October 18, 2022
PHNOM PENH – ASEAN is an intergovernmental organization that has successfully struggled against odds for a stable, peaceful, inclusive, sustainable, resilient and prosperous Southeast Asian region for more than five decades. The fundamental impetus for this tremendous and lasting success is the consensus-based decision-making model, which is legally bound and determined by this 10-member organization, which forms a household of ASEAN. Does this consensus modus operandi work for whom, under what circumstances, how and why?
Consensus is a generally accepted idea derived from a consultation or decision among a group of people who cannot decide anything that cannot be done. As a legally established practice, the decision of this intergovernmental organization rests with the member states of ASEAN. This decision-making process is laid out in the ASEAN Charter, the bloc’s legal instrument, which governs relations between member nations.
ASEAN member states, as well as their leaders, are legally bound by this principle of consensus. This is the core principle that has firmly driven ASEAN to move forward together and stand together to tackle challenges together for 55 years.
The ASEAN Charter, which consists of 55 articles and 40 pages, mentions the term consensus six times. Although “consensus” is stated in the Charter only six times, if not more, it is powerful in guiding ASEAN to fulfill its purposes. The consensus, known as the ASEAN Way, is of utmost importance so that the bloc does not decide anything that cannot be done when addressing issues related to its three pillars: APSC, AEC and ASCC. Specifically, it is the basic principle for ASEAN to achieve common ground for win-win cooperation and to ensure ASEAN’s continuity to fully integrate the bloc to realize ASEAN Community construction.
The purposes of the Charter are “to maintain and improve peace, security, stability; further strengthen peace-oriented values in the region; to “respect for the independence, sovereignty, equality, territorial integrity, national identity of all ASEAN member states; non-interference in the internal affairs of ASEAN member states; respect for the right of every member state to live its national existence free from interference, subversion and external coercion; and enhance consultations on matters seriously affecting the common interest of ASEAN.” More importantly, Article 35 of the Charter states that “ASEAN shall promote its common ASEAN identity and a sense of belonging among its people to achieve their shared destiny, goals and values”.
Until now, these have been achieved through consensus and consultation process among ASEAN member states. This is the nature of ASEAN. This is the ASEAN Way that makes it a single intergovernmental organization and sticks together. This positive momentum deserves to be sustained and accelerated further.
Article 32 of the Charter states that “the member state holding the ASEAN presidency shall actively promote and enhance the interests and welfare of ASEAN, including efforts to build an ASEAN community through political initiatives, coordination, consensus and cooperation; ensure the centrality of ASEAN; ensure an effective and timely response to an urgent problem or crisis situation affecting ASEAN,…”. Cambodia, as President of ASEAN this year, has fully and effectively adhered to these principles. As a result, Cambodia has been highly praised for successfully hosting the 55th WMA and related meetings in August this year amidst an increasingly volatile and unpredictable regional and global geopolitical and geoeconomic atmosphere coupled with the Covid-19 pandemic. . Cambodia has made the consensus modus operandi fit regional purposes with the Joint Communiqué successfully produced and this is exemplary and noteworthy.
However, there has been an idea of brainstorming recently, recommending the ASEAN Minus X formula or a super-vote majority model if ASEAN faces difficulties in finding consensus on dealing with regional and international issues of common interest. Of course, it is worth restructuring ASEAN’s decision-making mechanism to improve its institutional capacity and effectiveness, but we are skeptical about this idea, considering the political will behind this recommendation. One also has to ask whether it fits into the current context or not, considering that the current consensus principle, ASEAN’s modus operandi, already works well for ASEAN’s unity in diversity under the banner of one vision, one identity and a community. So is it fit for purpose with such an idea? Critically, it can be said that it could be incompatible with the nature of ASEAN itself. However, the answer remains to be seen.
Regarding the principles, article 21 of the Charter establishes that “in the implementation of economic commitments, a form for flexible participation, including the ASEAN Minus X formula, can be applied when there is consensus to do so”. Interestingly, Article 7 of the Charter states that “the ASEAN Summit shall be the supreme policy-making body of ASEAN; address the emergency situation affecting ASEAN by taking appropriate measures.” Furthermore, article 20 states that “as a basic principle, decision-making in ASEAN shall be based on consultation and consensus; when a consensus cannot be reached, the ASEAN Summit can decide how a specific decision can be made; in the case of a serious violation of the Charter or non-compliance, the matter will be referred to the ASEAN Summit for a decision”.
This allows us to think critically about the legal aspect versus the political aspect of ASEAN. Does the legal personality of ASEAN reside in the political decision or does the political will reside in the legal personality of ASEAN itself? In this case, the legal personality must prevail over the political decision, since the decision of the leaders is legally subject to the principle of consensus.
In general, it is seen that the recommended model requires a thorough study on its implication and future ramification and, in fact, more time is also needed as the idea is controversial, given that the current modus operandi enshrined in the ASEAN Charter, the ASEAN legal instrument. – provides ASEAN with a legal personality in the conduct of its institutional affairs that govern relations between member states. Therefore, it could be assumed that ASEAN would not be able to reach a consensus, in the short term, on the change in the principle of consensus, either at the level of foreign ministers or leaders. The change of consensus model must also require the consensus of the Charter. So, is the modification of the Charter necessary in this context?
Article 48 of the Charter states that “any Member State may propose amendments to the Charter; proposed amendments to the Charter will be submitted by the ASEAN Coordination Council by consensus to the ASEAN Summit for its decisions; the amendments to the Charter agreed by consensus by the ASEAN Summit will be ratified by all member states in accordance with article 47”. This strongly emphasizes that having a political decision on the ASEAN legal personality issue needs ASEAN consensus, and similarly, having ASEAN consensus also needs the political will of ASEAN leaders.
For the past 55 years, ASEAN has made the consensus fit its purposes: the purposes that have brought about a stable, secure, peaceful, inclusive, sustainable, resilient and prosperous community and, indeed, have made the ASEAN is relevant and consistent to this day.
This recommendation could put ASEAN at risk, considering the political implications. It can cause problems within ASEAN, as long as the highest political decision is subject to the legal personality of ASEAN itself and therefore must remain based on consensus.
In a nutshell, the principle of consensus has kept ASEAN going strong for 55 years. It is a panacea for ASEAN, as it works well for ASEAN and unites ASEAN member states, like a landing zone, in all circumstances. This is the ASEAN style. This is democratic ASEAN. Long live ASEAN style!
Chun Sovannarith is a former Tokyo News correspondent in Cambodia. The opinions expressed in the article are solely theirs.
