The New Regional Order and Transnational Civil Society

World Political Science ReviewVolume 7, Issue 1 2011 Article 11

The New Regional Order and TransnationalCivil Society in Southeast Asia: Focusing onAlternative Regionalism from below in the

Process of Building the ASEAN Community

Seiichi Igarashi∗

∗Chiba University, Japan, [email protected]

Originally published as Seiichi Igarashi “Tonan Ajia no Atarashii Chiikichitsujo to Toransunasy-onaruna Shimin Shakai no Chihei: ASEAN Kyodotai no Keiseikateini okeru Shitakarano Oruta-natibuna Chiikishugi ni Chumokushite” Kokusaiseiji (International Relations), Vol. 158, Decem-ber 2009, pp. 89-103. Reprinted with permission from Seiichi Igarashi.

Produced by The Berkeley Electronic Press.

The New Regional Order and TransnationalCivil Society in Southeast Asia: Focusing onAlternative Regionalism from below in the

Process of Building the ASEAN Community∗

Seiichi Igarashi

Abstract

Since the end of the Cold War and in the context of the recent spread of economic globaliza-tion, Southeast Asian regionalism has steadily deepened and expanded, centering on ASEAN. Theconcept of the ASEAN Community is one of the most important aspects of this regionalism, andthere have been hopes that this will be realized by 2015. The mainstream theories such as neoreal-ism, neoliberal institutionalism, and social constructivism have offered competing explanations ofthis transformation. However, recently, a new phenomenon that cannot be fully explained by thesestate-centric theories has arisen—the movement toward constructing a regional order from belowby transnational civil society actors. By adopting the analytical viewpoint of the New RegionalismApproach, which has maintained a keen interest in civil society in the process of regionalization,this study attempts to empirically analyze still largely unexplored activities undertaken by transna-tional civil society actors, in particular who has promoted the “alternative regionalism” against the“neoliberal regionalism” in the course of the formation of the ASEAN Community. It also seeks toexamine the embryonic change toward the establishment of a new regional order in Southeast Asiafrom the bottom-up perspective. In conclusion, the article proves that by engaging with transna-tional civil society actors, ASEAN is gradually moving from an “elite club” to a “people-centered”organization. However, given the predominance of neoliberal discourse, “alternative regionalism”has not had enough influence for this to be fully realized. Nevertheless, the growing numberof transnational civil society actors is resulting in improved potential to transform the persistentsovereign state system.

KEYWORDS: Southeast Asia, ASEAN, ASEAN Community, ASEAN Charter, regionalism,regionalization, New Regionalism Approach, transnational civil society, human rights, migrantworkers

∗Seiichi Igarashi, Faculty of Law and Economics, Chiba University, 1-33, Yayoi-cyo, Inage-ku,Chiba-si, Chiba 263-2855, Japan. This work was supported by the FY2008-2010 Grant-in-Aidfor Scientific Research (C) (Research Project Number: 20539006) from the Japan Society for thePromotion of Science (JSPS).

Introduction The regional order of Southeast Asia has undergone great changes in the context of the economic globalization and geopolitical restructuring that has emerged since the end of the Cold War. The signing of the ASEAN Free Trade Area (AFTA) agreement in 1992, the es-tablishment of the ASEAN Regional Forum (ARF) in 1994, and the actualization of ASEAN-10 in 1999 are the signs of steady progress in the deepening and expansion of Southeast Asian regionalism centering on the Association of Southeast Asian Nations (ASEAN). An extension of this is the emergence of the ASEAN Community concept, which ASEAN hopes will be a reality by the year 2015.

The rapidly changing regional order of Southeast Asia that has occurred since the end of the Cold War has been largely explained by three different theories1: neorealism, which argues that ASEAN is merely a rhetoric shell; neoliberal institutionalism, which en-visions the ARF and the ASEAN Post Ministerial Conference (ASEAN PMC) as embryos of a collective security system; and social constructivism, which affirms the success of ASEAN by focusing upon intersubjective factors. However, a new phenomenon has arisen in recent years that cannot be fully explained by these state-centric theories, which mainly focus on the success or failure of ASEAN as a regional organization—the dynamics of forming a regional order from below by transnational civil society (TCS) actors.

In the latter half of the 1990s, as the first full-scale moves toward the construction of the ASEAN Community began, many TCS actors in Southeast Asia, who were expanding the existing transnational networks, gradually developed an interest in the policy-making process of the ASEAN Community. TCS’s fully fledged engagement with ASEAN, which began in 2006 and has continued since then, was clearly observed during the establishment of the ASEAN Charter. Even after the enactment of the Charter, TCS actors have been par-

1 See the following studies for explanations of international relations in Southeast Asia from the neorealist posi-tion: Tim Huxley, “Southeast Asia in the Study of International Relations: The Rise and Fall of a Region,” The Pacific Review, Vol. 9, No. 2, 1996; Michael Leifer, “The ASEAN Peace Process: A Category Mistake,” The Pacific Review, Vol. 12, No. 1, March 1999; Jürgen Rüland, “ASEAN and the Asian Crisis: Theoretical Implica-tions and Practical Consequences for Southeast Asian Regionalism,” The Pacific Review, Vol. 13, No. 3, August 2000; David Martin Jones and Michael L. R. Smith, “ASEAN’s Imitation Community,” Orbis, Vol. 46, No. 1, Winter 2002; Sorpong Peou, “Realism and Constructivism in Southeast Asian Security Studies Today: A Review Essay,” The Pacific Review, Vol. 15, No. 1, February 2002. The following studies on neoliberal institutionalism are representative: Sheldon W. Simon, “Realism and Neoliberalism: International Relations Theory and South-east Asian Security,” The Pacific Review, Vol. 8, No. 1, January 1995; Tsuyoshi Kawasaki, “Neither Skepticism nor Romanticism: The ASEAN Regional Forum as a Solution for the Asia-Pacific Assurance Game,” The Pa-cific Review, Vol. 19, No. 2, June 2006. The following are some major studies that have analyzed international relations in Southeast Asia from a social constructivism perspective: Nikolas Busse, “Constructivism and South-east Asian Security,” The Pacific Review, Vol. 12, No. 1, January 1999; Amitav Acharya, Constructing a Security Community in Southeast Asia: ASEAN and the Problem of Regional Order, London: Routledge, 2001; Hiro Katsumata, “Reconstruction of Diplomatic Norms in Southeast Asia: The Case for Strict Adherence to the ‘ASEAN Way’,” Contemporary Southeast Asia, Vol. 25, No. 1, April 2003.

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Igarashi: The New Regional Order and Transnational Civil Society

Published by Berkeley Electronic Press, 2011

ticipating in the committees and meetings that constitute a part of the Community concept, and continuing to exert their presence, which is quite significant, on the formation of the new regional order in Southeast Asia.

From the 1980s onwards, a “second wave” of regionalism developed globally2, and evidence suggests that this prompted increased opportunities for the involvement of TCS in the decision-making process with regard to policy-making at a regional level. Moreover, it seems increasingly clear that TCS actors have successfully encouraged a reconsideration of formal regionalism from above3. Nevertheless, studies for verifying empirical cases that confirm such indications have yet to be fully developed, and theoretical and empirical ana-lyses of TCS in the context of regionalism are still at an embryonic stage. This means that the case of Southeast Asia, where regionalism from below has been clearly promoted by TCS actors during the formation process of the ASEAN Community, will serve as a useful model that can help highlight issues missing from most previous works. It may also provide theoretical findings that press for a revision in the existing state-centric study of regionalism.

If the activities of TCS are defined as a dynamism that encourages change away from the state-centric order, then evidently these activities cannot be understood within the framework of mainstream state-centric theories. Proponents of the New Regionalism Ap-proach (NRA), a branch of critical international relations theory, have maintained a keen in-terest in the role of TCS in the formation of a regional order from below. While it is impor-tant to acknowledge that NRA-based analyses of the role and function of TCS do not represent a sufficiently nuanced approach to expose all the issues at play4, the NRA’s ana-lytical viewpoint, which attempts to transcend the teleological assumption that Europe is a destination point, is a valuable tool in reading changes in the regional order in Southeast Asia, especially from the perspective of TCS. This paper adopts the NRA to empirically analyze some of the activities that are still largely unexplored, which have been undertaken by TCS actors in the course of the formation of the ASEAN Community. In particular, the analysis aims to identify the possibilities and limitations of the “alternative regionalism”

2 Bhagwati distinguishes two waves of regionalism that have taken place since World War II. The first began in the late 1950s and lasted until the 1970s; the second began in the mid-1980s. Jagdish Bhagwati, “Regionalism and Multilateralism: An Overview,” in Jaime de Melo and Arvind Panagariya, eds., New Dimensions in Regional Integration, Cambridge: Cambridge University Press, 1993, pp. 22-51. 3 Marianne H. Marchand, Morten Bøås, and Timothy M. Shaw, “The Political Economy of New Regional-isms,” Third World Quarterly, Vol. 20, No. 5, October 1999, p. 900; Jean Grugel, “Regionalist Governance and Transnational Collective Action in Latin America,” Economy and Society, Vol. 35, No. 2, May 2006, p. 210. 4 In fact, Hettne, Inotai, and Sunkel, major proponents of the NRA, have edited and published five volumes un-der the heading of the New Regionalism Series. However, they self-reflectively suggested that “it [our project], in spite of good intentions to the contrary, has been too state-centric and too focused on formal organizations rather than pinpointing the processes of more informal regionalization that take place on the ground”. Björn Hettne, Andras Inotai, and Osvaldo Sunkel, “Editors’ Introduction,” in Björn Hettne, Andras Inotai, and Osvaldo Sunkel, eds., Comparing Regionalisms: Implications for Global Development, New York: Palgrave, 2001, p. xxxii.

