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Posted: August 13th, 2022
An in-depth STUDY For the reformation of ASEAN Decision Making Mechanisms TOWARDS ASEAN ECONOMIC COMMUNITY and ASEAN Socio-Cultural Community 2025 in Practical lessons of IOs and EU
Abstract
Amongst the decision-making mechanisms under the wide practices of International Organizations (IOs), Consensus is reached in the absence of any voting procedure. Yet, the reach of Consensus is surely fail when a participating state raise a hand to state its negative opinion at the call of consensus by president of the conference. In real practices, the possible majority voting procedure usually takes place, when the participating could not have a common consent. Interestingly, ASEAN is now extending its community vision to a deeper community towards 2025 under the adoption of Kuala Lumpur Declaration on ASEAN 2025: Forging Ahead Together. However, the analysis yields that the maintaining of its current decision-making ASEAN Consensus in ASEAN Economic Community (AEC) and ASEAN Socio-Cultural Community (ASCC) legally stipulated in ASEAN Charter, Article 20 is causing ASEAN to hardly realize the community objectives, while every ASEAN Member State eligible to hold a veto right throughout an expression of objection to cast the proposals possess and benefit the whole community down when the proposals conflict with their national interests. With this in mind, useful experiences from the development of European Community (EC) and European Union (EU) can provide ASEAN such practical lessons to reform the ASEAN decision-making mechanisms in the future. Notwithstanding, EU alone cannot fruitfully offer all lessons for the ASEAN due to the differences between fundamental principles. Hence, the core aim of this dissertation is to deeply study on the practices of decision-making mechanisms under the IOs and EU in order to pull out the practical lessons for the alternative proposals for ASEAN Community vision 2025 towards AEC. Rather solemnly sticking to the consensus for both regional sensitive and non-sensitive issues, this dissertation finds necessary alternatives proposing for the future decision-making mechanisms of AEC and ASCC 2025.
Table of Contents
I.4. Scopes and Limitations of Study
II.1. Nature of Decision Making in International Organizations
II.2.The Legal basis of Decision Making and its essence in International Organizations
II.3. Decision Making Mechanisms in International Organizations and its Historical Developments
II.3.1.1. A Call for Consensus
a. The Final United Nations Conference on the Arms Trade Treaty
b. Third United Nations Conference on the Law of the Sea Conference (UNCLOS III)
a. The League of Nations and United Nations Security Council
a. The Council of European Union
II.3.2.2. Simple Majority Voting
a. The United Nations General Assembly
II.3.2.3. Qualified Majority Voting
a. International Labour Organization
b. The Council of European Union
a. International Monetary Fund
II.3.3. An Appraisal of Decision-Making Mechanisms in the Contemporary International Organizations
III.1. The General Background of ASEAN
III.2. ASEAN after the Adoption of Charter 2007
III.2.1. ASEAN Decision-making and Implementing Bodies
III. 2.1.3. ASEAN Community Councils
III. 2.2.4. The ASEAN Secretary-General
II.2.2. ASEAN Decision-Making Mechanisms
II.2.2.1. The “ASEAN Way”: The consensus decision-making method
III.2.2.2. The flexible decision-making “ASEAN Minus X”
III.2.2.2. The ASEAN Summit Decision
III.3. Criticisms of ASEAN Decision-Making Mechanism
III.3.1. The “ASEAN Way”: Javanese Village practices of musyawarah and mufakat
III.3.2. The Unclear of ASEAN Summit Decision-Making Mechanism
III.3.2.1. Non-Consensus Issue
III.3.2.2. Serious Breach and Non-Compliance Issue
III.3.2.3. The Vague Procedure Rule of ASEAN Community Council
III.4. Sources of conflict in ASEAN Decision Making Mechanisms
III.4.1. ASEAN Way: Principle of Non-Interference
III.4.2. Enlargement: Diversity among the ASEAN Member States
III.4.3. ASEAN States Behaviors
III.4.5. ASEAN Dialogue and External Partner (ADEP)
III. 5. Case Examination and Analysis on the effectiveness of ASEAN Decision-Making Mechanisms
III.5.1. Territorial Disputes in South China Sea
III.5.3. Human Rights in Myanmar
III.5.4. ASEAN Free Trade Area
Chapter Four: European Union (EU) Institutional Structure and Decision Making Mechanisms
IV.1. The General Background of EU
IV.2.1. Supranational features
IV.2.2. Intergovernmental features
IV.3.2. Treaties of Rome: EEC and EURATOM treaties 1957
IV.3.4. Single European Act 1957
IV.3.5. Treaty of Lisbon 2007: the Abolition of the ‘Three-Pillar’ Structure of EU
IV.4.1. The three-pillar characteristics
IV.5. Fundamental Principles of EU Decision-Making
IV.5.1. Principle of Conferral
IV.5.2. Principle of Subsidiarity
IV.5.3. Principle of Proportionality
IV.6.1. The European Commission
IV.6.2. The Council of European Union
IV.6.3. The European Parliament
IV.7.1.1. Qualified Majority Voting
a. Pre-Lisbon: Application of Qualified Majority Voting
b. Post-Lisbon: Application of Qualified Majority Voting
V.1. The Exhausted Consensus and the Move to QMV
V.2. Opting the Supranational element
V.3. The Frequency of ASEAN Summit
V.4. The extension of “ASEAN Minus X” towards ASCC
LIST OF TABLES
Table 3.1: Comparison of recommendations between EPG and HLTF……………..40
Table 3.2: Ratification of the ASEAN Charter ………………………………………44
Table 3.3: List of ASEAN Dialogue and External Partner……………………………66
Table 4.1: Policy areas under the QMV after Treaty of Lisbon…………………….. 88
Table 4.2: The allocation of votes for QMV before its abandon…………………… 107
Table 4.3: Voting Calculator of the QMV after November 1, 2014………………………… 109
LIST OF FIGURES
Figure. 2.1: A Qualified Majority Voting Calculation in EU Council…………….. 32
Figure. 4.1: A three-pillar structure of EU……………………………………………89
Figure. 4.2: The interaction of the three independent institutions of EU…………… 97
ACC ASEAN Coordinating Council
ACCWG ACC Working Group
ADEP ASEAN Dialogue and External Partner
AEC ASEAN Economic Community
AFTA ASEAN Free Trade Area
AMM ASEAN Ministerial Meeting
AMS ASEAN Member States
APSC ASEAN Political-Security Community
ARF ASEAN Regional Forum
ASCC ASEAN Socio-Cultural Community
ASEAN Association of Southeast Asian Nations
ASEAN-5 Indonesia, Malaysia, Philippines, Singapore, and Thailand
ASEAN-6 Brunei, Indonesia, Malaysia, Philippines, Singapore, and Thailand
ASEAN-PMC ASEAN Post-Ministerial Conferences
ATT United Nations Conference on the Arms Trade Treaty
Benelux Belgium, Netherlands, Luxembourg
CFSP Common Foreign and Security Policy (Pillar Two of EC)
CLMV Cambodia, Lao PDR, Myanmar, Vietnam
EC European Community
ECSC European Coal and Steel Community
EP European Parliament
EPG Eminent Persons Group
EEC European Economic Community
EU European Union
Euratom European Atomic Energy Community
GB The Governing Body of ILO
GC The General Conference of ILO
