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Contents

v Friedrich-Ebert-Stiftung in Southeast Asia

vii EditorialNorbert von Hofmann

1 International Law and the International Criminal CourtHerta Däubler-Gmelin, Germany

7 Asia-Europe Dialogue on Human Rights and the InternationalCriminal Court – An Asian PerspectiveHilario G. Davide, Jr., Philippines

13 Global Governance and International LawKarsten Nowrot, Germany

21 The Debate on the Conferring of National Sovereignty onInternational InstitutionsKittisak Prokati, Thailand

25 Civil Society Promoting Multilateralism and International LawSinapan Samydorai, Singapore

31 Advocating International LawEdmund Bon, Malaysia

41 An Asia-Europe Dialogue on Human Rights and InternationalLaw: ‘The International Criminal Court – A New Era forJustice?’Conference SummaryNorbert von Hofmann, Singapore/Germany

47 Democracy in Southeast and East Asia: Has it Made Gains?Chow Kon Yeow, Malaysia

51 Party Building and Local Governance in the PhilippinesJoel Rocamora, Philippines

69 Social and Libertarian Democracy: Competing Models to Fillthe Frame of Liberal DemocracyThomas Meyer, Germany

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85 ‘The Relevance of Social Democratic Parties and ProgressiveMovements in East and Southeast Asia’Conference SummaryNorbert von Hofmann, Singapore/Germany

91 ASEAN after AFTA: What’s Next?Hank Lim and Matthew Walls, Singapore

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Friedrich-Ebert-Stiftung in Southeast Asia

Friedrich-Ebert-Stiftung has been present in Southeast Asia for more than 30 years. Its country officesin Bangkok, Jakarta, Manila and Hanoi have been active in implementing national cooperationprogrammes in partnership with parliaments, civil society groups and non-governmental organizations,academic institutions and ‘think-tanks’, government departments, political parties, women’s groups,trade unions, business associations and the media.

In 1995, the Singapore office was transformed into an Office for Regional Cooperation in SoutheastAsia. Its role is to support, in close cooperation with the country offices, ASEAN cooperation andintegration, Asia-Europe dialogue and partnership, and country programmes in Cambodia and otherASEAN member states where there are no Friedrich-Ebert-Stiftung offices.

Its activities include dialogue programmes, international and regional conferences (e.g. on humanrights, social policy, democratization, comprehensive security), Asia-Europe exchanges, civil education,scholarship programmes, research (social, economic and labour policies, foreign policy) as well asprogrammes with trade unions and media institutes.

Dialogue + Cooperation is a reflection of the work of the Office for Regional Cooperation in SoutheastAsia of Friedrich-Ebert-Stiftung in Singapore: it deals with ASEAN cooperation as well as the Asia-Europe dialogue.

n Dialogue + Cooperation will tell you about our activities in Southeast Asia by publishing importantcontributions to our conferences and papers from our own work.

n Dialogue + Cooperation will contribute to the dialogue between Asia and Europe by systematicallycovering specific up-to-date topics which are of concern for the two regions.

n Dialogue + Cooperation will be an instrument for networking by offering you the opportunity tomake a contribution and use it as a platform for communication.

Head of Office: Norbert von Hofmann

Address: 7500A Beach Road#12 - 320/321/322 The PlazaSingapore 199591Tel: (65) 62976760Fax: (65) 62976762

E-mail: [email protected]

Website: http://www.fesspore.org

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This edition of Dialogue + Cooperation includes documents from two internationalconferences organized by Friedrich-Ebert-Stiftung in October 2004 in Manila, thePhilippines: An Asia-Europe Dialogue on Human Rights and International Law: ‘TheInternational Criminal Court – A New Era for Justice?’, which took place on 11-12 October2004; and an international conference entitled ‘The Relevance of Social Democratic Partiesand Progressive Movements in East and Southeast Asia’, which was held on 14-15October 2004.

The Human Rights Conference in Manila was the seventh in a series that the Friedrich-Ebert-Stiftung’s Office for Regional Cooperation in Southeast Asia had organizedsince 1996.

The first two papers are keynotes presented by the former German Minister of Justice,Professor Dr Herta Däubler-Gmelin, and the Chief Justice of the Philippines, the HonorableHilario G. Davide Jr. Both papers stress the importance of ‘dialogue’ resting, as Hilario G.Davide says, on two premises: first, that human rights are universal and must withstandthe myriad qualifications of cultural relativists; and, second, that the recognition andenforcement of human rights must also always be a cultural concern. Dr Däubler-Gmelinreminds us that there are still numerous questions that have to be discussed in greaterdetail. For example, are we using the same language when we talk about human rights?And, what about the implementation and control in our respective countries by nationallaw enforcement or by following international implementation mechanism? She also pointsout that by looking at the world map we have to realize that Asia, with all its importantcountries, cultures, traditions, billions of industrious people and increasing economicaland political importance, is hardly represented at all in the International Criminal Court.And Hilario G. Davide Jr. concludes by saying: ‘A dialogue between Asia and Europe is aninvitation to understand each other’s visions, each other’s travails, each other’s problemsand to arrive, by the same dialogue at solutions that should always be in favour of the Ruleof Law and the unyielding advocacy and protection of human rights.’

For Karsten Nowrot in his paper on ‘Global Governance and International Law’, the term‘global governance’ leads to the evolution of a multidimensional regulatory system ofnetworks and transnational legal as well as political processes that require a broaderunderstanding of international relations. While in the past, legal regulations in theinternational system were more or less neatly divided between domestic law, created bystates, and public international law, also created by states, global governance has resultedin what has been called an ‘emerging legal pluralism beyond the state level’. In his finalremark, Nowrot cites Abram Chayes and Antonia Handler Chayes, whose statement intheir book The New Sovereignty was somehow a thread through all the discussions: ‘Thelargest and most powerful states can sometimes get their way through sheer exertion ofwill, but even they cannot achieve their principal purposes – security, economic well-being, and a decent level of amenity for their citizens – without the help and cooperationof many other participants in the system, including entities that are not states at all.’

This statement directly leads to the role of the United States of America (USA) with regardto the establishment of the International Criminal Court (ICC). The USA, a founding

Editorial: Dialogue + Cooperation 3/2004

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member of the ICC at the beginning, still denies the ratification of the Rome Statute. TheUSA argues that the ICC would undermine their basic constitutional principles by a lackof checks and balances and by limitation of national sovereignty. Kittisak Prokati looksclosely at the issue that the ICC infringes on national sovereignty. Using the cases of theUS and Thai governments he comes to the conclusion that the debate on sovereigntyshows a general lack of understanding of this issue on all levels, be it governments,parliaments and the public. He closes by asking: ‘Whom do these governments reallyintend to shield from persecution of some of the most despicable crimes inthe world?’

All papers stress the role of the civil society in promoting the ICC. Sinapan Samydorai, arepresentative of the small Singapore civil society, looks at the role civil society organizationsplay in promoting international law and multilateralism as well as at the restrictions suchgroups face in certain countries, for example in Singapore. Edmund Bon looks at the sameissue from a Malaysian perspective. He reminds us of the fact that civil society normallydeals with human rights issues in which the violator is the state. But we should also rememberthat there are more and more violations by non-state actors, such as multinational companiesor trans-border terrorists.

Finally, a summary of the Seventh Asia-Europe Dialogue on Human Rights and InternationalLaw concludes this set of articles on the significance of the International Criminal Court.

The international conference on ‘The Relevance of Social Democratic Parties and ProgressiveMovements in East and Southeast Asia’ was a first attempt to take stock of the socialdemocratic movement in the region. Chow Kon Yeow from the Democratic Action Partyin Malaysia concludes in his ‘stock-taking’ paper that ‘The last two decades can be consideredan era of democratic development. However, the process of consolidation towardsdemocracy remains weak. The political change following the 1997 crises had offeredopportunities for the strengthening of young democracies, ushering new governments thatpromised reform and there is a clamour among Southeast Asians for more accountablegovernment and good governance.’

Answering the question ‘Has social democracy made gains?’ the participants of theconference replied overwhelmingly ‘yes’. The various presentations at the conference,especially from newly established political parties, were one proof of this statement. Oneof these ‘new’ parties is Akbayan in the Philippines. The difficulties of developing from asocial movement into a political party are described by Joel Rocamora, the former presidentof Akbayan. He originally called his paper ‘Impossible is not so easy!’. His paper could wellbe of interest for other countries in the region because as he writes, ‘Akbayan is a “work inprogress”’.

Thomas Meyer, a leading thinker of the German Social Democratic Party, describes indetail the differences between the two competing models of social and libertarian democracy.He comes to the conclusion that social democracy is neither a system, nor a patent remedyfor all the social and economic diseases, nor a ready-made model that could be exported toother places in the world. However, there are undisputable successes in the dimensions ofwelfare protection, social justice, the expansion of democracy, economic performance anddemocratic stability in those countries that have embarked on the way of social democracy.

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And he finally states that in an era of globalization, social democracy requires simultaneousimplementation at both levels: with the individual countries and in the global arena.

The last article of this edition deals with a completely different, but equally importantmatter: the future and the prospects of the Association of Southeast Asian Nations (ASEAN)as an Economic Community. The paper was first presented at a regional workshop entitled‘Towards an ASEAN Community: Agenda for Development and Social Responsibilitythrough ASEAN Integration’. The workshop was organized jointly by Friedrich-Ebert-Stiftung and the Lao Institute of Foreign Affairs (IFA) in Vientiane/Lao PDR in June2004. The two authors from the Singapore Institute for International Affairs (SIIA) updatedtheir paper in October 2004 for this edition of Dialogue + Cooperation and conclude thatincreasing East Asian integration is not a policy choice but a policy necessity for ASEANin order to keep its economy vibrant and competitive in the global market place. Bydefault, ASEAN’s position as the ‘hub’ of East Asia should be leveraged for maximum gain.The extent of how much benefit ASEAN can derive from its ‘hub’ position is criticallydependent on how well and effective ASEAN can move forward from AFTA to an ASEANEconomic Community.

All papers reflect the opinions of the individual authors. The Singapore Office of Friedrich-Ebert-Stiftung would like to express its sincere appreciation to all the contributors of thisedition.

Finally, on a more personal note, this will be my last Dialogue + Cooperation as editor. After37 years with Friedrich-Ebert-Stiftung, and 22 years dealing with Southeast Asia, it is timeto say good-bye to a region that has been my home for at least 16 years. My next stop willbe retirement in the deep Southwest of Germany, an area that is supposed to have the mostsunshine in Germany – I hope that is true!

I wish all readers of Dialogue + Cooperation and all friends of Friedrich-Ebert-Stiftunghappiness, as well as a healthy and long life.

Yours sincerely

Norbert von HofmannEditorFriedrich-Ebert-StiftungOffice for Regional Cooperation in Southeast AsiaSingapore

International Law and the International Criminal Court

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International Law and the InternationalCriminal Court

Herta Däubler-Gmelin*

* Professor Dr Herta Däubler-Gmelin is a member of the German Federal Parliament and the former FederalMinister of Justice.

1. Gustave Moynier (1826–1910) was a Swiss lawyer who drafted the first Geneva Convention, adopted on 22August 1864.

Part I

We all know that we are living in the era ofglobalization. And living together peacefullyin a globalized world requires global laws,the most essential part of which are humanrights. I think we all share the view thatnations today and in the future cannot fulfiltheir obligations towards their citizens ifthey rely exclusively on their national lawsand means. Too many problems have to beaddressed on a global level: climateproblems, telecommunication, economy,the fight against hunger and new diseases,the fight for human rights and againstterrorism. These issues and many othersneed global cooperation.

Furthermore, every nation or state has toaccept responsibility for the whole ofmankind. The Philippines and Germany,

as members of the United Nations (UN),have signed and ratified not only the UNCharter and the important GeneralDeclaration on Human Rights, but also thespecial Human Rights Conventions, which,together with the UN Charter, have becomeessential parts of international law.Acknowledging this, we also know thatthere are numerous questions that have tobe discussed in greater detail, which is whythe dialogue between Asia and Europe isso important. Two of these questions are:Are we using the same language when wetalk about human rights? And, what aboutimplementation and control in ourrespective countries by national lawenforcement or by following theinternational implementation mechanism?

Part II

We all know how indispensable andimportant strong and independent courtsare for good governance of nations.Without a fair legal system, including therule of law, and without accessibleindependent courts and binding humanrights, neither a just order nor peace andstability are possible. Thus all our effortsto improve and secure this legal order areboth necessary and useful.

The International Criminal Court was oncejust a dream of the most enlightenedpolitical leaders and humanitarian thinkersof the time. One such visionary wasGustave Moynier,1 later president of theInternational Red Cross Committee, whoaddressed the then newly founded RedCross Conference in 1872. After the FirstWorld War, President Wilson of the UnitedStates of America (USA) was one of the

Dialogue + Cooperation 3/2004

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most famous protagonists. Like Moynier,he wanted to secure the implementationof the international conventions in force,mostly with regard to ‘jus in bello’,2 throughan international court; a court that wouldnot only deal with state obligations but alsotake up the principle of individualresponsibility. And also like Moynier,Wilson’s proposals were not heeded in histime – even the US Senate denied the Treatyof the League of Nations.

After the Second World War, a big stepwas taken with the adoption of the UnitedNations (UN) system, in which we havebeen living for more than 50 years. Amongthe most important elements are humanrights, peace and interdiction of violence,except for self-defence, and internationalmultilateral cooperation. These have to bepreserved, strengthened and amended, evenif rules, institutions and procedures haveto be adapted to make the UN moreefficient, more democratic and morerepresentative for the world today. Withinthe UN system, the International HighCourt in The Hague was established – albeitwith restricted competencies of which wehave recently been made aware.

Individual accountability for crimes againsthumanity, war crimes and genocide bypolitical and military leaders was the mostimportant element of the Nuremberg andTokyo Trials after the Second World War.Those trials were introduced by thevictorious powers of the Second WorldWar; they were not independentinternational courts, even if they actedaccording to international law principles.In 1946, the UN General Assemblyadopted the ‘Principles of Nuremberg’, thuspolitically enforcing the proceedings andsentences of both tribunals and underliningthe principle of individual accountabilityof political and military leaders for crimesagainst humankind. In so doing, the UN

General Assembly acknowledgedrealistically that the new UN Charter withits global legal order would not and couldnot be secured as long as those responsiblefor committing crimes against humankindcould not be indicted and prosecutedfollowing global laws and standards becausethey were political or military leaders andprotected by immunity or impunity. Bothformer US Prosecutors, Robert H. Jacksonand Telford Taylor, made it quite clear whenindicting Nazi leaders in Nuremberg thatthis new era would have lasting obligationsfor everyone. They stated quite openly thatlaw is never a one-way street and thathistory would judge all accountable leadersfollowing these principles, which theNuremberg and Tokyo courts were actingupon, as adopted by the General Assembly.

Nevertheless, and in spite of thelongstanding and most valuable work of theInternational Law Commission (ILC) indrafting a code on crimes and proceduresfor an independent International CriminalCourt (ICC), it took more than fourdecades before the end of the Cold Warpresented a realistic opportunity to createan ICC. During the Cold War, it had beenpossible to agree on certain importantinternational human rights andconventions, such as those againstgenocide, apartheid or torture. While theseadded to the body of international criminallaw, along with the UN General Assembly’s1974 agreement on the definition ofaggression as forbidden in the UN Charter,it was not possible to find common groundto introduce the principle of individualaccountability into international criminallaw.

Then, in December 1989, the GeneralAssembly ruled that the drafting of a Codefor an International Criminal Court shouldproceed. Subsequently, in 1994, the firstof many drafts was published. In the

2. ‘Jus in bello’ is Latin for ‘justice in war’.


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summer of 1998, the UN DiplomaticConference of Plenipotentiaries on theEstablishment of an International CriminalCourt finally convened in Rome, withdelegates from 162 states, 17 internationalentities, 124 non-governmentalorganizations (NGOs) and 14 UNorganizations. The discussions were oftenfraught – many states wanted less, whileothers wanted more. NGOs attempted towiden the catalogue of crimes within thecompetence of the ICC, or to get moreprotection for victims and witnesses fromthe beginning. Nevertheless, a reliablecompromise was found, and the RomeStatute, with its balanced clauses on clearlydefined crimes against humanity, genocideand war crimes, and common rules ofprocedure, was agreed upon.

On 17 July 1998, the delegates of 120countries voted for the Rome Statute, withonly seven opposing it, namely China, Iraq,Israel, Yemen, Qatar, Libya and the USA.After ratification by 60 member states,including Germany in 2002, the RomeStatute came into force on 1 July 2002.

On 11 March 2003, the justices,outstanding personalities from all over theworld, convened for the impressive openingof the ICC. In May 2003, the ProsecutorGeneral, Luis Moreno Ocampo, waselected. Two deputies were also elected andappointed, one from Belgium, the otheran outstanding lawyer from Gambia. Sofar more than 1000 cases have beenforwarded to the Court; the first cases havebeen accepted or are in the process of beingaccepted. The Prosecutor Generalappointed a US attorney, Christine Chen,to lead the prosecution in the first case.

I am quite sure that the InternationalCriminal Court will be a success. And Iam also sure that those who still havedoubts will become convinced that it willsucceed at its great task.

The ICC is, however, up against somemajor problems. First, more memberstates are needed to enforce the globalimportance of the ICC. Presently, with theaddition of Burundi, Guyana and Liberia,97 states have ratified the Rome Statute,not only placing the majority of the UNmembership within the ICC system butalso bringing the objective of 100accessions within reach. But looking at theworld map we have to realize that Asia andSoutheast Asia, with all its importantcountries, cultures, traditions, billions ofindustrious people and increasingeconomical and political importance, ishardly represented at all in the Court. Wehope that more nations from this regionwill soon join the Court, as without Asiaand Southeast Asia, the ICC cannot reachits full potential.

Nearly all European states, and certainlyall the member states of the EU, includingmy home country, Germany, have signedand ratified the Rome Statute. We joinedbecause we are convinced that the ICC willstrengthen international laws, multilateralcooperation and the respect for humanrights on a global level, as well as havingbeneficial effects for every region and everystate. We are not only openly asking ourfriends and partners in Asia to join, butwe are also prepared to cooperate withthem. We acknowledge that some questionsneed to be discussed and clarified, amongthem the issue of conferring nationalsovereignty to multinational institutions.

Only since the Second World War have wein Germany become acquainted with theconcept and the necessity of cooperationin Europe, and we support the ICCbecause of our historic experiences. Thereare people in Germany who hold the viewthat national sovereignty should not beaffected by conferring parts of it tointernational institutions. In the end, anoverwhelming majority said ‘yes’ to handing


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over a certain, exactly defined part of thatwhich had been considered the purview ofnational sovereignty alone – indicting andprosecuting perpetrators by national lawbefore national courts – to themultilaterally created and independentICC, even if we had to alter ourconstitution to do so. We said ‘yes’,convinced that this ICC will help to gainmore global respect for human rights bysecuring the principle of individualaccountability, indictment and prosecutionof perpetrators: no one accountable fortorture, genocide and other atrocities willgo free, if the Rome Statute and the ICCare effective. We said ‘yes’ because we areconvinced that the ICC will strengthenglobal legality. We also realize that the ICCcan only act under the rule ofcomplementation, meaning that the Courtwill only act if a country is not able or willingto indict and prosecute itself.

Germany’s intention to indict and prosecuteperpetrators itself was ensured by theadoption of a large set of national rules oncooperation with the ICC, and otherswhich transfer the clauses of the RomeStatute into our legal system. Several stateshave done the same. Today there exists amodel law that can be adapted to differentlegal systems in the world.

A second serious problem is the attitudeof the USA, especially the current USadministration, which has set itself againstthe ICC with the notorious AmericanService Member Protection Act (ASPA).There are several reasons for this attitudeand it is necessary to discuss how to dealwith them and limit the damage they cause.Firstly, it is a long-standing and widelyknown fact that the USA would havepreferred an ICC that could only initiate acase with prior consensus by either the UNSecurity Council or the respective nationalgovernment. This type of dependent courtis exactly what the overwhelming numberof states in Rome did not want, and I fully

agree with that; a dependent court is alwaysa politically influenced court, meaning itdoes not work exclusively following itsstatute and the rule of law. Knowing this,it is even more unacceptable that thecurrent US administration is not onlytrying to fight the Court, but also quiteopenly in the UN Security Council accusedthe court of being an ‘essentially flawedpolitical institution’.

In this context I would like to highlight theagreement between the UN and the ICCthat was signed by UN Secretary GeneralKofi Annan and Chief Justice PhilippeKirsch (ICC) in October 2004. Itunderlines the independence of thepermanent ICC as it defines the conditionsof cooperation and the relations betweenthe UN and the ICC.

The Bush administration twice bullied theUN Security Council (UNSC) intoresolutions that explicitly exempt UScitizens participating in UN peacekeepingoperations from the Rome Statute. Duringthe discussion on UNSC resolutions 1422/2002 and 1487/2003, most of the UNSCambassadors present expressed their doubtsabout the legality of the resolutions or theirdisagreement with the attitude of the USA.And indeed, it is hard to imagine how amember of a UN Peacekeeping Operationshould be able to commit a crime underthe jurisdiction of the ICC. Nevertheless,the resolutions were eventually agreed upon.In 2004, after the illegal Iraq war, the USAtried to present another resolution onexemption before the UNSC. However, thescandal about torture and abuse in Iraq byUS military and so-called private USsecurity officers made the adoption of sucha resolution impossible. We have to keepthis in mind for future reference. A thirdinstrument used by the USA to fight againstthe ICC is the bilateral agreement, or BIA,which the US administration tries to getthrough political, financial and economicpressure. These are also an attempt by


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means of bilateral relations to exempt UScitizens from being indicted, prosecutedor extradited to the jurisdiction of the ICC.

It is difficult for small or financially weakstates to withstand entering into suchagreements and quite a number of statesare not in a position to do so. Thedamaging effect of bilateral relations as wellas international power play becomesevident. The powerful set the standardsrather than the rule of law.

In the meantime, a number of legalassessments have found that theseresolutions and agreements are legallyquestionable. I agree with the finding thatnot even UNSC resolutions are binding onthe ICC, as there is no legal basis for that.And many existing bilateral agreements arenot legally binding on the ICC, nor on thosestates that had to sign them. Nevertheless,there is no doubt that such agreements arepolitically damaging, not just to the ICC,but also to the cause of international lawand to the principle of multilateralism ininternational relations.

One of the most interesting questions iswhether there will be a change in attitudeafter the presidential elections in the USA.There are indeed some indications of this.For example, there has always beenconsiderable support from US academiaand civil society for the ICC as evidencedby the Princeton Principles of 2001, theAmerican branches of the Coalition for anInternational Criminal Court (CICC),Amnesty International and Human RightsWatch. The International Herald Tribunerecently published an article saying that theoutcome of a US poll showed that themajority of US citizens do not and neverhave been opposed to the ICC. The samepoll found that more than 60% of Bushsupporters thought that the US was amember of this Court. The fact that theBush administration partly copied theRome Statute when drafting a statute for

an ad hoc court to prosecute SaddamHussein may be an indication that part ofthe US administration accepts the RomeStatute as following the rule of law. Sorather than being set back by the dailypressures coming from the present Bushadministration we should increase thedialogue not only between our regions, butalso between us and the USA.

The third problem is that the US tendencytowards unilateralist thinking could becomestronger and be copied by others. Theglobal community has to ensure that thistrend does not overwhelm multilateralcooperation. This might prove to be a realchallenge and would require a lot ofdiscussion and dialogue.

Addressing a conference in Berlin onfighting for global human rights everywhereand fighting against terrorism, the presidentof the Club of Rome, Prince Hassan ofJordan, pointed out that global law can onlyhave favourable effects for peace,cooperation and understanding if it is notdictated by one or two powerful nations orinstitutions, but created, negotiated andadopted by multilateral institutionscooperating in partnership. He is right. Itis worth mentioning this to our US friendsand reminding them that we learned ourlessons from the Boston Tea Party whichmarked the USA’s birth as a nation stateand its constitution as an outstanding modelof democracy and the rule of law. Theslogan the American colonials used infighting against their British motherlandwas ‘No taxation without representation’;reworded in the language of today it wouldbe: ‘Democracy requires that every countryhas the chance to participate in global law,meaning multiliteralism is required,unilateralism is out’.

Finally, there will be a lot more to do inthe years ahead to amend the Rome Statute.The next conference to revise the RomeStatute will take place in 2009, and for this


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conference a new convention on aggressionhas to be drafted. In this conference I hopethat other grave international crimesagainst humankind will be included,especially international terrorism andinternational trafficking of human beings.

Today we can say that the ICC will be asuccess story because of the quality andexperience of its outstanding justices, andif it is supported by more member states,especially in Asia, and by important andreliable networks of partners withininternational civil society.

Asia-Europe Dialogue on Human Rights and the International Criminal Court

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The Congress of the Philippines recentlyenacted two statutes protecting the rightsof vulnerable sectors. The first, RepublicAct No. 9208, defines and penalizes thecrime of trafficking in persons. The second,Republic Act No. 9262, penalizes violenceagainst women and children.

In declaring a state policy, these statutesacknowledge their provenance frominternational covenants and treaties onhuman rights. The significance of thesestatutes – and others like them – transcendsthe particular offences they define andpunish. They constitute the concrete stepstaken by the Philippine legal system tocomply with international standards for theprotection and the enforcement of humanrights, and to give, once more, flesh andblood to the mandate in the PhilippineConstitution on Human Rights. ThisConstitution devotes an entire article(Article XIII) to social justice and humanrights and provides in Section 11 of itsArticle II (Declaration of Principles and

Asia-Europe Dialogue on Human Rights andthe International Criminal Court – An AsianPerspective

Statute Policies) that ‘The State values thedignity of the human person andguarantees full respect for human rights’.These statutes attain greater breadthbecause they extend the concept of criminalliability to cover all schemes for theexploitation of persons, including theexploitation of other’s vulnerability, withor without the victims’ consent. Alsocontemplated in the legal concept ofviolence is psychological violence, andeconomic abuse as well. Women andchildren can no longer be dealt with asabusive men please, and cowed into fear,submission and silence.

In a sense, the stale debate between monistsand dualists on the relation of internationallaw to municipal law has little currencytoday, for most domestic legal systems thathave not, for ideological reasons,peremptorily closed themselves to thesalutary influence of dialogue are coaxedand enriched to maturity by internationallaw.

Hilario G. Davide, Jr.*

* The Honorable Hilario G. Davide, Jr. is the chief justice of the Supreme Court of the Republic of the Philippines.

Introduction

Human Rights in Asia

Asia is a paradox in several respects –human rights among them. It is this partof the world that has nurtured thephilosophies and schools of thought thatextol the dignity of the human person and

reflect acutely upon his or her nobility.Here the sages steeped their disciples inthe doctrine of jen, human-heartedness, anda profound respect for the other. The darkside of the Asian picture, however, is


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equally well known. Here, up to thepresent, we have horrible stories of thetransgression of human rights, often ininstitutionalized form. Despots and pettytyrants have introduced a callous disregardfor human dignity that, in parts of thiscontinent, is taking decades to undo.Indeed, bad habits are always difficult tounlearn. Transformation is a slow and evenpainful process.

I submit that a dialogue between Europeand Asia on human rights rests on twopremises: first, human rights are universaland must withstand the myriadqualifications of cultural relativists; andsecond, the recognition and enforcementof human rights must always be a culturalconcern.

It makes absolutely no sense to asserthuman rights without, at the same time,claiming them at all. We, who are Asians,who take justifiable pride in the richnessof our culture, cannot and should not makeof it a plea for the attenuation of thedemands of human rights. Culture ischecked and enriched, and must, therefore,grow in its respect for human rights. Thereis, however, a deeply rooted spirituality inAsian life that the West must recognize.While there is no way of justifying thedestructive fanaticism of zealots, one crythe West cannot ignore is the clamour thatthe spirit be given its due. Men and womenof faith are driven to zealotry andfanaticism when they face the prospect ofthe eclipse of the spirit. Many regrettableand detestable acts of violence and bigotryare contorted forms of the same cry: ‘Wetake faith with utmost seriousness. Do nottrivialize it’. It is also a fact that the mostexalted expressions of regard for humanrights have profound religion motives.

A dialogue between Europe and Asia shouldalso inquire into the various ways that the

rather arid discourse of human rights –confined as it usually is in the West to thelanguage of law – can find freshness fromthe religious and spiritual traditions of theEast.

Yet another dimension of the problem ofhuman rights in Asia is the poverty andunderdevelopment of many countries inthis part of the world. It is clear that povertyis no excuse for the violation of humanrights, but it is just as clear that theexigencies of state survival – exacerbatedin several respects by the regime ofglobalization that is perceived to bebecoming less of a promise and more of athreat for many Asian countries – drivenations to short-cuts, unfortunately evenby-passing internationally enshrined andguaranteed rights. Again, a dialoguebetween Europe and Asia would allow Asiato articulate the challenges it must confrontand its frustrations about a regime thatseems to give to what should be its globalpartners with a very large spoon, yet hardlyany morsel is left in its dish. Whatever mayhave been the promise of globalization, thefact is that many Asian countries are reelingfrom its effects. Europe must listen, evenas we in this part of the world listen toEurope propose ideals of respect and regardfor human rights. Indeed, the issue ofpoverty is very relevant to the issue ofhuman rights. It is for this reason that thePhilippine Constitution puts together inone article – Article XIII – the subject ofsocial justice and human rights. The stirringwords of Section 1 read:

The Congress shall give highest priority tothe enactment of measures that protect andenhance the right of the people to humandignity, reduce social, economic, andpolitical inequalities, and remove culturaliniquities by equitably diffusing wealth andeconomic power for the common good.