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World Political Science Review, Vol. 7 [2011], Iss. 1, Art. 11

http://www.bepress.com/wpsr/vol7/iss1/art11DOI: 10.2202/1935-6226.1106

from below that has been proposed by TCS actors, and explores how this might relate to the various stirrings of the new regional order in Southeast Asia from those findings.

This paper progresses as follows: The first section outlines the NRA’s theoretical perspective and offers a reconstruction of this analytical perspective on TCS. On the basis of this perspective, characteristics of new regionalism in Southeast Asia are briefly extracted. The second section presents an overview of the background of the formation and characte-ristics of TCS actors who are involved in the organization of the ASEAN Community. The third section examines the establishment of the ASEAN Charter with the aim of exploring the actual involvement of TCS actors, particularly those who have promoted “alternative regionalism,” with a focus on the extent to which their proposals were reflected in the Char-ter. The fourth section examines the activities of TCS by focusing on two issues that TCS actors have emphasized since the establishment of the Charter—the terms of reference for a human rights body and the rights of migrant workers. Based on the above analyses, this pa-per concludes with a discussion on the future direction of the regional order in Southeast Asia. 1. Theoretical Reflection NRA’s Analytical Perspective In many of the major theories of regionalism, such as Mitrany’s functionalism, Haas’ neo-functionalism, and Deutsch’s transactionalism, the role of civil society was largely neg-lected. By facing the reality that European regional integration had gradually stagnated, these rationalist theories traced the decline in European regional integration. Some of these studies were partially succeeded by into theories of interdependence and international re-gime, but these theories failed to pay sufficient attention to regionalism5. However, as the integration process was reignited in Europe in the 1980s, there was resurgence in the study of regionalism, albeit mainly focusing on Europe as the subject of analysis6. In the course of the resurgent interest in regionalism, in the 1990s, the multi-level governance theory emerged; this focused on the multi-leveled nature of the decision-making process underta-ken by supranational organizations, state organizations, and local organizations7. Despite the

5 Regarding the theoretical transition that has taken place in the study of regionalism, see the following reference: Jens-Uwe Wunderlich, Regionalism, Globalisation and International Order: Europe and Southeast Asia, Alder-shot: Ashgate, 2007, pp. 7-52. 6 Robert O. Keohane and Stanley Hoffmann, eds., The New European Community: Decisionmaking and Institu-tional Change, Boulder: Westview Press, 1991; Simon Bulmer and Andrew Scott, Economic and Political Inte-gration in Europe: Internal Dynamics and Global Context, Oxford: Blackwell Publishers, 1994. 7 Liesbet Hooghe, ed., Cohesion Policy and European Integration: Building Multi-Level Governance, Oxford: Oxford University Press, 1996; Liesbet Hooghe and Gary Marks, Multi-Level Governance and European Inte-gration, Lanham: Rowman & Littlefield Publishers, 2001.

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fact that the theory of multi-level governance does acknowledge the role of non-governmental organizations (NGOs) as civil society actors8, little interest has been shown in the role of civil society in the context of regionalism.

In contrast, the trend toward regionalism that has spread across the globe since the 1980s has exposed the limitations of these approaches and theories that use Europe as the primary analytical subject. In light of this trend, a new approach emerged in the 1990s—the NRA. The NRA is a reflectivist theory that stems from the critical international relations theory and emphasizes the extraneous nature of new regionalism arising in parts of the post-Cold War world compared to the old regionalism shaped under the Cold War structure. According to Hettne, some of the most significant characteristics of new regionalism are as follows: it has taken shape in a multi-polar world order and in the context of globalization; it is a more voluntary process from within the emerging regions; it is open and compatible with an interdependent world economy; its process is more comprehensive and multidi-mensional; and it involves a variety of non-state actors9.

Although the NRA may appear to be a motley collection of non-mainstream theo-ries, there are some basic shared characteristics as follows: To begin with, if regionalism is defined as the ideas, identities, or ideologies related to a regional project, regionalization is nothing but a process of regional interaction that creates a regional space10. The NRA, which focuses on this regionalization, understands region as a social construct that is built actively by various agencies rather than being a passive object. This means that the NRA examines the role of not only states but also other varieties of non-state actors such as do-mestic firms, transnational corporations, NGOs, and other types of social networks and so-cial movements in the process of regionalization11. In other words, the NRA is an attempt to highlight the importance of agencies, actors, and strategies and to suggest an alternative ap-proach that can transcend hard structuralism12. Furthermore, the NRA looks into the reality that new regionalism is also promoted by the exogenous dynamics of globalization in addi-tion to diverse actors within the region, and thus casts light on mutually complementing and

8 The following are some of the few studies that look into the involvement of civil society in the deci-sion-making process of European Union: Harvey W. Armstrong and Peter Wells, “Multi-Level Governance and Civil Society: The Third Sector in the Design and Delivery of EU Regional Policy,” in Iwona Sagan and Henrik Halkier, eds., Regionalism Contested: Institution, Society and Governance, Aldershot: Ashgate, 2005; Patrycja Dąbrowskaa, “Civil Society Involvement in the EU Regulations on GMOs: From the Design of a Participatory Garden to Growing Trees of European Public Debate,” Journal of Civil Society, Vol. 3, Issue 3, December 2007. 9 Björn Hettne, “The New Regionalism Revisited,” in Fredrik Söderbaum and Timothy M. Shaw, eds., Theories of New Regionalism: A Palgrave Reader, Hampshire: Palgrave Macmillan, 2003, pp. 23-24. 10 Fredrik Söderbaum, “Introduction: Theories of New Regionalism,” in Fredrik Söderbaum and Timothy M. Shaw, eds., op. cit., p. 7. 11 Björrn Hettne and Fredrik Söderbaum, “Theorising the Rise of Regionness,” New Political Economy, Vol. 5, No. 3, November 2000, p. 471. 12 Ibid., p. 460.

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conflicting relationships between globalization and regionalism13. The NRA, as Hettne maintains, can be described as a kind of metatheory that integrates the global society theory, social constructivism, and comparative regional studies14. In fact, the NRA has not thus far sought a unified theoretical framework. Rather it pursues a more open-ended framework that approaches the process of regionalization from a comparative perspective15. This theo-retical attitude enables the NRA to depart from the teleological thinking that sets Europe as the desirable endpoint and to reach a better understanding of diverse conditions of regiona-lization processes unfolding in different parts of the world. Multiplicity and Hegemony within TCS The NRA identifies not only the state as an actor promoting regionalism from above but al-so the market (companies) and civil society as actors promoting regionalism from below, This approach by the NRA is based on the fact that at the regional level, social, cultural, and economic networks are expanding more rapidly than formal political cooperation is16. However, it is worth noting that the market and civil society are not in a mutually reinforc-ing relationship despite the fact that both are actors from below. In fact, they are frequently in a competitive relationship. Hettne and Mittelman’s discussions on this conflict are sub-sequently reviewed in detail.

Hettne, who adopts Polanyi’s “double movement” as his analytical framework, proposes that today’s market-oriented globalization forms the “first movement” and the di-verse political forces that try to re-embed this into the society form the “second movement.” One embodiment of this “second movement” is new regionalism and the accompanying formation of a regional TCS, which, as Hettne argues, can promote a post-Westphalia inter-national order17.

However, new regionalism, which has been described as the “second movement” in this transition, is not necessarily in direct conflict with the globalization of the economy. Unlike the protectionism-driven “autocentric regionalism” that prevailed in the 1930s, most new regionalisms are oriented toward an open “neoliberal regionalism” and instead function as driving forces for economic globalization18. The NRA regards these regional TCS actors as those who are responsible for urging a correction toward this orientation. Mittelman calls 13 Björrn Hettne, op. cit., p. 26. 14 Björrn Hettne and Fredrik Söderbaum, op. cit., pp. 459-461. 15 Fredrik Söderbaum, “Regionalization and Civil Society: The Case of Southern Africa,” New Political Econ-omy, Vol. 12, No. 3, September 2007, p. 325. 16 Michael Schulz, Fredrik Söderbaum, and Joakim Öjendal, “Key Issues in the New Regionalism: Compari-sons from Asia, Africa and the Middle East,” in Björn Hettne, Andras Inotai, and Osvaldo Sunkel, eds., op. cit., pp. 250-255. 17 Björrn Hettne, op. cit., pp. 30-38. 18 James H. Mittlelman, The Globalization Syndrome: Transformation and Resistance, Princeton: Princeton University Press, 2000, pp. 112-116.