HA High Authority of ECSC
HLTF High Level Task Force
IBRD International Bank for Reconstruction and Development
IEOs International Economic Organizations
IMF International Monetary Fund
ILO International Labour Organization
IOs International Organizations
JHA Justice and Home Affairs (Pillar three of EC)
P5 members Five permanent members of the United Nations
QMV Qualified Majority Voting
SDRs Special Drawing Rights
SEA Single European Act
SOM Senior Officials Meetings
TAC Treaty of Amity and Cooperation
TEU Treaty on European Union
TFEU Treaty on the Functioning of the European Union
The League The League of Nations
The Commission The European Commission
The Community The European Communities (Pillar one of EC)
The Council The Council of European Union or Council of Ministers
The Six Belgium, Netherlands, Luxembourg, France, Germany, Italy
VCLT Vienna Convention on the Law of Treaties
UN United Nations
UNCLOS United Nations on the Law of the Sea
UNCLOS III Third United Nations Conference on the Law of the Sea Conference
UNGA United Nations General Assembly
UNSC United Nations Security Council
WTO World Trade Organization
Counting from 2017, Association of Southeast Asian Nations [hereinafter ASEAN] is merely turning to a fifty-year-old regional organization, which established by the adoption of ASEAN Declaration 1967 in Bangkok, Thailand with the purposes to accelerate economic development, socio-cultural cooperation, and geographically promote peace and stability in the Southeast Asia region.[1] The key route of this success comes from the mutual cooperation of ASEAN Member States [hereinafter AMS] in various aspects which benefits to all of members. One of the tremendous ASEAN historic achievements is the ASEAN Charter, which was adopted at the ASEAN thirteenth summit in Singapore on 20 November 2007 and entered into force on 15 December 2008.[2] Notably, ASEAN was first formed as an ‘institution without legalization’[3] via the ASEAN Declaration 1967, yet instead it transformed to a ‘more rule-based organization’ through the ASEAN Charter 2007.[4] As a matter of fact, the ASEAN Charter brought other new changes and initiatives for ASEAN such as conferring its legal personality as an ‘intergovernmental origination’[5], introducing the new institutional bodies, importantly reinforcing the commitments of AMS for the roadmap to an ASEAN Community by 2015 comprising ASEAN Political and Security Community (APSC), ASEAN Economic Community (AEC), ASEAN Socio-Cultural Community (ASCC) which were reaffirmed by the AMS in the Bali Declaration of ASEAN Concord II.[6]
As the deadline of ASEAN Community 2015 is now reached, however it is still constituted an embryo integration plan up to the present time. At this instant, the AMS further collectively agreed to conclude their plan for ASEAN Community vision 2025 namely ‘Kuala Lumpur Declaration on ASEAN 2025: Forging Ahead Together’ at the twenty-seventh ASEAN Summit in Kuala Lumpur, Malaysia to effectively respond the challenges and opportunities coming in a decade.[7] Most compelling evidence of what remain unchanged in the ASEAN Charter is the consensual decision-making which stipulated in ASEAN Charter, Chapter VII, Article 20: “As a basic principle, decision-making in ASEAN shall be based on consultation and consensus”. The current status of ASEAN consensus, after the adoption of charter, is not restrictive as in the past but absolute because the ASEAN Charter provides other flexible decision-making mechanisms, such as ‘ASEAN Minus X’ and the ASEAN Summit. However, to go through these flexible mechanisms, it must be gone through with some conditions. Firstly, ‘ASEAN Minus X’ will be used in ‘the implementation of economic commitments’, but in case there is a consensus to do so.[8] Next, the AMS will refer to the ASEAN Summit for decisions when consensus cannot be reached.[9] Through these contexts, I assume that every proposal or matter must be decided by consensus in order to conclude a final decision accordance with the Article 20. Moreover, since ASEAN is an ‘intergovernmental organization’ for AMS to retain their respective sovereignty powers in the decision-making process, the AMS has the rights to block every proposal or common decision that prevails their national interests, especially in political and security matters like South China Sea.[10] This is because the Southeast Asia region became more prosperous, thus the external powers like China, Japan, the Republic Korea and the US are deemed to influence within the decision-making process through the aid and assistance of each member states. It is crucial to realize that many work plans are diplomatic in nature rather than legal.[11]
European Union [hereinafter EU] has always seen as a ‘point of reference’ for ASEAN to learn in terms of organizational structure, especially on regional economic integration. Conversely, it fundamentally sees that ASEAN chose its own way through the legal personality laid down in the Article 3 of ASEAN Charter rather EU’s supranational model of cooperation. It worth noted that the three ASEAN Community pillars—APSC, AEC, ASCC—‘appear to reflect the [EU] tri-pillar system initiated with the Maastricht Treaty’.[12] Regarding to this, EU distinctly used decision-making mechanisms through each pillars although it is a supranational organization. In the Common Foreign and Security Policy (second pillar), and Justice and Home Affairs (third pillar)’s decisions made by the Consensus and Unanimity. However, the Qualified Majority Voting (QMV) was used in the first pillar which is European Community (EC). Thereupon, I am for Consensus to be used in the APSC pillar because every sovereign state would have to defense for their respective sovereignty powers over the association in order to retain their internal security from external aggression. Yet, I see that Consensus would be too restrictive and extremely time-consuming in AEC and ASCC pillars because now ASEAN is moving to twenty-first century which would need more flexible decision-making mechanisms to deal with the new challenges and urgent issues within the region such as economy dynamic, environmental protection, poverty and human rights violations. As the realization of the ASEAN Community 2015 is now come to the deadline, it is worth discussing the weaknesses of ASEAN and the new initiatives for ASEAN reformation on decision-making mechanisms beyond 2015 which is the approach of ASEAN Community Vision 2025. Thus, proposals that benefit the whole ASEAN community, particularly within AEC and ASCC would move speedy; and lesser struck down by minorities blocking. Definitely, everything is not perfect and with the ASEAN Charter is a first significant start of the ASEAN which will need a further reformation on its current decision-making mechanisms from the AMS cooperation since the ASEAN Charter opens for the Amendment in Article 38. That is why I want to initiate this study.
