From reality to interpretation

  • Letters
  • Sunday, 12 Oct 2003


THE Asean cynic has suddenly become an endangered species, a hapless victim of the hyperactive times. The recent Ninth Asean Summit had adopted the comprehensive Bali Concord II, enlarging and multiplying the roles of Asean along with its present significance and future importance. 

The document covered all three major areas for increased integration among member states: politics-security, economy, and sociocultural. These are necessary areas for greater cooperation because of the time and place that today’s Asean is in. 

Political and security concerns have long been a primary focus of Asean. They remain so today because longstanding territorial disputes have not all been resolved, and because new threats and challenges have emerged. 

While old disputes take time to be considered with some taken to international adjudication, new or unconventional cross-border challenges like terrorism, illegal migration, communicable diseases, pollution, piracy and smuggling have taken on a more ominous tone. It was incumbent on Asean governments to respond accordingly. 

Some of these challenges need to be resolved with sociocultural inputs – environmental degradation, diseases like AIDS and SARS, and the unemployment-migration nexus require intelligent or enlightened policies to help countries cope. The sociocultural dimension covers the widest ground and remains the least defined, so it should also contain the most possibilities. 

However, there are areas of overlap, such as between the sociocultural and the economic. Employment is related to human resource development, which is linked with competitiveness and foreign direct investment. 

Asean’s economic dimension is perhaps the most prominent of all: the two-day political summit followed a three-day Asean Business and Investment Summit, which saw 700 industrialists converging on Bali. This was organised by the Asean Business Advisory Council, which advises member governments on resolving problems in business. 

Economic goals were also moved forward, partly because of the urgency of the task and partly because some member states were already more than ready to start. An earlier 2020 deadline for liberalising trade and investment in key sectors has been moved to between 2010 and 2012, while 2020 is the target for turning Asean into a single market and production base. 

Dolliver Nelson: President of the International Tribunal of the Law of the Sea in Hamburg.--EPApic.

There was also progress in Asean’s economic relations with Japan, China, South Korea and India, specifically in regard to improved trade or free trade areas over the next nine years. Overall, the Bali Concord II served as Asean’s second wind. 

Asean’s critics had alternately lamented and criticised the grouping for losing steam, losing touch and losing direction as pressing global events swirled around the region. The cynics had simply underestimated Asean resilience, a key ingredient that had placed Asean at the head of the Asean Regional Forum a decade ago and now moves it forward to an Asean Community with political, economic and social components. 

Some problems remain, however: lack of policy harmonisation as in tax regimes and bureaucratic red tape have been identified as present obstacles that need to be overcome. But much of the carping of critics is now unwarranted, because Asean has yet again proven itself capable of meeting prevailing challenges in the interests of joint self-preservation. 

Both the letter and the spirit of the original Bali Concord (1976), in essential parts reaffirmed with the Bali Concord II, required member states to rely exclusively on peaceful measures like negotiations to settle disputes. Malaysia and Indonesia had already settled their competing claims on the islands of Sipadan and Ligitan at the International Court of Justice in December last year. 

For Malaysia and Singapore, the Bali summit (Oct 7-8) that concluded on Wednesday was timely in that the initial Itlos (International Tribunal for the Law of the Sea) decision on Singapore’s disputed excavation works in the Johor Straits came on Wednesday night. 

The general view was that both sides massaged the Itlos findings to make themselves look good, or at least better than the other. A document from the Singapore Ministry of Foreign Affairs, however, went one further by saying that Itlos said all Singapore’s actions were justified. 

Titled “S’pore: Ruling upholds position that reclamation is lawful” on Thursday, the statement began with the claim that “The Itlos decision supports Singapore’s position that there was no need for Singapore to stop its reclamation works either at Tuas or Tekong.” 

It further claimed that Singapore’s actions “are in full compliance with international law,” and that the tribunal had allowed “all our reclamation works to continue.” 

These words convey the sense that Itlos had ruled categorically that all of Singapore’s excavation works are “lawful” and permissible, which conflicts with the Itlos finding itself. The Itlos judgment clearly states that Singapore must not conduct or continue works that damage the environment, a decision that must rest on the later findings of an expert panel yet to be established. 

The conditional statement from Itlos says: “The Tribunal considers that, in the particular circumstances of this case, the land reclamation works may have adverse effects on the marine environment in and around the Straits of Johor.” It then required Malaysia and Singapore to establish a group of independent experts to determine the effects of Singapore’s land reclamation. 

The Tribunal further states that its panel of judges “Unanimously, directs Singapore not to conduct its land reclamation in ways that might cause irreparable prejudice to the rights of Malaysia or serious harm to the marine environment, taking especially into account the reports of the group of independent experts.” 

The Tribunal in Hamburg had issued a clearly conditional statement on Singapore’s excavation works. No blank cheque was issued to support “all” its actions that, in the absence of independent expert reports, can impartially be said to be “in full compliance with international law.” 

Singapore’s Foreign Ministry statement concluded with: “Malaysia had decided to take us to international adjudication for provisional measures on grounds which clearly lacked merit.” This reiterates Singapore’s earlier unwillingness to see the case go to court, suggesting it was not worthy to be heard at Itlos. 

But the Tribunal even disagreed with this. Its statement on Oct 8 says: “? the Tribunal finds that the Annex VII arbitral tribunal would prima facie have jurisdiction over the dispute. The Tribunal also finds that the case is admissible.” 

The claim that the case “lacked merit” was also contested by Malaysia, particularly when it had produced some desirable effects. As events unfolded, Singapore progressively gave in to certain demands made by Malaysia when it saw Malaysia was serious in taking the matter to court. 

These included providing Malaysia with full information on current and projected works, allowing Malaysia to comment on the excavation and its impact, and agreeing to negotiate with Malaysia. Singapore admitted that it agreed to these in July and August – just in time for the hearings beginning in September with the judgment coming this month. 

The Tribunal also directed both Malaysia and Singapore to pay their own costs, ruling out Singapore’s request not to pay them. Still Singapore claimed victory in “round one,” implicitly acknowledging that the match is far from over. 

Such interpretations of legal judgments are misleading, as are news articles purporting to show how a neighbouring country has declined. On the first day of the Asean Summit, a report in Singapore’s Straits Times said that the quality of life in Malaysia had dropped significantly, citing increases in crime. 

Such developments, if true, must not be denied but accepted if anything is to be done to improve things. But the Straits Times article provided meagre data, quoting a figure for the year 2000 and an unnamed government official suggesting how Malaysia was doing worse than Thailand. 

Most Malaysians would be surprised to learn that Malaysia has slipped behind Thailand. The best-known indicator is the UNDP’s Human Development Index, which places Malaysia ahead of Thailand on various fronts. 

While statistically there are more burglaries in Malaysia than Thailand, there are also fewer cases of trafficking in women. The article also mentions car-jackings, but many of these are committed in Malaysia only to end up in Thailand, raising the point that these might equally involve Thailand. 

Other sources, all non-Malaysian and internationally established (including UN and US government agencies) place Malaysia ahead of Thailand in economic, educational, health, infrastructure and public utilities development – and with less pollution, corruption and murder – whether or not on a per capita basis, with Thailand’s larger population. But here again, the popular verdict could be spun according to interpretation. 

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