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this bottom-up force—which is based on this kind of regional counter-“neo-liberal regio-nalism”—“transformative regionalism”19.

The most dominant of the existing civil society theories is the trinomial model pio-neered by Habermas. The civil society’s “institutional core comprises those nongovern-mental and noneconomic connections and voluntary associations that anchor the commu-nication structures of the public sphere in the society component of the lifeworld,”20 and this model is positioned as a realm of potential opposition against the colonization of life-world by the political system (state apparatus) and the economic system (market econo-my)21. The NRA, which sets the three actors—the state, market, and civil society—follows this model for the most part.

However, it is inaccurate to view the civil society merely as a single counter-sphere against the state and the market. The civil society in the real world is not a monolithic sphere but comprises “a rich social fabric formed by a multiplicity of territorially and functionally based units”22. Boundaries between the state, market, and civil society are ambiguous and transparent23. Moreover, to borrow Gramsci’s definition of hegemony, while the civil socie-ty incorporates a counter-hegemony against the state and the market, it can also become a realm within which the dominant hegemony of the state and the market can form some kind of a consent24.

As neo-Gramscians particularly note, such multiplicity and hegemony related to the civil society can also be observed in the transnational space and domain. Cox recognizes the global civil society as the realm where the counter-hegemony against the global economy and neoliberal ideology are formed; he also notes that the global civil society can become “an agency for stabilizing the social and political status quo,” built upon the penetration of impacts of the states and corporations as dominant hegemonic forces25. Similarly, Gill sug-gests that TCS includes “activities of both transnational corporations, and also governments that are active in shaping a political terrain that is directly and indirectly outside the formal juridical purview of states,” while also exploring the possibility that TCS’s coun-

19 Ibid., pp. 128-129. 20 Jurgen Habermas, translated by William Rehg, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge: MIT Press, 1996, p. 366. 21 Jürgen Habermas, translated by Thomas McCarthy, Lifeworld and System: A Critique of Functionalist Rea-son, Boston: Beacon Press, 1987. 22 Philip Oxhorn, “From Controlled Inclusion to Coerced Marginalization: The Struggle for Civil Society in Latin America,” in John A. Hall, ed., Civil Society: Theory, History, Comparison, Cambridge: Polity Press, 1995, p. 251. 23 Edward Shils, “The Virtue of Civil Society,” Government and Opposition, Vol. 26, Issue 1, Winter 1991, p. 9. 24 Regarding this issue, see the following reference, albeit within national level, as an empirical case. Seiichi Iga-rashi, Minsyuka to Shiminsyakai no Shinchihei: Firipin Seiji no Dainamizumu [A New Perspective on Democra-tization and Civil Society: The Dynamism of Politics in the Philippines], Tokyo: Seibundô, 2011. 25 Robert W. Cox, “Civil Society at the Turn of the Millennium: Prospects for an Alternative World Order,” Re-view of International Studies, Vol. 25, No. 1, January 1999, pp. 10-11, p. 13.

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ter-hegemony can encourage the resolution of inequality, environmental destruction, and military expansion26. The empirical analysis of TCS in the process of regionalization also relies on an understanding of the complementary and conflicting relationship between the actors while paying attention to the dominant hegemony of the state and the market. New Regionalism in Southeast Asia The advent of globalization and the end of the Cold War prompted Southeast Asia to discard the old model of regionalism and instead beckon a new mode. This change was accelerated by the Asian financial crisis in 1997, and the ASEAN Community concept emerged as a significant challenge at a sitting. The Declaration of the ASEAN Concord II in 2003 was one of the milestones of this transition. The Declaration positions the formation of a multi-dimensional community based on the three pillars of Security Community, Economic Community, and Socio-Cultural Community as top priority issues.

On a realistic level, the community where progress towards this new mode of re-gionalism has been most prominent is the Economic Community. Its goals include forming a single market and production base, developing a competitive region, and ensuring that ASEAN is a more dynamic and stronger segment of the global supply chain27. From the viewpoint of comparative regionalism, the regionalism in Southeast Asia is irrevocably characterized by its market-oriented identity and is often referred to as “neoliberal regional-ism”28.

In terms of the actors involved with regionalization, in contrast to the EU, which has developed on the premise of the sharing of state sovereignty, ASEAN has accomplished its growth based on the reinforcement of state sovereignty. For this reason, the state initia-tives are relatively high in the process of regionalization29, and regionalism has tended to, somewhat paradoxically, promote a Westphalian international order. This also relates to the intergovernmentalism favored by neorealists30, which is also characteristic in that it is based

26 Stepan Gill, “Toward a Postmodern Price?: The Battle in Seattle as a Moment in the New Politics of Globali-sation,” Millennium: Journal of International Studies, Vol. 29, No. 1, 2000, pp. 133-139. 27 Association of Southeast Asian Nations (ASEAN), Declaration of ASEAN Concord II, 7 October 2003 (http://www.aseansec.org/15159.htm). The following URLs are all accessible as of June 29, 2011. 28 James H. Mittelman, op. cit., p. 116. Acharya and Johnston, from the comparative perspective, also indicate the ASEAN as the “market-oriented economic regionalism”. Amitiv Acharya and Alastair Iain Johnston, “Con-clusion: Institutional Features, Cooperation Effects, and the Agenda for Further on Comparative Regionalism,” in Amitav Acharya and Alastair Iain Johnston, eds., Crafting Cooperation: Regional International Institutions in Comparative Perspective, Cambridge: Cambridge University Press, 2007, p. 250. 29 Morten Bøås and Helge Hveem, “Regionalisms Compared,” in Björrn Hettne, Andras Inotai, and Osvaldo Sunkel, eds., op. cit., pp. 97-98, p. 123. 30 Mathew Doidge, “Regional Organizations as Actors in International Relations: Interregionalism and Asym-metric Dialogues,” in Jürgen Rüland, Gunter Schubert, Günter Schucher, and Cornelia Storz, eds., Asian-European Relations: Building Blocks for Global Governance?, London: Routledge, 2008, p. 42.

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on a low level of institutionalization. Unlike its North American and European counterparts, ASEAN, as a regional organization, has a very weak legally binding force, and is cynically referred to as an example of “soft regionalism” or “weak institutionalism”31. Despite this, many proponents of social constructivism, when focusing upon intersubjective factors, identify various robust aspects within ASEAN. One of these is the concept of the “ASEAN Way,” which emphasizes consensus and non-interference in internal affairs32.

It is not only the states and markets that are promoting regionalization in Southeast Asia. As the NRA proponents indicate, regionalization is also progressing rapidly on the ba-sis of actions undertaken by those involved in the civil society. In fact, quantitative studies demonstrate that while the regionalization of East Asia—including Southeast Asia—tends to be led by state governments, it also involves the sharing of civic life and socially and cul-turally dense networks33. Some qualitative studies support the development of TCS within ASEAN34, which indicates that regionalization by TCS from below is actually occurring. The newness of regionalism can be observed here as well.

In the realm of such TCS activities, ASEAN has attempted to take on professional groups, business organizations, and think tanks supportive of their agenda as affiliated civil society organizations. The ASEAN Chamber of Commerce and Industry (ASEAN-CCI) and the ASEAN Institute of Strategic and International Studies (ASEAN-ISIS) are typical examples. On the other hand, several observers have noted the emergence of a coun-ter-hegemony against neoliberalism. One major organization that advocates this position is the Solidarity for Asian People’s Advocacy (SAPA), which promotes an alternative regio-nalism. These transnational entities, by exhibiting a competitive and complementary rela-tionship, have involved themselves in the process of establishing the ASEAN Charter, which has become the most important document of the ASEAN Community, enshrining many of the significant principles of the organization.

31 Alice E. Ba, [Re]Negotiating East and Southeast Asia: Region, Regionalism, and the Association of Southeast Asian Nations, Stanford: Stanford University Press, 2009, p. 19. 32 Amitav Acharya, op. cit., pp. 47-79. 33 Kazuko Môri and Yûji Morikawa, ed. Higashi Ajia Kyôdôtai no Kôchiku [Designing an East Asian Commu-nity], Vol. 4, Tokyo: Iwanami Shoten, 2006. 34 JoAnn Fagot Aviel, “The Growing Role of NGOs in ASEAN,” Asia-Pacific Review, Vol. 6, No. 2, November 1999; JoAnn Fagot Aviel, “Placing Human Rights and Environmental Issues on Asean’s Agenda: The Role of Non-Governmental Organizations,” Asian Journal of Political Science, Vol. 8 Issue 2, December 2000; Nicola Piper and Anders Uhlin, “Transnational Advocacy Networks, Female Labour Migration and Trafficking in East and Southeast Asia: A Gendered Analysis of Opportunities and Obstacles,” Asian and Pacific Migration Journal, Vol. 11, No. 2, 2002; Nicola Piper, “Transnational Politics and Organizing of Migrant Labour in South-East Asia: NGO and Trade Union Perspectives,” Asia-Pacific Population Journal, Vol. 20, No. 3, December 2005.