Under the ASEAN Charter, Chapter VII: Article 20 lays down consultation and consensus as a basic principle of decision-making in ASEAN. It is inevitable for ASEAN to reform its decision-making mechanisms in the future if it continuously develops its institutional frameworks towards AEC and ASCC. Hence, I want to pose some legal issues to elaborate within my dissertation as following:
Throughout the above rationales, I want to raise three main objectives of this in-depth study. First, this study ascertains the criticisms and challenges of ASEAN current decision-making mechanisms through case studies which have been decided by the Consensus in order to improve ASEAN current decision-making mechanisms for a better institutional development of ASEAN towards the AEC and ASCC 2025 because it will be only a dream without doing any reformation of ASEAN current institution. Second, it looks for the proper practical lessons from the decision-making mechanisms of EU through ‘tri-pillar system’ which adopted in Maastricht Treaty. Last but not least, this study agrees to remain Consensus in ASEAN decision-making process. With all of mind, it proposes new decision-making mechanisms as alternatives, when Consensus cannot be reached, for the effectiveness of potential future agreements cooperation of ASEAN Decision Making, stated in Article 20, Chapter VII could be enhanced and amended.
As mentioned above, the ASEAN community comprises three pillars: Political-Security Community, Economic Community and Socio-Cultural Community. However, the characteristic of this dissertation is a legal study which refrains from any political perspectives plus the opinion of author is to agree to use the consensus within the Political-Security Community. Thus, the scope this study is Articles 20 &21 of the ASEAN Charter and only focus on the study of ASEAN new and flexible decision-making mechanisms for priority areas within Economic Community and Socio-Cultural Community pillars, when the AMS cannot achieve Consensus.
This in-depth study consists three methods. The first main method is qualitative, which contains two essential research materials:
Primary Materials:
Secondary Materials:
The second method is quantitative method. This method will also be used to show the statistical data and survey responses in order to examine the case studies. However, the comparative method will be also conducted to reveal similarities and differences, which will draw the practical lessons from EU and new set of feasible proposals for ASEAN.
II.1. Nature of Decision Making in International Organizations
Literally, the decision-making in International Organizations (IOs) is joint-decisions between an international organization itself and member states concerned, thus predominantly these decisions are agreements between IOs and member states.[13] However, agreements in IOs can be binding and non-binding depending upon the constituent treaty of each international organization. During or at the final stage of the decision-making process, the taken decision will be binding upon the states if there is no any objection or interruption from the member states; and the state parties, whom expressed consent to be bound by the treaty, must keep their agreements and perform in good faith accordance with the principle of pacta sunt servanda.[14] Nevertheless, it is merely non-binding agreements in some cases depends on two reasons. First, it is about the ‘final clauses’ on how the agreement creates legal obligations for further requirements such as ratification or accession. [15] Last but not least is the wording of the provision, whether it is to be governed by international law through the phrasing in ‘aim’, ‘shall’, or ‘should’.[16] However, it worth noted the title of agreements like declaration is non-legally binding in nature already. Through all of stated reasons, I assume that member states intellectually acknowledged of consequences of the taken decisions before giving up their sovereignty under a particular agreement as decision makers.
