South Korean President Moon Jae-in and North Korea leader Kim Jong Un sign the Panmunjom Agreement on Friday. Photo courtesy of Inter-Korean Summit Press Corps/UPI

Rafyoga Irsadanar

A new stage of peacemaking had progressed in the Korean Peninsula as Kim Jong Un and Moon Jae-in declared that there will be no more war in the region. This great momentum of peace among the President of Republic of Korea and Chairman of the State Affairs Commission of the Democratic People’s Republic of Korea happened during 2018 Inter-Korean Summit in “Peace House” at Panmunjom on April 27^th. Under the “Panmunjom Declaration for Peace, Prosperity and Unification of the Korean Peninsula”, both parties agreed to denuclearize Korean Peninsula and to conduct more talk with the United States in officially bringing Korean War to a permanent end.

A great advancement of perpetual harmony between North and South Korea, indeed, involved many external parties in pacifying the tension. Even though the security issues in the Korean Peninsula mainly spotlighted the credit to East Asian countries (Japan, China and two Koreas) and the United States, the contribution of ASEAN as the neighboring regional power could not be easily overlooked.

ASEAN- Two Koreas Warm Relationship: A Strong Bargain

It is undeniable that ASEAN itself is still struggling in building its firm institutional power in managing their own region, therefore, at some point, one may doubt ASEAN role in putting North and South Korea back into a constructive negotiation.  However, what matters in the negotiation is ASEAN strategic position in convincing both parties to express their cooperative endeavor. It is important to note that ASEAN has a strong political capital to begin with.

By default, ASEAN and the Koreans have a strong bond in various aspects. North Korea, despite its isolative tenet, surprisingly has progressive political and economic relations with ASEAN. Not only North Korea has diplomatic relations with all ASEAN member states, North Korea also actively participated in ASEAN Regional Forum (ARF) to foster the security stability in Asia-Pacific. Economically, from 2000 to 2006 North Korea’s trade with Southeast Asian nations was able to reach 12 percent of the country whole balance. Simultaneously, South Korea and ASEAN obviously have a firm both political and economic cooperation as well. Besides the fact that South Korea and ASEAN regularly held ministerial and bilateral summits, ASEAN is Korea’s second largest trading partner under the ASEAN-Korea Free Trade Agreement (AKFTA).  These warm ties of ASEAN and the conflicting parties are the main ASEAN decisive bargain in persuading the two Koreas to peace.

ASEAN Regional Forum

The prominent relationship of ASEAN and two Koreas has escalated the urgency of ASEAN involvement as South Korea recognized ASEAN as the “fifth power”. The robust economic ties between ASEAN and North Korea also caused Trump Administration demanding ASEAN to cut the trade and financial aids to pressure North Korea, proving ASEAN importance to North Korea. However, in engaging to the issue, ASEAN took a softer approach which is making the best of the existing platform, ASEAN Regional Forum, to be a constructive peaceful talk among conflicting parties in regards to North Korea assertive actions. There are two interconnected reasons why this is exclusive as ASEAN role in pacifying the Peninsula tension:

First, ASEAN Regional Forum is the only multilateral platform where both South and North Korea are encountered to each other in regards to security issues after the failure of Six-Party Talks. This means, ASEAN is the only actor who could bridge the states in Asia-Pacific with North Korea in regards to denuclearization through an official interstate channel. As the aftermath of ARF 2017 Manila, this ASEAN-initiated forum could gather the interest of all its member state to positively and legitimately demand North Korea, as ARF member, to reconsider its nuclear projects since it threatened Asia-Pacific stability. In addition, ARF initial trajectory in welcoming North Korea membership in 2000 was to engage with North Korea softer approach instead of isolating them, as it also appear as the turning point of Inter-Korean Relations at that time,  ASEAN Chairman on that period Surin Pitsuwan stated. Hence, ASEAN contribution in providing the peace talk circuit should be credited to this context.

Second, not only ASEAN could provide the progressive platform, but also has a great potential to sustain it subsequently as a mediating actor. This optimism arises as ASEAN could appear as a friendlier partner toward North Korea. For North Korea, ASEAN is the easier counterpart to talk to compared to the United States, South Korea, China, Japan, and Russia.

North Korea trust toward ASEAN could be seen as ASEAN (and a couple of South Asian countries) is the only regional arena where North Korea engaging the most, proven by the number of its envoys sent to ASEAN (added with India and Bangladesh). North Korea admitted that this high level of interaction with ASEAN was caused by its “traditional friendship” established among them. This “traditional friendship” between North Korea and ASEAN was nurtured as North Korea could find its socialist-communist counterparts in ASEAN such as Vietnam, Cambodia, and Laos. Not to mention its strong connection with Indonesia socialist-friendly regime under President Soekarno also appeared as the additional value of the relationship. Therefore, no wonder that ASEAN is currently seen as a potential actor to maintain the conductivity of the peacemaking as ASEAN is recognized as the one who could communicate with North Korea best.