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2. ASEAN Community Concept and the Development of TCS From ASEAN-ISIS to APA In Southeast Asia, where market economy-oriented regionalization has progressed rapidly, the cooperative relationship between ASEAN and various corporate organizations was formed early on. For instance, in 1981 ASEAN certified the ASEAN-CCI, founded in 1972, as an affiliated civil society organization for the purpose of promoting cooperation among private corporations in member states. To date, the ASEAN-CCI has participated in all ASEAN Senior Economic Officials Meetings. In 2003, the ASEAN Business Advisory Council (ABAC), comprising thirty business leaders, was established as a Track II organi-zation. As such, ASEAN has co-opted corporate organizations into a variety of programs directed at economic integration based on a single market35.

While the neoliberal discourse acquired hegemony during the process of regionali-zation, NGOs that were concerned with issues such as human rights, environment, gender, and labor embarked on the strengthening of transnational networks in the second half of the 1980s36. However, these organizations and their interests were forcefully marginalized in during the process, in favor of those of business organizations. Many NGOs have also per-ceived ASEAN as a fragile organization whose influence on the lives of people was neglig-ible; this meant that many NGOs failed to direct their full attention toward ASEAN37. When ASEAN formally made its move toward becoming a community in the second half of the 1990s, and increased its presence as a regional organization, many issue-oriented NGOs began to engage more deeply with ASEAN and focused more on the reinforcement of cross-border networks.

As these NGOs began to change their perception of ASEAN, so ASEAN began to reassess its relationship with non-governmental actors. The growth of a TCS, supported by NGOs, propelled a change in the recognition of civil society by ASEAN’s leaders, which prompted them to place a stronger emphasis on the importance of civil society in official documents. In fact, the ASEAN Vision 2020, adopted in December 1997, upholds the con-struction of a “community of caring societies” as a goal and accentuates the empowerment of civil society as a means of attaining that goal38. The Vientiane Action Program, a road- 35 Hidetaka Yoshimatsu, “The Challenge of Globalization, Business Interests and Economic Integration in ASEAN,” in Hiro Katsumata and See Seng Tan, eds., People’s ASEAN and Governments’ ASEAN, Singapore: S. Rajaratnam School of International Studies, 2007, pp. 44-45. 36 Tadashi Yamamoto, eds., Emerging Civil Society in the Asia Pacific Community: Nongovernmental Under-pinnings of the Emerging Asia Pacific Regional Community, Tokyo: Japan Center for International Exchange, 1995. 37 Alexander C. Chandra, “The Role of Non-State Actors in ASEAN,” in Focus on the Global South, ed., Revi-siting Southeast Asian Regionalism, Bangkok: Focus on the Global South, 2006, p. 74. 38 Association of Southeast Asian Nations (ASEAN), ASEAN Vision 2020, 15 December 1997 (http://www.ASEANsec.org/1814.htm).

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map for the establishment of the ASEAN Community adopted at the Tenth ASEAN Sum-mit in November 2004, describes the role of the civil society more clearly. One paragraph on the Security Community clearly states the promotion of NGO participation as one of the strategies for political development, and another paragraph on the Socio-Cultural Commu-nity calls for an increase in effective participation by civil society, and cites two NGOs—ASEAN-ISIS and the ASEAN People’s Assembly (APA)39.

ASEAN-ISIS was founded in 1988 as an association of Southeast Asian institutes for strategic studies, and since then has enjoyed a Track II position. At the ASEAN Foreign Minister Meeting in 1991, ASEAN-ISIS was officially recognized for its contribution to ASEAN, and in 1993, it was granted the opportunity to participate in all future ASEAN Se-nior Officials Meetings. Using its close relationship with ASEAN, ASEAN-ISIS has sub-mitted a wide range of memorandums, covering numerous topics such as multilateral secu-rity and economic cooperation (No. 1, June 1991), the environment and human rights (No. 2, June 1992), security cooperation (No. 3, June 1993), the role of ASEAN in Cambodia (No. 4, October 1993), confidence-building measures (No. 5, December 1993), and the South China Sea dispute (No. 6, May 1995). In particular, memorandum No. 1 is regarded as having shaped the direction of the foundation of AFTA and ARF, which exemplifies the influence of ASEAN-ISIS on ASEAN’s policy-making process40. In the second half of the 1990s, given ASEAN’s inability to provide non-traditional security and the NGOs’ attempts to address this through network building, ASEAN-ISIS took and advocated for a position that ASEAN needed to cooperate and engage with civil society organizations. One of the means proposed by ASEAN-ISIS was as a Track II assembly—APA41.

The first APA was held at Batam in Indonesia in November 2000 and over 300 representatives of civil society organizations attended. The goal of the meeting was to “as-sist in the building of an ASEAN community of caring societies,” in line with the ASEAN Vision 2020 by developing a “greater awareness of an ASEAN community,” the promotion of “mutual understanding and tolerance for diversity,” the obtainment of “insights and in-puts on how to deal with socio-economic problems,” and the facilitation of “the bridging of gaps between different ASEAN societies”42. At the third APA held in Manila, Philippines, in September 2003, the following seven basic principles for the APA’s contribution to the for-mation of the ASEAN Community were put forward by participants: inclusiveness that al- 39 Association of Southeast Asian Nations (ASEAN), Vientiane Action Programmee (VAP) 2004-2010, 29 No-vember 2004, p. 7, p. 17 (http://www.aseansec.org/VAP-10th%20ASEAN%20Summit.pdf). 40 Mely Caballero-Anthony, Regional Security in Southeast Asia: Beyond the ASEAN Way, Singapore: Institute of Southeast Asian Studies, 2005, pp. 165-179. 41 Mely Caballero-Anthony, “ASEAN ISIS and the ASEAN People’s Assembly (APA): Paving a Multi-Track Approach in Regional Community Building,” in Hadi Soesastro, Clara Joewono, and Carolina G. Hernandez, eds., Twenty Two Years of ASEAN-ISIS: Origin, Evolution and Challenges of Track Two Diplomacy, Yogyakarta: Centre for Strategic and International Studies, 2006. 42 Center for Strategic and International Studies, Report of the First ASEAN People’s Assembly, Batam, Indone-sia, 24-26, November 2000, Jakarta: Center for Strategic and International Studies, 2001, p. 9.

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lows all stakeholders to be involved; representation for non-state actors and civil society; to-lerance as the fundamental requirement for peace, stability, and prosperity; openness to care for and share with each other; good governance that makes the decision-making process democratic, transparent, and accountable; social justice in the pursuit of a fairer distribution of wealth, equal access to national resources, the right to enjoy quality education and healthcare, eradication of poverty, and people’s empowerment; and community building to build a people-centered community that combines human security development with re-gional cooperation43. From ACSC to SAPA Despite APA’s contribution, the disapproval of the ASEAN-ISIS-led APA began to grow gradually; at the beginning, APA was regarded as functioning literally as an assembly; this meant that it exerted no influence over the setting of the ASEAN agenda44, serving instead as a convention location for ASEAN leaders to push through their favorable issues through ASEAN-ISIS45. Besides, most of the more radical NGOs that were concerned with the negative impacts of a market economy were clearly opposed to ASEAN-ISIS, whose un-critically supportive position within the market economy closely reflects that of the gov-ernment. To demonstrate the distinction from APA while this issue was resolved, a new conference was formed—the ASEAN Civil Society Conference (ACSC)46.

The first conference of ACSC was held in Shah Alam, Malaysia in December 2005 and was attended by both the ASEAN Secretariat and various Malaysian NGOs at the initi-ative of the government of Malaysia. Over 120 NGO representatives gathered at this confe-rence, and a more advocacy-oriented statement toward ASEAN was adopted from a Track III position. This statement enshrined access to accurate, relevant, and timely information about ASEAN; the promotion of participation of the civil society in the decision-making process of ASEAN; the strengthening of the existing ASEAN Parliamentary Caucus; the implementation of all its commitments; the reconsideration of the “ASEAN Way”; the re-spect for civil and political rights; the resolution of trade injustices and inequities; the pursuit of environmental sustainability; the empowerment of women, youth, and indigenous peoples; and the recognition of the importance of education and media in forging an ASEAN identity47. This statement was then submitted to the Eleventh ASEAN Summit

43 Center for Strategic and International Studies, Report of the Third ASEAN People’s Assembly, Manila, Philip-pines, 25-27 September 2003, Quezon City: Institute for Strategic and Development Studies, Inc., 2003, pp. 345-348. 44 Alexander Chandra, op. cit., p. 78. 45 Rashid Kang, “ASEAN and Civil Society Organizations: Will the Twain Meet This Year?,” Asian Human Rights Defender, Vol. 2, No. 3, Third Quarter 2006, p. 29. 46 Alexander C. Chandra, op. cit., pp. 77-78, Rashid Kang, op. cit., p. 29. 47 ASEAN Civil Society Conference (ACSC), Statement of the ASEAN Civil Society Conference to the 11th

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held in February 2005. Initially, ACSC was to be a one-off conference; however, at the ASEAN Summit, it was widely recognized as an important event, and as the support for it grew, ACSC became an annual event. Furthermore, although the first conference was held at the initiative of the Malaysian government, subsequent conferences have been held at the initiative of actors of civil society. In that sense, ACSC can be described as a Track III con-ference that is truly independent from the government, unlike APA.