II.2.The Legal basis of Decision Making and its essence in International Organizations
Legally speaking, the only instrument to establish international organization is Treaty. As Treaty is one of most important sources of international law, Vienna Convention of the Law of Treaties (hereinafter VLCT) defined treaty as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’.[17] In international legal order States are recognized as the primary subject, while IOs recognized as secondary object.[18] States collectively create IOs for particular issues or objectives which they could not possibly to address by their own. Henceforth, the role and rules of the IOs will be depending on the member states’ interests. In a basic principle of IOs, this falls under the ‘principle of attributed powers’, which IOs are capable to act with the attributed powers by the member states only.[19] It basically sets out through the particular legal instrument of the organization itself such as Charter, Treaty or Convention in order to achieve the objectives of the organization. As the founders of the IOs, member states are usually granted to have vital roles and rights in the organization especially in the decision-making process to adopt a proposed institutional act or an agreement on a specific issue. With this in mind, various decision-making mechanisms or procedures explicitly agreed upon by the member states in certain provisions are also required to be passed. The below section will be further illustrating the diversified types of decision-making mechanisms have been applying in the vast majority of international organizations. To be noted, not every proposed institutional act always reach or sometimes such a withdraw case also arises. This due to the lack of support from the member states, and the influence of external actors through the foreign aids and other benefits. Thus they would have to re-bargain and cautiously avoid the accountability of the adopted institutional acts legal outcome and its impacts over their domestic legal orders, where re-negotiations and other alternative decision-making mechanisms are necessarily needed to take place for the adoption of a proposed institutional act.[20]
Decision-making is fundamentally one of the most acts in every international organizations (IOs) since member states will bear the responsibility over the legal consequences once it is adopted. At the international level of decision-making, vital interests and controversial points always come up between the participating states. Hence, the different decision-making mechanisms or modes like consensus, unanimity, and majority principle are being needed and applied by every international organization in order to govern its decision-making and draw the conclusion of a particular issue. Couple of these mechanisms may be stated in the founding treaty or charter of every IOs.[21]
Consensus have been practically using since 1970s by well-known both regional and international IOs such as ASEAN, EU, World Trade Organization (WTO), and specialized agencies of United Nations (UN).[22] The reasons why the many IOs use consensus as one decision-making mechanisms because it is linked with the principle of sovereign equality of states granting an egalitarian representation of participating states to assure that the voices of minorities are not misheard to the proposed decision during the decision-making process.As noted, the participating states are the autonomous actors within in the IOs comprise with divergent views; and they will inevitably attempt to protect their interests until they are satisfied in nature. In this case, Consensus seeks resolutions to compromise those views and interests through negotiations until the participating states satisfied to agree so. This may possibly be called ‘win-win’ resolutions that are satisfactory to both individual’s and group’s interests, resulting as a final decision and in greater implementation.[23] Professor Weiler in the Michigan Law School uprightly mentions that ‘reaching consensus under the shadow of the vote is altogether different from reaching it under the shadow of the veto. The possibility of breaking deadlocks by voting drives the negotiators to break the deadlock without actually resorting to the vote.’[24] Thus, avoiding the formal voting procedure and consent from all of participating states, consensus literally expedites the slow pace of decision-making within IOs.
Up until now, there are two definitions of consensus defining by the international society. Firstly, the United Nations on the Law of the Sea (hereinafter UNCLOS) gives the definition of consensus as ‘the absence of any formal objection’.[25] Secondly, the Helsinki Conference on Security and Cooperation in Europe provides the meaning that ‘the absence of any objection expressed by a representative and submitted by him as constituting an obstacle to the taking of a decision in question’.[26] In other words, the consensus will be achieved unless there is no expression of objection from a participating state to the proposed decisions. This due to that the expression of objection by a participating state will be a hindrance to block consensus. Yet it is not satisfied enough to block consensus in case of abstention or remained in silence because not all member states are obliged to affirmatively agree on such agreement to be adopted by consensus.[27]
The section II.3.1.2 will be discussing the success and failure cases on consensus as one of decision-making mechanisms in the Final United Nations Diplomatic Conference on the Arms Trade, Third United Nations Conference on the Law of the Sea Conference (UNCLOS III), in order to provide a better understanding over this issue.
II.3.1.1. A Call for Consensus
Since the achievement of Consensus is without going to the formal voting, President or Chairman at the conference will be playing an important role as facilitators to facilitate the conflicting interests at the table and assure that Consensus will success. A call for consensus will be taken place by the President or Chairman at the end of the conference by asking a question such as ‘Are there any unresolved concerns?’[28] By the way, since an expression of objection will block the adoption of consensus, if the President or Chairman at the conference do not see any objections raised by the participating states, that means the proposal is adopted through consensus without going to any voting procedures. In other way, the participating states may clap their hands as they satisfied enough to reach agreement on the proposal by consensus. However, state(s) who object(s) the proposal will raise a hand asking for a floor to state its propositions. In this case, the Consensus will automatically fail with a voice of objection to the proposal. Thus, the proposals would prolong to other time of the conference or the voting will come into play in this case based on the set rules of procedure at the conference.
The adoption of resolution 64/68 by the UN General Assembly (UNGA) decides to convene a United Nations Conference on the Arms Trade Treaty (ATT) in July, 2012 to ‘elaborate a legally binding instrument on the highest possible common international standards for the transfer of conventional arms’.[29] The ATT aims to prohibit and uproot the illicit arms trafficking like conventional arms that could be in purpose to ‘commit or facilitate serious violation’ of international humanitarian and human rights laws.[30] Moreover, the rule of procedure to be adopted at the conference must be consensus. The purpose to use the consensus is to show the transparent manner and to have a robust treaty. Unfortunately, the reaching consensus was failed twice on first in July 2012, and final ATT conference in March 2013 due to the three participating states such as Syria, Iran and Democratic People’s Republic of Korea known as North Korea blocked the consensus at the end of the conferences due to their conflicting interests.[31] North Korea representative took a floor that ‘draft is not well balanced. Some interests have been reflected more than others and some have been ignored.’[32] Besides, Syrian ambassador to the UN said that his country cannot accept this treaty due to the prohibition of arms transfers to subnational groups (e.g. non-state actors) were not mentioned in treaty.[33] Also, Iranian ambassador to the UN asked to state for his country that ‘while the rights of arms-exporting states [are] well preserved in this text, the right of importing states to acquire and import arms for their security needs is subject to the discretionary judgment and subjective assessment of the exporting states.’[34]
However, the treaty was transferred by the ninety proponents, including the United States, back to UNGA for the adoption due to endless negotiations and a triple-revised of the treaty text.[35] Unlike in the conference, when the consensus failed a simple majority and two-thirds majority come into play in UNGA to agree on the text of treaty, where all agreements from 97 votes of 193 member states. Finally, the ATT was adopted by UNGA with a vote of 154, 3 against and 23 abstentions.