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Every court is an institutional embodimentof the law’s abstractness – and this is whatguarantees the application of the law notto particular persons, but to all. The aimof law is justice. Law is abstract so that itmay treat all alike, and render justice to allalike. This is the basis of law’s authorityand its claim to adherence and allegiance.Every court represents the law’s sway overall, for anyone may be called before thebar of justice to account for his or herconduct. Basically, this is the significanceof the emergence of the InternationalCriminal Court. It is the embodiment ofthe ideal that one who offends universalstandards of decency and respect forhuman rights will be called to account forhis conduct before it, whether he hails fromthe affluent societies of Europe or America,or from the struggling and impoverishedcountries of Asia and Africa. TheInternational Criminal Court is theinternational guarantee of the obligation ofall to abide by internationally definedstandards of conduct, particularly insituations rife with risks for human dignity.

All courts prior to the InternationalCriminal Court were ad hoc tribunals,established as a response to atrocitiesalready committed. This was true of theNuremberg War Tribunal and of the TokyoTribunal. This is true of the InternationalCriminal Tribunal for former Yugoslaviaas it is for the International CriminalTribunal for Rwanda. These two tribunalshave provided the nascent InternationalCriminal Court with immediateantecedents and have contributedconsiderably to what can rightly becategorized as ‘international penaljurisprudence’. The pronouncements of theInternational Criminal Tribunal for formerYugoslavia, for example, on the reach ofthe jurisdiction of international courts, as

well as the precedent-setting ruling of theRwanda Tribunal that rape can be apredicate act of the crime of genocide haveprovided useful precedent not only for theInternational Criminal Court but also fordomestic courts. But these ad hoc tribunalswere largely ‘reactive’ courts – set up todeal with atrocities already committed. Andherein lies the novelty of the InternationalCriminal Court.

The Rome Statute and the Court that itengendered represent a legal order that hasparticular application to situations of warand civil strife. Therefore, the veryexistence of the Court is a statement ofthe global community’s resoluteness aboutenforcing the law across nationalboundaries: that proscribes genocide,crimes against humanity, war crimes andunlawful aggression. The fact that ‘unlawfulaggression’ is a legal concept ininternational law that remains to be morefully worked out does not detract from thesignificance of the Court. In fact, ithighlights it, for rather than being weigheddown by precedent and establisheddoctrine, international penal law is a work-in-progress, sensitive to the many new –and often terrible – forms by which humanrights are trampled upon and respondingwith thoughtfulness and incisiveness.

It is persuasively argued that in post-conventional times, the force of the lawwill be found in the dynamics of collectivewill formation, and the strength of theRome Statute and of the institution it hasbrought forth is that it is the expression ofthe determination of the global communityto be unrelenting in its proscription of theterrible violations of human rights that havemarred world history. In this regard, thereare grounds for criticism for the lack ofsupport from countries that are in a

The International Criminal Court


10

particularly privileged position to bechampions of the Court and guardians ofthe legal order that it represents. We shouldall have learned the lesson by now that whenwe refuse to abide by a legal order, we makeourselves vulnerable to the onslaught oflawlessness and stand unprotected. Thesurest guarantee is that our soldiers andmen always act above suspicion and in fulland unqualified compliance with the law’sdemands. All of society’s institutions dependon the trust society has placed in them, andwe must trust the men and women who sitas judges of the Court to know when a chargeis meritorious and when it is merely meantto annoy, vex or harass.

My personal hope is that the PhilippineSenate will soon ratify the Rome Statute inthe realization that one of our most potentweapons against lawlessness and theterrorism that threatens us all is to beuncompromising in our adherence to therule of law in the world. By doing so, thePhilippines will further improve itsstanding as one of international law’sguardians and advocates, and enhanceSection 2 of Article II of the Constitution,which adopts the generally acceptedprinciples of international law as part ofthe law of the Philippines, and adheres tothe policy of peace, equality, justice,freedom, cooperation and amity with allnations.

I have found in my own studies that thebasic documents of the InternationalCriminal Court – the Rome Statute, theElements of Crimes and the Rules ofProcedure and Evidence – contain insightsin penal law that should spur the evolutionand maturation of domestic legal systems.Under the penal laws of the Republic ofthe Philippines, for example, we recognizethe crimes of murder, homicide andphysical injuries, but we do not recognizethe crime of genocide or war crimes assuch. By codifying the concept of ‘genocide’,legal systems are invited to see beyond theassault on a particular victim to the assaulton an ethnic, cultural or minority groupitself as a distinct and reprehensible malice.Thus the legal system is also invited torecognize not merely the claim of anindividual to life, but the claim of a groupto its survival.

This, to me, is also the more profoundimplication of the principle ofcomplementarity by which the InternationalCriminal Court operates, for it makes eachstate-party principally responsible for theenforcement of international penal law andfor the vindication of human rights. It isonly when state-parties are unwilling orunable to prosecute offenders that themechanism of the international penalsystem is set in motion.

Conclusion

Acceding to a treaty is more than passingthe required number of votes in a legislatureto obtain the necessary domesticratification. It is also a matter of attendingto the constellation of often very difficultfacts – political alliances and economicdependence, principal among them – thatgo into the decision of acceding or refusing

to accede. A dialogue between Asia andEurope is an invitation to understand eachother’s visions, each other’s travails andeach other’s problems, and to arrive, bythe same dialogue, at solutions that shouldalways be in favour of the rule of law andthe unyielding advocacy and protection ofhuman rights. Written some centuries ago


111. John Locke (1632-1704), English philosopher, founder of British empiricism.

but still ringing with contemporaryrelevance is the philosophical wisdom ofJohn Locke’s1 ‘Two Treatise onGovernment’:

Man, being born, as has been proved, witha title to perfect freedom and an uncontrolledenjoyment of all the rights and privileges ofthe law of nature, equally with any otherman, or number of men in the world, hathby nature a power not only to preserve hisproperty, that is, his life, liberty and estateagainst the injuries and attempts of othermen, but to judge of and punish the breaches

of that law in others, as he is persuaded theoffence deserves.

We may take issue with some aspects ofLocke’s thought, but we are undoubtedlyin agreement that concomitant with ourrights to life and liberty – whether asindividuals or as a global community – isthe right to judge breaches of the law bythose who transgress these rights. This isthe challenge and the promise, the task andthe guarantee of the International CriminalCourt.

Global Governance and International Law

13


Karsten Nowrot *

* Karsten Nowrot is a lecturer and research assistant at the Transnational Economic Law Research Centre at the Faculty ofLaw, Martin-Luther University, Halle-Wittenberg, Germany.

What Is Meant by Global Governance?

Despite the amount of literature on globalgovernance, the most influentialdescription of this concept was given bythe Commission on Global Governance,founded at the initiative of former GermanChancellor Willy Brandt. In its concludingreport in 1995, entitled ‘Our GlobalNeighbourhood’, the Commission stated:

Governance is the sum of the many waysindividuals and institutions, public andprivate, manage their common affairs.It is a continuing process through whichconflicting or diverse interests may beaccommodated and co-operative actionmay be taken. It includes formalinstitutions and regimes empowered toenforce compliance, as well as informalarrangements that people andinstitutions either have agreed to orperceive to be in their interest. At theglobal level, governance has been viewedprimarily as intergovernmentalrelationships, but it must now beunderstood as also involving non-governmental organizations, citizens’movements, multinational corporationsand the global capital market.Interacting with these are global massmedia of dramatically enlargedinfluence. … There is no single modelor form of global governance, nor is therea single structure or set of structures. Itis a broad, dynamic, complex process ofinteractive decision-making that isconstantly evolving and responding tochanging circumstances.

Based on this definition, which –considering the complex phenomenon ittries to describe – necessarily has to be arather abstract one, it is possible to identifythree main characteristics of the regulatoryscheme of global governance, all of theminterrelated.

First, global governance is characterized byan increasing diversity of interconnectedlaw-making processes, or, more precisely,‘normatively relevant regulatory processes’,because not all of these instruments arelegally binding in the traditional sense.While, in the past, legal regulations in theinternational system were more or lessneatly divided into domestic law createdby states and public international law alsocreated by states, global governance hasresulted in what has been called an‘emerging legal pluralism beyond the statelevel’. In addition, the former distinctionbetween so-called ‘hard law’ and non-binding regulatory instruments isincreasingly blurred. In establishingapplicable law, international judicial bodieslike the International Court of Justice (ICJ)and the Appellate Body of the World TradeOrganization (WTO) frequently haverecourse to international declarations,commonly referred to as ‘soft law’,especially those adopted at so-called ‘worldorder’ conferences such as the RioConference on Environment andDevelopment. Non-binding ‘codes ofconduct’ for transnational corporations,like the ones adopted by international


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organizations, such as the InternationalLabour Organization or the Organizationfor Economic Cooperation andDevelopment, as well as the codesadopted by individual corporations,sometimes subject to monitoring by non-governmental organizations (NGOs),exercise considerable regulatory force.Furthermore, international standardsdeveloped by private or intermediateorganizations, such as the InternationalAccounting Standards Board, the CodexAlimentarius Commission and theInternational Organization forStandardization, either acquire a certainamount of legally binding force throughtheir incorporation in international treatyregimes, such as the WTO legal order, or,even if not directly legally binding, they areuniversally adhered to by the relevant actorsand thus not devoid of normative value.Finally, autonomous self-regulatory systemshave evolved without any or only negligibleparticipation of states, such as the so-called‘new lex mercatoria’ for businesstransactions, with the important role of theInternational Chamber of Commerce, thelex informatica for the Internet, partlydominated by ICANN (InternetCorporation for Assigned Names andNumbers), or the lex sportiva, prominentlyrepresented by the International OlympicCommittee.

Secondly, global governance is alsocharacterized by changes in and a growingvariety of law-enforcement processes.Traditionally, international law has beenprimarily enforced by confrontationalmeans, in a decentralized way, by individualstates. However, four alternative trends ofinternational law enforcement can beidentified. First, international treatyregimes as well as other regulatoryinstruments show an increasing relianceon non-confrontational, cooperativeenforcement mechanisms considered to bemore conducive to promoting compliancewith international legal obligations. Among

these mechanisms is the approach ofseeking compliance by providing incentivesto adhere to international norms – aprominent example is the ‘GlobalCompact’ initiated by the United Nations(UN) Secretary General. Other cooperativecompliance mechanisms are notificationand reporting requirements, monitoringsystems, capacity building and technicalassistance, which can be found in areassuch as international environmental law,international human rights law andinternational economic law. For example,various so-called ‘flexible mechanisms’included in the Kyoto Protocol to theClimate Change Convention mirror nearlyall of these compliance mechanisms.Furthermore, evolving private self-regulatory mechanisms rely less and lesson states for securing compliance, and areinstead developing their own judicial andnon-judicial enforcement mechanisms.Aside from the well-established practicewith regard to private and mixed businesstransactions, other notable examples are thevarious private and intermediatemechanisms for the resolution of domain-name disputes.

Thirdly, there is an increasing tendency toenforce international law by invokingrespective violations in civil andadministrative law cases at domestic courts.In the United States, this ‘transnationalhuman rights litigation’ has been testedusing the now well-known Alien Tort ClaimsAct in trials of foreigners such as that ofKaradzic, the former leader of the BosnianSerbs, as well as multinationalcorporations. While cases such as these inthe United States deal primarily with thepossible consequences of violations ofhuman rights and international criminallaw, in 1993, the Supreme Court of thePhilippines, concerned with thetermination of timber licence agreementsgranted to private companies, handed downa far-reaching decision with regard tointernational environmental law by ruling


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in the case of Minors Oposa v. Secretary ofthe Department of Environmental andNatural Resources that plaintiff minors havestanding to invoke for themselves as wellas for their unborn posterity the right to ahealthy environment based on the conceptof ‘intergenerational responsibility’ underconstitutional but also, as invoked by theplaintiffs, under international law.

Last but not least, there are clearindications that the idea of aninstitutionalized judiciary as an instrumentof international law enforcement has gainedmomentum. In recent years we haveobserved an increasing use of the ‘old’ ICJby states and the UN General Assembly,in light of which the Court decided, twomonths ago, to take measures to increaseits productivity. Even more notable is theestablishment of various new internationaljudicial bodies such as the InternationalTribunal for the Law of the Sea, the DisputeSettlement Body of the WTO and, ofcourse, the International Criminal Court,leaving aside similar developments at theregional level in the areas of human rights,international criminal law and economicintegration.

In addition to this growing diversity ofinterconnected law-making and law-enforcement processes, a third and finalcentral feature of global governance is theimportant role played by non-state as wellas sub-state actors in the development andenforcement of these regulatoryinstruments. Not only do internationalorganizations create between themselves anincreasingly dense network of formal andinformal agreements – one of the mostrecent examples being the agreement signedbetween the UN and the InternationalCriminal Court – but also countlessexamples exist of non-state actors such asNGOs and multinational corporationsbeing involved in the law-making and law-

enforcement processes. NGOs wereincorporated in the preparation of theConvention on the Prohibition of Anti-personnel Mines, the Convention on theRights of the Child, and the establishmentof the International Criminal Court.Multinational corporations played a key rolein the adoption of various WTOagreements, especially the TRIPS (Trade-related Aspects of Intellectual PropertyRights) Agreement. Finally, the preparationof the Norms on the Responsibility ofTransnational Corporations and OtherBusiness Enterprises with Regard toHuman Rights, recently interrupted or atleast slowed down by the UN Commissionon Human Rights, also demonstrated theconcerted effort of states, internationalorganizations, as well as NGOs, businessorganizations, trade unions, multinationalcorporations and individual scholars.

With regard to the sub-state level, it isbecoming increasingly obvious that statesoften do not act as solid units ininternational relations. Rather, for example,territorial sub-state entities, such asregions, interact with each other intransboundary cooperative regimes andadministrative units below the level ofgovernment, together with non-state actors,participate in international regulatoryregimes such as standardizationorganizations. Together with the evolvingtransgovernmental networks of legislativebodies and courts, this phenomenon of the‘disaggregated state’ has recently beencomprehensively described and analysed byAnne-Marie Slaughter in A New WorldOrder.1

To sum up, the term ‘global governance’does not refer to some kind of centralizedworld government. On the contrary, it hasalready been described as ‘governancewithout government’, leading to theevolution of a multidimensional regulatory

1. Anne-Marie Slaughter, A New World Order (Princeton: Princeton University Press, 2004).


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system of networks and transnational legalas well as political processes that require

us to broaden our understanding ofinternational relations.

Underlying Reasons for the Emergence of Global Governance

What are the underlying reasons for thisemerging regulatory scheme of globalgovernance? The causes are indeedmanifold. However, prominent amongthem are the processes that are commonlysummarized by the term ‘globalization’.Despite the prevailing concentration on thewell-known economic side of globalization,the economic aspect is only one amongmany processes that contribute to thisphenomenon. Other relevant developmentsare, for example, the revolution intelecommunications and informationtechnologies, most prominently representedby the Internet, which has made possible apermanent world-wide dialogue andexchange of information between peoplewho share the same interests, whetherbenign or not; the globalization of securityinterests caused by transnational organizedcrime as well as the emergence of trulyglobal terrorist networks; and thephenomenon of what might be called‘ecological globalization’, caused by threatsto the global environment such as climatechange.

All these aspects of globalization have onething in common: they lead to an increasingloss by states of their previously held andvirtually unchallenged ability to controlthese processes, even if they take place ontheir own territory. In particular, statesacting individually are beginning to lackthe necessary steering capacity to channel

these processes effectively to the benefit oftheir citizens and in pursuance of thepromotion of global public goods, such asthe protection of human rights and theenvironment, and the enforcement of corelabour and social standards: multinationalcorporations can shift or at least threatento shift their production plants to more‘comfortable’ places, transboundary capitalmovements can take place in minutes,individual states cannot successfullycombat global warming. This‘denationalization of economic and socialactivities’ and the resulting decline in theirsteering capacity ultimately forces states tocreate and participate in formal andinformal cooperative mechanisms withother states, international organizations,and increasingly influential non-state actors,such as transnational corporations andNGOs, in order to provide an effectiveregulatory scheme for the political,economic, ecological and social processesthey are unable to control when acting ontheir own.

Thus, in the absence of something close toa world government – whether such aninstitution would be feasible or evendesirable is an open question – theprocesses of globalization require states tocontribute to, tolerate and activelyparticipate in the emergence of what iscalled global governance.

The Interrelationship between Global Governance andInternational Law

In the light of these mere factual findings,the normative question arises: Is there aninterrelationship between global

governance and international law? And ifthere is, what are the specific features ofthis connection?


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Beginning with the impact of internationallaw on the regulatory scheme of globalgovernance, it is common knowledge andthus hardly worth mentioning thatinternational law was formerly confined toa set of rules – often merely of a proceduralnature with only a limiting and guidingeffect on states as the sole subjects ofinternational law in their interactions witheach other. However, this traditionalconception of international law has, overthe past few decades, undergone quite asubstantial change. Most significantly, withregard to its contents, international law hasconsiderably extended its scope ofapplication to areas that were previouslythought to be in the exclusive competenceof states, for example, human rights, corelabour standards, environmentalprotection, the prosecution of the worst ofcrimes, and perhaps even legitimate formof government. Thus, in its transformationinto a ‘comprehensive blueprint for sociallife’, international law is more and moreindependent of the will and interests ofindividual states. Rather, its substantivenorms increasingly focus on the realizationof community interests, theabovementioned global public goods – aprocess that has already been labelled the‘constitutionalization of international law’.

In my opinion, it is in this context of therealization of global public goods that thesignificance of international law in theregulatory framework of global governancelies. International law provides theunderlying values, the goals to be pursuedby the various and diverse processes ofglobal governance. By providing thesesubstantive guidelines, international lawensures that global governance serves thepurpose of contributing to the promotionof human rights, core labour standards andenvironmental protection. At the sametime, international law thereby also createsthe basis for the often disputed – especiallywith regard to the participation of non-stateactors – legitimacy of the regulatory

framework for global governance.

The question remains: What are the effectsof global governance on international law?I would venture to argue that globalgovernance does not merely result in acontinuation of the progressivedevelopment of international law that hadalready been visible in previous decades.Rather, under the impact of globalgovernance, international law is beingtransformed into something new,something that only remotely resembles thenormative structure of what we have so farconsidered to be the international legalorder. Many terms have already beensuggested to describe this ‘new internationallaw’ – ‘global law’, ‘world law’, ‘worldinternal law’. I resist here the temptationto contribute to this more theoretical issueby adding another catchword. I would onlylike to briefly highlight three basic conceptsin international law that require, in myopinion, a re-conceptualized understandingof the impact of global governance.

First, the enumeration of the classicalsources of international law as prominentlyenshrined in Article 38(I)a to c of the ICJstatute is more or less outdated and in needof supplementation. The growing diversityof law-making processes in the internationalsystem, the increasingly blurred distinctionbetween hard law and non-legally bindingregulatory instruments and especially therising importance of non-state actors inthese processes are no longer adequatelyreflected in this provision. However,Article 38 not only requires asupplementation with regard to the possiblesources of international law, but is also inneed of a re-conceptualized understandingof the classical sources already enumeratedin it. To give but one example, it issuggested that the traditional etatisticunderstanding of ‘state practice’ being oneof the constitutive elements of customarylaw has to be modified by including thepractice of powerful non-state actors as they


18

become increasingly influential participantsin global governance. Interestingly enough,the wording of Article 38(I)b allows such areinterpretation because it speaks only of‘international custom, as evidence of ageneral practice accepted as law’ withoutrestricting the possible scope of acting andcontributing entities.

Second, under the impact of globalgovernance, the traditional prerequisites ofinternational legal personality, namely thegranting by states of international rightsand/or duties to the entity in question, canno longer be regarded as appropriate forthe identification of normativeresponsibilities of powerful non-state actorssuch as multinational corporations andNGOs. There is general agreement that itis the purpose of international society topursue international stability, avoiddisputes and prevent the arbitrary exerciseof power. In order to pursue these goals inan effective way, the development ofinternational law has always been dependentupon a close conformity to the realities inthe international system – a wisdom alreadyexpressed by the ICJ in 1949. As aconsequence, the granting of internationalsubjectivity also has to orientate itself tothe changing sociological circumstances onthe international scene. The internationallegal order needs to set the relationsbetween all the de facto powerful entitiesin the international system on a legal basis,since a failure to bring the major actorsunder the rule of law imposes unnecessaryrisks on the inherently frail internationallegal system. Thus, contrary to the currentpredominant view, it follows that, in lightof the aims to be pursued by theinternational legal order, the concept ofinternational legal personality is in need of areconceptualization. This is that, on the basisof a de facto influential position in theinternational system, a rebuttable

presumption already arises in favour of therespective actor being subject to applicableinternational legal obligations with regardto the promotion of community interests.It is submitted that this new conceptconcerning the establishment ofinternational subjectivity – which wouldcurrently apply to some multinationalcorporations and NGOs – is clearly morein conformity with the evolving image ofan international legal community that hasas its central aim the civilization ofinternational relations and the promotionof global public goods to the benefit of all.

Thirdly, in the light of global governance,the necessity arises for a re-conceptualizedunderstanding of the sovereignty of states.I do not argue that states are no longer ofimportance in the newly evolvinginternational system. Overall, they stillremain influential actors – in some areas,such as the use of force, more influential;in others, like the international economicsystem, less important. However, under theinfluence of globalization, states areincreasingly incorporated in the multi-layered scheme of global governance, andtheir position in these regulatory processesoften cannot even be characterized as being‘first among equals’. Therefore, in order todescribe the new understanding of statesovereignty, I would like to quote AbramChayes and Antonia Handler Chayes, who,in their work entitled The New Sovereignty:Compliance with International RegulatoryAgreements2 state:

It is that for all but a few self-isolatednations, sovereignty no longer consistsin the freedom of states to actindependently in their perceived self-interest, but in membership inreasonably good standing in the regimesthat make up the substance ofinternational life.

2. Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International RegulatoryAgreements (Cambridge: Harvard University Press, 1995).


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To summarize, global governance andinternational law mutually affect each other:while the substantive norms of internationallaw provide the goals to be pursued byglobal governance in order to gainlegitimacy, the regulatory scheme of globalgovernance has a profound impact on the

structure of international law by expandingthe kind of law-making and law-enforcement processes, as well as byincreasing the number of participants, thatare of relevance in the international legalorder, thereby changing the role of thenation-state in the international system.

Conclusion

In conclusion, I would like to stress thatthis transformation of the internationallegal order into a ‘new international law’,which is taking place under the impact ofglobal governance, is not a constant andlinear process. Very powerful states, as wellas a number of other countries, try to resistor successfully resist – at least in the shortrun – even some of the developmentsoutlined above. They try to partly ‘opt out’of global governance. In other words, itcannot be denied that occasional‘backlashes’ do occur, caused by actions of‘state sovereignty liberation movements’comprising certain governments. Thecontroversy concerning the InternationalCriminal Court is one example among

several other well-known instances in recentyears. In commenting on these ‘backlashes’I would like to confine myself to againciting Abram Chayes and Antonia HandlerChayes who state:

The largest and most powerful statescan sometimes get their way throughsheer exertion of will, but even they [andI would like to add, not to mention theother countries] cannot achieve theirprincipal purposes – security, economicwell-being, and a decent level of amenityfor their citizens – without the help andcooperation of many other participantsin the system, including entities that arenot states at all.

The Debate on the Conferring of National Sovereignty to International Institutions

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The Debate on the Conferring of NationalSovereignty on International Institutions

Kittisak Prokati*

* Dr Kittisak Prokadi is Professor of Law in the Institute of Comparative Law at the Faculty of Law of ThammasatUniversity, Bangkok, Thailand.

1. John Adams (1797–1801), the second President of the United States of America.

Introduction

The establishment of the InternationalCriminal Court (ICC) through the RomeStatute on 2 July 2002 marks a new era ofinternational law. This is the revival ofnatural law and demonstrates a fundamentof the rule of law in the ‘era of globalgovernance’, which directly affects allindividuals. The global validity andenforceability of human rights will be moreclearly seen as common sense to the legalcommunity.

With the establishment of the ICC, a newround of debates on national sovereigntybegan. The United States of America(USA), a founding member of the ICC, isstill refusing to ratify the Rome Statute.The USA argues that the ICC wouldundermine its basic constitutionalprinciples because of a lack of checks andbalances, and would limit its nationalsovereignty.

The US Arguments

In the first place, ‘checks and balances’represent America’s central foundingprinciples, as John Adams1 put it, ‘powermust never be trusted without a check’. TheICC, in the eyes of the US administration,is based completely on unchecked power,and those negotiating the treaty rejectedproposals for checks and balances. The ICCprosecutor may initiate investigations on hisown, and would not be responsible oraccountable to any elected body. Theprosecutor would answer to no one but thecourt itself. Even the United Nations (UN)Security Council, charged by the UN Charterwith maintaining peace and security, wouldbe unable to check the ICC’s excesses.

Furthermore, the ICC would underminethe USA’s sovereignty in at least three ways.First, it claims jurisdiction over American

citizens even though the USA has notratified the treaty or otherwise consentedto such jurisdiction. Second, the treatyallows ratifying states to opt out of crimesadded to its jurisdiction in the future butnot non-ratifying states. And third, the ICCitself determines when it should defer toprosecution in national courts; it only needsto decide that national courts are unableor unwilling to prosecute.

Nevertheless, the US administration stillmaintains that they are neither disagreeingin principle with the ideals and objectivesof the ICC, nor trying to make the ICCineffective. The US government seems toprefer the prior practice of setting upad hoc international courts to try specificcases, as was done in the Nuremberg Trialsof Nazi war criminals.


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These US arguments have causedproblematic situations in some developingcountries, such as Thailand. On the basisof a cabinet resolution on 19 September2000, Thailand became a signature partyof the ICC on 2 October of the same year.Although a national committee is still goingover the details of the ICC Statute andconsidering whether to promulgate anadditional law or amend the presentcriminal code, it is known that, due to itsclose relationship with the US government,the present government of Prime MinisterThaksin Shinawatra will not support theimplementation of the ICC.

In an investigation of the Thai SenateCommittee on Foreign Affairs, the Thaiforeign minister admitted on 23 October2003 that Thailand would not ratify theICC Statute. The main reason for this isconcern over the possible implications forthe immunity of the monarch as head of

state. The foreign minister criticized theformer Thai government’s ‘unthoughtful’and ‘dangerous’ decision, because, as asignatory to the ICC, Thailand will beobliged to send its nationals accused ofcrimes under the Rome Statute to the ICC,and this includes even the head of state.The present Thai government cannot allowsuch a clause, and this concern is sufficientfor Thailand to withdraw its support fromthe ICC ratification.

The Thai people have been mislead by thisargument as it reminds them of the unequaltreaties with colonial powers in thenineteenth century. The pride of theirstruggle to maintain independence duringthe colonial era in the nineteenth andtwentieth centuries and their concerns overthe immunity of their beloved king has thusinfluenced the Thai decision not to joinefforts to improve international justice.

The Position of Thailand

The Counter Arguments

As far as checks and balances areconcerned, the ICC consists of fourindependent organs (the presidency; thepre-trial, trial and appeals divisions; theoffice of the prosecutor; and the registry),which have been assigned contrasting andsometimes competing institutionalfunctions and objectives so that the powerof the ICC is not unchecked. Additionally,the ICC limits its power significantly byfollowing the principle of complimentarity,requiring that it defers to national courtsfirst and serves only as court of last resortto try only the gravest and most wicked ofcrimes.

As far as the US claim that the ICCrequires the sacrifice of nationalsovereignty is concerned, the fact is thatthe ICC does not have authority to define

new crimes, but rather provides apermanent institution where these crimescan be adjudicated according to existinginternational law. In the Genevaconventions on war and in the Hague peaceconventions, the international communityhas, for more than 100 years, prohibitedthe crimes of genocide, war crimes andcrimes against humanity as violations ofinternational law. The USA is a memberof both conventions. In addition, thosecrimes were recognized as violations ofinternational law by the post-Second WorldWar tribunals at Nuremberg and Tokyo.More recently, the ad hoc tribunalssponsored by the UN to try war criminalsin Rwanda and former Yugoslaviademonstrated this practice. Clearly thesetribunals had the full support and backingof the USA. Therefore, we can conclude

The Debate on the Conferring of National Sovereignty to International Institutions

23

that the existing status of US sovereigntywill not be limited.

Despite the assertion of Thai internationallaw experts that there are no grounds forthe government’s concern over themonarchy, the government has still chosennot to join the ICC. The ICC affirms thatno immunity shall be given to theperpetration of the worst acts, such asgenocide, war crimes, crimes againsthumanity and acts of aggression. Since itis clear that the ICC will look forperpetrators who exercised ‘effective

control’ on the commission of the crimes,there is no reason to believe that the Thaimonarch, who has no effective control overthe mechanism of the state, will be subjectto the ICC. Cambodia also has aconstitutional monarchy, but has ratifiedthe Rome Statute. Similarly, Norway,Finland, the Netherlands, the UnitedKingdom, Australia, Spain and Belgiumsaw no major conflict with legal protectionfor their monarchies when they ratified theRome Statute. Concerns over themonarchy are therefore unfounded.