Until today, ACSC has always been led by SAPA. SAPA itself started out as an in-formal meeting of civil society representatives who participated in ACSC. It was founded during the first regional consultation held in Bangkok in February 2006. Five major TCS actors from Southeast Asia played a crucial role in its formation: the Asian Forum for Hu-man Rights and Development (FORUM-ASIA), which encompasses 42 human rights NGOs from six countries; the Asian Partnership for the Development of Human Resources in Rural Asia (AsiaDHRRA), whose primary interests are in rural development through the establishment of networks in 12 countries; the South East Asian Committee for Advocacy (SEACA), in which 33 NGOs from eight countries participate and whose goal is the im-provement of NGO advocacy capacity; the Third World Network (TWN), based in Penang, Malaysia, whose primary focus is addressing problems in developing countries; and the Focus on the Global South (FOCUS), based in the Philippines, Thailand, and India, whose focus is promoting investigative activities and social movements concerned with the North-South issue.

After establishing the Working Group on ASEAN at the first regional consultation, SAPA founded the Working Group on Migration and Labour and the Working Group on UN Human Rights Mechanisms at the second regional consultation held in Singapore in September 2006, in order to strengthen collaborative action on two issues: labor and human rights. In the meantime, SAPA established the Task Force on ASEAN Migrant Workers (TFAMW) in April 2006 as a separately active organization for the purpose of establishing cooperative relationships with trans-border labor unions that form networks in the Asia Pa-cific, such as the Union Network International-Asia Pacific Regional Organization (UNI-APRO) and Public Services International-Asia Pacific Regional Organization (PSI-APRO). After that, in April 2007, the Charter was adopted, outlining the alternative re-gionalism that SAPA pursues: “people-centered regionalism as an alternative to the current process of regional integration and economic globalization driven by the maximization of profits and neoliberal political-economic ideology”48.

As the above information makes clear, in the domain of TCS, SAPA initiated a challenge to the obedient hegemony that had revolved around the ASEAN-ISIS, and at-tempted to strengthen the counter-hegemony that challenged the “market-oriented econom-ic regionalism” from above.

ASEAN Summit, December 2005. 48 http://www.asiasapa.org/index.php?Itemid=68&id=13&option=com_content&task=view

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3. TCS in the Process of Establishing ASEAN Charter Involvement in the EPG The Eminent Persons Group (EPG) was established at the Eleventh ASEAN Summit, which was held in February 2005 to work on the creation of proposals for the ASEAN Charter49. The EPG, comprising ten key figures, held a total of seven meetings; for both the third meeting held in Bali, Indonesia in April 2006 and the fourth meeting held in Singapore in June 2006, the Group consulted representatives from the civil society.

The third meeting was attended by representatives from the ASEAN In-ter-Parliamentary Organization (AIPO), comprising parliamentarians from member states; the Working Group for the ASEAN Human Rights Mechanism (WG-AHRM), comprising proponents from governments and parliaments; several NGOs; APA; and SAPA, and opi-nions were actively exchanged. In the meeting, SAPA submitted a proposal for the Security Community50. Prior to this meeting, representatives from ASEAN-ISIS had held a special consultation with the EPG and submitted a memorandum in a charter format51. At the fourth meeting, SAPA submitted a proposal for the Economic Community, and its contents were deliberated upon at the beginning of the meeting. Members from the ASEAN-CCI also par-ticipated in the meeting and pronounced their support for the promotion of a single market and economic integration52. In addition, in November 2006, SAPA held a discussion with Ambassador Rosario Manalo, a special advisor to former Filipino President Fidel Ramos, one of members of the EPG, which resulted in the submission of a proposal for the So-cio-Cultural Community. The EPG’ s final report, which was submitted it to the Twelfth ASEAN Summit in January 2007, was thus developed in light of the various proposals that had been submitted from diverse non-governmental actors.

SAPA’s proposals were issue-oriented and related closely to the preamble, objec-tives, and principles of Part III of the report; it was even presented in a charter format. Table 1 demonstrates the extent of this similarity; it is clear that, while the EPG’s report refers to many of SAPA’s proposals—such as the protection of the environment, the empowerment of women, and the protection of children and youth—it does not, in any significant way, take up proposals that urge the correction of the neoliberal regionalism that prioritizes a market economy. For instance, there is no attention given to the importance of policy mix,

49 Association of Southeast Asian Nations (ASEAN), Kuala Lumpur Declaration on the Establishment of the ASEAN Charter, 12 December 2005 (http://www.aseansec.org/18031.htm). 50 Asian Forum for Human Rights and Development (FORUM-ASIA), SAPA Engages with Eminent Persons Group, 21 April 2006 (http://www.forum-asia.org/index2.php?option=com_content&do_pdf=1&id=58). 51 ASEAN Institute of Strategic and International Studies (ASEAN-ISIS), Memorandum No. 1/ 2006, Bali, In-donesia, 18 April 2006. 52 Institute of Southeast Asian Studies, Eminent Persons Group (EPG) on the AESAN Charter, Singapore: Insti-tute of Southeast Asian Studies, 2006, pp. 8-20, p. 32, p. 34, pp. 54-57.

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the expansion of social protection, redistributive justice, or protection of laborers. Indeed, SAPA’s proposals are very similar in content to the memoranda submitted by ASEAN-ISIS, which almost uncritically promotes a market-centered integration. In fact, out of the 27 ob-jectives and principles presented in the ASEAN-ISIS memorandum, 26 were mentioned in the EPG report53.

Nonetheless, provisions alone are meaningless; if member states do not abide by them in the name of the “ASEAN Way,” then no real change can occur. To address this, SAPA put particular effort into the realization of the promotion of human rights and democ-racy and demanded a reconsideration of the “ASEAN Way,” which is at the policy-making core of ASEAN. ASEAN-ISIS also proposed a two-thirds majority vote54 as the mode of resolution when a consensus could not be reached while asserting respect for the principle of non-interference in the internal affairs. The EPG report took such TCS actor proposals into consideration. Chapter II of the report advocated the “fulfillment and implementation in good faith of all obligations and agreed commitments to ASEAN”55, and Chapter III pro-posed “the suspension of rights and privileges, upon the proposal of member states con-cerned and the recommendation of the ASEAN Foreign Ministers, for any serious breach by any Member State of the objectives, principles, and commitments, as contained in the existing ASEAN declarations, agreements, concords, and treaties as well as the norms and values adhered to by ASEAN”56. In that case, it is stipulated that a decision shall be “taken by unanimity, without the participation of the Member State or Member States to which the measure will be applied”57. Furthermore, Chapter V also called for the adoption of a major-ity vote in cases when a consensus could not be reached in areas other than security and for-eign policy, while proposing the traditional mode of decision making based on consultation and consensus as the general principle58.

Regarding the recommendations of the EPG report, SAPA, which advocates an al-ternative regionalism, albeit the criticism they directed at the lack of mention of policy mix, human security, and international human rights law, and insufficient attention given to the protection of laborers, women, and children, expressed a certain degree of appreciation for the “inclusion of a number of opinions in SAPA proposals in purposes and principles”59.

53 ASEAN Institute of Strategic and International Studies (ASEAN-ISIS), op. cit., pp. 3-4. 54 Ibid., p. 4, pp. 7-8. 55 Association of Southeast Asian Nations (ASEAN), Report of the Eminent Persons Group on the ASEAN Charter, December 2006, p. 29. 56 Ibid., p. 31. 57 Ibid., p. 31. 58 Ibid., p. 41. 59 Alexander C. Chandra, Comparative Analysis of EPG’s Charter Blueprint and SAPA Submission on the ASEAN Charter, Briefing on the ASEAN Charter and Civil Society Engagement with ASEAN, Bangkok, March 9, 2007.

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Table 1. A Brief Summary of SAPA’s Three Submissions and their Reflection in the EPG Report and the ASEAN Charter

Submission on the Security Community EPG Charter

*Promotion and protection of human rights and human dignity ○ ○ *Establishment of an effective and viable ASEAN human rights mechanism ○ *Recognition of rights of workers and all migrant workers ○ *Recognition of the rights of marginalized groups ○ 1. Inclusion of provisions for conventional and non-conventional security issues with reference to

the State as well as to the people ○ ○

Recognition of the unique roles and rights of human rights defenders Promotion of participation of civil society in conflict prevention and achieving sustainable peace

2. Promotion of a more conducive political environment for peace, security, and stability ○ ○ Refusal of unconstitutional changes of government or the use of their territory for any actions

undermining peace, security and stability ○

Creation of peaceful, prosperous and independent zone free from all external military influences ○ ○ 3. Introducing human security based on the protection and empowerment of the people 4. Harmonizing existing ASEAN instruments and norms with international instruments and norms ○ ○ 5. Recognition of the diversity and potential contributions of key stakeholders ○

Submission on the Economic Community EPG Charter

1. Recognition of a policy mix informed by heterodox economic thinking and policy analyses Integration of a social protection in economic development founded on redistributive justice and

growth with equity

Enshrinement of the values of agrarian reform, justice, and food sovereignty 2. Resolution of development gap between an among members and citizens ○