The United Nations Convention on the Law of the Sea (UNCLOS) took about twenty years to become a legally binding international agreement governing all of oceans space problems in this world, which successfully resulted from the last conference known as the Third United Nations Conference on the Law of the Sea (UNCLOSIII). Notably, the convening of UNCLOS III was adopted by the UNGA Resolution 2750 (XXV) A to confer on ‘the area of the sea-bed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction and its resources are the common heritage of mankind’ and to complete the earlier conferences (UNCLOS I & II).[36] Simply put, all of the seabed and ocean floor, the subsoil and the resources of the area will be considered as the ‘common heritage of mankind’ without under any sovereignty of states. To legally recognize, it had challenged and caused a lot of complexities plus there were more than 160 representatives of states participated leading too many divergent interests occurred within the UNCLOSIII.[37] Therefore, the Conference adopted consensus as its rules of procedure in negotiating stage accompanied by a ‘General Agreement’: ‘The Conference should make every effort to reach agreement on substantive matters by way of consensus and there should be no voting on such matters until all efforts at consensus have been exhausted.’[38]
In conclusion, through these two cases, consensus works well in case the all participating states satisfied with the proposed act or their concerns has been resolved. However, there will be a gridlock to have a common final agreement if the participating states voice object the proposed act, if there is a concern or an unresolved concern remain at the end of the conference, unless there is any other alternative decision-making mechanisms provided, such occurred in ATT case. In contrast, UNCLOS seems to more successful and a unique example for international decision-making. The most important point to not overlook of UNCLOS is the active cooperation of several divergent groups having high level of common interests and characteristics to achieve consensus such as group of ‘Archipelagic States, Straits States Group, Oceania Group.’[39]
Consensus seems like a first test of proposed act to see whether it has majority or all support from the participating states. Mostly, IOs always pleads for consensus to show the unity of their organizations. However, in endeavor the failed proposed act and endless negotiations, most of IOs attempt to move failing consensus to formal voting rule when the issues hardly to proceed.
Coming to unanimity, it clearly claims to protect the interests of minorities because there could be an effective implementation from the member states when their interests are satisfied.[40] This is exemplified by the League of Nations as a rule for decision-making for Council and Assembly as manifested in article 5 of the Covenant of the League of Nations:
Article 5
Except where otherwise expressly provided in this Covenant or by the terms of the present Treaty, decisions at any meeting of the Assembly or of the Council shall require the agreement of all the Members of the League represented at the meeting.[41]
Giving ‘one state-one vote’ and granting a veto right to each member states shows that principle of sovereignty of states should be taken into account within the organization (this will be having a discussion through case studies below). Specifically, the International Economic Organizations (IEOs) member states think that ‘only mutually beneficial agreements can produce effective rules of conduct’.[42] Mostly, IOs use unanimity to apply in sensitive issues and important matters, such in Council of Europe (this will be raised as a case study below). Besides its advantages, the shortcomings are also exist. Likewise the consensus, one well-known drawback is the obstruction. If the decisions taken against their will, the proposed decisions that benefit the whole organization would be struck or dropped because of one or two states; since all of participating states are affirmatively required to reach a common agreement to be adopted by unanimity. Although unanimity seems stricter than consensus, both of these mechanisms may lead to the ‘vague wordings of the adopted regulations’ in order to reach the compromise level.[43] Last but not least, in case of dispute settlement and sanctions, the decisions to be passed by these two mechanisms would hardly to exercise if the disputing parties are not excluded in the process of voting for the resolutions. To provide better understanding on the characteristics of Unanimity voting, I am raising two IOs—League of Nations and Council of Europe—for the discussion.
a. The League of Nations and United Nations Security Council
The League of Nations (hereinafter the League) was established by Treaty of Versailles in 1919 aftermath of the First World War to maintain peace through encouraging national disarmament and being a ‘safeguard the peace of nations’.[44] The organizational structure of the League divided into three bodies, such as the Assembly, the Council and the Secretariat. Each member state of the League will be the members of the Assembly holding one vote to deal with any issue ‘within the sphere of action of the League or affecting the peace of the world.’[45] The Council members entitled have one vote, which consists of ‘Representatives of the Principal Allied and Associated Powers’—Britain, France, Italy and Japan as the permanent members—and other four countries elected by the assembly.[46] Article 5 of the Covenant of the League of Nations a decision-making rules:
Except where otherwise expressly provided in this Covenant or by the terms of the present Treaty, decisions at any meeting of the Assembly or of the Council shall require the agreement of all the Members of the League represented at the meeting.
All matters of procedure at meetings of the Assembly or of the Council, including the appointment of Committees to investigate particular matters, shall be regulated by the Assembly or by the Council and may be decided by a majority of the Members of the League represented at the meeting.[47]
In other words, the Assembly and the Council of the League could only make a decision through a unanimous vote, except the procedural matter which required by Majority voting. As mentioned above, every member state of IOs is self-interested in nature. Thus with a unanimous vote to carry out of any decisions and enforcement in the League, the mutual cooperation of its member states is really needed, especially from the powerful members, such as Britain and France. According to Article 16, the protection of the League’s life was entirely depended on the contribution of member states in terms of financial and military forces. However, aftermath of World War I, Britain and France were still weak, and inclined to use the military forces wherever they were not interested to intervene, which made the League became paralyzed. To simply put, the powerful members were not willing to cooperate and maintain peace due to their differences in policy. Consequently, everything needed to change but only through a unanimous vote. In practices, unanimity strictly required all consent from the member states in most of important matters, thus the work of Assembly and Council was prolonged the decisions, led to the absence of any enforcement and the outbreak World War II after its collapse. Realizing from this mistake, the founder-members of the United Nations (UN) applies several types of majority voting as decision-making rules to all its organs and subsidiary bodies, yet a unanimous vote applies only to five permanent members (hereinafter P5 members) in the United Nations Security Council (UNSC), such as China, France, Russia, the United Kingdom (UK), the US, provided in Article 27 of the UN Charter:
In this sense, the decision-making rules of Security Council contains two elements. Firstly, a unanimous vote does not apply in the procedural matters. Nine affirmative votes from both permanent and non-permanent members are enough for ‘procedural matters’[49]. However, in paragraph three of the UN Charter, Article 27, there is a hybrid voting system between unanimity voting and majority voting in substantive matters, where a unanimous vote from P5 members must be included in nine affirmative votes. Thus, if one of the P5 members case a negative vote, a proposed act would be passed since each of P5 members granted a right to veto. One of the reasons is that the decisions on the resolutions are legally binding upon all of member states, which mentioned in the Article 25: ‘The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.’[50]
EU is a unique regional organizations where there is a combination of intergovernmental and governmental. The Council of European Union or Council of Ministers (hereinafter the Council) is one of the three main EU institutions involving in EU legislations where ministers of each EU member state discuss and adopt EU legislation proposed by the European Commission.[51] Mostly, as laid down in Article 16 of Treaty on European Union (TEU), the European Parliament (hereinafter EP) and the Council work and agree together in the ordinary legislative procedure, which is called ‘codecision’.[52] (The adoption of legislation of EU and its decision-making process will be discussing in details within Chapter 4).
