in 2015: Legal Perspectives

• Author: I.B.R. Supancana
• Position: Chairman/Founder of Center for Regulatory Research Jakarta-Indonesia. Ph. D. (Leiden)
• Pages: 323-334

Page 323

1. Introduction

The first idea of establishing ASEAN Security Community was first raised by Indonesia in mid of 2003 in a seminar in New York sponsored by the Ministry of Foreign Affairs of the Republic of Indonesia.¹ During the 9th ASEAN Summit in Bali IN 2003, the ASEAN Concord II was declared in which member states form consensuses that future ASEAN cooperation in the realm of security relies "exclusively on peaceful processes in the settlement of intra regional differences", that their security is "fundamentally linked to one another and bound by geographic location, common vision and objectives...."²Since then the idea has been exercised to materialize ASC. ASC is designed as one of the three pillars of ASEAN Community, together with ASEAN Economic Community (AEC) and ASEAN Social-Cultural Community (ASCC). The idea of ASC also reflects paradigmatic changes in the organization of ASEAN, from bureaucratic approach to people's approach. Page 324

In addition to the many approaches from perspectives of international politics/relations, it is important to see the issue of ASC formation from legal perspectives, particularly in the framework international law. It is understood that legal approach would be a very important approach to secure that once it is established ASC would be effective and have strong legal basis for its implementations. This paper is aimed at exploring some legal aspects of ASC, like it legal basis; basic principles; and the relation between national law of individual member countries and ASEAN Law.

2. The Concept, Aim and Components of ASEAN Security Community

The concept of Security Community is often defined as a group of states that has achieved a condition, as a result of flow of communication and the habit of cooperation, where members share "expectations of peaceful change" and rule out "the use of force as a means of problem solving." State that belong to a Security Community come to see their security as fundamentally linked to other states and then destiny bound by common norms, history, political experience, and regional location. A Security Community exists when states reach the level of confidence that security can only be attained if they cooperate with each other.³

Almost five decades ago Karl Deutsch defined a Security Community as a group that has "become integrated," where integration is defined as the attainment of a sense of community, accompanied by formal or informal institutions or practices, sufficiently strong and widespread to assure peaceful change among members of a group with "reasonable" certainty over along period of time." Such communities could either be "amalgamated" through the formal political merger of the participating units, or remain "pluralistic," in which case the members retain their independence and sovereignty.⁴ A Security Community is also characterized by:⁵

(a) The absence of a competitive military build-up among the regional Page 325 actors; (b) Total absence of armed inter-state conflict; (c) The presence of formal and informal institutions and practices which serve to reduce, prevent, manage, and resolve conflict and disorder;

(d) High degree of economic integration; and (e) The absence of territorial dispute among member states.

An ASEAN Security Community (ASC) designed both to enhance the cooperative and comprehensive security of all Southeast Asian countries and to be open to all extra- regional countries probably best meets ASEAN and its member states' need.⁶ The ASC shall aim to ensure that countries in the region live at peace with one another and with the world in a just, democratic and harmonious environment.⁷ ASC has the following components:⁸

(a) Political development; (b) Shaping and sharing of norms; (c) Conflict prevention;

(d) Conflict resolution; (e) Post-conflict peace building; and (f) Implementing mechanisms.

The above components will be built on the strong foundation of ASEAN processes, principles, agreements and structures.

3. Security Challenge as Common Grounds for Establishing ASC

The ASC plays extremely important role in the current stage as ASEAN is now facing many opportunities and at the same time confronting lots of new challenges such as international terrorism, trans-national crimes, and epidemic outbreaks during its process of development and cooperation for peace, stability, wealth and prosperity of the entire region.

There are some other structural challenges that confront ASEAN internationally and internally among the member states. Internationally the collapse of bipolar international system and the downfall of the Soviet Union and a seemingly "power vacuum" in the Page 326 region of Southeast Asia after the cold war era even brought more attention to the development of the security device that can result in a peaceful and prosperous environment for ASEAN countries.⁹ In addition, the setback of the financial crisis in 1997 awakens some Southeast Asian countries'desire for rejuvenating ASEAN.¹⁰

Internally there are some factors that can be viewed as driving force for the establishment of ASC: past effort of ASEAN to maintain peace and stability; domestic political development and leadership change in several ASEAN countries; the admission of the new ASEAN member countries; and familiarization and enhance mutual understanding of the "ASEAN Way"¹¹ among its member countries¹². Some non-traditional challenges also confront ASEAN, such as: terrorism, illicit drug, piracy, people smuggling and human trafficking, HIV/AIDS and cyber crime¹³.

4. Legal Basis for Establshing ASEAN Security Community

Legal basis for the establishment are ranging from Hard Laws and Soft Laws. These legal instruments have laid down some important principles in the formation process of ASC and would eventually be used to make ASC effective. Below are some of those instruments:

1. ASEAN Declaration, Bangkok, 8 August 1967 The text of the Bangkok Declaration that founded ASEAN places heavy emphasis on economic, social and cultural cooperation. The only item in the Bangkok's Declaration "aims and purposes" that refers to regional security calls for the promotion of "regional peace and stability," not through any kind of cooperation or joint action but "through abiding respect for justice and the rule of law in the relationship among countries of the region and adherence to the principles of the United Nations Charter."¹⁴ Page 327

2. Zone of Peace, Freedom and Neutrality (ZOPFAN), Kuala Lumpur, 27 November 1971

   The ZOPFAN Declaration explicitly pledged ASEAN, for the first time, to cooperate in security matters, specifically to keep the region insulated, to the extent possible, from big power conflicts.¹⁵

3. Declaration of ASEAN Concord, Bali 24 February 1976 The Declaration of ASEAN Concord had only one phrase reference to security cooperation, mentioning, with exceeding caution, "continuation of cooperation on a non-ASEAN basis between the member states in security matters in accordance with their mutual needs and interests.¹⁶

   D.Treaty of Amity and Cooperation (TAC) in Southeast Asia, Bali 24 February 1976

   The 1976 Treaty of Amity and Cooperation in Southeast Asia is a legally binding instrument to promote perpetual peace, everlasting amity and cooperation in the region. This Treaty has been accepted by a growing number of countries outside Southeast Asia. Japan, Pakistan, Republic of Korea, Russia, Papua New Guinea, China and India have acceded the Treaty. These accessions are a show of political support for ASEAN's principles of peaceful coexistence, friendly consultation and resolution of conflict, and goodwill cooperation.

5. ASEAN Declaration on the South China Sea, Manila, 22 July 1992 The Declaration on the South China Sea gave notice of ASEAN's solidarity behind peaceful and constructive approaches to the problem of the South China Sea despite the conflicting territorial and jurisdictional claims of some of its members. The ASEAN stands in the Declaration lead to the conclusion of ASEAN-China code of conduct for the South China Sea.¹⁷

6. Treaty on the Southeast Asia Nuclear Weapon-Free Zone, Bangkok, 15 December 1997

   The Treaty on the Southeast Asia Nuclear Weapon-Free Zone (SEANWFZ) is crucial to both confidence...