Protection of regional currencies and preparation for an independent exchange system Disciplining and regulation of the financial market ○ Establishment of a workable ASEAN Development Fund for innovative home-grown initiatives

3. Moving away from economic activities based on natural resource extraction Promotion of economic growth anchored in and driven by rural industrialization Promotion of appropriate sustainable industrial development Promotion of public investment through regional support mechanisms

4. Promotion and respect of human and trade union rights Formulation of policies and programs on human resource development ○ ○ Cooperation and exchange in science and technology research and development ○ ○

5. Enshrinement of international core labor standards Adoption of standard employment contracts that protect the rights and well-being of native and

migrant labor alike

6. Harmonization of existing norms and mechanisms to address trans-boundary economic concerns 7. Increase in support to small-scale producers to build their potential ○ 8. Sustainable production and consumption, energy and development ○ ○ 9.Implementation, monitoring, and mechanisms for adherence to the ideals of the Charter 10. Full and meaningful participation of civil society at all levels of decision making

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Submission on the Socio-Cultural Community EPG Charter

*Regional recognition of human rights and human dignity ○ ○ 1. Adherence to international norms ○ ○ 2. Recognition of the diversity of cultures, peoples, religions and heritage of ASEAN societies ○ ○ 3. Enjoyment of all the freedoms and rights enshrined in the UN Charter, declarations, treaties,

conventions and the likes ○ ○

4. Environmental sustainability ○ ○ 5. Establishment of an appropriate regime that protect shared resources, and the intellectual and

cultural rights

6. Recognition of valuable contribution of migrants and promotion of their human rights ○ 7. Promotion of women's socio-cultural rights ○ 8. Protection of the rights and the development of the full potential of children and youth ○ 9. Measurement of a free, independent, and plural media 10. Development of appropriate and people-centered science and technology ○

Sources: Solidarity for Asian People’s Advocacy (SAPA), Submission to the Eminent Persons Group on the ASEAN Char-ter, 17 April 2006, Ubud, Bali, Submission on the Economic Pillar for the Eminent Persons Group on the ASEAN Charter, 28 June 2006, Singapore, Submission on the Social-Cultural Pillar and Institutional Mechanisms to the Eminent Persons Group on the ASEAN Charter, 10 November 2006, Quezon City, Philippines; Association of Southeast Asian Nations (ASEAN), Report of the Eminent Persons Group of the ASEAN Charter, December 2006, pp. 25-49 (Preamble, Objectives, Principles in Part III); Association of Southeast Asian Nations (ASEAN), The ASEAN Charter, January 2008, pp. 1-7 (Preamble, Purposes, and Principles). *Proposals specified ahead of those written in numbers.

Involvement in HLTF and Characteristics of the ASEAN Charter Once the EPG report was accepted in the Twelfth ASEAN Summit, the High Level Task Force (HLTF), which was made up of governmental officials, was established, and the drafting of the ASEAN Charter began. The HLTF held a dialogue with various representa-tives of the civil society in March 2007, where SAPA again emphasized the content of the above three proposals. After holding meetings with the AIPO in May, WG-AHRM and Na-tional Human Rights Institutions (NHRIs) in June, and Asian Development Bank in July, the HLTF submitted the final draft at the Thirteenth ASEAN Summit held in November. Once all 10-member states had signed and ratified it, the ASEAN Charter came into effect in December 2008.

Most HLTF members recognized the importance of the EPG proposals and re-flected them in the Charter60. In fact, as is also indicated in Table 1, the Charter follows the contents of the EPG report on many issues, which indicates that proposals from TCS actors were also reflected in the Charter through the EPG. Nevertheless, SAPA still leveled strict

60 Tommy Koh, Rosario G. Manalo, and Walter Woon, eds., The Making of the ASEAN Charter, Singapore: World Scientific Publishing Co. Pte. Ltd, 2009, pp. 4-14, pp. 40-43.

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criticism at the Charter, regarding it as a “disappointment”61. This was mainly because of several key items in the EPG report that had been deleted as well as the fact process that had been employed by the HTLF in creating the Charter had been closed62. Subsequent parts in this section organize and critique the key issues of the Charter on the basis of an analytical document that was published by SAPA, as well as by referring to the differences between the Charter and the EPG report.

SAPA’s first criticism of the Charter is that it fails to address social and economic justice, a result of the uncritical pursuit of the market-centered regional integration63. The Charter not only enshrines the formation of “a single market and production base” in keep-ing with the EPG report in its purposes but also adds “regional economic integration, in a market-driven economy” to its principles (Article 1 Paragraph 5, Article 2 Paragraph 2 n). As with the EPG, however, there is absolutely no mention of “the promotion of redistribu-tive justice, poverty eradication and growth with equity” and no provision for the rights of laborers, including “social dialogue and core labor standards”64. In contrast, the Charter ex-cludes all items in the EPG report that concern disadvantaged sectors, migrant workers, children, and youth. Gender equality is not mentioned in the Charter’s purposes and prin-ciples, and the issue is only referenced once, in the paragraph about the secretary-general (Article 11 Paragraph 1).

The second criticism leveled at the Charter by SAPA was that despite the laudable fact that the Charter not only stated respect for human rights in the preamble, purposes, and principles (Preamble, Article 1 Paragraph 7, Article 2 Paragraph 2 i), as in the EPG report but also specified the establishment of a human rights body (Article 14), no reference was made to the Universal Declaration of Human Rights. In addition, no sanctions were pro-vided in the case of non-conformity, leaving room for possible infringements of human rights in the pursuit of national interests65.

This is also linked to SAPA’s third criticism, the criticism of the “ASEAN Way.” The Charter omits the EPG proposals that urge that corrections should be made to the prin-ciple of non-interference, for example, the rejection of undemocratic changes of govern-ment and sanctions that should be imposed on member states that breach the guidelines66. Instead, the Charter explicitly outlines the principle of non-interference in the preamble and principle (Article 2 e). The Charter even departed from the EPG’s proposal in terms of the 61 Solidarity for Asian People’s Advocacy (SAPA) Working Group on ASEAN, Analysis of the ASEAN Char-ter, 18 November 2007. 62 In fact, Chairperson Manalo stated that there was no guarantee that the opinions and proposals voiced by civil society actors would be taken up. Kavi Chongkittavorn, “ASEAN Drafters Meet Civil Society Groups,” The Na-tion, March 29, 2007 (http://www.nationmultimedia.com/2007/03/29/opinion/opinion_30030499.php). 63 Solidarity for Asian People’s Advocacy (SAPA) Working Group on ASEAN, op. cit., p. 2. 64 Ibid., p. 3. 65 Ibid., p. 2. 66 Association of Southeast Asian Nations (ASEAN), Report of the Eminent Persons Group on the ASEAN Charter, p. 29, p. 31.

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way in which sanctions are to be handled, instead deciding to reject the idea that those states that breach the principles set out in the charter be excluded from the decision-making process. Moreover, the HLTF simply left the decision up to the ASEAN Summit (Article 5 Paragraph 3, Article 20 Paragraph 4). In addition, rather than adopting the majority vote, as suggested by the EPG, the mode of decision-making adopted by the Charter was that of tra-ditional consultation and consensus. This means that only when a consensus is not reached will the ASEAN Summit decide on the mode of decision making (Article 20 Paragraph 1, 2).

The fourth criticism leveled by SAPA is that the principle of being “people-centered” and “people-empowered” is not a substantive part of the content of the Charter67. The EPG report stated that the ASEAN Council—the highest decision making body, the three Community Councils that make proposals to the ASEAN Council, and the Secretary-General were to periodically hold consultations with diverse groups, including civil society actors68. The Charter neglects these consultation mechanisms and merely men-tions cooperation between the ASEAN Foundation, an organization assisting the Secre-tary-General, and the civil society actors (Article 15). On the other hand, cooperation with entities that support the purposes and principles of the Charter is demanded (Article 16) in Annex 2, which lists the AIPO, ASEAN-ISIS, 19 business organizations including ASEAN-CCI and ABAC, and 52 civil society organizations. As aforementioned, ASEAN employs a registration system for affiliated civil society organizations (CSOs), and as of March 2009, 59 organizations were registered as affiliated CSOs69. However, among or-ganizations listed in the Charter, existing affiliated CSOs are merely categorized for con-venience into business organizations and CSOs, and the majority of organizations comprise professional groups. Except for AsiaDHHRA, there is almost no NGO that supports an al-ternative regionalism.