Article 16
There are various types governing the decision-making procedures of the Council, such as a simple majority, qualified majority and unanimity. The unanimity voting is required every EU member states to agree or abstain, and used in sensitive areas concerning in the Common Foreign and Security Policy such as EU membership (Art. 311 of TFEU), citizenship, and taxations(Art. 49 of TFEU).[54] However, abstention does not affect the decision taken according to Article 238, paragraph 4 of Treaty on the Functioning of the European Union (TFEU):
4. Abstentions by Members present in person or represented shall not prevent the adoption by the Council of acts which require unanimity.[55]
II.3.2.2. Simple Majority Voting
However, unanimity voting was less used after World War II and the majority voting was developed as one the decision-making rules in most major IOs, notably in the UN Charter. An international lawyer and director-general of the International Labour Organization, Clarence Wilfred Jenks, stated ‘The battle to substitute majority decision for the requirement of unanimity in international organization has now been largely won’.[56] As mentioned in case studies above, although the popularity of Unanimity decreased, it is still used to maintain the intergovernmental approach in the maintenance of principle of equality because no states can be enforced against their will under the international law. However, using the majority voting does not mean that there is an absence of the principle of equality because every member states still has one vote for their states. In practice, the IOs easier to reach decisions and avoid where the unnecessary obstructions and objections occurred from the unanimity and consensus; or when these two mechanisms are not achieved. Furthermore, the requirements of specific majorities will depend on the majority rule of each individual international organization and on how the importance of the decision is.The idea of Majority voting in various requirement rules was come up by the IEOs in the 1940s and 1950s, such as the International Monetary Fund (IMF) and International Bank for Reconstruction and Development (IBRD).[57]When decision is taken by an simple majority voting, a proposal usually required the support for more than half of the unit member states. The advantages of the simple majority is usually reached and eliminated the deadlocks.[58]
The UN General Assembly (hereinafter UNGA) composes all of current member states of the UN, which are now 193.[59] Article 10 of the UN Charter, granted the functions and powers for the UNGA:
The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.[60]
The recommendations of the UNGA do not have direct legal binding power, but those have indirect legal power since several powerful member states of the UNGA are also the members of the UNSC.[61] In language of the recommendations, the General Assembly usually used various terms including ‘“calls upon”, “requests”, “urges”, “invites”, “demands”, “recommends”, “encourages” or “stresses”.’[62] Regarding decision-making mechanisms in UNGA, the UN Charter provides two types such a two-thirds majority to decide on the important issues[63] and a simple majority on other issues on the basis of one vote one state to all 193 UN member states.[64] However, in practices, most recommendations on such issues have been adopted through achieving consensus rather than going to a formal voting system as stated. By the way, some of issues also failed by the consensus thus thanks to the majority voting rules mentioned in Article 18 that have helped out the controversial issues happened.
II.3.2.3. Qualified Majority Voting
The requirements of Qualified Majority Voting (hereinafter QMV) can be a specified percentage (70%, 80%, or 90%) or qualified to set rules laid down in the constitutions or specific treaties of each IOs (two-thirds, three-fourths or fourth-fifths—among these specifications, two-thirds is most common used one). Although a two-thirds is the most common used one, there are some other IOs set a different QMV for particular categories of decisions. In this point, I will be raising two IOs—the Council of European Union and International Labour Organization—that have been using the QMV for their substantive decisions.
International Labour Organization (hereinafter ILO) is indeed one of UN specialized agencies with a unique special procedure, known as ‘tripartitism’.[65] Tripartite is to involve governments, employers and employees representatives from 187 member states to discuss on labour standards and policies in order to provide all people with decent work.[66] As mentioned so far, in most of IOs are using consensus unanimity to decide on the substantive issues rather majority rule. However, what interesting in this point is that ILO exclusively uses a two-thirds majority to adopt its conventions rather than unanimity or consensus. Talking about the composition of ILO is needed in order to understand clearly on the voting procedure. ILO composes of three main bodies such as the General Conference (hereinafter GC) or known as International Labour Conference, the Governing Body (GB), and the International Labour Office.[67] Firstly, all of conventions and recommendations on labour standards are adopted by delegates—employers and workers—representing each member state of ILO at the conference.[68] Secondly, the GB is responsible to set up the agenda for the meetings of the GC. However, there is no specific procedure mentioned within the constitution of ILO. It is depending on the determination of GB. Last but not least, the International Labour Office is the permanent secretariat of the ILO with the task to prepare a draft on the issues before the GC and GB.
As mentioned above, there are several types of decision-making rules in EU such unanimity, QMV and simple majority. Historically, all of EU treaties were adopted by unanimity before the Single European Act (hereinafter SEA). The SEA has moved many issues, except some sensitive issues relating to the Common Foreign and Security Policy (see II.3.2.1.1.b). There should be understood that the main purpose of the SEA is to form an internal market or known as single market in European Economic Community (EEC). Moreover, EU comprises 11 member states after the enlargement 1986, thus the divergent of interests started to increase within community. In this sense, it would be hard to adopt new legislation under the unanimity to realize its purpose by 1992 if member states tried to obstruct the process and protect their economic interests. The latest institutional reformation on the QMV is embodied in the Treaty of Lisbon. There are two conditions to be met or ‘double majority’ in the Council to reach a qualified majority: (1) 55% of member states vote in favor (16 out of 28 member states) and (2) at least 65% of the total EU population for the adoption of a proposal by the Commission or the High Representative for Foreign Affairs and Security Policy.[69] (This will be more detailed in Chapter 4).
