Monday, August 29, 2011

Modest Institutional Proposals for the AEC

Last month I participated in the initial meetings of an NUS-NYU project entitled “ASEAN Integration Through Law: The ASEAN Way in a Comparative Context Project,” a long-term project studying the role of law in the integration of ASEAN (the project co-leaders are my old Michigan law professor Joseph Weiler (now at NYU) and my old friend from NUS, Michael Ewing-Chow; Tan Hsien-Li is the executive director).  Professors Weiler and Ewing-Chow have asked the participants to examine both the problems related to ASEAN integration as well as how law can help solve them.

In particular, the participants (which include academics, government officials and practitioners) were asked to come up suggestions for ASEAN policymakers, e.g. policy “tools” that could be used to improve the administration of the AEC. These suggestions will be published next year in a series of books and articles. 

Now, I have argued here and elsewhere that the current institutional arrangements in ASEAN are not conducive to establishing an effective AEC.  A truly single market for goods, services and investments cannot operate properly when it is regulated by 10 separate ASEAN national governments, coordinated by an ASEAN Secretariat without authority other than moral suasion and peer pressure.  We will have an AEC by 2015, but to have a regional market that can even be compared with the EU and NAFTA, the ASEAN institutions will need strengthening.

On the other hand, that does not mean that ASEAN can accept a powerful supranational authority in the style of the European Commission.   Although this would appear attractive to Western observers, ASEAN governments do not want an EU-style supranational government, even if they want a single market in Southeast Asia.

Nevertheless, the ASEAN Secretariat needs augmenting because it (and the ASEAN Secretary-General who heads it) is the only ASEAN institution which can be counted upon to act on behalf of the common goals of the AEC. The ASEAN national governments will almost always act on their individual national interests.

However, there are additional powers that would give the ASEAN Secretariat more effective means of administering the AEC yet fall short of creating something like the European Commission. Member states could elect to accept  or not to accept measures originating from the ASEAN Secretariat, depending on how much delegation of sovereignty they are willing to live with.

  • Right of oversight -- The ASEAN Secretariat would be obligated to comment  in writing on all national and multinational measures affecting implementation of AEC goals and principles.   Over time, these opinions would create a body of AEC commentary that would influence administration of the AEC. Currently this happens during ASEAN meetings but the ASEAN Secretariat staff are not obligated to make comments, nor are the comments recorded or publicized.
  •  Right of inquiry -- The ASEAN Secretariat would have the right to inquire with ASEAN members on their implementation and administration of measures affecting the AEC.   The member states would be obligated to respond to these inquiries.  Currently the ASEAN Secretariat may make inquiries but the ASEAN members are not required to respond.
  • Right of proposal -- The ASEAN Secretariat would have the right to propose measures, on its own initiative, which would advance AEC goals and principles.
  • Right of sanction -- The ASEAN Secretariat would have the right to impose sanctions on member states not in compliance with AEC goals and principles (beyond publicity and peer pressure).

Obviously the last two powers would make the ASEAN Secretariat more like the European Commission, which the ASEAN members will not want.  However, I list them to demonstrate the spectrum of additional powers that could be delegated to the ASEAN Secretariat (and there may be other powers not discussed above).

Of course, some or all of the above powers could be assigned to a new ASEAN entity or institutions.  An ombudsman or public advocate is one possible solution.  More acceptable would be a permanent eminent persons group made up of former government officials, academics and other highly respected ASEAN nationals, supported by a professional staff, which would monitor and comment on AEC developments.  Such groups have been repeatedly used in ASEAN’s history, such as during the drafting of the ASEAN Charter.  Another suggestion I have heard is to solicit private funds to support economic and regulatory oversight by a private institution, due to resource and personnel constraints at the ASEAN Secretariat.  Of course, the better (but not easier) solution would be to revise the funding formula for the ASEAN institutions in the first place.

I will be addressing these issues in my contribution to the NYU-NUS project next year, along with the other participants on their own issues.  Whether or not any of our suggestions will be adopted will be up to the ASEAN member governments.  My point is that the AEC will need stronger ASEAN institutions to thrive, but those ASEAN institutions will need augmentation in a manner and by means appropriate with the cultural and governmental traditions of ASEAN.  Our role is to start a discussion on those issues sooner rather than later.