As can be observed from Table 1, over the course of designing the Charter, from the EPG report to the final draft from the HLTF, the content tended to point in a conservative direction; in addition, many of the more people-centered proposals were marginalized or discarded. For instance, Emerson highlights the conservative direction adopted by the Charter when the frequency of liberal elements such as human rights, civil society, and de-mocracy was compared to those incorporated in the “ASEAN Way,” such as non-interference, consensus, and sovereignty. The ratio in of liberal to conservative ele-ments in the EPG proposal was 2.5 to 1, and the final ratio in the Charter was 0.8 to 170. The

67 Solidarity for Asian People’s Advocacy (SAPA) Working Group on ASEAN, op. cit., p. 1. 68 Association of Southeast Asian Nations (ASEAN), Report of the Eminent Persons Group on the ASEAN Charter, pp. 33-36. 69 Association of Southeast Asian Nations (ASEAN), Register of ASEAN-Affiliated CSOs, as of 24 March 2009. 70 Donald K. Emmerson, “Critical Terms: Security, Democracy, and Regionalism in Southeast Asia,” in Donald K. Emmerson, ed., Hard Choice: Security, Democracy, and Regionalism in Southeast Asia, Singapore: Institute

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TCS-based counter-hegemony also failed to become a substantial challenge to neoliberal-ism, the dominant discourse. Despite this, SAPA has continued its advocacy activities since the establishment of the Charter, in the pursuit of actualizing alternative regionalism. SA-PA’s activities focus on the adoption of a provision specifying the terms of reference of the ASEAN human rights body, which was pending, for inclusion into the Charter, and the ar-ticle on the rights of migrant workers, which was included in the EPG report but deleted from the Charter. 4. TCS Activities Surrounding Two Issues Terms of Reference of the Human Rights Institution As the concept “Asian values” suggests, the abuse of human rights by governments is not uncommon in Southeast Asia; this means that it is difficult to form a human rights mechan-ism in this region. Therefore, particularly since the early 1990s, several TCS groups such as FORUM-ASIA have worked on the formation of human rights norms. When the agree-ment to review the establishment of a human rights mechanism was concluded at the Twenty-Sixth ASEAN Ministerial Meeting in July 1993, the main NGOs invited represent-atives from the NHRIs, parliaments, and other NGOs for a series of meetings. This resulted in the launching of the WG-AHRM in July 1995 as a Track II group that comprises propo-nents from the government, parliament, academia, and NGOs. After that, the WG-AHRM took the initiative in establishing dialogues with ASEAN regarding the establishment of a human rights mechanism71. Another Track II group, ASEAN-ISIS, also invited various government officials, and conducted a series of conferences on human rights; they invited various government officials to attend from 199372. In May 1998, the declaration of the Asian Human Rights Charter by over 200 human rights NGOs in Asia73. The Asian Human Rights Charter was proclaimed as an alternative declarative statement directed at Asian po-litical leaders who slighted human rights. Such TCS activities and involvements in ASEAN steadily promoted the development of human rights norms in the region.

In the course of establishing the ASEAN Charter, SAPA held the First Regional Assembly in August 2007. The topic was ASEAN and human rights, and on the basis of this, the Task Force on ASEAN and Human Rights (TFAHR) was formed comprising ap-proximately 50 NGOs. The aim of the Task Force was to improve the advocacy capability

of Southeast Asian Studies, 2009, pp. 38-39. 71 http://www.aseanhrmech.org/aboutus.html 72 Herman Joseph S. Kraft, “ASEAN ISIS and Human Rights Advocacy: The Colloquium on Human Rights (AICOHR) ,” in Hadi Soesastro, Clara Joewono, and Carolina G. Hernandez, eds., op. cit., pp. 79-88. 73 Asian Human Rights Commission and Asian Legal Resource Centre, Asian Human Rights Charter: A Peoples’ Charter: Declared in Kwangju, South Korea on 17 May 1998.

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of TCS groups. TFAHR held 10 national assemblies in seven countries from May to No-vember 2008. In addition, TFAHR also held joint regional assemblies in July and August 2008 jointly with other NGOs that seek protection for rights of indigenous people, women, and children. These efforts contributed to the increased awareness of people in the region for human rights institutions74.

After the formation of the High Level Panel (HLP), which formulates provisions that set forth the terms of reference of the human rights institutions, at the Forty-First ASEAN Ministerial Meeting held in July 2008, TFAHR actively offered proposals to the HLP. The Second Regional Assembly was held in August, under the initiative of TFAHR, where it produced the first proposal to the HLP75. Immediately afterward, the proposal was submitted to the HLP members at the second meeting of the HLP held in Bangkok, and a dialogue with the chairperson of the HLP was requested. In response to this, a dialogue be-tween the HLP and civil society actors was realized at the third meeting held in Manila in September76. In this meeting, the chairperson of the HLP stated that “HLP recognizes the positive and meaningful role that CSOs can play in the drafting process of terms of refer-ence of an ASEAN human rights body”77.

In October 2008, TFAHR prepared its second proposal in response to a request made by the HLP member in Malaysia targeting NGOs to submit proposals for 15 articles, such as the preamble, purposes, function, and organizational structure, for a human rights institution78. This TFAHR proposal was submitted to one Indonesian HLP member at the fifth HLP meeting in November79. Furthermore, TFAHR conducted eight personal inter-views with five HLP members between August 2008 and February 2009. Beginning in January 2009, TFAHR co-hosted national assemblies in seven countries with a variety of human rights NGOs from different countries. They also distributed the then-undisclosed

74 Asian Forum for Human Rights and Development (FORUM-ASIA) and Solidarity for Asian People’s Ad-vocacy Task Force on the ASEAN and Human Rights (SAPA TFAHR), The Process of Drafting the Term of Reference (TOR) on the ASEAN Human Rights Body and Civil Society Involvement, 21 February 2009, p. 8. 75 Solidarity for Asian People’s Advocacy Task Force on the ASEAN and Human Rights (SAPA TFAHR), Submission from the Second Regional Consultation on ASEAN and Human Rights to the High Level Panel on the Establishment of the ASEAN Human Rights Body, 7 August 2008 76 Asian Forum for Human Rights and Development (FORUM-ASIA) and Solidarity for Asian People’s Ad-vocacy Task Force on the ASEAN and Human Rights (SAPA TFAHR), op. cit., pp. 8-9. 77 Association of Southeast Asian Nations (ASEAN), Press Release by Chair of the High Level Panel (HLP) on an ASEAN Human Rights Body (AHRB) at the Conclusion on the 3rd Meeting on the HLP on AHRB, 12 Sep-tember 2008, Manila (http://www.aseansec.org/PR-HLP-3.pdf). 78 Solidarity for Asian People’s Advocacy Task Force on the ASEAN and Human Rights (SAPA TFAHR), Proposed Heads of Discussion for the Terms of Reference of the ASEAN Human Rights Commission, 7 No-vember 2008. 79 Asian Forum for Human Rights and Development (FORUM-ASIA) and Solidarity for Asian People’s Ad-vocacy Task Force on the ASEAN and Human Rights (SAPA TFAHR), op. cit., pp. 8-9.

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draft by the HLP and shared information and recognition regarding human rights institu-tions80.

Another opportunity for dialogue with the civil society was granted at the ninth HLP meeting held in March 2009, where TFAHR submitted its third proposal. In the pro-posal, they encouraged the HLP’s draft to be opened to the public as well as the establish-ment of a human rights institution with enforcement powers and that would conform to in-ternational human rights norms. TFAHR also demanded the removal of the non-interference principle, coordination with NHRIs, the identification of a protection me-chanism, independence from governments, and the participation of civil society81. Rights of Migrant Workers Factors causing an increase in migrant workers in the context of the internationalized migra-tion that accompanies globalization include insufficient employment opportunities in send-ing countries that have stagnant economic development, and a shortage of labor in receiving countries presently undergoing economic growth. This, combined with regional economic integration, increases trans-border migration of laborers in the region. In Southeast Asia, re-ceiving countries are Malaysia, Singapore, and Brunei, and sending countries are the Philip-pines and Indonesia. The number of migrant workers continues to increase year by year82. In line with such increase, given the exposure of problems such as low wages, discrimina-tion, and exploitation, TCS actors have, since the early 1990s, strengthened advocacy activi-ties for the protection of migrant workers83.

In Southeast Asia, where neoliberalism spread rapidly, Track II efforts to champion the issues associated with migrant workers did not progress very far. Indeed, the issue was only mentioned in part by the WG-AHRM. The UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families that came into force in 2003 has only been ratified by one member state—the Philippines. The radicalization of the issue of migrant workers and the TCS groups’ substantial involvement in ASEAN had to wait for the foundation of the aforementioned “Track III” TFAMW.

80 Ibid., pp. 9-11. 81 Solidarity for Asian People’s Advocacy Task Force on the ASEAN and Human Rights (SAPA TFAHR), Submission to the High Level Panel on the Establishment of an ASEAN Human Rights (HLP) during the HLP-Civil Society Dialogue Session during 9th HLP Meeting, 20 March 2009. 82 William Gois, “Migration in the ASEAN Region,” in Alexander C. Chandra and Jenina Joy Chavez, eds., Civil Society Reflections on South East Asian Regionalism, Quezon City: The South East Asian Committee for Advocacy, 2007, pp. 120-126. 83 Maruja M. B. Asis, “Borders, Globalization and Irregular Migration in Southeast Asia,” in Aris Ananta and Evi Nurvidya Arifin, eds., International Migration in Southeast Asia, Singapore: Institute of Southeast Asian Stu-dies, 2004, p. 192.