From these metrics, we can see that trust is the main spearhead that made ASEAN-Koreans friendship possible to sustain. To maintain the maneuvers progressive, this article suggests that ASEAN should maintain its neutrality and strengthen its non-intervention tenet. These two parameters are vital to gain the trust of all parties since it will shape ASEAN as a truthful ally to cooperate with. Also, the non-intervention principle may also show South and North Korea that ASEAN is open to all values, proven by its commitment to not pushing any of its member state against their own identity.

The writer is a Research Intern at the ASEAN Studies Center Universitas Gadjah Mada

Photo by asean.org

Chitito Audithio Syafitri

The year 2017 marks the 40^th commemoration of ASEAN – EU Dialogue Relations, which brought together the two countries to adopt a Joint Statement on the 40^th Anniversary of the Establishment of ASEAN-EU Dialogue Relations as well as the ASEAN-EU Plan of Action (2018-2022) to further enhance cooperation towards strategic partnerships in order to maintain peace, stability, security and prosperity in Southeast Asia, Europe and globally.

In today’s world, the multilateralism has indeed taken the crucial role, meanwhile, the emergence of new players in the chessboard of international relations has resulted in various forms of compromise and dynamic cooperation. How should the ASEAN-EU relationship be maintained?

In recent years, not only ASEAN has sought to improve their economic cooperation with the EU, in response to the latest regional trends, ASEAN is also deepening its relations with China, which listed along with the EU having the highest trade cooperation with ASEAN since 2010. Under these circumstances, it is important that ASEAN should be able to direct its cooperation with the two countries, taking into account that tensions can easily spark between China and the EU due to the difference in principles over China’s position in the WTO.

Documented as a developing country, China gains the benefits they should not enjoy, given its current economic conditions and capacity of the country, allowing China to take fewer commitments in the WTO principles. Furthermore, China Belt Road Initiative which comprises of Silk Road Economic Belt for ground access and New Maritime Silk Road for sea access has added new concern for the EU, as they are still struggling with the dilemma of transparency from Silk Road Cooperation with EU member states in the eastern region.

China’s initiative potentially undermines the credibility of the Union such as the 16+1 initiative which able to reduce the political power of the EU that meant to integrate Europe and help China’s goal of economic politicization as has been informed in POLITICO. This type of initiative is the thing that EU is willing to contest.

Indeed, if it is not wisely managed, this situation will put ASEAN’s position as a party between the EU and China in jeopardy. Therefore, the commemoration of the 40^th ASEAN-EU relations shall be the moment for ASEAN to evaluate its regional cooperation strategy, where the trend of Asian cooperation should not diminish the focus on other cooperation, such as with EU that has been established so far.

In fact, cooperation with the EU is still very important in ASEAN economic and trade activities. Since the EU market has become a high-quality product standard, this leads to a situation where if a product can be equivalent to EU product standards, it will easily penetrate other markets around the world. Knowing these circumstances, ASEAN should be able to position itself wisely, maintain relations with the EU but on the other hand, maintain good cooperation with China, given China’s importance as one of the largest investors in the ASEAN market and infrastructure.

It is important that ASEAN takes a non-partisan position and absorbs the best of its cooperation with both parties. Apart from the above, there are several important ASEAN-EU cooperation underlined, one of which is the ASEAN Regional Integration Support from the EU 2013-2016 (ARISE), to support the implementation of the ASEAN Economic Community (AEC) or the great idea of ASEAN Connectivity. For ASEAN, this initiative is vital, knowing that Europeans has previously succeeded in implementing their European Economic Cooperation (AEC), therefore, ASEAN has the opportunity to learn directly from EU through this assistance. In addition, with regard to EU economic standard, the currently progressing cooperation named ASEAN – EU Free Trade Agreement (FTA) which ASEAN welcomed through the AEM – EU Trade Commissioner Consultations in Manila 2017 is also an opportunity for ASEAN to regionally adapt to the standards EU on imported goods.

ARISE Plus

Following the ARISE 2013-2016, the EU also seeks further cooperation with ASEAN for the successful implementation of the ASEAN Economic Community (AEC) through ARISE Plus. This involvement is embodied in EU press releases intended to develop ASEAN’s single market, trade facilitation, reduce non-tariff barriers to trade, along with Intellectual Property Rights, civil aviation, and ASEAN statistics. As promised through the establishment of the ARISE program, the EU has truly shown its full support and assistance, evident from the amount of budget distributed to ARISE, which was recorded at EUR 41 million, this initiative is the largest EU-funded ASEAN action.

EU – ASEAN FTA

It is important to understand that EU engagement in Free Trade Agreements either with state entities or regional organizations is part of EU preemptive action to undermine its dependence on the US market, especially after the threat of Trump against key US allies through tariffs on steel and aluminum as US protection compensation to Europe vis-à-vis NATO.

The initiative was not new, in 2009 the ASEAN-EU discussion on FTA has been initiated, but due to some economic and political circumstances, it was never approved. As mentioned by Chotima Lemsawasdikul, director of the ASEAN Affairs Bureau at the Ministry of Commerce of Thailand, by 2015, ASEAN is trying to focus on the work of the ASEAN Free Trade Agreement.

