The Association of Southeast Asian Nations (ASEAN) has a unique method of diplomacy known as the ASEAN Way, based on four principles: non-interference, quiet diplomacy, non-use of force, and decision making through consensus.=The principle of non-interference, considered the most important, necessitates that member countries do not interfere with internal issues. Introduced by Director Termsak, this policy was intended to emphasise that ASEAN is based on voluntary membership, it’s a non-political organisation, and every country is required to preserve its identity and national government. This is concurrent with quiet diplomacy, intended for bilateral tensions. It ensures that members avoid embarrassment by allowing ASEAN leaders to communicate without bringing the discussions into the public view. Many scholars argue that the regional grouping successfully tackled various intra-regional impediments to Southeast Asia’s political stability and regional security. The ASEAN Way is considered reflective of the broader principle of “Asian solutions to Asian problems”, which aims to avoid Western influence in intra-Asian conflicts.
Following the military junta’s coup and subsequent takeover in Burma, 1988, ASEAN adopted constructive engagement and an open-door policy, as opposed to the United States’ public isolation tactic. The approach had positive long-term consequences, introducing gradual changes in Burma’s leadership towards human rights and democracy. However, the critique posited by western countries and human rights organisations pointed out that ASEAN had granted legitimacy to the military government, with scholars noting that by 1966 the human rights situation was abysmal, the year being judged to be the worst for state abuse.
Cambodia witnessed a violent change of government led by the Prime Minister Hun Sen, ending the coalition administered by the United Nations elections in 1993. Cambodia was not a member of ASEAN, and plans were underway to include it. However, the ASEAN Way was highly unsuccessful, as the organisation was ill-equipped to engage constructively with a non-member country. Moreover, the ASEAN Way’s emphasis on non-military engagement further deteriorated the region’s stability when Vietnam invaded Cambodia.
The ASEAN Way proved to be effective in dealing with Indonesia’s Haze Crisis. In 1997 and 1998, approximately 45, 000 km2 of forest and land burnt on the island of Sumatra and Kalimantan in Indonesia. It resulted in severe pollution of neighbouring member countries causing chronic respiratory diseases such as asthma, bronchitis, impaired visibility, and upper respiratory tract infections. However, it affected Indonesia more severely due to the lack of an integrated air quality monitory network. Despite these repercussions, in 2019, Indonesia became the only country to have built coal energy infrastructure, despite a global move towards avoiding it as a massive source of pollution. During the Haze Crisis, the member countries faced challenges with the principle of non-interference. Simon Tay writes that the ASEAN Way’s principle of non-interference in this crisis is wrongly applied as “the fires have implications for regional and inter-regional politics.” He argues that the state bears responsibility for transboundary harm if the pollution escapes its territory to cause harm to other states including Singapore, Malaysia, parts of Thailand, Brunei, and south of Philippines. Indonesia was the last ASEAN member country to ratify the Transboundary Agreement despite haze pollution reaching alarming levels. However, commentators found that the Agreement has been drafted non-intrusively to accommodate the principle of non-intervention. This is also indicated that no provision exists for reparation to the member country on whose territory the haze pollution escapes. This contravenes the harm principle of the Stockholm Declaration. According to Greenpeace Forest areas greater than the size of Netherlands have been burnt in Indonesia in last five years. Burning of forest and peatland for growing oil palm and pulpwood is illegal in Indonesia under the Forestry Law 41/1999. However, domestic laws do not address transboundary pollution. Singapore’s national legislation, the Transboundary Air Pollution Act 2014, defines haze pollution in Singapore as the pollution of the environment comprising any poor air quality episode involving some from any land or forest fire wholly outside Singapore. Section 5 makes it an offence to engage in conduct which causes or contributes to any haze pollution in Singapore or condones such conduct by other entity or individual. The Act also places civil liability on the breach of the duty which may lead to actionable suit by a person in Singapore who has sustained personal injury, contracts any disease, sustains mental or physical incapacity, or dies due to these three issues as per Section 6(3). The defence from such criminal or civil liability is either grave natural disaster or an act of war under Section 7(1). This national legislation differs from the traditional approach of the ASEAN member countries that have passed laws that do not contradict the principles of ASEAN Way.
Transboundary pollution causes climate change, depletion in the ozone layer, loss of flora and fauna, and severe and irreversible damage to health. Thus, responsibility in transboundary harm acquires the status of customary international law. Scholars have noted that the most problematic issue in using the international environmental law framework on transboundary pollution is that the international law requires the state be responsible for causing such environmental degradation and compensate accordingly. This strongly contradicts the principle of non-interference which predominantly respects the sovereignty of member countries in ASEAN. Further, these issues can also be tackled by entering into Multilateral Environmental Agreements such as the Framework Convention on Climate Change, Kyoto Protocol, Convention on Biodiversity etc. These are against international frameworks which will be regulated through an international platform where the discussion on contentious issues will be discussed. However, this would not be suitable to the framework established through the ASEAN Way where member countries try to avoid issues that may cause imbalance in the regional resilience.
The ASEAN Way is considered time consuming and unhelpful in determining concrete goals in terms of economic integration. The exercise of consensus and cooperation that takes place within the ASEAN Way is of the lowest denominator. Most disagreements remain unstated. Further, member countries may conceptualise ASEAN Way principles differently which hampers collective action.
Since member countries strictly follow the principle of non-interference, none of the ASEAN members have spoken against the military coup in Myanmar on the 1st of February 2021. None of them have published a statement condemning the arrest of the State Counsellor and leader of the National League for Democracy Aung San Suu Kyi.
*Aadya Narain is a Research Assistant at the Nehginpao Kipgen Center for Southeast Asian Studies, and a law student at Jindal Global Law School, O.P. Jindal Global University, India.