Figure 2.1: A Qualified Majority Voting Calculation in EU Council
Source: Council of the European Union (EU)
As noted above, IOs generally act in accordance with the principle of equality like on ‘one state-one vote’ basis. At the same time of seeing the word “weighted”, the voting power of member states is not the same. Some might argue that it is greatly biased for the developing, especially poor countries. However, there are various exceptions are justifiably turned into the consideration to allocating the votes to the member states since larger states bear more burden responsibility such as financial contributions, population size, commercial performance, and particularly political and economic strength.[70] Weighted Voting are currently using within financial institutions such as International Monetary Fund and World Bank.
A great example of IOs using weighted voting system as its fundamental decision-making is International Monetary Fund (hereinafter IMF). All of member states in IMF serve as members of the Board of Governors, which is the highest decision-making body of IMF to reform the structure, admit new member, adopt new laws, review quota and elect the Executive Directors.[71]
In principle, to respect the principle of sovereign equality, IMF provides 250 votes to every its member state. Then, due to the quota of financial contribution (partially both of reserve currency such as the United States Dollar, the Euro, the Japanese Yen, the United Kingdom Pound and the Chinese Renminbi Yuan, and its own currency) from its member states called “special drawing rights” (SDRs), every member state who have contributed will get an additional vote for each part of its quota up to one hundred thousand SDRs.[72] It should be understood that the main purpose of IMF is to provide loans to it member states—low-income or developing countries—for specific projects to build up their economic infrastructure. Thus, it is no doubt that the predominant creditors in IMF accredited as majority shareholders because IMF needs to give incentive to its creditors since IMF is a financial institution. Currently, the largest quota country is the United States with SDR 42.1 billion ($59 billion) and granted approximately 17% of 85% majority of the total vote.[73]
II.3.3. An Appraisal of Decision-Making Mechanisms in the Contemporary International Organizations
Based on the discussions on the characteristics of each decision-making mechanism in the contemporary IOs and case studies above, I can argue that Consensus seems easier to be achieved within the less political issues, while not many conflicting interests of the participating states putting on the table towards the proposals at the conference. Also, when the participating states are willing to compromise their divergent interests into the common ones; and if they have the common purpose toward the proposals, I argue that Consensus is an expedition mechanism to be used in rules of procedures since it does not go to any further voting for the adoption. In contrast, Consensus tends to provide incentives for participating to states to keep ‘policy-making hostage to national interests.’[74] Thus, with the shortcoming of consensus, the participating nations will decisively resort to their voting procedures prescribed in their Charters or Founding Treaties in order to avoid and prolong endless negotiations, or in case it is indeed to be adopted for emergent and important situations. In this case, they will use voting based on majorities. With all of mind, Consensus, Unanimity voting, Simple Majority voting and Qualified Majority voting are principally conferred on the principle of sovereign equality giving each member state one vote basis. Even though Weighted voting is being criticized as against to the principle of sovereign equality, which does not give voting power to each participating states equally, it, however, seems still acceptable under international law since the allocation of voting power favors to the predominant contributed member states, especially in the international monetary institutions like IMF and World Bank.
III.1. The General Background of ASEAN
Before having an in-depth study on Association of Southeast Asian Nations (ASEAN) decision making mechanism and its structure, it is necessary to have a preliminary understanding of its basic facts which formed the today’s ASEAN. Regarding the birth of ASEAN, it was established on 8 August 1967 by the five founding fathers (ASEAN-5): Indonesia, Malaysia, Philippines, Singapore, and Thailand with the ASEAN Declaration, which is also called Bangkok Declaration. ASEAN started to enlarge its membership with accession of Brunei Darussalam on 7 January 1984 as the sixth member (ASEAN-6). From the period 1995-1999, ASEAN progressively comprised of ten member states with the enlargement of more four member states (CLMV)—Vietnam on 28 July 1995, Lao People’s Democratic Republic (Lao PDR) and Myanmar on 23 July 1997, and Cambodia on 30 April 1999[75]. The history background leading to the establishment of ASEAN was the recognition of Malaysia as an independent state by Indonesia and the mindsets of other countries within the Southeast Asian region to promote friendly relations, peacefully resolve their disputes and without any external interference in internal conflicts[76]. In addition to the ASEAN Declaration 1967, the ASEAN member states had also aware that there is a need to jointly foster the economic and socio-cultural development in order to bring the ASEAN becoming a successful regional organization. One of the aims and purposes of the organization spelled out in ASEAN Declaration 1967 is “To accelerate the economic growth, social progress and cultural development in the region through joint endeavors in the spirit of equality and partnership in order to strengthen the foundation for a prosperous and peaceful community of South-East Asian Nations.”[77] After the end of Cold War, ASEAN has strengthened a deep regional integration with external partnerships both economically and politically through “ASEAN Plus 3—China, Japan and Korea”, the United States, European Union, Russia, Australia, India, Canada and New Zealand.[78] In addition, concerning on regional cooperation for intra-ASEAN and response to globalization challenges, AMS declared during the Ninth ASEAN summit held in Bali that in order to transform ASEAN to ASEAN Community, “[a]n ASEAN Community shall be established comprising of three pillars, namely political and security cooperation, economic cooperation, and social-cultural cooperation…ensuring durable peace, stability and shared prosperity in the region”[79]. With the adoption of the ASEAN Charter, ASEAN has clearly set its legal personality under the international law from a loose organization to the rule-based “inter-governmental organization” which was defined under the Article 3 of the ASEAN Charter.[80] Along with the ASEAN’s motto: “one vision, one identity, one community”[81], it seems that ASEAN’s institutional framework development has been boosted and transformed ASEAN to a real ASEAN Community comprising of three distinct pillars: ASEAN Political and Security Community (APSC), ASEAN Economic Community (AEC), ASEAN Socio-Cultural Community (ASCC).[82]