In addition, it should be noted that individual ASEAN member countries such as Vietnam and Singapore have individually established bilateral trade agreements with the EU. In addition to these defective statements, it is imperative for ASEAN to have started an initiative to keep up with the EU’s regional high standards as part of ASEAN integration. If ASEAN achieves that goal, the fight for global markets is possible.

The writer is a Research Intern at the ASEAN Studies Center Universitas Gadjah Mada.

Suraj Shah

As the ASEAN Economic Community (AEC) seeks to deepen regional economic integration, the Enhanced Dispute Settlement Mechanism must avoid politicisation to optimise successful integration and economic development in the region.

Dispute Settlement Mechanisms (DSM) are fundamental features of economic institutions to ensure optimal outcomes. Governments include DSMs in international institutions to address collaboration problems and enhance the credibility of commitments, through exposing free riding, ascertaining violations and penalizing non-compliance. Economic actors need dispute settlement to be effective, even if not necessarily used, so that they know economic bargains will be honored.

However, in ASEAN, the EDSM suffers from fatal flaws. Fundamentally, a functional DSM that disciplines members who renegade on agreements is incompatible with the ‘ASEAN Way’, particularly given the norms of non-criticism and non-interference. Thus, the institutional outcome of the EDSM is structurally weak in that its instruments reflect the preference for protecting national sovereignty, and is essentially voluntary.

To establish credibility, one can either centralise regulations and institutions, such as the European Union, with a credible threat of referral to the European Court of Justice, or create a legal certainty about the extent of liberalisation with precision from the outset, such as NAFTA, together with the public and private instruments to defends one’s economic rights.

The ASEAN DSM has been active since the 1992 AFTA. Moreover, since the launch of the AEC, ASEAN has sought to enhance the DSM. The Protocol to the ASEAN Charter on Dispute Settlement Mechanisms was signed in April 2010, providing greater definition to the original DSM, known as the Enhanced Dispute Settlement Mechanism (EDSM).

The ASEAN’s EDSM is modeled on the WTO Dispute Settlement Understanding (DSU), of which all ASEAN members already subscribe to. This includes panels of independents, an appellate body, strict timelines and options for sanctions. However, ASEAN’s EDSM model suffers from practical flaws. The timelines adopted are even more expedited than the WTO DSU, by adopting half the time, which the WTO itself has difficulty following.

Furthermore, the ASEAN Secretariat is tasked to support the EDSM process with administrative and logistical support, yet has inadequate funding and legal expertise allocated to the EDSM process. Additionally, state-induced dispute settlement does not specify the remedy for found violations.

Thus, the EDSM establishes a dispute resolution procedure that cannot practically be followed. This structural weakness means that the EDSM has never been invoked.

Indeed, members favour using the WTO DSU rather than EDSM to resolve disputes, to avoid violating the norms of the ‘ASEAN Way’. For example, in Thailand’s dispute with the Philippines on Customs and Fiscal Measures on Cigarettes in July 2016, the WTO DSU was used, as it was seen as strategically less confrontational and would save face among ASEAN members by allowing third parties outside of the region to participate. Additionally, the WTO DSU was seen to give a more favorable outcome, given that the ASEAN EDSM is untested.

Moreover, effective dispute settlement mechanisms must be independent, yet, EDSM suffers from politicisation. The EDSM recognizes a variety of dispute settlement methods, ranging from ‘dialogue, consultation, and negotiation’, reference of ‘unresolved’ disputes to the ASEAN Summit, to the highest political decision-making body. However, it is possible under the current language of the ASEAN Charter, for an ASEAN member to refuse cooperation with the EDSM in the panel process or compliance proceedings, and thereby create an ‘unresolved dispute’.

The EDSM stipulates that ‘unresolved disputes’ have to be adopted by ASEAN political organs such as the ASEAN Economic Ministers Meeting (AEM), where both parties are already represented. In this sense, dispute settlement becomes politicised rather than independent. Moreover, in light of ASEAN norms of the aversion of conflict, adjudication with political, rather than independent, approval means the EDSM will likely be avoided.

Furthermore, the EDSM only envisages participation by ASEAN member states and does not permit private entities or investors to participate in the adjudicatory process. This minimises the involvement of non-state actors by denying access, disallows domestic courts from seeking a preliminary ruling, and deprives adjudicators of the means to compel compliance.

Essentially, the norms of the ‘ASEAN Way’ result in the structural weakness of the ASEAN EDSM. The outcome is a state-controlled EDSM which is voluntary, as there is an opt-out from the institutions of dispute settlement which is functional for protecting national sovereignty. While this non-confrontational approach may be suitable for diplomacy, ASEAN EDSM decisions behind closed doors by bureaucrats or politicians are not suitable for market transactions where private decisions implying private money or private efforts are based on public obligations or rights.

In light of this, the ASEAN EDSM is unlikely to be functional for optimising ASEAN Economic Integration, nor economic development in the region more broadly. ASEAN must seek to depoliticize the Enhanced Disputes Settlement Mechanism and create an independent regulatory body, as it seeks to deepen regional economic integration through the ASEAN Economic Community.

Suraj Shah is a MSc from King’s College London and former visiting fellow of ASEAN Studies Center.