Conclusion

The Rome Statute is currently one of thebest deterrents for some of the worst formsof human rights violations because itrepresents the most advanced internationalmechanism to combat impunity. However,the debate on sovereignty shows that thereis a lack of popular understanding on thisissue. It is time to make international lawagainst wicked human rights violations andits mechanism understandable to the generalpublic. This kind of popular legalunderstanding should be developed in

accordance with the legal consciousness andlegal culture of each country, and thediscussion on the ICC is a very goodopportunity. In the present climate, it maybe opportune to ask questions, particularlyof governments that have been exhibitingtendencies towards authoritarianism andlack of respect for international standards.Whom do these governments really intendto shield from punishment for some of themost despicable crimes in the world?

Civil Society Promoting Multilateralism and International Law

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Civil Society Promoting Multilateralism andInternational Law

Sinapan Samydorai*

* Sinapan Samydorai is President of the Think Centre, Singapore.

Introduction

In June 1993, hundreds of Asian civilsociety organizations participated in theWorld Conference on Human Rights(WCHR) contributing to the ViennaDeclaration and Programme of Action(VDPA). The WCHR had some impact oninternational human rights, resulting in thecreation of human rights mechanisms suchas the post of the United Nations (UN)High Commissioner for Human Rights in1994, the UN Decade for Human RightsEducation in 1994, the Declaration onHuman Rights Defenders in 1998 and thePermanent Forum on Indigenous Issues in2001, and the creation of National HumanRights Institutions (NHRI) in manycountries. At the Durban 2001 WorldConference Against Racism, RacialDiscrimination, Xenophobia and RelatedIntolerance (WCAR), newly emergingchallenges were identified.

In the context of globalization, capital flowsfreely, but the freedom of movement ofpeople is severely restricted. In some Asiancountries, the emergence of democraticgovernance and civil society can beobserved, while repressive legislation suchas the Internal Security Act (ISA) andNational Security Law (NSL) underauthoritarianism still prevails in manycountries. There has evidently been a lackof political will on the part of UN memberstates to uphold their commitments madeat the World Conference on HumanRights.

Both the Vienna Declaration and the UNMillennium Declaration affirmed that theywould ‘spare no effort to promotedemocracy and strengthen the rule of law,as well as respect all internationallyrecognized human rights and fundamentalfreedoms, including the right todevelopment’. The Universal Declarationof Human Rights declares the universalityand indivisibility of human rights. Humanrights cannot be achieved withoutguarantees of basic rights such as the rightto life and fundamental freedoms. Humanrights education and respect for humanrights is the best weapon against terrorismand human rights violations. Themonitoring and documentation ofviolations to protect human rights has madeit difficult for governments to violate themand has provided a way to expose andpunish numerous crimes committed bygovernment officials.

Despite the various international laws toprotect the basic needs of individuals,millions continue to be victimized bynational and international policies thatcondemn them to suffer the negativeimpacts of globalization, poverty and denialof their rights. UN Secretary General KofiAnnan calls for a world that will providefor ‘freedom from want’ and ‘freedom fromfear’. For example, global annual deathsfrom war are 500,000, from crimes750,000 and from suicides 1 million, butthese figures are modest compared to


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preventable health-related deaths, whichannually kill 17 million. There must bespecific international instruments that willallow these policies to be considered ashuman rights violations, otherwise civilsociety organizations will lack effectivetools to monitor and bring to justice theseviolations and crimes against humanity.

The coming into force of the InternationalCriminal Court (ICC) this year followingthe adoption of the Rome Statute in 1998is a step forward, as impunity remains aserious challenge to the people in theregion. Although many governments haveratified and acceded to a number of coreinternational treaties, they have failed tofulfil their obligations and failed toimplement them. The International

Covenant on Civil and Political Rights(ICCPR) and the International Covenanton Economic, Social and Cultural Rights(ICESCR), which entered into force in1976, have not been signed by somegovernments in Asia.

States have obligations to take measuresto protect persons within their jurisdictionand bring to justice those responsible forattacks on civilians. All measures taken bystates must be consistent with internationallaw, in particular international humanrights, refugee law and humanitarian law.The UN Charter prohibits torture andcruel, inhuman or degrading treatment orpunishment. All measures taken mustrespect and protect the human rights of allconcerned.

Civil Society in Singapore

In Southeast Asian countries, civil societyis acknowledged as an emerging force ofdemocratization. In reaction, somegovernments in the region have adoptedrestrictive measures to deal with this newdevelopment, including urging civil societygroups to remain non-partisan, not todirectly challenge prevailing government,to use the political party system and tocontest elections, or governments havecoopted civil society to help in policydiscussion and formulation. It is convenientfor governments to identify and manageindividuals in emerging civil society whenthey join political parties. In Singapore,the government is reluctant to includeindependent political groups, policy groupsor others such as human rights groups inthe category of civil society. These groupsare rarely recognized as members of civilsociety but are treated as politicalcontenders.

Singapore is working towards a fullrealization of the Millennium DevelopmentGoals, and civil society is expected to

cooperate in the implementation of thesegoals. Political space is needed for apolitical society to exist in which all citizenshave a legitimate right to participate. Theinterventionist polices of the PAP (People’sAction Party) government over the past fourdecades has created an apathetic and non-risk-taking culture by criminalizing andpersecuting alternative political voices. Thishas had a disastrous effect on aspects ofmost citizens lives, including their criticalthinking, creativity and business.

The government is slowly becoming moreopen to the participation of civil society.Without genuine political commitment andrespect for human rights from thegovernment, it is not possible for civilsociety to play its role of promoting andprotecting human rights. Singapore’seconomic development model is aimedsolely at economic growth. The model lacksspace for civil society organizations toparticipate in structural change, which isnecessary for a more democratic, just, fairand peaceful development.


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The Singapore government needs to bepersuaded that human rights are not anobstacle for economic growth anddevelopment. In fact, respect for humanrights will improve the quality of lifeenjoyed by Singapore residents. Economicgrowth should strengthen the fundamentalrights of the people and should not be usedto weaken respect for human rights.Economic progress can no longer legitimizesuppression and coercion, even if thegovernment argues that national security,social stability and public order arenecessary for development.

Civil society organizations should be givenmore space to promote and protect humanrights, especially the right to opinion andexpression, peaceful assembly andassociation, and to monitor fundamentalhuman rights. The government should meetthe basic needs of an active citizenship byremoving outdated policies, laws andrestrictions on public speech, gatherings,and, if possible, abolish the InternalSecurity Act (ISA). If the ISA is to remain,it should be part of emergency legislation,applied only under a State of Emergencyand approved by parliament. Allowing theISA to continue in a democracy does notencouraging citizens to participate.

Civil Society Faces Greater Restrictions after 9/11

Since 11 September 2001, some civilsociety activities have been further curtailedby new anti-terrorist measures thatempower police to conduct surveillanceinto the lawful, private affairs of citizensunder the guise of fighting terrorism. Thepolice have powers to monitor telephones,e-mails and other forms of communication.Many Asian governments have restrictedhuman rights groups, denying them theright to freedom of expression and opinion,and in Singapore, non-governmentalorganizations (NGOs) have been threatenedwith the ISA. Moreover, long-termproblems of discrimination and poverty areno longer a top priority.

In this context, there is a great anxietywithin civil society about how to respondto the changing environment within whichcivil society needs to work. While it maynot be immediately discernable, a historyof abuse of national security laws in Asiahas put civil society in the region on itsguard. Governments are proposing thatmore basic freedoms should be curtailed.The heavy state apparatus and paranoia ofterrorism has even silenced some liberalsand human rights activists. Meanwhile,governments are not addressing the root-cause of extremism – social, economic andpolitical injustices.

Civil Society’s Role in the Implementation of International Laws

Civil society is expected to play the role ofadvocacy and lobbying governments. Civilsociety monitors and reminds governmentsof their commitments to their people andthe international community through theratification of various covenants (humanrights, labour rights and humanitarianlaws).

Civil society does influence thedevelopment of international law andparticipates actively in the implementationof human rights, for example, in the ICC,the Ottawa Treaty, the World Conferenceon Human Rights and the WorldConference against Racism.


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The anti-landmine campaign (OttawaTreaty) resulted in the adoption of theconvention on the ban of mines. Theinitiative came from NGOs that hadworked on the problem of mines in thefield and decided to call for a ban on theuse of landmines. The NGO’s campaignfor the banning of mines applied pressureon governments. Now 124 countries haveratified this convention, and NGOscontinue to push for global ratification.

The Millennium Development Goals(MDG) are aimed at working towardsfreedom from fear, freedom from want and

the protection of the resources of this earth.To achieve the MDG, governments needto work in partnership with civil society.Is this partnership possible? If so, how canit be effective in building a more just,equitable, healthy and peaceful world? Civilsociety organizations are potential partnersof governments to promote freedom fromfear and want, peace, justice anddevelopment.

A good example of the cooperation of civilsociety organizations in internationalinstitutions is the Committee onEconomic, Social and Cultural Rights.

1. The following text is adapted from Fact Sheet No. 16 (Rev. 1), Office of the High Commissioner for HumanRights, http://www.unhchr.ch/html/menu6/2/fs16.htm#annexiii

2. International Covenant on Economic, Social and Cultural Rights, adopted and opened for signature, ratificationand accession by General Assembly in December 1966, and entered into force on 3 January 1976.

Committee on Economic, Social and Cultural Rights1

The primary function of the Committee isto monitor the implementation of thecovenant2 by state parties, that is, whetherthe state has adequately implemented andenforced the covenant. Could theimplementation be improved so that allpeople who are entitled to the rightsenshrined in the covenant can actually enjoythem in full?

State parties are required to submitperiodic reports to the Committee – withintwo years of the entry into force of thecovenant for the state party concerned, andthereafter once every five years – outliningthe legislative, judicial, policy and othermeasures that they have taken to ensurethe enjoyment of the rights contained inthe covenant.

After an analysis of the reports and apresentation by the state, the Committeeissues ‘concluding observations’, which isits decision regarding the status of thecovenant for the state concerned.

The Committee recognizes the importantcontribution that can be made by civilsociety in the provision of informationconcerning the status of the covenant withinstates parties. The Committee was the firsttreaty body to provide NGOs with theopportunity to submit written statementsand make oral submissions dealing withissues relating to the enjoyment or non-enjoyment of the rights contained in thecovenant in specific countries.

On the first day of each session of theCommittee, the afternoon meeting is setaside to give international and nationalNGOs and community-based organizations(CBOs) an opportunity to express theirviews on how the covenant is or is not beingimplemented by state parties. TheCommittee will receive oral testimonyfrom NGOs as long as the informationfocuses specifically on the provisions of thecovenant, is of direct relevance to mattersunder consideration by the Committee, isreliable and is not abusive.


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The Committee has indicated that thepurposes of the NGO procedure are toenable it to inform itself as fully as possible,to examine the accuracy and pertinence ofinformation, which would most probablybe available to it anyway, and to put theprocess of receiving NGO information ona more transparent basis.

NGOs and CBOs wishing to providereliable and new information to the

Committee may write to the secretariat ofthe Committee several months prior to thebeginning of a particular session with aspecific request to intervene during theNGO procedure. Groups with writtenmaterials may also send these to thesecretariat, and may attend Committeesessions. Committee sessions are generallyheld in public, with the exception ofmeetings at which it prepares its concludingobservations, which are held privately.

International Criminal Court

The International Criminal Court (ICC)is the first permanent international judicialinstitution with jurisdiction overindividuals who commit gross violationsagainst human rights and humanitarian law.The Rome Statute of the ICC includesgenocide, war crimes and crimes againsthumanity as gross violations of humanrights. Before the ICC, there was nopermanent international enforcementmechanism with jurisdiction overindividuals who commit these crimes. TheICC has the following features:

n It makes international standards ofconduct more specific;

n It provides an important mechanism forthe implementation of these standards;

n It will ensure that perpetrators arebrought to justice when national courtsare unable or unwilling to do so;

n Ratifying nations will fulfil theirobligations by providing national lawsthat ensure that genocide, war crimesand crimes against humanity can betried within their own borders.

Singapore Government’s Position towards the ICC

Ambassador Kishore Mahbubani,Singapore’s Permanent UN Representative,made the following points regarding theICC in a statement about the UN Missionin Bosnia and Herzegovina on 10 July2002:3

n Article 16 of the Rome Statute providesthat: ‘No investigation or prosecutionmay be commenced or proceeded withunder this Statute for a period of 12months after the Security Council, in aresolution adopted under Chapter VIIof the Charter of the United Nations,

has requested the Court to that effect;that request may be renewed by theCouncil under the same conditions’.

n The USA proposed that Article 16should be indefinitely and automaticallyrenewed. Article 103 of the UN Charterprovides for Charter obligations toprevail in the event of a conflict betweenCharter obligations and otherinternational obligations.

n Singapore has not yet acceded to theRome Statute. But, as a small state, itis in our fundamental interest to existin a rule-based international order.

3. http://www.globalsolutions.org/programs/law_justice/icc/unsc/1422/singapore.html


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n It is a reality that the USA deploysdisproportionate strategic weight in thepost-Cold War world. This is a realitythat we cannot brush aside. Theprinciples engaged by this issue areimportant. But it is equally importantto factor in the USA’s contribution topeacekeeping.

n We live in an imperfect world. Our dutyis to find practical and workablesolutions to ensure that the good workdone by United Nations Mission inBosnia and Herzegovina is notunravelled, and that the future of thepeople of Bosnia and Herzegovina and

the broader interests of the internationalcommunity are not jeopardized.

n The USA is trying to seek a solutionwithin the ICC framework throughArticle 16 of the Rome Statute. TheUSA ‘requests, consistent with theprovisions of Article 16 of the RomeStatute, that the ICC for a twelve-monthperiod shall not commence or proceedwith any investigations or prosecutions...’. Article 16 is also the basis ofproposals tabled by France and theUnited Kingdom, the thrust of whichwe have supported.

Concluding Recommendations

n It is in Singapore’s interest to exist in arule-based international order.

n It is time for Singapore to come out ofthe shadow of US influence. We couldlearn from the European experience.

n Singapore should accede to the RomeStatute creating the InternationalCriminal Court.

Advocating International Law

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Edmund Bon*

* Edmund Bon is an advocate and solicitor of the High Court of Malaya.1. See Cato Handbook for Congress, Chapter 2, at http://www.cato.org/pubs/handbook/hb105-2.html2. Ibid.

Civil Society

When we speak of the promotion ofmultilateral and international law throughcivil society, it is necessary to remindourselves what we mean by ‘civil society’.We have in the past used the term ‘civilsociety’ or ‘civil society groups’ freelywithout a real understanding of its truepurport. In the absence of such anunderstanding, the following analysis wouldmean different things to differentaudiences.

Various attempts to define ‘civil society’have been made. Unfortunately, there is noone clear definition.

The Cato Institute put it this way:

As political society – government –grows, civil society retreats. It is in civilsociety – the realm of liberty – thatmankind flourishes. It is from civilsociety that industry, civility, rectitude,science, and prosperity arise. … Civilsociety can be difficult to understand;it is individualistic without beingatomistic and is made up of associationswithout being collectivist. Civil societyis a spontaneous order, a complexnetwork of relationships and associationsbased on the freedom of the individual,

who voluntarily assumes obligations andaccepts responsibility for his or herbehavior.1

Civil society is defined as a structure orassociation, loosely organized, and whichoperates voluntarily. This is opposed to a‘state or political society’, which operateson principles of coercion or self-interest.Examples such as self-help groups,consumer associations, non-governmentalorganizations (NGOs), charitableorganizations, human rights organizationsand trade unions constitute some of thediverse forms of civil society groups.

The Cato Institute explains:

No one is coerced into joining them, andthey have no coercive power to forcetheir desires on the unwilling. Politicalsociety encompasses those institutionsthat exercise coercion, whether in theirfinancing (e.g., taxation), theirparticipation (e.g., conscription), ortheir activities (e.g., economicintervention in or prohibition ofpeaceful activity). Government is theinstitutionalization of coercion.2

No society can surely be flourishing and happy, of which the far greater part ofthe members are poor and miserable.

Adam Smith, Wealth of Nations


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State or political society is meant to protectcivil society. The roll-back of civil societyoccurs when political society plays a rolebigger than is necessary, eating into civilsociety:

Political society can do no more thanprovide the framework for virtue,industry and responsible behavior; itcannot mandate them. The moralawakening that is necessary will come,not from the corrupted centers ofpolitical society, but from the remaininghealthy sectors of civil society.3

When the role, importance and legitimacyof civil society diminish, liberty, personalindependence and respect for the humanperson diminish as well. Such conditionswould not encourage the flourishing ofindividualism.

The second definition of ‘civil society’ saysit is a sort of ‘space’. It is not made up of acollective ‘tangible’ grouping oforganizations, institutions or associations.It is something intangible – space – andthis space is something that we are allentitled to and should claim. It is nothomogeneous. It is limited at a point intime. The state or government competesfor the same space. If it succeeds inclaiming that space, it will be the voice ofcivil society. And if indeed that is the case,its views would prevail. Therein lies thesupport of the people. If it indulges in aculture of myth-making, this voice of civilsociety would be lying and the people wouldbe deceived.

This space of civil society can be createdand enlarged, claimed or re-claimed. Theconstant struggle for that space is ourchallenge as human rights advocates andactivists. We must always strive to claimthat space in our work.

Be that as it may, this view of civil societycan be uncomforting and dangerous. Itdivides people. An example of this is inMalaysia, where snatch theft incidents havebeen on the rise. People are fearful. Thegovernment has declared that suspectedsnatch thieves who are arrested will not beput on trial, but detained under Malaysia’sEmergency Ordinance.4 Suspectedterrorists in Malaysia are already servingdetention orders under the InternalSecurity Act.5 Most ordinary citizenssupport such moves, saying, ‘Why not?’From a human rights perspective, this isnot quite right. Yet, is the voice of civilsociety reflected in public approval of suchmeasures by the government?6

The human rights struggle has never beena short-term programme. Rather, it isprojected as a slow, tedious process and along-term investment for yields in thefuture. It is for a better society and a justworld. The question that must always beposed based on this space concept of a ‘civilsociety’ is: What type of a state do we wantto live in, and how are we to treat eachother?

In doing this, we will appreciate that thespace we are to create, claim or re-claim

3. Ibid.4. This Emergency Ordinance is a preventive detention law that allows the executive to sign orders detaining

suspects without charges being brought against them and without a trial. The orders may be extended and thedetainee may be detained for an indefinite period.

5. This Act also allows for detention without trial.6. The now infamous efforts by the Prime Minister of Thailand to stem the drug trade in that country are a good

illustration. As many as 2,500 people were killed within three months in the first campaign of the government’swar on drugs. A coalition of 51 Thai and international human rights and health organizations have condemnedthis, claiming alleged drug offenders were shot dead in apparent extrajudicial executions. The government hasjust announced a new campaign to send drug dealers to meet the ‘guardian of Hell’: see Bangkok Post, 6 October2004, p. 12 and 7 October 2004, p. 6. In principle, shooting to kill suspects is wrong, as there should be apresumption of innocence. But is this the voice of civil society or would society encourage such action in the nameof eradicating drug crimes?


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as the voice for civil society lies ultimatelyin the application of global human rightsnorms, articulation of international lawprinciples and advocacy of minimumhumanitarian standards. International lawprovides core content for the protectionof rights, balancing of interests andadjudication of disputes. This wouldgovern relations between states and betweenstates and non-state actors.7 This would also

guide national, regional and internationalmechanisms to resolve conflict situations.Domestic or national laws may or may notbe consistent with international law normsand should always be tested against thebackdrop of international trends. It is inthis context that we should constantly focusour advocacy strategies and campaignpolicies – and not lose sight of them.

Human Rights Flavoured International Law

The human rights movement of today hascome a long way. The language of ‘rights’,arguably started as a way to limit the powersof the state, can be traced back to theMagna Carta in 1215. There followed ahistory chequered with wars, conquests,torture, liberation, genocide and, ingeneral, crimes against humanity.8 Theformalization of laws which aimed toprevent, govern and alleviate the recurrenceof such acts then found themselves in theprincipal instruments of the United NationsCharter, the Universal Declaration ofHuman Rights, the International Covenanton Economic, Social and Cultural Rightsand the International Covenant on Civiland Political Rights. These covered broadareas.

Specific issues or groups, such as thoserelating to women, children, forced labour,genocide, human trafficking andexploitation, slavery and the slave trade,war crimes, crimes against humanity, racialdiscrimination, biological and toxicweapons, stockpiling and use of chemicalweapons, apartheid, torture, degrading and

inhuman treatment or punishment,refugees, stateless persons and theinternational criminal court, have also beenaddressed by international conventions andinstruments.

What is my point? It is clear that the lowestcommon denominator running through thevarious instruments deals, in one way oranother, with the rights of individuals and,collectively, against the state. While theinstruments are ratified by states and, inmany instances, may express theobligations of a state vis-à-vis another state,the nucleus of the instruments is theprotection, not only of individuals of thosesame states, but also of the globalpopulation. It seeks to empowerindividuals, the disempowered or themarginalized. It breaks down sovereignbarriers and geographical boundariesbetween states.9 It is prefaced by thecommon thread that all persons, no matterwhere they may be, without distinction ofany kind, whether race, colour, gender,language, religion, birth, origin, politicalor other opinions, or status, are born free

7. It is interesting to note that human rights norms recently found their way into the area of corporate responsibilityand business enterprises when the United Nations Subcommission on the Promotion and Protection of HumanRights on 13 August 2003 approved and adopted ‘The Norms on the Responsibilities of TransnationalCorporations and Other Business Enterprises with Regard to Human Rights’.

8. For a comprehensive account of the human rights story, see Geoffrey Robertson QC, Crimes Against Humanity– The Struggle for Global Justice, 2nd edn. (London: Penguin Books, 2002).

9. The clearest example of this is no doubt seen through the wide-ranging provisions of the Convention Relatingto the Status of Refugees and the Convention on the Status of Stateless Persons.


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and equal and are to be treated with respectand dignity. This is the essence of humanrights. This is what we have taken for

granted, and perhaps forgotten, and I willaddress this issue now.

10. See Louise Arbour, United Nations High Commissioner for Human Rights, ‘Security under the Rule of Law’.Keynote address at the Biennial Conference of the International Commission of Jurists, Berlin, 27 August 2004,at http://www.hchr.org.co/publico/comunicados/2004/cp0431.pdf and Wilder Tayler, Legal and Policy Directorof Human Rights Watch, ‘Towards an Advocacy Strategy for Human Rights in the Fight Against Terrorist Acts’.Paper at the Biennial Conference of the International Commission of Jurists, Berlin, 28 August 2004.

International Standards, Terrorism and Human Rights

Terrorism has, at this stage, momentarilycrippled the human rights movement. Wehave lost the momentum and the moralground-swell of the people. We are,wrongly, seen as assisting terrorist activitiesin the name of human rights. Terrorismhas overtaken us. States have fast-forwardedthe process of implementing laws withoutproper and true consultation with us, andall in the name of security. We have notcaught up. We are wayward and haphazard.We have been too slow to react. There is alack of a concerted plan or energy toposition ourselves on this issue. We aremerely responding on an ad hoc basis. Thequick succession with which the UnitedNations passed resolutions andconventions to deal with terrorism, withoutsignificant human rights input as to theircontent and reach, is worrying. Countriessuch as Malaysia, which have not ratifiedcore international human rightsconventions, have, nevertheless, acted onthe terrorism resolutions passed and ratifiedterrorism conventions. This leaves theterrorism law and security measures opento abuse without corresponding civil andpolitical rights protection for the people ofMalaysia.

The human rights movement has beentaken by surprise that non-state actors havecome to the fore to violate rights.10 Whomdo we protect? What do we say? Humanrights are meant to protect people – butwho are the people to be protected?

We see how politics and a heavy-handedgovernment in Indonesia is keeping AbuBakar Bashir behind bars, despite havingserved his sentence and been cleared ofcharges of being the spiritual leader ofJemaah Islamiah. It appears to be apolitically motivated persecution, using thelaw as a tool. Human rights norms dictatethat a person who has undergone dueprocess and served his sentence ought tobe released immediately. Yet we tip-toearound the issue when we are told that heis being detained for another terrorismoffence, as new evidence has emerged thathe is the leader of Jemaah Islamiah.

It is this archetype which calls to the foreand tests our resolve in maintaining humanrights principles and norms. We mustexplain to the people that upholding humanrights does not mean supporting terrorism.This would require grassroots advocacy insimple language, on how human rights, infact, when applied properly and within atrue context, encourage conditions forpeace, security and protection whileupholding rights. We need to do morework, to go back to the ground, to engagethe masses from the perspective that theyare the victims we are seeking to protect.This would take a shift in mindset,emphasis and strategy, but we must do sowithout losing focus on the fact that thesame human rights must be accorded tosuspected terrorists. Once we are aware ofthis need, we can forge ahead purposefully.


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In relation to the numerous security lawsand anti-terrorism legislation passed byvarious states so swiftly, we have lost outon propounding human rights safeguardsinto such measures and enactments. Takingit from here, we must be alert to thepossibilities for abuse and advocate narrowand strict applications of such measures,in a language which will be supported bythe people, while not diluting the rightscontent of our message. We must alwaysemphasize that security is a priority to begiven equal weight to that of rights, andthat both can co-exist without onecompromising the other. We must remindsocieties that we are in this for the longhaul and that the measures advocated areto create a future that is safer than it isnow. Despite all the measures taken so far– measures that have largely ignored rightssafeguards – the world is no safer a placenow than it was before.

The courts of advanced societies have to,and are beginning to, respond in relationto the rights of suspects. In the USA, wherethe ‘war on terror’ emanated, the decisionsin Rasul et al. v. Bush et al.,11 Hamdi et al.v. Rumsfeld et al.12 and Humanitarian LawProject et al. v. John Ashcroft et al.13 go along way to reaffirm core human rightsnotions in the face of the overwhelmingpolitical might of the executive in the waron terror.

In Hamdi et al. v. Rumsfeld et al, JusticeO’Connor said:14

Striking the proper constitutionalbalance here is of great importance tothe Nation during this period of on-going combat. But it is equally vital thatour calculus not give short shrift to thevalues that this country holds dear or tothe privilege that is Americancitizenship. It is during our mostchallenging and uncertain moments thatour Nation’s commitment to due processis most severely tested; and it is in thosetimes that we must preserve ourcommitment at home to the principlesfor which we fight abroad.

Indeed, the position that the courtsmust forgo any examination of theindividual case and focus exclusively onthe legality of the broader detentionscheme cannot be mandated by anyreasonable view of separation of powers,as this approach serves only to condensepower into a single branch ofgovernment. We have long since madeclear that a state of war is not a blankcheck for the President when it comesto the rights of the Nation’s citizens.

Thus, while we do not question thatour due process assessment must paykeen attention to the particular burdensfaced by the Executive in the context ofmilitary action, it would turn our systemof checks and balances on its head tosuggest that a citizen could not makehis way to court with a challenge to thefactual basis for his detention by hisgovernment, simply because theExecutive opposes making available sucha challenge.

11. Case No. 03-334 (542 U.S. _ (2004)).12. Case No. 03-6696 (542 U.S. _ (2004)). Hamdi was decided by the Supreme Court of the United States on 28

June 2004. Yaser Esam Hamdi, an American, was detained at some point in 2001 on the Afghanistan battlefieldby the Northern Alliance and was turned over to the United States military. He was interrogated and transferredto Guantanamo Bay in January 2002, then to a naval brig in Norfolk, Virginia in April 2002, where he remaineduntil he was transferred to a brig in Charleston, South Carolina. He was the first detainee labelled by the USgovernment as an ‘enemy combatant’. No formal charges or proceedings have been filed against him. Subsequentto the Supreme Court decision, Hamdi was released on 11 October 2004. This is a victory for the human rightsmovement.

13. Case No. CV 03-6107 ABC (MCx).14. At pp. 25, 29 and 30.


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In the United Kingdom,15 lawyers for nineforeign terror suspects detained in Britishprisons without charge for nearly threeyears recently commenced openingarguments. The argument has been madethat it is ‘unacceptable to lock uppotentially innocent people without trial orwithout any indication when, if ever, theyare going to be released’.16 It is hoped thatthis argument, based as it is on human

rights notions, will prevail.

International human rights principles arenorm-setting, time-honoured, agreed uponand cannot be derogated from, except incertain situations. This is precisely to caterfor the situation now facing us. It does notmatter to whom we apply the principles, itmust be done. And we must not be afraidto say so.

15. See Robert Verkaik, ‘Appeal begins for terror suspects held in “UK’s Guantanamo”’, The Independent, 5 October2004.

16. Ibid.17. With many reservations, in effect rendering such ratification a mere formality with little practical use. The

domestic legislation in the form of the Child Act recently passed further waters down the effect of the Convention,and it does not adequately cover many areas such as pre-trial detention for investigations. There has also been nolegislation prohibiting children, protected by the Convention, from being detained under Malaysia’s InternalSecurity Act, which allows for detention without trial. Recently, and despite ratification of the Convention, thegovernment detained without trial under the Internal Security Act several children under the age of 18, who wereprotected by the Convention, under suspicion of being trained in Al-Qaeda camps in Pakistan.

18. To date, no new and wholesale legislation has been put in place to effectively empower Malaysia’s internationalcommitments under the Convention domestically.