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TFAMW submitted a Position Paper comprising 15 proposals, including those on the creation of a regional protection mechanism for migrant workers, to ASEAN in De-cember 2006 while they had also held workshops on this issue since its inception84. In re-sponse to such pressure by TCS, the ASEAN Declaration on the Protection and Promotion of Rights of Migrant Workers, which embodied most of TFAMW’s proposals, was adopted at the Twelfth ASEAN Summit in January 2007. The ASEAN Committee on the Imple-mentation of the ASEAN Declaration on the Protection and Promotion of the Rights of Mi-grant Workers (ACMW) was established in July 2007 as a body whose goal was to en-courage the exercise of the Declaration and create international statements, resulting in ex-panding the opportunities available for TCS actors to be involved in the policy-making process. On the other hand, TFAMW sought to consolidate popular opinion by simulta-neously holding national and regional consultations. During the period from the adoption of the Declaration to April 2009, TFAMW held eight national assemblies and seven regional consultations attended by over 1,000 NGO members in total85. Through such consultations, TFAMW encouraged the consolidation of opinions and offered policy proposals to ASEAN.

In April 2008, the first ASEAN Forum on Migrant Labor was co-hosted by the Fi-lipino Department of Labor and Employment and the International Labor Organization (ILO) in Manila. One of the TFAMW members, the Migrant Forum in Asia (MFA) was permitted to participate, and offered specific explanations on the Position Paper86. Further-more, TFAMW embarked on the drafting of the ASEAN Instrument on the Protection and Promotion of the Rights of Migrants Workers by civil society actors at the workshop held in April 2008, and submitted a request to the ASEAN Labor Ministers Meeting (ALMM) for an early commencement of ACMW and establishment of an advisory council in which civil society actors can participate87.

In November 2008, an abstract of the draft of the ASEAN Instrument created by TCS actors was submitted to the ASEAN Secretary-General by TFAMW. It was guided by four central principles; applicability to all migrant workers; recognition of migration benefits both in receiving countries and sending countries; non-discrimination in treatment provided to migrant workers and their families; and migration policies and practices formulated with attention to gender concerns. TFAMW also demanded that guarantees for the adequate 84 Task Force on ASEAN Migrant Workers (TFAMW), Civil Society-Trade Union: Position Paper on an ASEAN Instrument on the Protection and Promotion of the Rights of Migrant Workers, 7 December 2006. 85 Task Force on ASEAN Migrant Workers (TFAMW), First Meeting of the ACMW on the Drafting of the ASEAN Instrument on the Protection and Promotion of the Rights of Migrant Workers, 27 March, 2009; Task Force on ASEAN Migrant Workers (TFAMW), National Statement, Singapore National Consultation on the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, 16-17 April, 2009. 86 Task Force on ASEAN Migrant Workers (TFAMW), ASEAN Forum on Labour and Migration: Task Force Activities Reported, 25 April 2008. 87 Task Force on ASEAN Migrant Workers (TFAMW), Statement of the Task Force on ASEAN Migrant Workers to the Ministers of Labour at the ASEAN Labour Ministers Meeting, 30 April 2008.

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treatment of migrant workers in accordance with the core labor standards of the ILO be en-sured in receiving countries, that vocational training and capacity building be provided in sending countries, and that ASEAN establish the systems to protect migrant workers88.

At the Fourteenth ASEAN Summit held in February 2009, an opportunity for di-alogue was established between leaders of various TCS groups, including TFAMW, and ASEAN leaders was established, and there the ASEAN Secretary-General, Dr. Surin Pit-suwan, assured the attendees that the ASEAN Secretariat would receive a civil society draft of the ASEAN Instrument89. Moreover, an opportunity to submit TCS’s views to the ACMW drafting committee meeting in April was granted90, and in May, the final draft created and completed by TSC bodies was submitted to the ALMM, after two years of consultation. This draft, based on the aforementioned four principles, includes 192 propos-als. Furthermore, TFAMW also demanded the establishment of a subcommittee for migrant workers in the pursuit of the protection of migrant workers through a human rights body91.

In addition to government representatives from 10 countries, leaders of NGOs and labor unions participated in the second ASEAN Forum on Migrant Labor that was held in July 2009 and hosted by the Thai Department of Labor, Protection and Welfare. In this fo-rum, TCS’s final draft was used as the main reference document. Predicated on the premise that the ASEAN Instrument would incorporate a legally binding force92, TFAMW sought harmony with national labor laws, the reinforcement of social protection mechanisms, the development of partnerships with the civil society in the drafting process, and the protection of migrant laborers working under unstable employment conditions. TFAMW also main-tained that the ASEAN Instrument should cover all migrant workers and their families, re-gardless of status and regardless of place of origin, laborers not living in the region, and fisher folks that are not covered by the Maritime Labor standards. Further, it asserted the fulfillment of fundamental human rights and labor standards specified by relevant the Unit-ed Nations and ILO conventions93. 88 Task Force on ASEAN Migrant Workers (TFAMW), Development of Engagement Mechanism between ASEAN Committee for Migrant Workers and the Task Force on ASEAN Migrant Workers, 25 November 2008. 89 Task Force on ASEAN Migrant Workers (TFAMW), First Civil Society Interface at ASEAN Summit, In-cludes TFAWM, 28 February 2009. 90 Task Force on ASEAN Migrant Workers (TFAMW), First Meeting of the ACMW on the Drafting of the ASEAN Instrument on the Protection and Promotion of the Rights of Migrant Workers, 27 March 2009. 91 Task Force on ASEAN Migrant Workers (TFAMW), Final CS ASEAN Framework Instrument on the Pro-tection and Promotion of the Rights of Migrant Workers, 12 May 2009. The activities of TF-AMW, including this proposal, have been organized into an electronic book. Sinapan Samydorai and Philip S. Robertson, Jr., eds., Civil Society Proposal: ASEAN Framework Instrument on the Protection and Promotion of the Rights of Mi-grant Workers, Singapore: Task Force on ASEAN Migrant Workers, 2009. 92 Task Force on ASEAN Migrant Workers (TFAMW), The ASEAN Framework Instrument for Migrant Workers Must be Legally Binding, Said Task Force on ASEAN Migrant, 6 August 2009. 93 Task Force on ASEAN Migrant Workers (TFAMW), Recommendation to the ACMW Meeting in Chaing Rai Thailand, 28-29 September 2009.

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Conclusion The new phenomenon of TCS actors participating in the formation process of the ASEAN Community indicates that ASEAN, formerly perceived critically as an “elite club,” is grad-ually transforming into a “people-oriented” organization. Although the situation is not quite at the “participatory regionalism” stage outlined by Acharya94, it is clear that the germina-tion of that condition can be observed. The prominence of TCS has been growing in South-east Asia, and it is expected to be an increasingly important presence in accurately foresee-ing the future vision of the ASEAN Community and the regional order in Southeast Asia.

However, the development of TCS and the expansion of TCS’s involvement in ASEAN have not automatically brought about the alternative regionalism advocated by SAPA to influence the formative process of the ASEAN Community. This is exemplified by the elimination of SAPA’s emphasized proposals from the ASEAN Charter and by the favor shown to any market-driven regional integration by ASEAN-ISIS and ASEAN-CCI. To drastically change the dominant discourse of neoliberalism that also penetrates the realm of TCS, further reinforcement of the counter-hegemony is needed.

On the other hand, in terms of the establishment of a human rights body, TCS ac-tors have exerted a certain degree of influence through their multilayered involvement in the ASEAN. Clearly, the likelihood of all states, including the late-developing ASEAN coun-tries―Cambodia, Laos, Myanmar, and Vietnam, who showed reluctance to establish a hu-man rights body―adopting human rights as a norm and internalizing the concept over the region as a whole will depend, to a large extent, on the effectiveness of the human rights body. To address issues associated with migrant workers, clearly, the creation of a legally binding ASEAN Instrument will be the greatest challenge. Both these issues can only be addressed by a partial renouncing of the non-interference principle that is at the heart of the “ASEAN Way”; however, at this point in time, the evidence suggests that the chances of that happening are still low.

In fact, the ASEAN Intergovernmental Commission on Human Rights (AICHR), which was founded in October 2009 on the basis of the final draft submitted by the HLP to the ASEAN Foreign Ministers Meeting in July 2009, incorporated the principle of non-interference in the principles in the terms of reference95. According to the TFAHR evaluation report on AICHR’s annual performance, a number of problems were found, in-cluding a lack of transparency in the appointment process of AICHR members, institutional defects such as closed meetings and budget shortages, ineffective implementation of man-dates (only 4 out of 14 mandates specified in Article 4 are addressed), the poor handling of

94 Amitav Acharya, “'Democratization and the Prospects for Participatory Regionalism in Southeast Asia,” Third World Quarterly, Vol. 24, No. 2, April 2003. 95 Association of Southeast Asian Nations (ASEAN), ASEAN Intergovernmental Commission on Human Rights (Terms of Reference), October 2009, p. 4.

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human rights violation cases, and insufficient consultation with stakeholders, including the civil society and NHRIs96.

However, the terms of reference permitted the organization to implement a future revision in five years97. TCS actors use this as a way to seek the reinforcement of the AICHR98. The ASEAN Charter will also become available for possible revision in 2013, and SAPA is working on the completion of the “ASEAN People’s Charter” envisioned by the people as an alternative charter, and since May 2008, has continued to hold consultations in different countries to consolidate people’s opinions99.

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Documents

The New Regional Order and Transnational Civil Society