III.2. ASEAN after the Adoption of Charter 2007
Despite the ASEAN Declaration 1967, and even later on there was the adoption of 1976 Treaty of Amity and Cooperation (TAC), it clearly see that ASEAN existed without a legally binding treaty or a charter. Notwithstanding, the proposal of an idea on ASEAN Charter was initiated in 2004 by Malaysian concept paper entitled, ‘Review of ASEAN Institutional Framework: Proposals for change’, and formally adopted as ‘the Kuala Lumpur Declaration on the Establishment of the ASEAN Charter’ at the eleventh ASEAN summit in Kuala Lumpur on 12 December 2005.[83] With the codification of the ASEAN Charter, ASEAN Leaders have officially appointed a ten-person Eminent Persons Group (EPG) at the 11th ASEAN Summit in Kuala Lumpur in December 2005 to conduct a report and provide the recommendations for the ASEAN Charter and to accomplish an ASEAN Community.[84] As a result, on 12 January 2007, the EPG’s Report on the ASEAN Charter was distributed to ASEAN Leaders at the twelfth ASEAN Summit in Cebu.[85] Equally important, to endorse the EPG’s Report, the ASEAN Leaders unanimously reached a consensus to adopt the ‘Cebu Declaration on the Blueprint of the ASEAN Charter’ and the ‘Cebu Declaration on the Establishment of the ASEAN Community’.[86] On the same day, the High Level Task Force (HLTF) was accredited to preparing the draft of the ASEAN Charter, which was expected to be ready in the time for ASEAN’s thirteenth summit in Singapore in 2007.[87] Table 3.1 compares the differences and the similarities of the recommendations between EPG and HLTF. In here, I want to emphasize that throughout the roles of HLTF given by ASEAN Leaders, the three substantial bases that they based on are the ASEAN Leader’s instruction, relevant ASEAN Documents, yet in consideration of the EPG recommendations.[88] Therefore, the context was a bit contrary.
Table 3.1: Comparison of recommendations between EPG and HLTF
| EPG | HLTF | |
| 1 | ASEAN Council | ASEAN Summit |
| 2 | ASEAN Foreign Minister to prepare for summit | ASEAN Coordinating Council |
| 3 | Council of the ASEAN Community | ASEAN Community Council |
| 4 | ASEAN Secretary-General | ASEAN Secretary-General |
| 5 | ASEAN Committees | Sectoral Seniors Official Meeting |
| 6 | ASEAN Secretariat | ASEAN Secretariat |
| 7 | N/A | ASEAN Sectoral Ministerial Bodies |
| 8 | ASEAN Permanent Representatives | Committee of Permanent Representatives to ASEAN |
| 9 | ASEAN National Secretariat | ASEAN National Secretariat |
| 10 | N//A | ASEAN National Secretariat |
| 11 | ASEAN Foundation | ASEAN Foundation |
| 12 | ASEAN Institute | N/A |
Source: The Making of the ASEAN Charter
| 13 | N/A | ASEAN Human Rights Body |
| 14 | Decision-making by Consultation and Consensus in security and foreign policy; Majority Voting in less sensitive issues and non-controversial areas | Consultation and Consensus in all issues |
| 15 | In ASEAN Cooperation: “ASEAN Minus X” or “2 Plus X” formula in the decision of Community Councils | “ASEAN Minus X” in the Economic Commitments |
Source: Author’s illustration based on the report of EPG and the ASEAN Charter.
One of the EPG members, Mister Ali Alatas, shows his disappointment to the Charter:
I cannot deny that as a former member of the EPG, I am disappointed that a number of ideas recommended by the EPG failed to obtain consensus support in the High Level Task Force and hence were not included in the final Charter text and comparing it with the text as proposed by the EPG will reveal that a few important EPG recommendations which were dropped in the final text were not completely rejected, but their essence was retained, albeit in more general and vague words (terms). [89]
Based on the Table 1, there is a worth notice that some of the EPG recommendations have rejected by the ASEAN Leaders. Besides, most of the EPG recommendations also have been accepted and more explicit by HLTF and ASEAN Leaders in the final text, for example, ASEAN Human Rights Body. The ASEAN member states (AMS) collectively adopted the ASEAN Charter on 20 November 2007 at the ASEAN thirteenth summit in Singapore[90]. The ASEAN Charter thus entries into force on 15 December 2008 following the tenth deposit of instrument of ratification with the Secretary-General of ASEAN.[91] For the date of ratification of each AMS, please see Table 3.2 below. More importantly, The ASEAN Charter is a legally-binding document, which ‘serve[s] as a legal and institutional framework’ of ASEAN.[92] Under this legal binding charter, the AMS have shown their commitments to ‘take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of this Charter, and to comply with all obligations of membership’[93]. In the meantime, the AMS also bound and obligated themselves accord to the fourteen principles[94] (such as respect on sovereignty, non-interference in the internal affairs, especially promotion and protection of human right etc.) set out in ASEAN Charter, as they ‘reaffirm and adhere to the fundamental principles contained in the declarations, agreements, conventions, concords, treaties, and other instruments of ASEAN’[95]. Containing 13 Chapters, 55 Articles, and 4 annexes in the ASEAN Charter, unlike the ASEAN Declaration in 1967, the ASEAN Charter reorganizes ASEAN to become a rule-based regional organization comprises with legal personality, rights and obligations of member states, legally binding principles, procedures, decision-making mechanisms, disputes settlement, immunities and privileges and external relations. Secondly, the ASEAN Charter reaffirms the establishment an ASEAN Community underlying on three pillars: ASEAN Political-Security Community (APSC), ASEAN Economic Community (AEC), and ASEAN Socio-Cultural Community (ASCC). Thirdly, the ASEAN Charter reconstructs its new structures with well-defined roles and functions of each institutions for be more efficiency. This can be seen in the ASEAN Summit, ASEAN Community Council, and ASEAN Coordinating Council, which I will explain in the below section.
Table 3.2: Ratification of the ASEAN Charter[96]
| Member State | Date of Instrument of Ratification | Date of Deposit of Instrument of Ratification |
| Singapore |
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