Human rights campaigning for developingsocieties may be seen as a three-tier‘building-blocks’ process:

1. Awareness2. Advocacy/Articulation3. Action

Developing societies, such as Malaysia, arestill at a very early stage of understandingand accepting international human rightsnorms. I speak in terms of both the publicin general and the government. Awareness,therefore, is at its minimal and requiresaddressing. I will illustrate the three-tierprocess using Malaysia as the example.

While our Human Rights Commission(‘SUHAKAM’) has repeatedly called on thegovernment to ratify core internationalconventions, such as the InternationalCovenant on Economic, Social andCultural Rights and the International

Towards a Concerted and Effective International Human RightsLaw Campaign

Covenant on Civil and Political Rights, thegovernment has thus far refused to do so.Malaysia has only ratified the Conventionon the Rights of the Child17 and theConvention on the Elimination of AllForms of Discrimination against Women,18

both of which appear to be the leastpolitically sensitive and, it can be argued,are part of a policy to bolster thegovernment’s popularity.

The majority of the public at large appearto have yet to reach full awareness of humanrights principles and their impact, let aloneinternational norms. SUHAKAM has, sinceit was formed, commendably and to a largeextent, contributed to formalizing andlegitimizing human rights activism andadvocacy in Malaysia, which was once seen(and may still be seen by some quarters) as‘anti-establishment’ or ‘anti-government’.This, in turn, has seen an encouraging risein public education of international human


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rights norms. There is still a long way togo, but we are much closer now than weever were before.

Without full awareness, it is not possiblefor the masses to advocate and clamourfor action in implementing internationalhuman rights norms by the government. Itcannot be denied that NGOs and civilsociety groups in Malaysia havecontributed immensely by engagingSUHAKAM and complementing itswork.19 It is hoped that SUHAKAM willcontinue to provide avenues forcooperation with other NGOs and civilsociety groups in raising awareness, whichis the first tier.20

The problem that poses a challenge toSUHAKAM is that if it works too closelywith these groups, its perception andcredibility may be affected. However, thisshould not cause any concern consideringthat, even at present, the government viewsSUHAKAM with caution and has chosen,up to now, not to debate any ofSUHAKAM’s reports in parliament. Nosubstantial reasons have been given for this.If the cause is right, I see no reason whySUHAKAM should distance itself fromother human rights groups.

On creating greater awareness, I am of theview that we are heading in the rightdirection, but it will take time. As a broad-brush approach, national human rightsorganizations can play an extremelyimportant function, especially in somedeveloping Third World nations wherehuman rights activism is viewed withsuspicion and hostility. Legitimacy,independence and credibility are provided

by such organizations. It is as much whatis being said as who says it that matters.I am not saying that this is right, but itis a strategy that we can, and should,capitalize on.

In terms of the second tier, advocacy orarticulation involves creating anatmosphere of constant engagement withthe government on the delivery of humanrights, either by way of participatorydiplomacy and consultation, or bymounting legal challenges. It also coversmonitoring and accurate collection of dataor information to be used in suchengagements. Engagements in these formsshould become the norm rather than theexception. Ingenious and innovativeinterpretations of domestic or internationallaw with comparative applications ofinternational human rights norms of othercountries should constantly be broughtforward and argued. Legal test cases toanalyse and examine the parameters shouldfrequently be filed. There should betraining, encouragement and vigilance tomake this a culture of our work. Data andinformation should be collected with thedual purpose of presentation togovernments for action and, if no action istaken, for legal cases to be filed. Timeframes should be put into place for eachindividual issue or factual scenario. Plansof action must be drawn up, systematically,at the outset. If there is no will or resourcesto follow the plan through, or if it isimpossible, it should not be embarked on.

We lack real and substantial organizationand structure. Our resources are stretched.The way forward in this area must thereforebe coalition based. There are insufficient

19. For example, in a climate of tight governmental control of the media in Malaysia, human rights groups use theoffices of SUHAKAM to lodge complaints in public, where there will be media coverage, and at the same timehold press conferences with the media on the issue. This has met with some success and has paved the way forthe media to highlight and report on politically sensitive issues that would not have been reported on in the past.The apparent and perceived independence, legitimacy and credibility of SUHAKAM in the eyes of the media arereasons enough not to censor such reporting.

20. One area that should be explored is the recent move by SUHAKAM to introduce a formal human rights syllabusin schools.


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coalition-based initiatives. Human rightsorganizations must set aside any differencesor bickering and work together, even if itmeans competing for the same funds.Ernesto Che Guevara was once quoted assaying in a speech:21

If we lack organisation, the ideas, afterthe impetus of the first moment, losetheir effectiveness, fall into the basicroutines and conformity, and becomesimply a memory.

Needless to say, there is insufficientpositive engagement with the governmenton human rights issues in Malaysia. Thisis partly because we are ourselves not asorganized as we should be and partlybecause the government culture has beenthat the authorities shy away from any talkof human rights, rarely grant us an audienceand, when they do, there is in place a greatdeal of bureaucracy coupled with a slowturn-around time. The only time we willprobably find the government taking aposition and responding quickly enough iswhen a case is filed in the courts.

It is in this area that we should find waysand means to litigate human rights cases,as and when the facts permit. Thisheightens accountability, not only thegovernment’s but also the court’s – we wouldknow where the judiciary stands on aparticular issue. We should appreciate thevalue of legal cases for they increasediscussion and constructive dialogues. Itshows where we are lacking and where weare heading in terms of protection. Itdefines issues, narrows facts, setsboundaries, tests the law and makes publicthe official position of governments.

The media has not been as fully utilized asit should. Not enough attention has been

paid to positioning human rights issues andarticulating human rights language with,and through, the media. The freedom ofexpression and the press as fundamentalhuman rights are indivisible from and partof the actual, content-based, capacity-building human rights advocacy. The rightsenshrined in the former are imperative andnecessitate the effective articulation ofhuman rights issues within the latter. Mediacontacts should be lobbied, personally, onevery issue, with a view to explain and helpthem internalize human rights andinternational norms. Strategies should beworked on to educate the media oneffective human rights reporting. Humanrights language in press releases oradvisories should be easy to understand,concise and relevant, yet worthy of report.All this has largely been ignored, especiallyin Malaysia.

This second tier is unfortunately still verymuch a new area for Malaysia. But, whilelittle has been done, there is surely moreto come. We are said to be a peace-lovingand conflict-avoiding people, prepared toaccept what may come, but, it is hoped,with organization, vision and structure, wewill make progress in this area.

The third tier of action concerns theultimate in human rights protection – it iswhen the government puts into place themeasures that we have been advocating.In Malaysia these have been few and farbetween, except when measures are seento be popular with the people. This thirdtier is a culmination of the first and secondtiers. Any progress made towards thefulfilment of this tier is a step closer tofulfilling what is desired. Of course, follow-up and monitoring of measures put in placeis mandatory as part of this strategy.

21. Eduardo Sanchez, ‘Remembering a journey with Che’, (Project Syndicate), reproduced in Bangkok Post, 6October 2004, p. 12.


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As human rights advocates, we must alsobe perpetual optimists. We may not all seeit achieved in our lifetimes, but that is thestruggle. The human rights movement is astruggle to the death of certain ideas andfor the birth of certain ideals. It is thisstruggle which will ultimately rest in thethird tier – that certain practices, policiesor laws are put to death so as to give riseto the application of accepted internationalhuman rights norms.

You will notice that the strategies I havestated appear to deal with human rightsissues in which the violater is the state.We should remember also to factor

violations by non-state actors, such asterrorists, into our campaigns, but weshould never compromise established andavowed human rights norms in the nameof security. Both can exist in tandem. Donot become defensive over the question ofterrorism. A balance can be struck – thequestion is how. The specifics would largelybe based on the particular issue orlegislation at hand. For example, humanrights may be implemented in security lawsin the form of safeguards (i.e. couched inthe negative) rather than as expressions ofprivileges to be claimed (i.e. couched inthe positive).

22. This can be found at http://playagiron.org/docs/guevara/man.php

The End-Game

International human rights law is theculmination of the experiences of otherswho have suffered and died or survived.They are not necessarily from the samecountry as I, but their experiences can beused by me in my country. An issue wonor lost in another country today is an issuesimilarly won or lost in my country today.International human rights law transcendstime, people and place.

It is time to remember our core principles,to consider the challenges ahead, to re-thinkour strategies, to go back to the masses, toarticulate or re-articulate our rights agendaand to lay claim to that space of civil society.

In his treatise ‘Socialism and Man inCuba’,22 Ernesto Che Guevara wrote thefollowing, which may be of relevance:

The road is long and full of difficulties.At times we wander from the path andmust turn back; at other times we gotoo fast and separate ourselves from themasses; on occasions we go too slow andfeel the hot breath of those treading onour heels. In our zeal as revolutionistswe try to move ahead as fast as possible,clearing the way, but knowing we mustdraw our sustenance from the mass andthat it can advance more rapidly only ifwe inspire it by our example.

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‘The International Criminal Court - A New Era for Justice?’ Conference Summary

The Friedrich-Ebert-Stiftung Office forRegional Cooperation in Southeast Asia andthe Manila Office of Friedrich-Ebert-Stiftung jointly organized its seventhInternational Human Rights Conference on11-12 October 2004 in Manila, thePhilippines. About 50 participants fromgovernmental, non-governmental, academicand legal institutions within the Philippines,Southeast and East Asia, and Europeattended the conference.

All seven human rights conferences since1996 have had the aim of preparing venuesfor open and constructive dialogue onhuman rights between representatives ofdifferent sectors of polity and society fromAsian countries and Europe, and tocontribute to a more practical andpragmatic approach and possiblecooperation beyond the sometimesconfrontational rhetoric of the past.

The objective of the seventh conferencewas to exchange views on the issues of globalhuman rights with special reference to theInternational Criminal Court (ICC), andto raise awareness about the need toconvince and encourage countries in Asiato become signatories to the Rome Statutewhich established the ICC in The Haguein 1998.

The main emphasis of the conference wasthe ‘dialogue’ – a dialogue between

An Asia-Europe Dialogue on Human Rightsand International Law: ‘The InternationalCriminal Court – A New Era for Justice?’Conference Summary

concerned people from Europe and Asia.Both keynote speakers referred to thatprinciple of dialogue. First, the formerGerman Minister of Justice, Professor DrDäubler-Gmelin, who said that ‘Dialoguebetween the regions is of great importance,as we have to find out if we are using thesame language when talking about humanrights and to know if we are using the samemeasurements for implementation andcontrol of human rights’. The PhilippineChief Justice, the Honourable Hilario G.Davide, Jr., stated that the dialoguebetween Asia and Europe rests on twopremises: first, that human rights areuniversal and must withstand the myriadqualifications of cultural relativists; and,second, their recognition and enforcementmust always be a cultural concern. In thiscontext he stressed that the West mustrecognize the deeply rooted spirituality inAsian life, and that the dialogue betweenAsia and Europe can find freshness in thereligious and spiritual traditions of theOrient, compared to the discourse ofhuman rights in the West, which is oftenconfined to the language of law.

No doubt, living in an era of globalizationrequires global laws, especially globalhuman rights laws. Nation states cannotfulfil their obligations to their citizens ifthey rely exclusively on their national laws.Globalization in all its forms – trade,economy, finance and communication, as

Norbert von Hofmann*

* Norbert von Hofmann is the Head of the FES Office for Regional Cooperation in Southeast Asia, Singapore.


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well as terrorism and cross-border crimes– shows that nation-states are loosingcontrol. Ongoing denationalization forcesnation-states to engage in moreinternational cooperation, resulting in a cryfor ‘global governance’ or, even better, for‘good global governance’. As Willy Brandt,the German Nobel Peace Prize winner oncesaid, ‘We all live in a global neighbourhood’.

The need for global governance was definedby:

■ An emerging legal pluralism;■ The blurred borders between hard law

and (non-binding) soft law, such ascodes of conduct, rules by non-stateactors, international treaties andconventions, international monitoring,compliance mechanisms, rulings byinternational financial institutions, etc.;

■ The increased role and influence of non-state actors such as non-governmentalorganizations (NGOs), internationalcivil society groups and multinationalcorporations (MNCs).

This demand for a stronger role for non-state actors was a thread through all thediscussions over the two days of theconference, especially because manyparticipants were representing civil societyor NGOs. To quote Willy Brandt again,‘International cooperation is far tooimportant to leave to governments alone’.In this context there were repeateddemands for NGOs, civil society groupsand MNCs to define their rights and duties.Something like a ‘code of ethics’ isnecessary.

It was observed that civil society had lostground and space in the changed securityenvironment since 11 September. Theenemy is no longer the government or thestate only but also non-state actors, whichare difficult to define. It is thereforeessential to keep in touch with the peopleand not to dismiss domestic forums as a

means to achieve international rules of lawand global human rights.

The answer to the demands for ‘good globalgovernance’ is a series of internationalconventions, including human rightsconventions, core labour standards,international environmental law, financialregulations and so on. It is obvious thatglobal governance requires newinternational laws, new legal bodies as wellas a new understanding of the sovereigntyof states.

However, the transfer from purely state(rules) to international rules is not a linearprocess. There will be plenty of hiccups,set-backs and backlashes, and, of course,some states will try to be more equal thanothers. But in the end, even the mostpowerful states cannot achieve the primarytask of securing human rights for theircitizens without participation in theinternational community.

A problem seen by many participants wasthe lack of transparency and internaldemocracy as well as the inequality thatexists in international or global institutions,such as the Security Council of the UnitedNations and the Bretton-Woodsinstitutions. To achieve ‘good globalgovernance’ these institutions need tochange. Again, NGOs and civil societyhave to and can play a very important rolehere.

The ICC is a great step towards fairer andjust global governance. It is, of course, onlyone of several cornerstones needed, but itis an important cornerstone. It is an answerto the world’s shared desire for moreinternational justice.

The conference was privileged to haveamong its participants Dr Hans-Peter Kaul,one of the 18 judges of the ICC and a highlyqualified and passionate representative ofthe court. Dr Kaul spoke about the current

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situation of the court, identified the majorchallenges and tasks ahead and drew somefuture scenarios of the ICC.

The Rome Statute of the ICC has beenratified by 97 states – the majority of theUN member countries. The court startedin The Hague in July 2002 with only fivestaff members. Two years later, there are270 people from 70 countries workingthere.

The court itself is still under constructionin both senses of the word. Thecourtrooms are presently being built andthe organizational structure is in the processof being set up. Four chambers have beenformed and the first two cases are underinvestigation: the Democratic Republic ofCongo and Uganda. The ICC will try toconcentrate its work on the prosecution ofthe so-called ‘big fish’, without creating toobig a justice gap. Also important will be itsrole of achieving a balance betweenefficiency and finding the truth. The ICCwill certainly draw on the experiences ofthe ‘ad hoc tribunals’, especially theYugoslavia trials.

All participants saw the ICC as a symbolfor a global rule of law – a powerfulreminder that not all crimes will gounpunished. The ICC will set newinternational legal standards and it will sendout a clear signal to all perpetrators thatthey can be prosecuted. But the ICC willalso be a ‘wailing wall’ and a documentationcentre, and will provide comfort to thevictims of severe human rights violations.

The ICC was the first democraticallyestablished international institution. Notonly states but also civil society andindividuals took part in its formation.

Unfortunately, Asia is a region with a verysmall number of signatory states. Only twoout of the ten Southeast Asian countries –Cambodia and East Timor – and six out of

all the countries in the Asia-Pacific regionhave ratified the Rome Statute. All thelarger countries in the region are missingfrom the list, despite the fact that it is inthis region that the most crimes againsthumanity have taken place, often in aninstitutionalized form.

What are the reasons for this poor responsein Asia? One reason is the politicalinfluence the United States of America(USA) has in the region. The present USgovernment not only refuses to sign theRome Statute, but also tries to convinceother countries not to. In addition, the USAforces other countries to sign bilateralagreements, which guarantee that therespective country will not extradite anyUS citizen to the ICC. The USadministration even threatened to withdrawmilitary aid or US peacekeepers fromcountries that ratified the Statute.

The position of the present USadministration is that the ICC lacks thenecessary checks and balances andundermines the US constitution byinfringing on its sovereignty.

All participants agreed that US ratificationand membership would certainly be a greatasset for the ICC. Nevertheless, at present,US membership is not essential for theexistence and work of the ICC. Morecountries will join in future, putting theUSA more and more on the defensive. And,one should not forget that there are alsolarge groups in the USA who are stronglyin favour of the ICC.

Another reason for the small number ofAsian signatories is the lack of informationand knowledge about the ICC, both forstakeholders – parliamentarians andmembers of the legal profession – and thepublic. This was mentioned time and againduring the two days of the conference. Inthis context, NGOs and civil society groupshave an important role to play in educating


44

the public. The NGO coalitions for theICC, both in Europe and in Asia, have tobe congratulated for their excellent work.Another important aspect is the role of themedia in disseminating information on theICC and the availability of documents. Alsomentioned was the need to get regionalorganizations such as the Association ofSoutheast Asian Nations (ASEAN), theSouth Asian Association for RegionalCooperation (SAARC), the Asia-EuropeMeeting (ASEM) and the Inter-Parliamentary Union (IPU) involved.

The so-called ‘war on terror’ is becomingan increasing threat to the existence of theICC. Presently, unilateralism seems to havethe upper hand over multilateralism. Butthis will only be a temporary set-back. Allparticipants strongly stressed theimportance of multilateralism, which is ananswer to the negative aspects and growinginjustice of globalization, especially theneed for a multilateral rule of law andmultilateral efforts in peace building andconflict prevention.

One repeatedly asked question was: ‘Is theICC a threat to national sovereignty?’ ICCjudge Dr Kaul vehemently denied this. TheICC is neither a threat nor is there anyhidden agenda. Individual states had, inthe past, sought to punish perpetrators ofsevere human rights violations, regardlessif they were citizens or not. All the crimeslisted in the Rome Statute have been listedin other conventions, such as the GenevaConvention. Thus the argument that theICC is a threat to sovereignty is a matterof misinformation and untrue. What isnew is that the ICC is a standinginstitution, and it seems as if countries inSoutheast Asia are far more reluctant tojoin permanent institutions than countriesin Europe. For example, civil societygroups have been lobbying for an ASEANhuman rights mechanism for many years,but there has been little progress so far.

The ICC has no primary or paralleljurisdiction, only a secondary one.Conferring the right to prosecute suchterrible crimes against humanity on theICC is not a limitation of nationalsovereignty, but a sign that the state issovereign in its decision.

In this context, it was mentioned that oneshould not forget that there are manycountries, both in Europe and Asia, thatare still struggling for a national identity.For those countries it is not easy to confersome of their sovereign rights to aninternational body before achieving fullsovereignty for themselves. It might benecessary in a globalized world to define‘nation-state’ anew.

Another concern raised was that the ICCwill follow purely Western legal concepts,neglecting the social and politicalbackground of developing countries. AsChief Justice Davide mentioned in hiskeynote speech, poverty is no excuse forthe violation of human rights, but both arelinked. A Chinese participant stated inhis paper: ‘I believe that the complicatedsocial and political backgrounds world-wide, the existence of political strugglesamong different countries and the unequaltreatment of advanced countries versusdeveloping countries are part of the reasonsfor the non-signing of the Statute.’

Later on, however, the Chinese participantsuggested that the concept of sovereigntyshould be changed ‘from a state that hasthe inherited supreme power to treat itsdomestic and international affairsunrestricted from other state’s intervention’into ‘a state that handles its supreme powerby treating its domestic and internationalaffairs independently and while exercisingsovereignty, it (the state) enjoys rights andfulfils obligations according to relevantinternational institutions and rules’.

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Both the Chinese participant and Dr Kaulstated that the People’s Republic of Chinais generally in favour of the ICC and mightin the not-too-distant future ratify theRome Statute.

The participants of the conference brieflydiscussed the possibility of taking theBurma case, especially the case of theDepayin Massacre of 30 May 2003, to theICC. However, Myanmar/Burma is not asignatory to the ICC, so the UN SecurityCouncil would have to ask the ICC to takeup this issue. Here again there is the riskof a veto by the US administration, whichpresently has no intention of givinglegitimacy to the ICC.

All participants agreed that there is a needto continue to press for more ratifications,

especially in Southeast Asia. Civil societyhas to play its part in informing the publicof the importance of being part of theRome Statute. Many more meetings likethe one in Manila have to be organized.Furthermore, it is very important that theICC is able to convince the internationalcommunity with a fair, speedy, properlyinvestigated and concluded first case. Thiswould be the best argument in the ICC’sfavour.

There will certainly be set-backs andbacklashes. But these should not discourageus. We all have to be realistic and shouldnot fall into the trap of over-expectation.

The ICC will be a success story. Time ison the side of those who believe inmultilateralism.

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Democracy in Southeast and East Asia: Has It Made Gains?

To be able to answer the question ofwhether democracy in Southeast and EastAsia has made gains, we should begin withthe term ‘democracy’. The term literallymeans ‘power of the people’ (combiningthe Greek words demos, meaning ‘thepeople’, and kratien, meaning ‘to rule’). Itis usually used to describe a political systemin which the legitimacy of exercising powerstems from the consent of the people.Accordingly, a democratic polity is oftenidentified by: the existence of aconstitutional government, where thepower of the leaders is checked andrestrained; representative institutions basedon free elections, which provide aprocedural framework for the delegationof power by the people; competitive parties,in which the ruling majority respects andguarantees the rights of minorities; andcivil liberties, such as freedoms of speech,press, association and religion.

The countries of Southeast Asia are hometo some 500 million people and have acombined Gross Domestic Product of morethan US$700 billion. Their youngpopulations, with large numbers of well-educated and hard-working people, havehelped to make the region one of the fastestgrowing in the world.

Most people believed that one of the mainreasons for Southeast Asia’s decades ofrapid economic growth was the tough,authoritarian style of the region’s leaders.These strong men tolerated little dissent,

Democracy in Southeast and East Asia: HasIt Made Gains?

but delivered increasing wealth and stability.It was a bargain that many Southeast Asianswere prepared to accept as millions of themwere lifted out of poverty. Mostgovernments in the region expresslyrejected ‘Western-style’ democracy andactively promoted ‘Asian values’.

The complexion of these governments isdiverse. They are all members of theAssociation of Southeast Asian Nations(ASEAN). They range from Indonesia, theworld’s largest Muslim country, to Vietnam,one of the last bastions of communism,Brunei, a small oil-rich Islamic sultanate,and the Philippines, the region’s mostraucous democracy, as well as Cambodia,Laos, Malaysia, Myanmar, Singapore andThailand.

The question of whether democracy inSoutheast Asia has made gains suggests aneed for a comparative analysis. The year1997 was a watershed year because of thegreat political changes following thefinancial and economic crisis that affectedmany countries in the region. Prior to the1997 crisis, most governments rejectedWestern-style democracy and activelypromoted Asia values.

However, the decade of despondency thatmany predicted now seems unlikely tomaterialize. Doom and gloom has givenway to renewed optimism and the crisisproduced some positive outcomes: itspeeded up the opening up of economies;

Chow Kon Yeow*

* Mr Chow Kon Yeow is a member of parliament and national vice-chairman of the Democratic Action Party,Malaysia.


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forced Asians to become more aware ofcorporate governance; made the regionfocus on its real competitive strengths;provided a hard lesson about globalization;and, most importantly, paved the way forthe emergence of more open anddemocratic government that will make themost difference to the future of the region.

Today, Southeast Asian leaders must try toensure that their economic recovery issustainable. Some of these leaders are notthe same ones who held power when theregion was hit by the 1997 financial andeconomic crisis.

Where has democracy made gains?

Indonesia is now run by a freely electedgovernment for the first time in more than30 years. The world’s most populousMuslim country has a new leader, SusiloBambang Yudhoyono. The fact that threeelections this year have gone with barely ahitch is remarkable in a country with 220million people, spread across a hugearchipelago of 17,000 islands. It is evenmore remarkable in light of the country’spolitical history: in just six years, Indonesiahas gone from authoritarian rule to thebrink of chaos and now to full democracy.

Susilo has promised to tackle governmentcorruption, which remains a hugeproblem, as well as the unpredictable legalsystem. However, if he is to succeed, hewill also have to take on the parliament,where a coalition of parties linked toMegawati and others with no allegiance tothe new president holds just over half ofthe seats.

Should Susilo fail to deliver on hispromises, he, like Megawati Sukarnoputri,will most likely be ousted from office afterjust one term, for Indonesians, having putup with dictatorship for decades, are alltoo keen to wield their democratic powers.

In doing so, they have unwittingly spawnedthat rarest of creatures, a vibrant Muslimdemocracy.

At the other end of the democracyspectrum, Burma continues to be ruled bya highly authoritarian military junta thatreinforces its firm grip on power with apervasive security apparatus. Citizens stilldo not have the right to change theirgovernment. The military junta continuesto be hostile to all forms of politicalopposition and the government has crackeddown severely on the main opposition party,the National League for Democracy(NLD). Amid international and regionalpressure, the military junta is now takingan even more hard-line position against theestablishment of a constitutional democracyin Burma.

In Cambodia, the promotion of democracyand good governance, as well as thecontinued improvement of human rightshave been on the agenda, althoughCambodia’s human rights record hasremained poor. While there have beenimprovements in some areas, there havealso been a number of allegations of politicalkillings and a climate of impunity forviolence has continued.

The Laos government’s human rightsrecord remains poor. The people of Laoslack basic freedoms, including freedom ofspeech and expression. The only politicalparty – the Lao People’s Revolutionary Party– holds a tight monopoly on all political,economic and social decision-making.Several political prisoners remain in jailserving long sentences, and the judiciaryis under government influence.

Vietnam is a single party state, ruled andcontrolled by the Communist Party ofVietnam. The government has significantlyrestricted freedom of religion, speech, thepress, assembly and association. The

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Democracy in Southeast and East Asia: Has It Made Gains?

government’s intolerance of politicaldissent, including on the Internet, resultedin the arrests and sentencing of severaldemocracy activists who criticized thegovernment.

Heightening awareness of democraticprinciples at grassroots remains importantin these three Indo-China countries.

Between these two spectrums areparliamentary systems of governmentbased on periodic multi-party electionsin the Philippines, Thailand, Malaysiaand Singapore. But has democracy madegains here?

The Philippines continues to be a vibrant,freewheeling democracy with an electedpresident, an elected bicameral legislature,and a fractious but functioning multi-partysystem. The government generally respectsthe human rights of citizens; however, thereare serious problems in some areas, likeextra-judicial killings and widespreadcorruption. Building respect for humanrights in the security forces, promoting ruleof law and transparent practices ingovernment and the judiciary, andstrengthening civil society will promotegreater democracy and good governance.

Thailand is a democratically governedconstitutional monarchy. In the electionsat the beginning of 2001, Prime MinisterThaksin Shinawatra’s Thai Loves Thai Partywon a landslide victory and is by far thelargest partner in a three-party coalitiongovernment. The government and militarycontrol nearly all the national terrestrialtelevision networks and operate many ofThailand’s radio networks. The media arefree to criticize government policies andcover instances of corruption and humanright abuses, but journalists exercise self-censorship regarding the military, themonarch, the judiciary and other sensitiveissues.

If democracy means people have a freechoice between various politicalalternatives in the framework of freeelections and there is a possibility forchange of government by peaceful meansbased on the free will of the people, thenthe Philippines and Thailand stand out asrole models in ASEAN.

Malaysia and Singapore also fulfil thesecriteria, but there has been no change intheir ruling governments sinceindependence in 1957 and 1963,respectively, and the prospect of a changeof government is unlikely in the short term.

The National Front coalition has won everyelection since Malaysia’s independence, butit has never won by such a crushing marginas in this year’s election. Voters awarded it90% of the seats in the national parliamentand it also won control of 11 of the 12state governments at stake. In the electioncampaign, new Prime Minister AbdullahAhmad Badawi stole the opposition’sthunder by promising humbler, cleaner andmore responsive government.

However, there is one item on theopposition’s agenda that Abdullah is likelyto neglect and that is the dismantling ofthe various repressive measures that hispredecessor Dr Mahathir employed todampen dissent. The government stillcontrols the airwaves, potential critics havedifficulty obtaining newspaper licences,opposition politicians are jailed withouttrial and protest rallies are banned. DAPnational chairman and member ofparliament Karpal Singh was suspendedfrom parliament for six months withoutallowance over the swearing in of membersof parliament in the new parliament in May2004. In Malaysia, the inability of theopposition to form a viable, broad-basedcoalition representing the multi-ethnic,multi-religious and multicultural electorateis one of the main reasons why the


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possibility of a change of government isremote.

Under Brunei’s 1959 constitution, thesultan is the head of state with fulladministrative authority. The governmentassures continuing public support for thisform of government by providing economicbenefits such as subsidized food, fuel andhousing, free education and medical careand low-interest loans for governmentemployees. The sultan said in a 1989interview that he intends to proceed toestablish more liberal institutions and thathe would reintroduce elections and alegislature. In 1994, a constitutional reviewcommittee submitted its findings to thesultan, but these have not been madepublic.

This paper has endeavoured to take stockof the state of democracy in Southeast Asia.The past two decades can be consideredan era of democratic development.However, the process of consolidationtowards liberal democracy remains weak.Political change following the 1997 crisisoffered opportunities for the strengtheningof young democracies, ushering in newgovernments that promised reform, andthere is a clamour among Southeast Asiansfor more accountable government and goodgovernance. However, much needs to bedone in some countries to establish andinstitutionalize basic structures fordemocracy to be a legitimate form ofgovernance.

Party Building and Local Governance in the Philippines

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The Philippines is often acknowledged as oneof the places with the best experience in civilsociety engagement of local governance. But,unlike Brazil, where peoples’ participation inthe budget process has had a measurablematerial impact on the lives of the Brazilianurban poor, participatory planning at thebarangay (the lowest level) government levelin the Philippines has had a limited directimpact. Unlike Kerala, in India, and Brazil,where experiments in participatory localgovernance were backed by powerful,established political parties, Akbayan (CitizensAction Party), the political party mostsupportive of participatory democracy, is stilla new and struggling progressive party.

Party Building and Local Governance in thePhilippines1

But the Philippine experience might be ofinterest in countries of the South preciselybecause it is still a ‘work in progress’, onewhere the requisites for work onparticipatory democracy are not set as highas in Brazil and India. In the Philippines,both Akbayan and BATMAN, the maincivil society coalition working onparticipatory local governance, are still inthe throes of working out in theory and inpractice how best to advance participatorydemocracy. This open, highly dynamic andoften contentious process may be moreaccessible to those who want to do similarwork in their countries.

Joel Rocamora*

* Dr Joel Rocamora is the director of the Institute for Popular Democracy in Manila, the Philippines.1. This paper is part of a recently published book on democratization and local governance, Politicising Democracy

– The New Local Politics of Democratisation, edited by John Harriss, Kristian Stokke & Olle Tornquist,pp. 148–170.

Akbayan

Akbayan is often called a ‘social movement’,party because most of its original memberscome from labour, peasant, urban poor,women and other social movements. Butit could just as accurately be called a‘participatory local governance’ partybecause its next batch of members comeout of a decade-long struggle to maximizethe participatory and ‘good governance’potential of decentralization. The comingtogether of these two trends within thecontext of a deep ideological crisis of thePhilippine Left provide the main outlinesof the complex story of Akbayan.

Although formally founded at a congressin January 1998, the very process ofconceiving Akbayan already marked it asa very different political formation. Severalpre-party political formations, called‘political blocs’ in the Philippines,discussed the possibility of forming a newparty as early as the late 1980s. In 1992,these groups, plus many NGOs, supporteda presidential candidate. Although theexperience left much to be desired (thecandidate lost badly), the same groupssupported local candidates in 1995, thistime with many good results. This salutary


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experience formed the backdrop torenewed discussions in the first half of 1996.The very fact that these blocs came together,not as a coalition, as they and some NGOshad tried to do in 1992, but to work togetherto begin the process of building a new politicalparty, was unprecedented in the history ofthe Philippine Left. The resulting conceptpaper was then discussed, first at a nationalmeeting in July 1996, and then at innumerablesmall and large meetings throughout thecountry. By the time of the founding congressa year and a half later, the party already hadmore than 3,000 ‘stakeholders’ who hadattended these meetings.

Only a few months after its founding congressin May 1998, Akbayan won one seat in theparty list election of the House ofRepresentatives. This was a considerable featbecause the party list election for 20 per centof the House of Representatives has anational constituency and voters hardly knewabout this new feature of the electoral system.Ten municipal mayors who won in theseelections subsequently joined the party. Afterthe next election, in 2001, Akbayan had twomembers in the House of Representatives.Nineteen municipal mayors and some 200councillors and other local governmentofficials were elected at the same time. Only20 Akbayan members were elected mayorduring the May 2004 elections, but 59 closeallies, at least half of whom are recruitable,also won. Akbayan is nowhere near being amajor national party, but it has grown steadily.It now has party units in 54 out of 84provinces and in 237 cities andmunicipalities.

Akbayan was consciously set apart fromtraditional Philippine political parties. Theseparties are unabashed élite ‘old boys clubs’.There are non-élite individuals, mostly men,who identify with one or other party, but allof them are followers (‘retainers’ might be abetter word) of élite individuals. These éliteindividuals are linked together in shiftingcoalitions from barangays all the way to the

national government in Manila. Already weakin the period before martial law in 1972,traditional parties have not recovered fromMarcos’ deliberate destruction of all but hisown party. In the post-1986 period, partieshave been so weak that in national elections,coalitions of parties are the relevant campaignmechanisms (Abinales 2003).

In contrast, Akbayan has a mass membershipof close to 100,000 mostly lower class people.This is the source of its self-identification asa ‘progressive’ party. Akbayan’s base in labourunions and organized farmers is now firmlyestablished. Three of the largest peasantfederations in the country are affiliated withAkbayan. There is an ongoing drive toorganize among middle class professionalsand business people. There is a practical aswell as a political reason for this. We cannotwin elections with only the support oforganized workers and peasants. Middle classpeople have networks and personal resourcesnecessary in election campaigns. They alsohave the technical skills needed in governance.Besides, when Akbayan members get electedto office, they do not become mayors orcongressmen only of the poor. They are publicofficials of all citizens.

To prevent disputes over membershipnumbers, there are no member organizations,only individuals. But members of the samegroup organized into party units can formcaucuses within the party. Loosely affiliatedmass organizations are linked throughsectoral party committees of peasants, labour,youth and others. Party structures andprocesses are taken seriously. In practice,deeply embedded anti-democratic tendenciesfrom both traditional and left-wing politicalpractice continue to rear their ugly heads.But inner party democracy is fiercelydefended and fought over. Autonomy of localparty units is an established principle.

Akbayan also sets itself apart from thedominant party-building traditions of thePhilippine Left. Unlike other progressive


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political parties, Akbayan is not a party withone ideology. Many progressive groups andpolitical tendencies work together withinAkbayan – national democrats, socialists,democratic socialists, popular democratsand people who do not give themselveslabels. We are also not linked with anunderground party. We believe that youcannot have inner party democracy if youhave another party dictating who yourleaders and what your policies are. We arenot engaged in armed struggle. We takethe open, legal struggle seriously and donot view it merely as a tactical arena asother left-wing groups do.

Unlike other left-wing parties who take a‘smash the state’ perspective, Akbayan is avehicle for accumulating political power forpolitical reform. From the time of itsfounding congress in January 1998,Akbayan has steadily drawn reformers fromall walks of life into its ranks. It supportsreform in Congress, in the parliament ofthe streets and in local government led byelected Akbayan members. Having townexecutives provides opportunities to showthat party members can promoteparticipatory democracy and goodgovernment at the same time. It might evenbe said that the very formation of Akbayanis a political reform. By forming a new typeof political party, Akbayan is contributingdirectly to transforming our political partysystem.

Democracy is at the core of Akbayanprinciples. Our idea of ‘state’ is one thatimposes distinct limits on the state’s powersover society. We are against a totalitarianstate which insinuates itself into all thespaces of society including private spaces.We operate within a conscious, explicit‘state and civil society’ framework. We willdefend and promote the integrity andautonomy of civil society organizations asone of the central tasks of Akbayan. Wewill actively work to remove obstacles topolitical participation, especiallyrestrictions on the self-organization of thepoor such as those on labour unions.

Working closely with social movementsand other civil society organizations in thelegislature and in the ‘parliament of thestreet’, Akbayan is in the forefront ofstruggles for political and economic reform.Our two representatives in Congress haveeffectively championed electoral reformand migrant rights, fought against the pro-monopoly privatization of water utilitiesand the energy sector, and a variety of otherissues. In the ‘parliament of the streets’,Akbayan and its affiliated organizations andNGOs work actively on a range of issuesfrom agrarian reform to anti-corruptioncampaigns, to women’s issues and gayrights. It is in local government, however,that Akbayan, with the help of friendlyNGOs, is investing in long-term politicalreform projects.

Political Crisis and the Struggle for Political Reform

Party building is happening in the midst ofa deep political crisis. The situation beforeand after the May 2004 elections illustrateswhat we might call a ‘crisis ofrepresentation’. It was a campaign rife withthreats of coup d’état and ‘civil war’. Theleading candidates for president, incumbentPresident Gloria Macapagal Arroyo andaction movie star Fernando Poe Jr.,embodied the main elements of the crisis.

Arroyo became president in January 2001in the aftermath of massive demonstrationsthat brought down elected president JosephEstrada. Although the Supreme Courtlegitimized then Vice-president Arroyo’saccession to the presidency as theconstitutional successor, Estrada followersnever accepted her legitimacy and ralliedbehind Poe.


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Poe followed in the footsteps of his friendEstrada from action movie stardom tobecome the leading candidate in thepresidential election campaign. Poe wasbacked by politicians associated withEstrada and the late dictator Marcos, whosaw him as their only chance to get backinto power. A high school drop-out withoutexperience in politics or publicadministration, Poe, unlike Estrada, hasnever been elected to public office. He cameclose to winning because he had become asymbol for the poor of their deep frustrationwith Philippine politics. Poe provides aperfect example of the right-wing populismthat periodically threatens to throw thePhilippines into political crisis (Weekley2000).

Right-wing populism is the product of twokey elements in the Philippine politicalsituation. The main ‘democratic deficit’ isthe failure of the political system to respondto the needs of the rural and urban poor(Hutchcroft & Rocamora 2003). Sluggisheconomic growth going back to the early1980s, uncontrolled trade and capitalaccount liberalization, privatization andderegulation have combined to produce anever-increasing number of desperately poorrural and urban inhabitants. Because thepoor see that politicians spend more timelining their pockets than doing somethingabout their poverty, they have becomecynical about politics. They have alsobecome vulnerable to the promises ofpolitical charlatans like Estrada and Poe.

The steady erosion of patron-client ties,the weakness of patronage-based machines,and the absence of organizationallycoherent, programme-based politicalparties means that a larger and largerproportion of the national electorate of 40million strong, as it were, vote ‘blind’.Because of the absence of social andpolitical means to ‘organize’ electoralparticipation, voter preference isdetermined mainly by name recognition.

The best-known ‘names’ are those of movieand television actors, sports personalitiesand newscasters. Analysts believe that aslittle as 20 per cent of the national vote isin ‘vote banks’ controlled by localpoliticians.

‘Professional’ politicians have becomeincreasingly aware of the linked problemsof right-wing populism and the weaknessof political parties. As early as May 2002,all major political parties gathered for a‘political summit’ and unanimously calledfor changes in the country’s political systemthrough constitutional reform. Politicalparty leaders, including the president, thesenate president and the speaker of theHouse of Representatives, worked togetherwith civil society organizations to pushconstitutional reform. Leaders and groupswho had opposed constitutional reformduring the Ramos and Estradaadministrations now supported it.

What prevented this consensus fromcoming to fruition was the attempt ofmembers of the House of Representativesto control the constitutional reformprocess. They insisted on pushing reformby convening the two houses of congressinto a Constituent Assembly. Theymanoeuvred to put into place a newparliamentary form of government with aceremonial president, and a unicameralparliament elected in single memberdistricts, the same ones that elect the Houseof Representatives. In this way, the Houseof Representatives would become the all-powerful centre of government andincumbent representatives could getthemselves elected over and over again.

Because organized civil society groups, keyreligious leaders and, most importantly, thesenate president and a majority of senatorsopposed the obvious power grab of theHouse of Representatives, the call for aConstituent Assembly was stopped. Thesegroups instead proposed the election of


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delegates to a Constitutional Conventionat the same time as the May 2004 elections.By the time the Speaker conceded the needto shift to a Constitutional Conventionmode of amending the constitution, it wastoo late to pass legislation in time for theMay 2004 elections.

Despite the defeat of the third attempt inas many regimes to organize constitutionalreform, there are grounds for cautiousoptimism on the ‘demand side’ of politicalreform. The disjuncture between a politicalsystem designed to fit the requirements ofthe Philippines of the 1930s and thePhilippines of the twenty-first century isproducing more insistent demands forpolitical reform. The 1930s political systemcarried over to today was cut to fit therequirements of a colonial government(thus a powerful governor general/president) and Filipino political leaders withlocalized power. This was apparentlyadequate for the needs of a mainly rural,agricultural country with a smallpopulation. It is more and more obviouslyunable to fulfil the requirements of a large,highly urbanized population of 82 million,with a considerably more complexeconomy.

One of the main determinants of Philippinepolitics is local-central government relations.There is a powerful chief executive with vastfiscal and patronage powers, but becausethere is no coherent and stable political partysystem, the president is dependent on localpolitical bosses to mobilize votes andimplement central government policy.Presidents and local bosses are thereforeequally powerful (if at different stages in thepolitical cycle) – a strange political systemwhich is neither centralized nor decentralized.The result is a policy-making process that isdominated by deal-making, which makes itdifficult to pass coherent bills, much lessa series of interrelated legislation. Havingto operate under incoherent, often self-contradictory legislation makes

implementation by the bureaucracy similarlydifficult. Deal-making and negotiationcontinues into implementation and even thejudicial process.

The effect of this strange system is illustratedin the fate of elected administrations. Mostpresidents elected since independence in1946 did not initially have working partymajorities. Within a few months, however,enough members of the majority party shiftto the president’s party in order to get in(party) line for patronage and the porkbarrel. By the middle of the president’sterm, the number of officials who have tobe given patronage shares get to the pointat which it is impossible to make everyonehappy. Towards the end of the president’sterm, unhappy politicians outnumberhappy ones, making it difficult for thepresident to get re-elected or, after 1987,when the president was not allowed to runfor re-election, get his candidate elected(Choi 2001).

The failure of successive attempts atconstitutional reform is particularlyunfortunate because it had the potential tobreak one of the critical ‘log-jam’ points inthe process of political reform in thePhilippines: local-central governmentrelations. The decentralization processopened by the passage of the LocalGovernment Code in 1991 created thepotential for deep reform in localgovernment. But without equally deepreform at the central government level, apossibility closed off by the failure ofattempts at constitutional reform, reformsin local governance could not be ‘clinched’for the whole political system. Instead,central government acts as a lid on thedynamism of local politics.

Local politics in the Philippines, going backto the American colonial period, hasmainly been two key contests: one, who isbest at generating funds from the centralgovernment, and therefore controlling their


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allocation; and two, who controls illegaleconomic activity such as gambling andsmuggling. These contests have determinedthe qualifications of contestants, the natureof the contests, including elections, and thecharacteristic activities of winners. Thefirst contest ‘shapes’ class dynamics in sucha way that family connections, universityeducation and membership in variousnetworks such as university fraternitiesdetermine who the winners are. The secondcontest privileges contestants who are adeptat manipulating illegality and the varioususes of violence. Neither contest has beenconducive to conventional conceptions ofgood governance. They have kept localgovernments somnolent and largely ‘donothing’ operations.

The main reason why these have been themain contests in local politics is thatthrough most of the past century, localgovernments have not had any money. This,in turn, was because there was not verymuch taxable economic activity in mostlocal areas. In most rural communitiesthrough most of the past century the maineconomic activity was subsistenceagriculture. Where there was share tenancy,landlords also tended to control localpolitics and, of course, did not want to betaxed. Illegal economic activity by its verynature could not be taxed except inunconventional ways where the receipts didnot go into government coffers (de Dios& Hutchcroft 2003).

The political economy of local communitieshas gradually changed. Now there are morefunds available locally. The agro-exporteconomy, built by the Americans,concentrated power in Manila, where thecentral government controlled access tointernational markets. This continued intothe post-war period, when foreign financialresources, customs collections and revenuesucked out of local areas added to thecentre’s power. Metro Manila cannotphysically absorb any more industry, and

partly because of this, industrial growth hasbeen moving outside – to the Calabarzonarea, Subic, Cebu and further afield toplaces such as General Santos and Davaoin Mindanao. This dispersal of industryfeeds into internally generated growth inthese and nearby places to spur much fastergrowth.

Central-local economic relations werereflected in and exacerbated by the highlycentralized presidential system ofgovernment. The Local Government Codeitself might be seen as the translation intothe political realm of economicdecentralization. But if economic growthin local areas that are not dependent onfavours from central governmentcontinues, a whole chain of events in thepolitical realm will follow. This localeconomic change, combined with thepassage of the Local Government Code in1991, which mandated an automatictransfer of 40 per cent of internal revenuecollections and widened the taxing powersof local governments, has meant majorincreases in the revenue available to localgovernments (Kerkvliet & Mojares 1991;Lacaba 1995).

Local politicians naturally want morepolitical control over resources generatedby more rapid local economic growth.More revenue in local governments willchange the nature of local political contests.If nothing else, local business people areincreasingly participating to keep the taxbite on them low and to help determinethe uses of taxes they do pay. With moremoney available, the administrativerequirements of local government increase,with corresponding changes in thequalifications of those who contest thesepositions in elections. While this is not yeta nationwide phenomenon and there arestill many authoritarian enclaves dominatedby warlords, there are enough of theseplaces to believe, or at least hope, that thisis a trend for the future.


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Because most studies on Philippine localpolitics do not posit analyses of how andin what direction change is occurring, itmight seem to some that the analysis inthis paper is more than a bit optimistic. Itis admittedly difficult to be politically activewith unalloyed pessimism. It should alsobe pointed out, however, that the kind ofchange I have described is not a generalizedmovement from bad, patronage-driven,patron-client local politics to World Bank-style ‘good governance’. As John Sidelpoints out,2 local politics in the Philippinescannot be forced into a rigid frameworklocating very different situations along a‘what is good for development’ frame. Whatis important is that change is happening.Determining the extent, pace anddirection/s of change requires a lot moreresearch. Political action does not havethat luxury.

The varieties of local situations describedby Sidel are validated by the experience of

Akbayan. There are areas, such as severaltowns in the Bondoc peninsula, where theeconomic control and coercive capabilitiesof local élites spur small farmers intoorganizing themselves and engaging inarmed struggle. There are provinces, suchas Negros Occidental, where tighteconomic and political control by a majoreconomic player, Eduardo Cojuangco, isdifficult to challenge locally. In this case,change will have to await action at thenational level on the source of Cojuangco’seconomic power – the cocoa levy and hiscontrol of the massive San MiguelCorporation. There are many places,however, where changes in the politicaleconomy have disrupted élite control oflocal politics enough to generate openingsfor alternative politics. From the vantagepoint of Akbayan, the problem is not thesupply of reform local politicians but ratherAkbayan’s capacity to identify and recruitthem, and assist them after they join theparty.

More than Difficult, Short of Impossible

This, then, is the historical context ofAkbayan’s party-building project. It is aproject hemmed in from the Right andironically also from the Left. Thankfully,both the Right and the armed Left are inthe throes of political crisis. The assertionof what might be called a Centre Leftpolitical project is at once made necessaryand viable by this twin crisis. While thereare dreams among some Akbayan leadersof ‘political rupture’, making seizure ofpower possible at the centre, the locus ofaccumulation of power by Akbayan is, ofnecessity, in local politics. It is in localpolitics where motivational forces andfacilitative conditions make theaccumulation of power possible.

With only two members in one of twohouses in the legislature and no partymembers in the upper levels of thebureaucracy, Akbayan’s capacity toinfluence national policy is only marginallygreater than civil society advocacy. In fact,Akbayan has almost always worked withincivil society coalitions in pushing itspositions on issues. Its capacity to do so,however, is limited by divisions in civilsociety. It is hemmed in on the one sideby the open formations of the undergroundCommunist Party of the Philippines andwhat are called ‘rejectionist’ breakawaygroups, which have greater mobilizationalcapacity and political command of Leftrhetoric, and on the other side, by civil

2. See his article in Harriss, Stokke & Tornquist, 2004.


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society groups with better socialconnections with the Arroyo government.

There are three major ways in whichAkbayan is accumulating power. The partylist system provides a platform for Akbayanto publicize itself and its programmes, and,together with civil society groups, topromote issues. But the three-seat limit inthe system means permanent minoritystatus in the national legislature. The20 per cent House of Representativeslimit is small enough in a bicameralsystem. Implementing a contradictoryconstitutional provision and enabling lawhas meant that, in both the 1998 and 2001elections, less than half of the available52 seats were filled. The party list systemcan be seen as a limited ‘affirmative action’programme for ‘marginalized groups’.While respecting the ambitions of ‘sectoralgroups’ who want some, even severelylimited, representation, Akbayan iscontesting not only the limited spaces ofthe party list system, but also the politicalsystem as a whole (Velasco & Rodriguez1998).

There are ideological and organizationalobstacles to accumulation of powerthrough organizing social movements. ForAkbayan, abandoning the ‘vanguard party’framework of other Philippine Left groupsmeans ensuring the autonomy of socialmovement groups affiliated with it. Thereare also practical reasons for refusing thedemands of some social movement leadersfor Akbayan to provide political andorganizational leadership to socialmovements affiliated with it. Akbayan doesnot want the often acrimonious divisionsamong social movement groups toexacerbate existing divisions within theparty. In addition, the party has not yetdeveloped the capacity to service socialmovement needs. The political blocs withwhich most of the social movement groupswithin Akbayan are affiliated constitute anideological and organizational ‘filter’

between the party and these movements.While this can be seen as a necessary,intermediate stage in party building, it alsoacts as an obstacle to tightening ideologicaland political unity within the party.

Six years of party-building experience showthat it is possible for Akbayan to recruitreformist local politicians. But until itaccumulates enough power and resourcesto support these politicians, recruitmentwill be slow. Under the present politicalsystem, it will take a long time for Akbayanto accumulate enough electoral capacity tobecome a major national party. The partylist system does not apply in local elections.The centre of gravity of the electoral systemis in local politics where political clans andwealthy business people dominate inelectoral contests, determined largely bymoney and violence. National electionsraise the financial requirements of electoralvictory to astronomical proportions. Thecapacity to organize cheating in the votecount, another determinant in elections,requires bureaucratic influence, especiallyin the Commission on Elections. Finally,the capacity to mobilize violence andthreats of violence is in the hands of localand national élites, with the exception ofthe Communist Party of the Philippinesand its electoral fronts.

Because Akbayan is ideologically inhibitedfrom developing most of these political‘resources’, at least part of the nationalleadership of Akbayan has worked atpushing changes in the electoral system andform of government through legislative andconstitutional reform. Changes in theelectoral system through electroniccounting machines and electronictransmission will weaken traditionalpolitician control over the ‘technology’ offraud in elections. Overseas voting willenlarge the electorate in a section of thepopulation outside of the capacity oftraditional politicians to mobilize. Evensupport for economic reform will work in


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this direction where specific reformsremove sources of corruption and weakenpatronage networks.

The greatest potential for reform, whichwill go some distance to ‘level the playingfield’ between reform and traditionalpoliticians and parties, will be a shift to aparliamentary form of government and aproportional representation electoralsystem. This will push parties to becomeorganizationally and programmaticallycoherent, and facilitate party-mediatedpolicy making. The creation of moreeffective and cohesive political parties,oriented to programmatic rather thanparticularistic goals, policy rather thanpork, is arguably the single most importantreform needed to strengthen Philippinedemocracy. Stronger parties can promoteclearer choices to voters, and help tostructure political competition toward therealization of generalized rather thanparticularistic interests (Abad 1997;Abueva 2002).

Our electoral system, and the actual practiceof elections have been one of the mostimportant factors shaping political parties.The intensely personalized character ofparties is derived partly from the fact thatindividual candidates are elected in a ‘firstpast the post’ system. ‘During elections, itis not so much the political parties that arethe real mobilising organisations but thecandidate’s electoral machinery andnetwork of relatives, friends, politicalassociates and allies’ (David 1994:1).Because at the base of the electoral system,the municipality and power and status offamilies are at stake, all means are used,including cheating and violence, to achievevictory.

We have become so used to money politicsthat unconsciously we believe that ‘that’sjust the way politics is’. In fact, electionsin many countries, particularly in Europe,do not require massive expenditures. There

are many factors that can explain thesedifferences in political practice, but themain factor is the electoral system. Theproportional representation electoralsystems used in Europe push electionsaway from personal contests towards partycontests. In the process, the use of moneyand violence in elections is also reduced,creating one of the conditions necessaryfor reforming our political party system.

The party list system introduced by the1987 constitution provides an experimentin proportional representation elections.But the system is so confused that it canhardly be seen as indicating the potentialof proportional representation systems. Tostart with, the 1987 constitution mixes upthe contradictory requirements ofproportional representation and sectoralrepresentation within the narrow politicalspace of 20 per cent of the seats in theHouse of Representatives. Congress hasadded to the problems by limiting thenumber of seats a single party can win tothree. The Supreme Court made thingseven worse by imposing a formula for theallocation of seats that guarantees that onlya few of the available seats will be allocated.

What we need is the revision andexpansion of the existing party list system,or an outright shift of the whole system toproportional representation. If voterschoose between parties instead ofindividual candidates, it will lessen theintensity of personal and clan contests thatare the main sources of violence and moneypolitics. Parties will then be required tostrengthen the organizational andprogrammatic requirements for electoralvictory. Minimally, parties will be forcedto distinguish themselves from each otherenough for voters to make choices. Theshift in the centre of gravity oforganizational work away from individualcandidates will force parties to strengthenthemselves organizationally.


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One formula that is being talked about is asystem of elections for a unicameralparliament where half of the seats areelected in enlarged single member districtsand the other half through a proportionalrepresentation system. Single memberdistricts are seen as a way of securing thesupport of district congress persons whohave to approve legislation calling forelections of delegates to a ConstitutionalConvention. While a ConstitutionalConvention will allow non-politicians to getelected as delegates, more powerful districtrepresentatives will be able to get theirpeople elected too. This will require someaccommodation with them. In the partylist proportional representation system,existing restrictions on traditional partieswould be removed. Such a system wouldbe advantageous for Akbayan, which isorganized precisely for such contests. Notonly would such a system be new fortraditional politicians, but also most of themwill be too busy contesting seats in singlemember districts to build parties which cansuccessfully compete in proportionalrepresentation elections. Until such changeshappen, however, Akbayan will have to

accumulate electoral power through longand painstaking work in local contests.

The changes in the electoral system thatpro-reform civil society groups areproposing are specific to the Philippinesituation. We are not making generalpropositions about a necessary connectionbetween proportional representationelectoral systems and strong parties. Herethe differentiation that Martin Sheftermakes between ‘internally mobilized’ partiesof élites, who are already within theprevailing regime and have access topatronage resources, and ‘externallymobilized’ parties of those outside theregime, who do not have access topatronage and instead rely on ideologicalappeals in their quest for a mass following,might be useful (Shefter 1994). Philippinepolitical history has clearly privileged‘internally mobilized’ parties. The issueis, what changes can be made in the electoralsystem that will go some distance towards‘levelling the playing field’ for new‘externally mobilized’ parties such asAkbayan.

Local Governance and Party Building

New protagonists and the changing natureof political contests have brought an edgeof dynamism to local politics. Younger,better educated politicians are open to goodgovernance ideas, especially when theseideas can also strengthen them againstpolitical opponents and position them forhigher office. But political change has alsodisrupted old patronage networks andweakened political parties. Withouteffective political parties, local politicians’links with the central government will beirregular and unpredictable. There are onlya few available ways to strengthen a localpolitician’s position, and even then only inlarger, vote-rich municipalities.

What we tell these young, local politiciansis that the predominant ladder available forthem to move up in their political careerswill require them to throw out their idealsand become corrupt. This ladder,moreover, has become more and morerickety. Akbayan is a new ladder that willenable them to keep their ideals, sharpenthem and put them into practice. Akbayancan provide an organizational base forelections and governance. The problem isthat the brightest among these politiciansthen point out that our ladder only has afew rungs in it. At this point we invite themto help us build more rungs in the ladder.


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One of the rungs in the ladder that civilsociety activists, led by the Institute forPopular Democracy (IPD) and the Institutefor Politics and Governance (IPG), havebuilt is something that is mischievouslycalled BATMAN. In late 1996, local leaderswho had been drawn into discussions aboutbuilding a new political party told Akbayanorganizers that if they were serious aboutbuilding a party they should figure out howto help them win in elections at thebarangay, the lowest level of theadministrative and political structure. SevenManila-based NGOs, including IPG andIPD, hurriedly put together a ‘BarangayAdministration Training Manual’(BATMAN), and trained over 1,000 peopleto participate in the barangay elections in1997. This was the first barangay electionafter the introduction of the LocalGovernment Code (LGC), which allocateda share of internal revenue funds tobarangay and honoraria for elected barangayofficials, and there was therefore a lot ofinterest in the election. Because a largenumber of people who were trained wonin the elections, there was a demand forcontinued work at the barangay level.

BATMAN represented a distinct phase inthe development of civil society governancework in the Philippines. Although it isbroadly understood that there was civilsociety governance work before the passageof the LGC, most of this ‘peopleempowerment’ work did not target localgovernments as venues for civil societywork. At best, civil society groups workedparallel to, and periodically did promotionalwork, but seldom worked within localgovernments. After the passage of the LGCin 1991, civil society groups concentratedon campaigning for the implementation ofprovisions for civil society representationin special bodies in local government units.But BATMAN was the first network thatsystematically undertook local governancework (Fabros 2003).

But why choose the barangay? The originalBATMAN ‘Consortium Program onBarangay Governance’ said, simply, ‘Thebarangay is the lowest unit of governancein the Philippines. It is also the newest. Itis here in rural villages and urban poorcommunities, which comprise the majorityof barangays, that the greatest possibilitiesfor citizen action to deepen democracy inthe Philippines can be found. Barangays,both rural and urban, are the sites of mostof the face-to-face communities left in thewake of urbanisation and commercialisationof Philippine society. Dominance of élitegroups and the centralisation of politics andadministration have, for most of the pastcentury, meant that town centres and citieshave been the locus of political life. Naturalcommunities have largely been by-passed… The absence of administrative units atthe level of the barangay [until the LocalGovernment Code was passed in 1991] wasan expression of these political conditions.’

Empowerment of the poor is the bedrockof BATMAN governance intervention. Thevision is a considerable distance from old‘seize the state’ Left paradigms, but theambition remains as lofty, changing the verynature of political relationships. ‘Thesesocial and institutional arrangementsgenerated a political culture anchored onexchanges of private instead of public goodsas the characteristic “currency” of politicalrelationships. Politicians provide jobs,money for a variety of consumption needsto individuals and their relatives who returnthe favour in terms of personal support foran individual politician and his clan. Manyof the ills of Philippine politics – nepotism,corruption, violence, lack of transparency,government inefficiency can be traced tothis essential element in Philippine politicalculture’ (Consortium Program 1997:2).

While reform initiatives at other levels ofgovernment can generate changes inspecific elements of the political system,including the central bureaucracy and the


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very form of government itself (as in a shiftfrom a presidential to a parliamentaryform), the most comprehensive changestowards democratic governance arepossible only at the base of the politicalsystem, the barangay. It is here where thelargest number of people can participatein political activities close enough to theirday-to-day life to affect political behaviour,and over time, the political culture itself.

The creation of barangay government unitsunder the 1991 LGC created, for the firsttime in Philippine history, the possibilityof lowering the centre of gravity ofPhilippine politics from the town and citycentres, where élites dominate, to the levelof the barangay where poor people live. TheLGC provides for a salaried barangaycaptain and barangay council, an allotmentfrom internal revenue funds, limitedordinance making and taxation, andborrowing powers. Quite simply, it is nowpossible to do things at the level of thebarangay, enough to generate barangay-levelpolitics, instead of barangay politics beingonly an adjunct of municipal politics.

Progressives have not been so differentfrom the élite in their neglect of the barangayas a community. The most extensiveorganizing of rural poor communities thathas been done by the national democraticmovement has either been secret or focusedon ‘guerrilla zone preparation’. NGOintervention has unwittingly contributed tobypassing and disregarding barangay-levelcommunities. While avoiding traditional,family-centred political relationships,NGOs have concentrated on building‘peoples’ organizations’ – new social unitsonly tangentially connected to pre-existingcommunities. More often than not, NGOorganizing and political reform initiativeshave been couched in discourse that iscounter to local political culture.

Starting with seven Manila-based NGOs,BATMAN quickly expanded to 42 mostly

local NGOs. The maintenance needs of theconsortium were served by IPG, whichbecame its secretariat. Apart from trainingbarangay officials, BATMAN assisted inbarangay development planning. The LGCprovides for barangay assemblies withlimited legislative powers, where allbarangay residents can participate – the onlyform of direct democracy available in thecurrent political system. Barangaygovernments are obliged to formulatebarangay development plans through thecreation of a barangay development councilwith provisions for NGO and peoples’organization participation. Theseinstitutional arrangements open up thepossibility of a broadly participatorypolitical system. Over time, barangaydevelopment planning became thesignature activity of BATMAN.

After five years of work, what has BATMANachieved? BATMAN NGOs work in over2,500 barangays, among which 1,200 haveundertaken development planning. TheBATMAN experience has clearly had amultiplier effect. Although this is just a smallminority of the country’s roughly 45,000barangays, the BATMAN experience isalready spreading as local governance ‘bestpractice’. This has facilitated the adoptionof development planning in adjoiningbarangays. In many cases, mayors from othertowns and even governors, asked localBATMAN NGOs to implement BATMANprogrammes in their areas.

There have been material benefits. Havingbarangay development plans has helped toaccess resources from higher localgovernment units and other sources.Barangay priorities have also affectedmunicipal budgets. Where there weresympathetic mayors, municipaldevelopment plans were based on identifiedpriorities in barangay development plans.New perspectives on the uses of publicmonies also began to develop. Newpriorities emphasized livelihood projects,


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potable water supply, and barangayelectrification and communication systems.The latter is crucial because it relates tothe original BATMAN goal of facilitatingthe generation of ‘public goods’ as a way ofchanging the political nexus betweenbarangay and town centre élites.‘Beautification projects’ were either vanityprojects of politicians or sources of graftfrom construction kickbacks. Projects withpalpable impact on the livelihood ofbarangay residents can raise the stakes incitizen participation.

Because of the extent of the need, whetherfor livelihoods or public infrastructure,BATMAN efforts hardly dent the overallproblem. BATMAN is relevant firstly asan experiment in building participatory

democracy at the grassroots level. Fromthis vantage point, BATMAN has been asuccess. Whether from the perspective ofbarangay government institution, NGO andpopular organization viewpoints, or citizenattitudes towards governance, much hasbeen achieved. The most clear-cut changehas occurred among leaders of popularorganizations. ‘They have evolved beyondtheir initial orientation as political activistswho expose and oppose the wrong doings ofgovernment from outside formal statestructures. They no longer merely point outwhat is wrong or lacking, but they havebecome actual participants in the changeprocess, proposing solutions andalternatives, working for reforms fromoutside and inside government’ (Santos 2004).

Elections to Parties

Many BATMAN areas quickly movedfrom barangay development planning toelectoral intervention. From elections, itis a short step to issues related to politicalparties. Concerns were practical andpolitical: How do you link the people whoget elected so they can work together toelect more people at higher political levels?Who will work to change the legal and policyframeworks that determine spaces forparticipatory politics? These issues werediscussed as early as October 1997 at thebeginning of BATMAN. ‘Explored were thevarious possibilities that might arise fromlinking up the program visibly with aspecific political party. In the end, theparticipants agreed that there is a need fora progressive national vehicle which can

infuse sustainability into the governanceefforts of individual barangays’ (ConferenceReport 1997:2).

Although Akbayan was not founded untilthree months after this discussion,BATMAN has been associated withAkbayan since its inception. It has been acomplex and at times contentiousrelationship. BATMAN does not have aformal, organizational relationship withAkbayan or any other political party. Afteran acrimonious debate on the nature ofrelations between IPG, the BATMANsecretariat and Akbayan, IPG formallyasserted its independence as a civil societyformation, an assertion that Akbayan alsoformally affirmed.3

3. At a meeting between the Akbayan Executive Committee and the board of the IPG, the Akbayan ExecutiveCommittee said that: ‘Akbayan does not claim the Institute for Politics and Governance as its political institute. It hasno veto powers over its internal decisions nor a claim to participate in the election of an executive director or the hiringof its staff. It is within Akbayan’s program to defend the autonomy of institutions of civil society from institutionsof the state and political parties who want to get into the state … On the other hand, the history of the Institute forPolitics and Governance and Akbayan has generated a relationship of closeness. The Institute for Politics andGovernance was set up by members of political blocs that made up Akbayan, and individuals from the PhilippineDemocratic Party and the Liberal Party, to facilitate and assist in the work of progressive political groups and to helpset up progressive political initiatives … Akbayan does not claim ownership of the Institute for Politics andGovernance but reserves the right of their members who are members of the board of the Institute to make decisionson their own from the vantage point of Akbayan’s interests.’ Minutes of the Joint Meeting of the IPG Board and theAkbayan Executive Committee, 13 July 2001.


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Because BATMAN works closely withAkbayan at both the national and locallevels, however, the relationship continuesto be a subject of discussion. The problemis not that Akbayan’s role is hidden behindthe ‘front’ of BATMAN nor that there isan underground relationship.4 The problemis more that the dominant Left experience,that of the national democratic movement,is one in which NGOs and people’sorganizations are being used, their integritycompromised by hidden party control.Non-national democratic Left groupscontinue to be influenced by this perspectiveto the point where, even within Akbayan,prior to the party’s formal position on theissue, some leaders believed that the partyshould have veto power over BATMAN.

Since the dominant Left experience is sodifferent, it is difficult to imagine, evenmore, to organize a relationship where civilsociety groups such as BATMAN areautonomous but working close to, andparallel with, a political party such asAkbayan – a relationship that is negotiatedalong the way. While the currentrelationship is mutually beneficial, thereis a danger that Akbayan will push itsagenda within BATMAN to the point ofcompromising BATMAN’s integrity.Conversely, organizations withinBATMAN might use BATMAN and itspolitical and other resources to achievecertain goals within Akbayan.

Working with a party such as Akbayan willenable a project like BATMAN to link upits municipalities with each other, leverageresources from national line agencies, andmost importantly, become oriented towardsa ‘progressive national political project’. ForAkbayan, BATMAN is important foridentifying reform-oriented local politicianswho can be recruited into the party andpush its good governance agenda. But roles

have to be clearly delineated to minimizefriction. This cannot be done if differencesand conflicts are swept under the rug.

Because BATMAN has been slow todevelop programmes at the municipal level,Akbayan has stepped in and developed itsown programme for assisting Akbayanmayors. The Akbayan Government AffairsCommittee has slowly developed capacityfor assisting Akbayan mayors withgovernance problems, ranging from revenuegeneration to service delivery. WhenBATMAN finally gets around to developingits own municipal programmes, if nothingelse because non-Akbayan reform mayorsalso need assistance, there will be morethan enough to do. But the relationshipbetween the party governance programme,and BATMAN’s civil society programmewill have to be carefully delineated toprevent conflicts and misunderstanding.

In a careful evaluation of the BATMANexperience, one common conclusion is thatwhile it was necessary to establish abarangay base, BATMAN will have greaterpolitical impact only if it succeeds inscaling up to the municipal level (Estrella& Izatt 2004). Without organizedintervention for participatory democracyat the municipal level, the potential gainsfrom barangay-level intervention cannot beclinched. Worse, with few exceptions, thegeneration of funds for barangay projectshave had to be done through old circuitsof patronage.

Scaling up to the municipal level is not onlylogical, it is also inevitable. This is because,as has been pointed out in Santos (2004),‘municipal/city government have the powerto affect drastically the programs andreform initiatives at the barangay level. Forinstance, a barangay official, who is inopposition to the mayor or any key official

4. The standard practice in Marxist-Leninist parties in the Philippines is to have an underground party controllingabove-ground organizations, including political parties.


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in the municipal/city government, can havea very difficult time obtaining the releaseof his/her barangay Internal RevenueAllotment. Municipal/city governments,headed by the mayor, have the power todetermine resource availability, budgetallocations, the provision of supportservices and the kinds of developmentprogrammes. With political will, they canimplement reforms in government, suchas promoting participatory planning,combating corruption and improvingrevenue collection. Our reform gains in thebarangays, complemented with initiativesat the municipal/city level, would expandthe scope for reforms and have greaterimpact on alleviating poverty and achievinggenuine political reforms.’

If scaling up is the main organizationalchallenge for BATMAN, locating its politicswithin a broader Left frame is its maintheoretical challenge. Interrogating ‘official’governance and democratization discourseis only a requisite beginning. Even moreimportant is finding BATMAN’s place inthe ongoing reorientation of the PhilippineLeft. It is not as if the process has not beenstarted. What needs to be done is tosystematize theoretical work, undertake anorganized process of summation of oftenunsystematized theoretical unities frompractice, and open debate on contentiousissues. Relating to ongoing internationaldebates on similar issues can also help tosharpen issues and accelerate the process.

Locating – as it were, ‘scaling up’ –BATMAN discourse within a ‘Left-Right’framework is particularly importantbecause of the convergence of what hasbeen called ‘revisionist neo-liberalism’ andcertain strands of ‘post-Marxism’.According to Mohan and Stokke (2000),these two intellectual streams converge in‘… the belief that states or markets cannotbe solely responsible for ensuring socialequality and economic well-being, andrecognise thus the need to consider the local

as the site of empowerment and hence as alocus of knowledge generation anddevelopment intervention’.

But, Mohan and Stokke continue, ‘… thesetwo different strands still present importantdifferences in emphasis. Neo-liberalismfocuses on institutional reforms and socialdevelopment through communityparticipation and empowerment, butwithin the established social order, that iswithout sacrificing the power and privilegesof the powerful. On the contrary, post-Marxism supports a more radical view ofempowerment, mainly based on socialconscientization and mobilization (buildingcollective identities) to challengehegemonic interests within the state andthe market. In this line, empowerment ofmarginalised groups requires a structuraltransformation of economic and politicalrelations towards a radically democratisedsociety’ (Mohan & Stokke 2000:249).

Most BATMAN activists would probablysay, ‘What’s the big deal? It’s clear we standon what you call the “post-Marxist” sidewhether we call ourselves Marxist or not.’True enough. But without consciousnessof the distinction, the danger of cooptationor the related pitfall of opportunism, ofbeing used while taking money from neo-liberal local governance projects, is great.At the same time, it will be difficult toidentify areas of convergence withreformers who may operate within a neo-liberal framework, but who work onprojects such as anti-corruption, which isa common concern. Finally, without mapsfor navigating the white waters of localgovernance discourse, we cannot maximizethe empowerment potential of localgovernance projects such as BATMAN.

Because of the ideological hegemony ofMaoist armed struggle through most of the1970s and 1980s, Left theorizing on open,unarmed strategies has been slow andpainful. While Maoist ideological


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hegemony was broken with the massivesplits within the Communist Party of thePhilippines in the first half of the 1990s,Maoists continue to ideologicallyintimidate other Left groups. Oftenunconsciously, other Left groups stillmeasure their being ‘revolutionary’ withunexamined standards set by theCommunist Party of the Philippines. Thishas not necessarily been a problem forBATMAN, but because it works closelywith political parties such as Akbayan,and self-consciously ideological politicalblocs, BATMAN’s theoretical formationhas been affected.

One approach that has been influentialwithin BATMAN is what might be calledtheoretical pluralism: ‘… Participation canbe likened to a multiple-lane highway wheredifferent vehicles traverse different lanes.Slow-moving vehicles look at participationfrom the vantage point of buildingempowered sustainable communities andpromoting alternative governance models.Vehicles using the fast lane are those thatview participation from the vantage pointof political society – movements that tryto seize ‘moments of state ruptures’ throughheightened political participation thatdirectly challenges the legitimacy of éliterule and the status quo. Both vehicles,however, do not compete but complementeach other in the sense that the multiple-lane highway goes to one direction … Byweaving these struggles together, it willsomehow hasten the work of eachindividual form and build on the strengthsof each other while minimising possiblesetbacks brought about by the rigidity ofusing only one form of struggle’ (Villarin2004). Elaborating on the concept, Villarincalls ‘moments of state ruptures’ occasionswhen ‘… political and even socialmovements … try to seize “moments ofstate ruptures” through heightened politicalparticipation that directly challenges thelegitimacy of élite rule and the status quo’.

This approach is a reflection of theideological heterogeneity of BATMAN andthe Philippine Left as a whole. It has beenuseful for enabling ideologically diversegroups to form coalitions and to coexist innew multi-tendency parties such asAkbayan. But, at some point, theoreticalcontradictions between the propositionsthat underlie the different ‘lanes’ have tobe grappled with. This orientation isunderstandable given the ideological historyof the Philippine Left. It is an intermediatestep between the Maoist ‘protractedpeoples’ war’ and varieties of ‘nationalliberation movement’ frameworks and whatmight be called a ‘radical democraticoption’. It prevents a radical break withthe past and enables groups who subscribeto it to think of themselves as‘revolutionary’. In other words, it is anapproach, I would insist, that is differentfrom the underlying assumptions ofBATMAN, which I would characterize ascloser to a ‘radical democratic option’.

One problem is that a ‘state ruptures’orientation is akin to the Maoist andnational liberation movement frameworkin its focus on ‘seizing the [central] state’.This is in direct contradiction to the ‘localgovernance’ framework of BATMAN. Thisis not just a matter of division of tasks ordifferent ‘lanes’ of vehicles going in thesame direction. Working towards ‘stateruptures’ outside of an armed strugglestrategy means vulnerability to coupattempts and other ways of forcing a radicalbreak in the distribution of power at thenational level. For BATMAN, the problemis that a ‘state ruptures’ framework ishesitant about, if not averse to, politicalreform, and the slow, painstakingaccumulation of power through acombination of electoral and mass struggleswork. Saying both approaches can coexisthides the judgment underlying theassignment of the ‘slow lane’ to ‘buildingempowered sustainable communities andpromoting alternative governance models’.


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This issue needs to be explored and debatedintensively because it has manyramifications. The Latin Americanexperience clearly shows that a strategy ofslow accumulation of power in local politicshas been more productive than old nationalliberation strategies or its later non-armedversion ‘transition through rupture’. Lula’sascension to the presidency in Brazil wasbuilt on his Workers Party’s accumulationof power and experience in local politics.In Mexico, on the other hand, the Party ofthe Democratic Revolution (PRD), whichis oriented towards ‘transition throughrupture’, is moving further and furtheraway from achieving national power.

Cross-cutting divergences between old Leftdiscourse and new Left ideas, between anti-state NGO discourse and newer ideaspushing civil society intervention inpolitical party formation, have not beencarefully debated in the Philippineprogressive movement. People have tendedto be reticent about discussing these issues.But precisely because of this reticence,suspicions about BATMAN being a ‘front’of Akbayan continue to circulate. In theend, what may be required is not thatdiscourse settles into a single, stable orderbut that more people accept that unstable,shifting, negotiated relationships are moreproductive of the participatory democracywe are fighting for.

Bibliography

Abad, F. 1997. ‘Should the Philippines Turn Parliamentary? The Challenge of DemocraticConsolidation and Institutional Reform’, in S. Santos (ed.), Shift. Manila: Ateneo Centrefor Social Policy and Public Affairs.

Abinales, P. 2003. ‘Governing the Philippines in the Early 21st Century’. Unpublishedpaper.

Abueva, J. 2002. ‘Dissatisfaction with the Way Our Democracy Works’, in J. Abueva(ed.), Towards a Federal Republic of the Philippines: A Reader. Manila: Centre for SocialPolicy and Governance.

Choi, J. 2001. ‘Philippine Democracies Old and New: Elections, Term Limits, and PartySystems’. Asian Survey, 41(3), 488-501.

Conference Report. 1997. ‘National Conference Toward the Development of a ConsolidatedConsortium Project on Barangay Governance’, 22-24 October.

Consortium Program. 1997.

David, R. 2001. ‘Political Parties in the Philippines’, in R. David (ed.), Reflections onSociology and Philippine Society. Manila: University of the Philippines Press.

de Dios, E. and Hutchcroft, P. 2003. ‘Philippine Political Economy: Examining CurrentChallenges in Historical Perspective’, in A. Balisacan and H. Hill (eds), The PhilippineEconomy: Development, Policies, and Challenges. Quezon City: Ateneo de Manila UniversityPress (2002) and New York: Oxford University Press.


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Estrella, M. and Izatt, N. (eds) 2004. Beyond Good Governance – Participatory Democracyin the Philippines. Manila: Institute for Popular Democracy.

Fabros, A. 2003. ‘Civil Society Engagements in Local Governance – The Case of thePhilippines’. Paper prepared for the IPD LogoLink Project, March 2003.

Harriss, J., Stokke, K. and Tornquist, O. (eds) 2004. Politicising Democracy – The NewLocal Politics of Democratisation. Palgrave: MacMillan.

Hutchcroft, P. and Rocamora, J., 2003. ‘Strong Demands and Weak Institutions: TheOrigins and Evolution of the Democratic Deficit in the Philippines’. Unpublished paper.

Kerkvliet, B.J. and Mojares, R.B. (eds) 1991. From Marcos to Aquino: Local Perspectiveson Political Transition in the Philippines. Quezon City: Ateneo de Manila University Press.

Lacaba, J.F. (ed.) 1995. Boss: 5 Case Studies of Local Politics in the Philippines. Manila:Philippine Centre for Investigative Journalism and Institute for Popular Democracy.

Mohan G. and Stokke K. 2000. ‘Participatory Development and Empowerment: TheDangers of Localism’, Third World Quarterly, 21(2), 247-268.

Santos, A. 2004. ‘Combining Multiple Strategies for Community Organizing and LocalGovernance in an Urbanizing Community’, in Beyond Good Governance – ParticipatoryDemocracy in the Philippines. Manila: Institute for Popular Democracy.

Shefter, M. 1994. Political Parties and the State: The American Historical Experience.Princeton: Princeton University Press.

Villarin, T. 2004. ‘Finding meaning in local governance through popular participation atthe barangay-bayan’, in Beyond Good Governance – Participatory Democracy in the Philippines.Manila: Institute for Popular Democracy.

Velasco, D. and Rodriguez, A.M.G. 1998. Democracy Rising? The Trials and Triumphs ofthe 1998 Party List Elections. Manila: Institute of Politics and Governance.

Weekley, K. 2000. ‘What Kind of Populism Is That? The Politics of the Estrada Presidency’.Paper presented to the annual meetings of the Association for Asian Studies, 9-12 March,San Diego, California.

Social and Libertarian Democracy: Competing Models to Fill the Frame of Liberal Democracy

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In the global arena and within most present-day societies, two opposing varieties ofdemocracy are competing for spiritual andpolitical dominance: libertarian and socialdemocracy. Both claim to be appropriatestrategies for the institutionalimplementation of freedom and justice,but contradict each other in all relevantinstitutional options beyond the minimumrequisites of the institutions of liberaldemocracy. They thus represent twodifferent ways of giving the concepts offreedom and justice relevance and meaning

Social and Libertarian Democracy:Competing Models to Fill the Frame ofLiberal Democracy

in social, economic, cultural and politicallife.

The distinction between libertarian andsocial democracy in today’s world is ofcrucial importance for both democratictheory and practical politics in individualcountries and in the global order as a whole.It accounts for a substantial part of thedifferences over how to shape the processof globalization as it occurs in the worldtoday.

Thomas Meyer*

* Professor Dr Thomas Meyer is head of the Political Academy of Friedrich-Ebert-Stiftung, Bonn/Berlin and vice-chairman of the Basic-Value Commission in the German Social Democratic Party.

Two Opposing Concepts of Democracy

Libertarian Democracy

From a scientific point of view, libertariandemocracy is characterized by the fact thatalthough the state itself is structured alongdemocratic, constitutional lines, theshaping of economic and social livingconditions is, for the most part, regardedas a private domain that should remainbeyond the reach of political interventionand structuring.

In terms of this conception, in aconstitution that guarantees freedom, thepolitical institutions of liberal democracyfind their societal equivalents only in a freemarket economy combined with freeownership of private property and

individual responsibility of citizens for theirown social and economic well-being.

Claims for the overall responsibility ofgovernment to shape social structures,regulate the economy and conduct re-distributive policies in order to implementthe basic values of freedom and justice forthe less well-off are perceived as anillegitimate invasion of the state into thecitizen’s private domain of freedom.Corresponding with civil rights and thedemocratic freedom of choice in politicallife in the realm of social and economiclife are – in terms of this conception – theunhampered institutions of freedom of


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ownership, private autonomy, privatecontracting and the self-regulating market.The most recent formula to give anoperational meaning to this conception ofdemocracy is the Washington Consensus.

Experiences with the practical performanceof this model in real life in the course ofthe last two centuries speak anunambiguous language. Since there arealways wide differences in the social,educational and personal prerequisites ofindividual persons in each given society,libertarian democracy results in a series ofviolations of universal basic rights whenput into practice.

First, in social and economic life, theresults are substantial. Because there areoften disparities in the opportunities andchoices open to different classes of people,large parts of such a society are denied thesocial goods of a decent life.

Second, a large segment of the populationis regularly doomed to a state of economicand social dependency and want, thus beingexcluded from large parts of societal, socialand cultural life.

Third, the economic dependency and wantof large groups of citizens assume suchproportions that those who are affected bythem cannot exercise their democratic civilrights in real terms. The result is a defectivetype of democracy that denies relevantparts of the citizenry their civil and politicalrights.

Hence, libertarian democracy tends tobecome an élite or ‘delegative type ofdemocracy’ (O’Donnell 1994) that restrictsthe opportunities of full democraticparticipation to a limited number of well-off citizens. Such societies have tendenciestowards social disintegration, usually withrising costs for a variety of more repressiveways of integration. In times of crisis, thehigh degree of societal disintegration alwaystends to be a risk for democratic stabilityand sustainability.

It needs to be stressed here that libertariandemocracy is not equal to ‘Westerndemocracy’ as, since the middle of thenineteenth century, in practically allEuropean societies, it has been successfullychallenged by its opponent: socialdemocracy.

The Claim of Social Democracy

Social democracy today is not just an ideaof how to overcome the weaknesses andflaws of libertarian democracy, it isbasically a reality in a variety of Europeancountries.

It was the historical experience with theshortcomings and contradictions oflibertarian democracies in nineteenthcentury Europe that led to the conceptionof social democracy and increasing support

for it in most European countries,particularly after the Second World Warand the world economic crises of the 1920sthat paved the way for it.

This model has been constantly in a processof change and modernization throughoutits existence, but on the basis of a well-defined set of basic values and rights,institutional preferences and guidelines forpolicy making.

Basic Rights

The starting point of the concepts of socialdemocracy in its modern form is the United

Nation’s Covenant on Basic Rights of 1966.This document – which is a valid part of


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international rights – declares five groupsof basic rights: civil, political, social,economic and cultural rights.

The first two groups of rights are wellknown. They form the foundation of liberaldemocracy. Civil rights include the freedomto speak and the freedom to associate andto assembly; political rights are those suchas the right to form political parties and tovote. But the other three groups of basicrights are also considered to be of equalimportance and validity: social rights arerights to social protection, social security,education, healthcare and the like,economic rights concern the rights to work,to fair payment and to decent workingconditions, and cultural rights protect theopportunity to participate in the culture ofone’s society and to give expression to one’sown cultural identity.

The idea behind this five-dimensionalconcept of basic rights is that freedom andthe opportunity to personal developmentand full participation of all individuals insocial life should be guaranteed to everyhuman being in full independence fromhis/her social status and wealth.

The covenant declaring universal civic,political, social, economic and culturalbasic rights is ratified by 148 countriesfrom all cultural zones and stages ofdevelopment in the world of today. Itrepresents the normative basis of modern-day social democracy. In all cases, wherethe basic rights of persons are jeopardizedby risks for which political authoritiesshould reasonably assume responsibility,the state has a prima facie duty to act. Itmust ensure that the life chances of citizenssubject to such risks are not inferior tothose of citizens who have not beenvictimized by equivalent risks.

Indeed, in the first instance, the statehas an obligation to prevent such risksfrom occurring at all. If it cannot do that,it must compensate ‘losers’ for theconsequences of the risks they haveundergone. But all citizens are likewiseobligated to make whatever contributionthey can towards avoiding or compensatingfor such risks by their own efforts. Socialdemocracy, thus, is about social citizenship(Marshall 1992).

A Rights-based Welfare State

The state fulfils its obligations to act onseveral levels. It offers social protectionagainst risks that violate its citizens’ basicrights; guarantees them equal educationalopportunities, not only for acquiring skills,but also for partaking in broader culturallife; and it safeguards their dignity ineconomic and social contexts. Toaccomplish those ends, it may need toregulate markets in a capitalist economyand guarantee a functioning public sphere,among other things.

Social democracy is basically characterizedby a comprehensive social welfare state thatensures the protection of the basic rightsalluded to earlier as well as maintaining a

just distribution of life chances. It likewisecontributes to economic efficacy andgrowth as well as to social cohesion andpolitical stability. The social state acts as akind of shock absorber, damping down theinsecurities generated by market capitalismby underwriting state-sponsored securityguarantees that are independent of themarket.

It provides a minimum income toindividuals and families, while offeringeffective protection against sickness,poverty in old age and unemployment.Moreover, it provides a range of socialservices such as child supervision and carefor the aged.


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In economically advanced democraciesthere are three types of social state: theuniversalistic social state on theScandinavian pattern; the conservativeversion well-represented in ContinentalEurope; and the liberal model characteristicof the Anglo-Saxon countries. These typesof social state may be distinguished in partby ascertaining whether and to what degreethey have institutionalized social civicrights.

One condition for the achievement of socialdemocracy is that there must be aconstitutionally guaranteed civic right tosocial services. The liberal social state, inwhich there is only a form of poor reliefwithout any legally binding claim on thepart of recipients, would thus fail to meetthe criterion for social democracy. Theother two variants, by contrast, clearly haveinstitutionalized social civic rights.

Citizens, too, have certain obligations thatcomplement their basic rights: these arenot simply to accept the dignity of all humanbeings, but to actively assume responsibilityfor their own lives. Every citizen is obligedto request the aid of the community onlyto the extent that his or her own efforts toearn a living have not met with success.This is a precondition for the maintenanceof the entire social security system.

Thus, each government is committed toensure equality of opportunity and justice,not only in the political realm, but also ineconomic and social life. Providing thebasic opportunities in life to people is apolitical responsibility of the democraticstate. In order to do so, the state needs tobe organized as a rights-based welfare state.

A Regulated Social Market Economy

As employment, fair salaries and workersparticipation are – in terms of these basicrights – considered to be crucial politicalobjectives, the social regulation of marketsis a political necessity. Governmentresponsibility for the broad outcome of theeconomic process and for the treatment ofthe individual in economic life cannot bedischarged. All must be given the chanceto participate in economic decisionsconcerning their fate and their dignity.

In practice, the political economy of socialdemocracies may accommodate a widerange of variations. The relationshipbetween politics and the market ischaracterized by specific areas of tension:productivity and growth, flexibility andinnovation are constantly pitted against theprinciples of social justice and socialsecurity. Hence, the fundamental goal ofpolitical economy in a social democracy isto harmonize the market’s operation withthe policy requirements generated by liberal,

political, economic and social basic rights.

Of course, the functional capacity of themarket should ideally be maintained in allof its productive aspects. Yet the goals ofrising living standards and free consumerchoice have to be balanced against thoseof full employment, ecologicalsustainability and long-term economicgrowth prospects. The coordinated marketeconomy is, therefore, a more appropriatearrangement for social democracy than theliberal market system, since the latter oftenlacks the institutional means to balanceproductive against social aims.

For the political regulation of markets tosucceed, a suitable legal framework mustbe created, and various micro- andmacroeconomic strategies for managingsupply and demand need to be institutedin order to insure the primacy of thecommon good and basic rights overindividual private interests. In principle,


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the political community must be in aposition to influence the market sub-systemso as to minimize potential conflictsbetween the rationality of individualeconomic decisions and goals that have beendefined politically as being in the interestof society at large. Yet economic enterprisesneed to have sufficient latitude to continueand to enhance the socially desirableentrepreneurial activities they engage in.

Although the level and type of welfare stateand social market economy depend on thedegree of development of a country and itscultural traditions, the principles of thepolitical economy of social democracyneed to play a constitutive role under allconditions and at any level of development.How best this is facilitated is a matter ofconcrete political decision in each specificsituation.

A Regulated Social Market Economy

Essentially, a democracy always has threedifferent approaches to achieve public goals(models of governance):

1. Through the market, when it is aquestion of procuring goods andservices to be procured against payment.

2. Through the state, when it is a questionof public goods which will benefit alland must if necessary be procuredthrough instruments of power.

3. Through civil society, when it is aquestion of collective goods whoseprocurement is to be facilitated througha (voluntary) act of solidarity on the partof society.

Deciding which of the three approachesshould be used for realizing which of thesocial tasks is, in itself, a matter that canonly be settled through democratic means.It is in the very nature of a vibrantdemocracy that an optimal balance can bereached time and again, depending onexperiences gained using each of these threeapproaches in rotation. Obviously thislargely depends on the extent to whichcitizens are willing to involve themselvesin the interest of public welfare.

For social democracy, societaldemocratization and an active civil societyplay a crucial role. In enterprise and at theshop floor level this means an appropriatekind of workers’ co-determination. In mostother societal sectors it requires forms of

participation of the workforce that allowfor both the protection of the human dignityof the individual worker and employee anda sufficient degree of effectiveness in theoutput of the respective societal sub-system(such as administration, schools, healthservices and the like).

Most important is the building up of anactive civil society. Not only does it offeropportunities for citizens to advance theirown interests and exert a democratizinginfluence on representative procedures, butit also allows for the provision ofsupplementary social support.Furthermore, civil society promotes thepolitical socialization of the citizenry, andassumes important society-wide steeringfunctions.

Another fundamental element of socialdemocracy is an open, discursive politicalpublic sphere. This requires the freedomof the press and other mass media,together with every citizen’s freedom toexpress his/her own opinion. This is oneof the essential conditions for success inthe process of political integrationundertaken by social democracy. Afunctioning public sphere not only providesindividuals with information andarguments, but also enables citizens toreach agreement about the values that willshape their commonwealth, for example,in matters of educational, economic andsocial policy.


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A free, multifarious and vibrant civilsociety forms an indispensable basis for astrong and effective democracy. Civilsociety is the sum total of all initiatives,unions, associations, organizations andnetworks in which people are voluntarilyengaged with the objective of pursuing thewelfare of the community apart from theirown.

Experience has shown that dictatorships,once they have torn down a democracy,invariably aim at quickly regulating,curtailing or even altogether smothering thelife of civil society. The mere presence ofseveral political parties does not, for themost part, result in a functioningdemocracy if these parties do not have theirroots in an active civil society. Theseinsights are as old as democracy itself,although more often than not they are notadequately considered.

In this understanding of civil society it isimportant to note that it is not justvoluntary association that defines civilsociety but also the incorporation of publicwelfare. Thus, a band of robbers or an anti-democratic group does not form part of acivil society as per this definition.

Active engagement in a civil society,neighbourhood action group, human rightsgroup, environment protection group,citizens’ organization or religious or socialgroup is, in a way, on a par with stateaction, for, like the state, it is aimed atpublic welfare, although unlike state action,civil society engagement is voluntary. Inanother respect it is akin to economicaction, for it is also voluntary and orientedto securing benefits, although engagementis on an honorary basis.

But, apart from guaranteeing public goodsthrough voluntary action, civil society hasfour other directly political functions thatmake it indispensable for democracy:

1. Citizens engaged in small communityinitiatives also acquire the capacity toact in the political field. They learn howpolitics function, acquire usefulinformation for successful action andthe skills for goal and success-orientedcommunity action.

2. With this political expertise and theability to assert themselves, civil societyorganizations steadily and consistentlywork on political parties closely linkedto their goals. They encourage them toact in a goal-oriented manner. Manyactive members of civil society involvethemselves in parties so that they canre-establish the parties’ linkages withsocial interests and values. Through thepublic pressure they exert from outside,civil society initiatives also act as aconstant check on the actions ofparties.

3. Civil society initiatives could alsoconsistently check whether party andgovernment action actually bring aboutthe desired results in society, andwhether parties and governments aredirectly involved in the achievement ofthese results.

4. As lobby groups too, civil societyinitiatives are, for the most part,respected in the roles they assumevis-à-vis state administrations,parliaments and governments as well aseconomic enterprises.

Where civil society is vibrant andmultifarious, parties, administrations andgovernments quickly realize that theirwords must be followed by deeds. Theylearn that their programmes must beeffective and that sub-standard action andcorruption pose a threat. Civil society istherefore the most potent, effective andflexible link between the living world ofsociety and the world of big politics,including political parties. Civil society iscertainly no substitute for either politicalparties or large economic associations, let


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alone the institution of democracy. Yet, thequality, measure and stability of a

democracy are crucially determined by theefficacy of civil society.

Progressive Globalization

Social democracy is not only a model forthe nation-state, but also a project forprogressive globalization. It guarantees theefficacy of democracy even underconditions of social and economicglobalization. In the current phase ofglobalization, the tussle between theproponents of libertarian democracy andsocial democracy is one of the major issuesof conflict in the international politicalarena and in individual societies. There aretwo questions on the agenda everywhere:

1. Should social democracy be retainedeven in an era of global marketcompetition, or relinquished for allegedcompetitive advantages?

2. Can the international political arena bepolitically shaped at all? If so, is thisonly in terms of minimum politicalcoordination or even for amacroeconomically regulative socialand ecological fixing of the markets?

While the advocates of libertariandemocracy contend that globalization has,to a large extent, destroyed the meaningand possibilities of social democracy, thechampions of social democracy point toanother aspect: there are not only limits tothe welfare state from globalization but alsosocial limits to globalization.

Theory and Practice

Social democracy is not just a theory noran utopia but good practice in severalEuropean societies and – in its own way –also in Japan. The policies of thesecountries ensure their citizens againstsocial risks and grant social and politicalparticipation. It turns out that a culturallyuniversal model of democracy finds itsfullest expression in social democracy, sinceall five categories of basic rights aremost effectively secured by it. Socialdemocracy should, therefore, be

considered a condition for the achievementof full participatory and sustainabledemocratization. By contrast, libertariandemocracy, which is concerned exclusivelywith the assignment of civic and politicalrights while ignoring social and economicones, deserves to be labelled a ‘defective’democracy. It can neither ensure theefficacy of basic rights in the real world,nor can it secure the equality and politicalautonomy of its citizens.

Political Consequences for Globalization

Since the 1970s there has been astrengthening of tendencies towards theglobal integration of economic markets andtransnational social linkages in areas asimportant as information technology,communication, travel, environmentalpollution, the spread of disease and

migration, among others. Under thesecircumstances, the democracy of a nation-state loses any scope it may have had toinfluence developments, to the extent towhich the causes of such politicallysignificant impacts (such as environmentaldamage, unemployment, immigration,


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spread of disease, etc.) increasingly liebeyond its borders.

The basis for the functioning of ademocracy, which is essentially the capacityto address all the problems in its area ofjurisdiction, is politically lost. Andobviously, where democracy is no longerin a position to solve the basic problemsfor which it has been established, it losesits significance and raison d’être.

A globalization that is merely economicproves first and foremost to be a processof silent de-democratization. In order tore-acquire democratic powers of decisionmaking, the extent of the impact ofdemocratic decisions must be just as greatas the radius of the impact of interlinkedproblems whose resolution the majoritiesin societies demand. To the extent to whichinterlinked problems cross nationalborders, democracy must again tackle themin adequate measure if it is not to bedevalued. This involves the creation ofinstruments of political action in order toagain facilitate the social and ecological re-embedding of the markets on a global scaleafter they have crossed the national domain.Thus, what the globalized world needs arepolitical decision-making structures, formsof transnational cooperation that meet therequirements of actual globalization. Forthe transnational level, democracy must bereinvented.

The European Union constitutes anexperiment in this direction. Otherassociations of regional cooperation, suchas the South Asian Association for RegionalCooperation (SAARC) and the Associationof Southeast Asian Nations (ASEAN), havelikewise trodden the path of regionalpolitical cooperation. The expansion ofthese associations of regional cooperation,their progressive democratization and theestablishment of mutual linkages betweenthem are important constituents in theprocess of establishing a global democracy.

Global democracy needs effective forms ofuninterrupted cooperation whilesafeguarding the natural sources of life andensuring financial stability, balancedeconomic growth, the satisfaction of basicneeds world-wide and decent working andliving standards. At the same time, wecannot shut our eyes even in future tomassive human rights violations beyond ourown borders. There is something like acommon body of world citizens’ rights fromwhich every citizen can claim protectionfor his basic rights from all other citizens,even through the political organization ofthe nation-state and the region will continueto remain primarily responsible and incharge.

Discussions on this have been going onfor almost two decades, and the firstpractical steps towards the globalization ofdemocracy have been taken. They have byno means gone far enough, although theyare mostly in the right direction. A globalgovernment seems neither a realistic nor adesirable solution to the problem of globaldemocracy. It is unrealistic because sooneror later important and influential nation-states would refuse to accept this solution;it is undesirable because the growingdistance of economic centres from thesocieties affected by their actions will onlyserve to further reduce chances ofdemocratic influence in more respects thanone.

As a model for a solution, the concept ofglobal governance is the most highlyapproved internationally, stands the bestchances of being realized and offers the bestprospects of solving effectively the mostweighty problems of globalization.

Governance means steering or regulatingthrough political means, that is, byinvolving governmental action but withoutthis being confined to action bygovernments alone. Global governancemeans simultaneously expanding four


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different forms of political coordination andregulation that are, again, linked to eachother and complement, monitor andinfluence each other.

1. The expansion of the global politicalorganization, the United Nations, intoa body that can discuss social andeconomic issues, reach agreements andinfluence their implementation. Thus,there is, for instance, talk of setting upa World Security Council for economicaffairs.

2. Increasing and improving regionalpolitical cooperation between states,such as in the European Union, ASEANor SAARC. These associations could –on a broad regional scale – collectivelyaddress a significant proportion of thesocial, economic and ecologicalproblems that crop up in individualcountries. With their enhanced leveragethey could, in turn, play a role in theglobal shaping of economic, ecologicaland social development.

3. Enhancing, improving and, mostimportantly, democratizing transnationalregimes. The term ‘regime’ refers totransnational political regulation in aspecific area that poses problems, suchas, for instance, the liberalization ofglobal trade, ecology, basic socialconditions and the exploitation of theseas. The World Trade Organization isan example of such a regime. Atransnational regime sets down abinding, transnational settlement of theproblem in a contract, with anindependent authority and a well-regulated procedure of arbitration also

being established for the same. A globalsocial democracy is not only concernedwith the democratization of existingregimes but also with the enhancementor re-establishment of such regimesthat address issues such as workingconditions, social standards, globalfinancial flows or the eradication ofunemployment.

4. Transnational civil society has proveditself to be an influential politicalnetwork. The initiatives of civil societycould, on the one hand, link up theinterests of people in their livingenvironments with the actions of largepolitical institutions in a manner thatis more immediate than is the case withpolitical institutions. As lobbyorganizations and watchdogs, they couldcondemn the actions of concerns andorganizations that go against the interestsof the population, thereby ushering inchanges. But, on the other hand, theycan also solve a series of problems ontheir own through their coordination.

In a world of global markets and globalsocial influences, democracy also calls forglobalization.

Negative globalization, involving the meredismantling of borders for marketexpansion, must be balanced by a positiveor progressive globalization of establishingpolitical structures of responsibility. In thisage of globalization, the latter is on theagenda of all true democrats. This is whatsocial democracy means in the world oftoday.

Conclusions

To sum up, three conclusions can be drawnin order to mark the characteristics ofsocial democracy:

First, social democracy is neither a system,

nor a patent remedy for all social andeconomic diseases, nor is it a ready-mademodel that can be exported to every otherplace in the world. It is a pragmaticapproach to give equal value and


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importance to all five basic rights – civil,political, social, economic and cultural –in the framework of liberal democracy. Itsinstitutions need to be shaped to suite theconcrete conditions of individual countriesunder the influence of economicglobalization.

Second, there are undisputable successesin the dimensions of welfare protection,social justice, the expansion of democracy,

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Conference Summary

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‘The Relevance of Social Democratic Partiesand Progressive Movements in East andSoutheast Asia’Conference Summary

Norbert von Hofmann*

The Friedrich-Ebert-Stiftung (FES) Officefor Regional Cooperation in SoutheastAsia and the FES Manila Office jointlyorganized an international conference on14 and 15 October 2004 in Manila, thePhilippines, on the relevance of socialdemocratic parties and progressivemovements in East and Southeast Asia.

There were about 50 participants,representing 13 political parties and socialmovements, from Burma, Germany,Indonesia, Japan, South Korea, Malaysia,Mongolia, New Zealand, the Philippinesand Thailand, as well as the SocialistInternational Secretariat.

* Norbert von Hofmann is head of the FES Office for Regional Cooperation in Southeast Asia, Singapore.

Initial Stock-taking

The Asia-Pacific region is, in every respect,highly diverse. This applies to the state ofdemocratic development too.

On the positive side of the democraticspectrum are New Zealand and Australia,with a Western and European form ofdemocracy. Then there are Japan and SouthKorea with USA-influenced democracies,followed by the Philippines, Indonesia andThailand, where voters are able to usedemocratic elections to change the politicalleadership. In Malaysia and Singapore, anincreased political openness can beobserved, but not to the extent of a possiblechange in leadership. China, Vietnam andLaos are still controlled by one-partysystems. On the other end of thedemocratic spectrum is North Korea,which was not part of the discussion, and,of course, Myanmar/Burma. Theconference participants listened carefully

to the report of the NLD (Burma NationalLeague for Democracy) representative andtook note that very little politicaldevelopment and no progress can beobserved, despite the efforts of manyfriends from all over the world. Theparticipants assured the NLD and theBurmese people of their continuing supportand sympathy.

Nevertheless, many countries in the regionhave a common recent history: many haveexperienced military governments,dictatorships and/or are still struggling formore democracy.

Prior to the 1997 Asian economic andfinancial crisis, it was assumed that strongleadership was necessary to push thecountries in Asia forward and to ensureeconomic growth. Most governmentsrejected ‘Western-style’ democracy and


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actively promoted ‘Asian values’. Theturning point came when people discoveredthat their leaders were not nearly ascompetent as they pretended to be. Withthe decline of economic growth, autocraticleadership began weakening.

Despite all the hardships, the economic andfinancial crisis has also had some positiveelements:

n it speeded up the opening up ofeconomies;

n it forced Asians to become more awareof corporate governance;

n it made the region concentrate on itsreal competitive strength;

n it provided a hard lesson aboutglobalization; and, most importantly,

n it showed the emergence of more openand democratic governments.

The slowing-down of economies, whichbrought enormous hardship, especially forworkers and farmers, did not slow downthe demand for more democracy; onthe contrary, democratization increased inthe region.

The economic crisis encouraged people toanalyse their governments’ policies. As oneparticipant said, ‘The time was right forchanges as the neo-liberals had to showtheir face. We now live in an era of changeand with the hope for more democracy’.

However, 9/11 is to some extent threateningthese new developments because a numberof countries have increased security at theexpense of democracy – Japan, Malaysiaand Singapore were examples mentioned.Suddenly, the Internal Security Acts ofMalaysia and Singapore becameinternationally acceptable. Despite this set-back, there were many positivedevelopments mentioned during thediscussions. For example:

n In Mongolia, despite the fact that the

recent elections did not turn out asmany had hoped, the country was ableto form a democratic government.

n In Japan, the struggle against re-militarization and against a change ofconstitution has seen growing supportfrom young people.

n In South Korea, the successes of thenewly formed Democratic Labour Partyin recent elections are changing thepolitical landscape.

It was hotly debated to what extent socialmovements and social democratic partieshad contributed to these positivedevelopments. Some argued that reformscame from other, much larger groups, andprimarily from so-called ‘people power’, asit needs a much wider constituency thansocial movements or political parties.

Three indicators for positive democraticdevelopments were named:

n the state of human rights;n the amount of political freedom; andn the size of the ‘democracy index’.

However, others saw these three indicatorsas just a description of ‘libertariandemocracy’. It is certainly important tohave these liberal rights, but in order topromote social democracy it is essential toadd social, economic and cultural rightsas well.

This description of social democracy wasseen by all participants as an internationalconcept and not a purely Western model.Clearly, within this framework, all nationshave to build their own institutions withreference to the situation, needs andculture in their respective countries. In thiscontext, the question of whether politicalparties are out of fashion was raised. Froma European point of view it was noted thatyoung people are more interested in ad hocevents than in long-term structures orcommitments. This tendency is further

Conference Summary

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strengthened by the media. However, inthe end, all agreed that democracy needspolitical parties because long-term visions,objectives and programmes need vehicleslike political parties, but it may be thatsuch vehicles require some form ofmodernization and change. How to bringabout such change was one issue discussed,as was the question of who are the agentsof change. One answer was the demandfor larger coalitions with social movements,NGOs or churches. Neither in Asia norin Europe are workers sufficient in numberas a base for social democratic or labourparties to win elections. It is necessaryto open political parties to other parts ofsociety.

It was also mentioned that it is necessaryto address the needs and issues of thepeople when talking about democracy.Political parties have to sell issues and not‘social democracy’. Politics have to be morepragmatic, identifying and addressing theproblems of voters. ‘Ideology does not feedpeople!’ It is also important to work on alllevels: local and communal issues are asimportant as national issues.

Answering the question ‘Has socialdemocracy made gains?’, the participantsreplied overwhelmingly ‘Yes’. The variouspresentations at the conference, especiallyfrom newly established political parties,were proof of this statement.

In South Korea, the Democratic LabourParty, formed by trade unions and socialmovements, has developed from anextreme leftist position towards a moremodern approach acceptable to a largernumber of voters. In the Philippines,Akbayan has also developed out of socialmovements and leftist organizations into amore mainstream social democratic party.In Thailand, Mahachon is a party ofconcerned intellectuals and the middle classwho have moved from the centrist DemocratParty to a more social democratic left. InMalaysia, the People Justice Party (Keadilan)brought together social movements,political parties and civil society to form aprogressive opposition party.

The cases of Keadilan and Akbayan showhow difficult it is to agree on a commonplatform in cases where several NGOs andsocial movements with different agendasand political backgrounds join forces.Undoubtedly, social movements can haveand have had positive impacts on politicalparties in the same way as trade unions.However, social movements cannot replacesocial democratic parties.

Several participants remarked that thewords ‘socialism’ or ‘social democracy’ arediscredited in a number of countries in theregion. However, it is not the name thatdefines a social democratic party, but ratherits content that makes it ‘social democratic’.

Defining Social Democracy in a Globalized World

Social democracy is neither a Western noran Asian concept. It has to be accepted asan ideology. Social democratic parties arebased on programmes and not on persons.The content or platform may differ fromcountry to country. However, social justicewas seen as the base for social democracyin Asia; social justice plus democracy ordemocracy plus social justice. The thirdcomponent is solidarity – within the party

and within the movement, as well as withthe weaker parts of society.

All participants agreed that socialdemocratic parties and politics have achance in a globalized world, even ifglobalization has forced social democracyinto a more defensive position.Democracy, even if it is accepted world-wide, is not sufficient. What is needed is


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more than just democracy, it is socialdemocracy. Only social democracy cansolve the problems of globalization. Thevalues of social democracy remain thesame, regardless of whether they apply ona local, national, regional or internationallevel. Solidarity means sharing with thosewho are less fortunate and this applies toindividuals in local communities as well asto nation-states in a globalized world.

Four important elements were seen asnecessary to cope with the negative aspectsof globalization:

1. To democratize internationalinstitutions, foremost among them theSecurity Council of the United Nations.In this context, the demand ofEuropean social democratic parties for

a Social and Economic Security Councilwas mentioned;

2. To democratize the Brenton-Woodsinstitutions, including the acceptanceof core labour standards ininternational trade agreements;

3. To strengthen and enlarge the scope oftransnational or international civilsociety groups; and

4. To strengthen regional cooperation andintegration by adding a social dimensionto these groupings, for example, in theAssociation of Southeast Asian Nations,where presently only an economic anda security dimension exist.

For all participants, nation-states are by nomeans irrelevant in the era of globalization.Nation-states are still at the forefront ofguaranteeing the rights of their citizens.

Strengthening International Solidarity

International cooperation and networkingof social democratic parties and socialmovements were discussed in the finalsession of the conference. All speakersraised the issue of the importance ofinternational solidarity. Young parties canlearn from the struggle of older parties. Thestruggle for social democracy cannot befought at a nation-state level alone. Externalhelp is needed for changes for the better.Social democratic parties want to shareexperiences within the region and withother parts of the world. The Philippineparticipants recalled that the solidarity ofparties and movements in East andSoutheast Asian countries was of greatimportance for their political struggle.

For this part of the discussions, it washelpful to have the presence of the GeneralSecretary of the Socialist International (SI),Luis Ayala. According to Luis Ayala, themembership of the SI presently stands at168 parties in more than 130 countries.Unfortunately, the SI in Asia has not been

as successful as the SI in other parts of theworld.

With regard to the SI’s policy, Luis Ayalastressed the following points. The centreof the SI has moved away from Europe toother continents and regions, Brazil andSouth Africa being two good examples.The recent victory of the Spanish SocialistParty has to be seen as a victory for allsocial democratic parties world-wide. Theemphasis of the SI is presently on ensuringgood global governance, reforming theUnited Nations, democratizing theBrenton-Woods institutions, promotingpeace, as well as fighting unilateralism andpoverty.

The participants agreed that it is essentialfor the SI to engage with all the leadinggroups and parties in the region, includingthe Communist Party of China, the rulersin North Korea and the CambodianPeople’s Party (CPP) in Cambodia. But theparticipants urged the SI to be very cautious

Conference Summary

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about accepting new members into thesocial democratic family who share thename but not the values. The under-representation of the SI in Asia should notlead to compromises when accepting newmember parties.

Finally, several suggestions were made abouthow to continue with a loosely organizedforum of social democratic parties andmovements in East and Southeast Asiawithout duplicating the SI Asia PacificCommittee. The forum should include and

engage movements and parties which arenewly formed and which might beinterested in joining the family of socialdemocratic parties at a later stage. Anumber of suggestions for themes for theforum were made, including Burma,industrial and social policy, goodgovernance and practical issues such as howto organize and how to campaign. Bilateralcooperation and the exchange ofinformation on ongoing activities were alsoencouraged.

ASEAN after AFTA: What’s Next?

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Hank Lim and Matthew Walls*

* Dr Hank Lim is the director of research and Matthew Walls works as a researcher at the Singapore Institute forInternational Affairs (SIIA).

1. Dennis, D.J. and Yusof, Z.A. 2003. Developing Indicators of ASEAN Integration – A Preliminary Survey for aRoadmap. Regional Economic Policy Support Facility, Project 03/001, Jakarta.

Achievements and Challenges of AFTA

The achievements of the ASEAN Free TradeArea (AFTA), seen in the context of theAssociation of Southeast Asian Nation’s(ASEAN) traditional trade relations, aresubstantial. When it was signed in 1992,AFTA called for the reduction of tariffs onInclusion List (IL) goods to 5 per centwithin 15 years. Initially, the tariffreduction schedule allowed ASEANmembers 15 years to reduce tariffs to 5per cent or less in two steps: first, five toeight years to lower tariff rates to 20 percent, and then another seven years to lowerthem to 5 per cent. At the time, the averagetariff rate for goods on the IL was alreadywell below 20 per cent, at 12.76 per cent.As some members felt ASEAN was readyfor a quicker pace, an amendment to theCEPT (Common Effective PreferentialTariff ) in 1995 shortened the timeline byfive years to 2002.

By 2002, the target had been largely met:tariffs on IL goods had been lowered amongthe ASEAN-6 from an average 12.76 percent in 1993 to 1.96 per cent in 2003.Almost all the lines on the IL (98.62 percent) are below the 5 per cent CEPT target.The ASEAN-6 countries have graduallyshifted more products from theirTemporary Exclusion Lists (TEL) andGeneral Exception Lists (GEL) on to theIL. The GEL, which makes an exceptionfor products on the basis of nationalsecurity, health or cultural reasons, contains

292 lines, or about 0.65 per cent of all tarifflines in ASEAN. The TEL, whichtemporarily makes an exception forproducts at the request of member statesand along with the consent of others,contains 218 lines, or about 0.49 per centof all tariff lines.1

ASEAN’s four newer members have alsoagreed to timelines that would reduce tariffson their IL goods to 5 per cent or less:Vietnam by 2006, Myanmar and Lao PDRby 2008 and Cambodia by 2010. They haveput 60.89 per cent of their total tariff lineson the IL. Their TEL lines account for25.09 per cent of their total lines.

The success of ASEAN’s member states inreducing their tariffs has given momentumto accelerate the zero tariff goal. In the2003 CEPT package, ASEAN-6 countriesagreed to have zero tariffs on 60 per centof their IL goods by 2003, a target theyslightly surpassed (60.89 per cent). By 2010,all goods on their IL lists will have zerotariffs; Cambodia, Myanmar, Laos andVietnam (CLMV) are to follow in 2015.

As a first step in economic integration then,AFTA achieved a moderate amount ofsuccess. Nevertheless, the failure of intra-ASEAN trade to flourish as hoped forrevealed some of the weaknesses inherentin AFTA, and the fact that tariff reductionsalone were not enough to stimulate trade,


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and hence create synergistic growth.Although tariffs were lowered, intra-ASEAN trade as a percentage of total tradedid not increase. Total intra-ASEAN tradedid increase per se, from US$44.2 billionin 1993 to US$174.39 billion in 2003, butits share of total trade rose less than 1 percent, from 21.7 per cent in 1993 to 22.08per cent in 2003.2 This situation might havebeen different today had it not been forthe 1997 Asian financial crisis. Until 1997,intra-ASEAN trade had been growing 10per cent a year; the crisis severely curtailedthis growth. To generate growth andfinances, member states focused onincreasing foreign exports to their majorpartners. Indeed, the crisis had a greaterimpact upon intra-ASEAN trade than tradewith non-members.

The decision of ASEAN countries toincrease exports to non-ASEAN tradepartners reflects the fact that intra-ASEANtrade is competitive rather thancomplementary. Most ASEAN countriesshare similar resource inputs and aresimilarly engaged in producing high-techand labour-intensive exports, which aremostly bought by non-ASEAN countries.For instance, electronics and computerproducts account for 50 per cent of allASEAN trade, but are ranked fortieth interms of intra-ASEAN trade.3 In addition,total lines on the IL, despite havingdrastically lower tariffs, account for as littleas 5 per cent of ASEAN’s total trade bysome estimates.4

The need for a stronger dispute settlementmechanism also became evident afterseveral trade disputes proved to beirresolvable. Thailand and Malaysia, for

instance, failed to agree upon acompensation package after Malaysia’sauto industry was exempt from tariffreductions until 2005. Similarly, Singaporeand the Philippines also had trouble findinga solution to satisfy both sides after thePhilippines decided not to reduce tariffson 11 petrochemical products. Althoughthe Philippines had signed the CEPTagreeing to lower tariffs, the governmentunilaterally decided that the petrochemicalindustry was in its national interest, whichseemed to make their previous CEPTcommitments unreliable.

Overcoming some of the challenges andobstacles that are blocking the greatereconomic integration envisioned by theASEAN Economic Community, therefore,will be a difficult task for ASEAN countries.Firstly, although tariff reductionimplementation has generally been asuccess, the utilization of the concessionsunder CEPT has been very low due to thefollowing factors:

n lack of clear and transparent proceduresfor obtaining the necessarydocumentation for concession rates;

n lack of credibility and mutual trustbetween preference-receiving andpreference-granting countries;

n a low margin of preference betweenASEAN tariffs and Most FavouredNation tariffs, which makes the wholeprocess of filling out the necessarydocumentation unattractive; and

n the lack of awareness about theconcessions under AFTA.5

Secondly, the non-tariff barriers that existin the region still need to be eliminated or

2. The Thirty-sixth ASEAN Economic Ministers Meeting Joint Media Statement, Jakarta, 3 September 2004,http://www.aseansec.org/16377.htm

3. Magiera, S. 2003. ‘Enhancing the Benefits of ASEAN Economic Integration’. Paper (tabled by Indonesia as anon-paper) at the Special Meeting of ASEAN Economic Ministers, July.

4. Ibid.5. The Task Force on the Rules of Origin intends to adopt substantial transformation as an alternative principle for

some sectors to encourage greater use of the CEPT scheme, though the details have yet to be finalized.


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harmonized. Licensing procedures,technical standards and customs procedureshave remained major obstacles to the tradeliberalization process. Thirdly, the lack ofa supranational institution within ASEANto enforce mutually agreed decisionsamong member countries as well as thetraditional ASEAN way of doing thingshave slowed the progress of theimplementation of AFTA commitments.Fourthly, with the extension of AFTAmembership to CMLV, the ASEANgrouping has become more diversified interms of political regimes and economicpriorities. This has also made the decision-making process more time consuming,which has in turn slowed down the progressof economic integration. Lastly, with the

proliferation of bilateral free tradeagreements (FTAs) initiated by somemember countries, the effectiveness ofAFTA as a preferential tradingarrangement could be minimized. Thereis a possibility that bilateral FTAs willcreate regional trade diversion effects, asmany of the goods and services tradedwithin ASEAN can be substituted bysimilar goods and services produced byextra-ASEAN trading partners. Those fivechallenges and distortions, however, can beminimized if ASEAN member countrieseffectively implement AFTA, the ASEANFramework Agreement on Services (AFAS)and the ASEAN Investment Area (AIA),and steadily move towards the creation ofan ASEAN Economic Community.

ASEAN Economic Community

As proposed in the Bali Concord II, theASEAN Economic Community (AEC) isto have many features of a commonmarket. The declaration called for the AECto have a free flow of goods, investmentand services, and a freer flow of capitaland labour by 2020. Unlike a commonmarket, the AEC restricts the flow oflabour to skilled labourers and businesspersons, and does not plan to impose auniform tariff rate on non-members. Forthis reason, some proponents of the AEChave called it an ‘FTA-plus’. Others, whowould like to see a fully economicallyintegrated ASEAN, have suggested thatASEAN adopts a ‘Common Market-minus’framework. This would act like anFTA-plus at the beginning, but woulddelay the deep integration measures neededfor a common market until after 2020.This might be more agreeable to newermembers, as it would grant them greaterflexibility as they begin reforming theireconomies and integrating them intoASEAN.

The purpose of the AEC, as explained inthe Bali Concord II, is to make ASEANinto a single market and production basethat would be more economicallycompetitive and attractive to investors. Itwill incorporate all the existing trade andinvestment agreements, fast-track theintegration of priority sectors and makethe AEC a rules-bound body.

The declaration, however, does notelaborate on how trade disputes would besettled. Although a Protocol on a DisputeSettlement Mechanism was adopted byASEAN in 1996, many feel that anindependent panel of adjudicators, like theEuropean Court of Justice, will be necessaryif ASEAN members are to seriously committhemselves to the AEC.

The Bali Concord II has little in the wayof details. It is not intended to be ablueprint for the AEC; this was signed inVientiane in November 2004. While theBali Concord II states the need for clear


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timelines, none are laid down. Thedeclaration does, however, say that ASEANwill adopt the recommendations of theHigh Level Task Force on ASEANEconomic Integration, whose reportprovides detailed suggestions as well asdates. If its recommendations are adopted,the framework of the AEC would besignificantly different from AFTA.

The Task Force’s report provides acomprehensive strategy to accelerateeconomic integration, and alsorecommends several new features,including an independent panel to solvetrade disputes.6 It names 11 sectors aspriority sectors for integration, assigningresponsibility for each to various ASEANmembers: wood, automotives, rubber,textiles, agriculture, fisheries, electronics,e-ASEAN, healthcare, air transport andtourism. The integration cause would beadvanced by moving quickly on thesesectors. It recommends the following steps:

n zero tariffs;n the immediate elimination of trade

barriers;n faster and simplified customs;n faster harmonization of Mutually

Recognized Agreements (MRAs);n standards and regulations.

Services relating to these sectors should beliberalized by 2010. For tourism, the reportrecommends an intra-ASEAN travel visaby 2005, and urges members to draw upan agreement on skilled labour mobility bythe same year. These steps should becombined with an outreach andpromotional programme to establish pan-ASEAN companies, with divisions locatedaccording to the comparative advantagesof countries. This includes outsourcing,more intra-ASEAN investing and an

eventual ‘ASEAN brand’ for goods andservices.

At the Thirty-sixth ASEAN EconomicMinisters Meeting in September 2004,ministers endorsed the FrameworkAgreement for the Integration of the 11priority sectors and the Roadmaps forIntegration of the Priority Sectors. Bothwere ratified at the Tenth ASEAN Summitin Vientiane in November 2004.

For the non-priority sectors, the High LevelTask Force set out long-term timelines. Forthe liberalization of trade in goods, itrecommended clearer and standardizedRules of Origin by the end of 2004; adatabase for non-tariff measures, whichshould be eliminated by 2005, followingWorld Trade Organization (WTO)standards (now on-line on the ASEANwebsite); for customs, a Green Lane forCEPT products for quicker clearance by2004; MRAs for five sectors by 2005(electrical and electronics equipment,telecommunications equipment, cosmetics,pharmaceuticals and prepared foodstuff ),with others to follow.

At the 2004 Informal ASEAN EconomicMinisters Meeting in Indonesia, anASEAN inter-agency task force wasestablished to design the ‘ASEAN SingleWindow’ to ‘ensure the expeditiousclearance of imports through singlesubmission of data, single data processingand single decision-making for the releaseof goods’.7 The task force comprises stafffrom various government agencies such ashealth and trade, customs, standards andconformance.

The Task Force’s recommendations fortrade in services are less specific. It urgesthat each round of negotiations should set

6. ASEAN Secretariat. 2003. ‘Recommendations of the High-Level Task Force on ASEAN Economic Integration’.www.aseansec.org/hltf.htm

7. ASEAN Secretariat, 20 January 2004. Press release, www.aseansec.org/15662.htm


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clear targets and schedules for the sectorsinvolved, with all sectors liberalized before2020. The depth and scope of liberalizationis meant to go beyond WTO commitments.On the free flow of capital, the Task Forceadds nothing new, suggesting that theimplementation of the Roadmap forIntegration of ASEAN in Finance isenough. For investment, it calls uponASEAN members to speed up the transferof sectors from the TEL to the IL,beginning in 2004. It also recommendscreating a mechanism to monitor progressin each country. One innovative feature itsays ASEAN should adopt is sub-regionalfree-trade zones (FTZs). These wouldencourage investors to structure theircompanies across ASEAN, based uponmember states’ comparative advantages.This would create the necessary economiesof scale and complementarity ASEANneeds to remain competitive. Tax incentivescould also be used to push companies inthis direction.

Wherever progress stalls or measurescannot be agreed upon by all ASEANmembers, the Task Force calls for memberswho are ready to liberalize to use theASEAN 10-X method, implementing theirmeasures between themselves, with othersjoining in at a later date. The 10-Xprinciple is similar to Thaksin and Goh’s2+X; the difference is simply a matter ofemphasis. The latter makes it obvious thatonly two countries are needed. The 10-Xprinciple vaguely states that any groupingunder 10 is sufficient.

The greatest structural change to theASEAN Secretariat, if adopted, would bethe new judicial institutions in the DisputeSettlement Mechanism. There are five ofthem. The ASEAN Consultation to SolveTrade and Investment Issues (ACT), basedupon the European Union’s SOLVIT8

mechanism, provides for governmentagencies within each member state toprovide information and help to businessesthat run into trade issues, with a solutionto be provided within 30 days of a requestfrom a company. However, this is not alegally binding agreement. A Terms ofReference for ACT was endorsed at theInformal ASEAN Economic MinistersMeeting in 2004, and ratified at theASEAN Summit in Vientiane. It came intoforce upon signing in Vientiane, Lao PDRon 29 November 2004.

The ASEAN Legal Unit would provide legaladvice to governments (now established)and to the ASEAN Compliance Body(ACB), the third institution. This body ismodelled on the WTO’s Textile MonitoringBody, and is the first court of dispute. Itwould review a trade dispute and issue ajudgment that is not legally binding but canbe used by the parties involved in thedispute either to take steps to settle thedispute at that stage, or to move to thenext. Its terms of reference were endorsedat the Tenth ASEAN Economic MinistersMeeting in 2004, and it is also nowestablished.

The next stage after the ACB is the‘Enhanced Dispute SettlementMechanism’, which establishes two judicialbodies. These independent judiciaries arethe final court of dispute. The rationale forthem is to ensure that trade disputes areresolved on legal grounds only, rather thanpolitically. The Enhanced DisputeSettlement Mechanism would be modelledon the WTO Dispute SettlementMechanism (DSM). A dispute panel wouldhave three independent figures from bothASEAN and non-ASEAN countries. Thepanel would not be a standing court.Appeals would go to an appeals boardstaffed according to WTO procedures. The

8. SOLVIT is an on-line problem-solving network in which EU member states work together to pragmatically solveproblems that arise from the misapplication of internal market law by public authorities.


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Task Force does not explicitly call for theuse of sanctions, but notes that sanctions,along with other ‘effective mechanisms’could be used for non-compliant members.This would only apply to trade disputeswhere the countries in dispute cannotresolve their differences throughnegotiations. The DSM would encouragecountries to use negotiations first, though

it would not be a requirement.

A draft of the Protocol on EnhancedASEAN DSM was approved ‘in principle’at the Thirty-sixth ASEAN EconomicMinisters Meeting in September 2004, andratified at the Tenth ASEAN Summit inVientiane.

Challenges and OpportunitiesRegional Complementarity and Diversification

Recouping Foreign Direct Investment

The creation of an AEC with borderlessmarkets and harmonized trading rules willenable companies to build economies ofscale and divide labour according to thecomparative advantages of individualASEAN countries. Foreign and ASEANinvestors would want to invest in the AECbecause it allows companies to efficientlydistribute their resources based upon theirproductivity needs rather than a country’strade regulations.

In its current structure, ASEAN is dividedby members’ political borders, which throwup protectionist policies that do more harmthan good to the region’s economies.Instead of encouraging cooperation, theseantagonistic policies lead to greatercompetitiveness, where one countrypointlessly reproduces an industry thatanother ASEAN member does better. Itwould be better for ASEAN countries toconcentrate on developing or exploitingtheir comparative advantages. Wherever acomparative advantage in one countrycomplements a comparative advantage inanother, these two industries can be joinedtogether by a company.

For instance, a comparative advantage forCLMV is their cheap labour costs. A firmin Singapore or Malaysia, therefore, couldoutsource its labour-intensive work to oneof these countries, and let its local officeconcentrate on research and development.The set-up would be mutually beneficial.However, at this point in time, this wouldbe a costly and lengthy process with all thedifferent tariffs, non-tariff barriers, customsprocedures and product standards thatcurrently exist in different ASEANcountries. Under the AEC, transparentrules and the expedited movement of goodsand services would allow a company to actas if is working within one country. ASEANwould, in effect, offer a work andinvestment environment comparable inscale to that of China or India. Givingcompanies and investors the opportunityto expand their company bases acrossASEAN also gives them more chances todiversify their production. This will beessential in CLMV, where economies havea narrow production base.

Foreign direct investment in ASEAN hasfallen drastically since its apogee in 1997.In that year, ASEAN drew US$34 billionin foreign direct investment (FDI). Within

a year, that number had dropped toUS$18.5 billion, and by 2000 it stood at a10-year low of US$11 billion. It climbedin 2001 only to drop again in 2002, to


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US$12.4 billion.9 However, ASEAN’sshare of global FDI has more than doubledsince 1999, to 19 per cent in 2002.10 Thisis despite the fact that FDI in 2002 wasUS$7 billion less than 1999’s total, andreflects a world-wide drop in investmentbecause of that year’s sluggish globaleconomy. The most recent statistics showthat FDI rose in 2003 by 48 per cent toUS$20.34 billion.

While ASEAN saw a net decline in its shareof global FDI after the Asian financialcrisis, China, India and Latin America,among others, saw their shares rise. Thisshift has been attributed to the low labourcosts of these countries, and also, in thecase of China and India, to their highgrowth rates, their enormous consumermarkets and, most importantly, to the factthat their trade policies and regulationscover a huge market. ASEAN, in contrast,has different rules and procedures

depending upon the country. If ASEAN isto remain competitive with these countries,it has to offer a similarly favourableinvestment environment and create rulesand procedures that apply across ASEAN.This is especially important for CLMV,which has little capital of its own and isdependent upon foreign aid and FDI tobuild its infrastructure and develop itsindustrial capacity.

Intra-ASEAN FDI can play a role in thisrespect. After the Asian financial crisis,intra-ASEAN FDI dropped at an evengreater rate than non-ASEAN FDI. Itcurrently stands at about 11 per cent ofASEAN’s total FDI.11 If the economies ofthe ASEAN-6 achieve greater growth andCLMV continue to exhibit strong 5-8 percent growth, ASEAN investment in CLMVshould increase and help these countriesas they try to catch up with the ASEAN-6.

9. ASEAN Secretariat. 2002. ‘Statistics of Foreign Direct Investment in ASEAN’. http://www.aseansec.org/14549.htm

10. ASEAN Secretariat. 2003. ‘Joint Press Statement of the Sixth ASEAN Investment Area (AIA) MinisterialCouncil Meeting’, 1 September, Phnom Penh. http://www.aseansec.org/15068.htm

11. ASEAN Secretariat. 2002. ‘Statistics of Foreign Direct Investment in ASEAN’. http://www.aseansec.org/14549.htm

Facilitating Trade

Most of the measures needed to facilitatetrade are already contained within theprevious trade agreements of AFTA, AFASand AIA, or are in the list ofrecommendations for the AEC that the HighLevel Task Force has submitted to the ASEANSecretariat. Mutual recognition agreements,simplified and expedited customs procedures,harmonized product standards, transparencyon non-tariff barriers and simplified taxationschemes: these correctives have all beenidentified, even set out in a targeted timelineby the Task Force. MRAs, for instance, areto be developed by 2004 or 2005 for fivesectors: electrical and electronic equipment,telephone and communications equipmentcosmetics, pharmaceuticals and preparedfoodstuffs.

The problem is not that these changes havenot been identified. In fact, there has beenno shortage of changes to streamline, speedup or simplify current bureaucratic tradepolicies and procedures. The problem isthat ASEAN has lacked the mechanismsand deadlines needed to implement thechanges. The liberalization of services, forinstance, has hardly progressed, despite allten members having signed AFAS over eightyears ago. The hidden non-tariff barriersthat governments use to protect theseindustries have barely been identified orremoved. To investors, ASEAN’s lack ofprogress to its stated objectives can hardlyinspire confidence.


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Since the Declaration of Bali Concord IIwas more of an agreement in principle thana blueprint, the final framework for theAEC has yet to be chosen. The High LevelTask Force has recommended that the AECbe an AFTA-plus model, with a free flowof goods, capital and skilled labour, butwithout a harmonized external tariff. Othergroups have recommended the CommonMarket-minus model, arguing that sinceASEAN’s Most Favoured Nation tariffs andintra-ASEAN tariffs on most of its IL itemsare the same, it would be advantageous forASEAN to converge their individualexternal tariffs towards a low external tariffof members such as Singapore, Brunei andMalaysia.12 ASEAN will have to choose oneframework and proceed from that.

ASEAN also has to decide how tostrengthen the DSM. Most observers,including the High Level Task Force, haveurged the necessity of having anindependent judicial panel to rule on tradedisputes, as well as a standing court ofappeal. Similarly, they have alsorecommended giving more finances and alarger staff to the ASEAN Secretariat. TheVientiane Action Plan will likely include aclause that will stipulate whether eachmember is to contribute the same amountor if it will be based upon per capita GDP.13

CLMV will definitely want to see the latter.

Above all, the final framework for the AECmust provide a more concrete mechanismthat is able to accomplish the objectivesby the required timelines as they are setout in the agreements. Only a few yearsago, after the failure of ASEAN to contain

or limit the damage of the Asian financialcrisis and its inability to influenceMyanmar to free Aung San Suu Kyi, criticswere calling ASEAN irrelevant. This wasdespite having signed AFTA, AFAS andAIA. Having signed a declaration to deepentheir economic, social and security ties,ASEAN countries have re-energized theassociation and given it a potentially evengreater relevance than it has ever hadbefore. However, this potential has to betranslated into results if the AEC is to moveahead and CLMV are to successfullyintegrate into ASEAN.

Until the Bali Concord II, ASEANfunctioned as an intergovernmentalorganization composed of countriesforming consensus-based agreements. TheAEC will require the association to establishsome form of regional institution that hasa limited authority over itself. ASEANleaders have publicly adopted the ASEAN10-X and 2+X methods for moving alongthe integration process. This will hopefullypersuade others to join. Unfortunately, italso risks allowing the first two or threemembers to establish the rules of the game,which latecomers will have little choice butto adopt. Finding a framework and amechanism to advance the changes it needsto make will require having all ten membercountries satisfied that its individual needsare recognized and can be realistically met.Otherwise, the agreement might get boggeddown by delays to protect domesticindustries, a spirit of minimum compliance,or a lack of political will in the face ofpublic protest at job losses and industryshutdowns.

12. ASEAN-ISIS. 2003. ‘Towards an ASEAN Economic Community: A Track-Two Report to ASEAN PolicyMakers’.

13. Yong Chanthalangsy. 2003. ‘From Phnom Penh to Vientiane: Lessons for ASEAN’s New Members’. Presentationat a roundtable organized by the Cambodian Institute for Cooperation and Peace and Friedrich-Ebert-Stiftung,Phnom Penh, 27-28 November.

Choosing a Framework


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ASEAN leaders finalized the details of theAEC at the Tenth ASEAN Summit inVientiane in November 2004, and alsosigned the Vientiane Action Plan (VAP) tofollow upon the six-year Hanoi Plan ofAction (HPA) which ends in 2004. TheHPA was launched in December 1998 andwas the first of several action plansconceived to realize the ASEAN Vision2020’s goal of ‘a concert of Southeast AsianNations, outward looking, living in peace,stability and prosperity, bonded togetherin partnership in dynamic developmentand in a community of caring societies’.

AFTA was one step that has pushedASEAN towards realizing Vision 2020. Thenew AEC will build upon AFTA byincreasing economic integration, bridgingthe divide between the ASEAN-6 andCLMV, and bringing greater economicbenefits to the region as a whole. Informulating the VAP, care has to be takento ensure that the needs of CLMV areaddressed. The HPA has, by manyaccounts, failed to realize its potential,largely because there were too fewinitiatives and not enough money. Even asASEAN countries work towards a blueprintfor the AEC, this problem remains a factor.At the sixth High Level Task Force Meetingin May 2004, the ASEAN Secretariatannounced that it has enough funds topursue only 35 per cent of its projects. TheInitiative for ASEAN Integration (IAI)lacks funding for 20 per cent of its projects,worth approximately US$12.7 million, andhas only partial funding for nine otherprojects totalling US$16.8 million in value.

The VAP, encompassing as it does not onlyeconomic but also socio-cultural goals,should also include greater attention tosustainable development. While the HPAhad the protection of the environment andthe promotion of sustainable developmentas one of its ten objectives, the Bali

Concord II has no mention of sustainabledevelopment, and fails to note itsimportance in realizing both its economicand socio-cultural objectives. This is despitethe fact that the ASEAN Vision 2020 callsfor ‘a clean and green ASEAN with fullyestablished mechanisms for sustainabledevelopment to ensure the protection ofthe region’s environment, the sustainabilityof its natural resources and the high qualityof life of its peoples’.

Some of the environmental goals of theHPA – the establishment of a centre ofenvironmentally sound technologies andstronger institutional and legal capacitiesto implement environmental agreements –have not been realized. These goals shouldnot only be reiterated in the VAP, but alsoexpanded to include the promotion ofsustainable development through taxincentives, green subsidies or better-than-CEPT tariffs for green products,the harmonization of eco-labellingprogrammes, timber certification schemesand ISO 4000, and capacity-building effortsunder the IAI for CLMV. The latter hasespecially been neglected under the IAI,which has only one out of 73 projectsdealing with sustainable development.There are no workshops on reforestation,environmental assessments, or linkagesbetween trade and the environment.

As economic integration deepens under theAEC, greater harmonization is needed onenvironmental policies that are affected bytrade. Already, Singapore has signed a freetrade agreement with the United States ofAmerica that has environmental clausesguaranteeing that the signatories willmaintain their current level ofenvironmental protection and strive toimprove it, as well as ensuring that neithercountry will lower standards to attracttrade. Infractions incur monetary fines thatare spent on correcting the environmental

The Vientiane Action Plan


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problem. The USA-Singapore FTA is saidto be a model agreement that the USA willuse when signing with other ASEANcountries. The environmental chapter inthe USA-Singapore FTA is not meant tobe a form of ‘green protectionism’, butrather to ensure that both parties cooperateto guarantee a standard of environmentalprotection that is achievable given eachcountry’s respective financial resources and

environmental expertise. In designing theAEC and the VAP, ASEAN has both themeans and the opportunity to ensure itspeople can enjoy sustainable use of itsresources and a high quality of life. To thatextent, it is important that ASEAN’senvironment ministers are involved indesigning the VAP, as was called for in the2003 Yangon Resolution on SustainableDevelopment.

ASEAN and East Asian IntegrationASEAN-China FTA

On 4 November 2002, in Phnom Penh,ASEAN and China signed the FrameworkAgreement on Comprehensive EconomicCooperation between ASEAN and China(ACFTA). The agreement goes beyond thisand explicitly aims at the establishment of anASEAN-China Free Trade Area within tenyears. This initiative is of major economicand political significance to both ASEAN andChina. The negotiations, conducted by theASEAN-China Trade NegotiationCommittee, will produce schedules for tariffreductions and eliminations from January2005 to 2010 for ASEAN and China, andfrom January 2005 to 2015 for the newermembers of ASEAN.

From the start of negotiations, China wasmore interested in negotiating the issuesand agenda for an FTA. This is partlybecause China is represented by a singleentity while ASEAN is composed of theoriginal six ASEAN countries and CMLV.Even among the original ASEAN-6countries, there is a wide range of views,and differing domestic political, economicand social configurations and priorities.And it is also partly because ASEANeconomies are growing much slower andare less dynamic than China’s. ASEAN’snegotiating posture has seemed morereactive than proactive in identifyingopportunities in the FTA negotiationprocess with China.

The ASEAN-China Agreement is notstrictly an FTA but extends tocomprehensive economic cooperation. Ifthe scope of the FTA discussions had beenlimited, negotiations would have beenprotracted and it would have been moredifficult to achieve a positive-sum gameresult for both sides. Therefore, the scopeof the ASEAN-China FTA had to be broadand contain trade, facilitation anddevelopment objectives, rather than justfocus on trade liberalization.

Even if both sides agree on the scope andspecific details of the FTA arrangement,there is a possibility that there might be adelay or even a capitulation to a ‘dirtyASEAN-China FTA’ (diluted FTA) ifeconomic growth and macroeconomicconditions in ASEAN and China do notsubstantively improve. This might occur,for instance, if ASEAN fails to attractenough FDI to generate sufficient sourcesof growth during the period ofnegotiations. Alternatively, if there werelarge-scale unemployment or seriousstructural dislocations in China arisingfrom liberalizing its domestic economy, theFTA process would be seriously disrupted.

The ASEAN-China FTA is based on theassumption or hypothesis that it is apositive-sum game, meaning that bothparties will benefit. The prevailing


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perception is that in the initial periodChina would gain relatively more thanASEAN. China, however, is prepared torecycle its economic benefits to ASEANcountries through larger outflows of FDI,tourism and more imports of ASEANagro-related industrial goods and services.In the long run, trade creations and intra-regional investment flows would generatepositive income effects to offset the initialperiod of negative substitution effects.

ASEAN-China FTA negotiations will notbe easy or straightforward because theireconomies are not complementary; theycompete and export to the same externalmarkets. To overcome this initial structuralincompatibility, China has offered a set of‘early harvest’ benefits to ASEAN, whichmeans that China will offer preferentialtariffs to ASEAN exports but there will beno reciprocal treatment for China’s exportsto ASEAN, particularly to CMLV.

ASEAN-Japan Comprehensive Economic Partnership

At the Ninth ASEAN Summit in Bali inOctober 2004, the leaders of ASEAN andJapan signed the ASEAN-JapanComprehensive Economic Partnership(AJCEP). In contrast with ACFTA, AJCEPis at an initial stage and lacks both detailsand a programme of implementation.

In terms of economic structures, ASEANand Japan are complementary. ASEAN isrich in natural resources while Japan is richin technology and investment capital.However, the Japanese economy is saddledwith many forms of restrictions and non-competitive economic practices, such ashigh tariffs and quotas on rice imports,explicit and implied restrictions onfinancial and banking services, and manyforms of trade impediments in domesticsector. Because of these structuralimpediments in the Japanese economy, itis not possible to negotiate a standard freetrade area.

As AJCEP is being negotiated, Japan is alsoundertaking bilateral FTAs with individualASEAN economies. Thailand, Malaysiaand the Philippines have shown an interestin entering bilateral FTA negotiations withJapan. Japan, therefore, has to ensure thatthe bilateral trade policy approach isconsistent with the regional framework inorder to minimize the ‘spaghetti bowlsyndrome’ in the East Asian region. Thereare indications that Japan is giving more

preference to bilateral trading arrangementswith the ASEAN-6 at the expense of newerASEAN members, since the ASEAN-6 iseconomically more important to Japanthan CMLV.

The success of AJCEP is very muchdependent on Japan’s interest in andcapacity to assist ASEAN’s industrialupgrading and competitiveness. After theAsian financial crisis in 1997, it becameacutely evident that many ASEANeconomies require major structural re-organization and upgrading. Without thosechanges in the real and financial sector,ASEAN economies would not be able totake full advantage of a comprehensiveeconomic partnership with Japan. FDI hasradically shifted in favour of China and thegravity of economic dynamism and growthhas contributed to the widening of aneconomic gap between Northeast andSoutheast Asian countries.

Japan has to extend substantive technicaland financial assistance to ASEANcountries with a view to radically re-organizing and restructuring theireconomies. Otherwise, the proposedAJCEP would not benefit both sides.Specifically, ASEAN countries need toimprove the quality of their labour forcesand upgrade the infrastructure ofadministration and governance in publicand private sectors. It is imperative for


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Summary and Conclusions

ASEAN to retain and attract FDI as asource of economic growth. ASEAN mustbe economically vibrant to minimize socialand political instability. In turn, a viableand vibrant ASEAN economy would havethe capacity to be the critical ‘hub’

connecting the rival economic powers ofJapan and China. Such a regionalenvironment is a precondition for theestablishment of a prosperous and stableEast Asia in the twenty-first century.

At the Seventeenth Meeting of the ASEANFree Trade Council on 1 September 2003in Phnom Penh, ASEAN ministersdiscussed various issues related to theimplementation of the CEPT Scheme, therealization of AFTA, the implementationof the ASEAN Integration System ofPreference (AISP), the liberalization ofInformation and CommunicationsTechnology goods under the e-ASEANFramework Agreement, the elimination ofnon-tariff barriers, the CEPT Rules ofOrigin and some implementation problemsrelating to the CEPT-AFTA Scheme. It wasnoted that, after ten years, AFTA has beenvirtually realized as regional tariffs on 98.62per cent of products in the CEPT IL ofthe ASEAN-6 are now within the 0-5 percent range. With the completion of thetransfer of products from the Sensitive Liststo the IL by 2003, only 247 tariff lines or0.50 per cent of all products traded in theregion would remain out of the CEPTScheme. The average CEPT rate for theASEAN-6 has gone down from 12.76 percent in 1993 to 1.91 per cent in 2003. Atthe same time, the new ASEAN members(CLMV) are also keeping pace with oldermembers in implementing their CEPTcommitments. The average CEPT rate forCLMV at the end of 2003 was 6.22 percent, down from 6.77 per cent in 2003.

In nominal terms, these are all very goodachievements. However, the percentage ofintra-ASEAN trade has not significantlychanged, hovering at around 20-23 percent, and the percentage of CEPT productsunder the AFTA scheme remains very small

compared to its total trade with the rest ofthe world. In other words, growth inASEAN economies is basically driven byexternal trade and investment. ASEANtherefore urgently needs to move fast andboldly in creating competitive productionclusters and greater regional domesticdemand to increase sources of growth fromwithin the region. ASEAN membereconomies, especially the more developedeconomies of Singapore, Malaysia andThailand, must engender policies towardsresource-pooling and market-sharing witha view to creating competitive andcomplementing production bases andexpanding domestic demand as envisagedin the concept of AEC.

In the short run, there is serious concernover the slow progress in eliminatingunnecessary non-tariff measures. Membereconomies are urged to complete the processof verifying known non-tariff measures,notifying members of their import licensingprocedures and cross-notifying othermembers’ non-tariff measures, as well assetting a deadline for the completeelimination of non-tariff measures.Otherwise, the gains of AFTA will be offsetby non-transparent non-tariff measures.

Other measures are equally vital, such asthe work in improving and strengtheningthe CEPT Rules of Origin, standards andmutual recognition agreements, and theharmonization of technical and productsstandards, which are important infacilitating the movement of goods underAFTA.


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Now that the AEC has been launched, theimplementation of the ASEAN IntegrationSystem of Preferences is more compellingin order to integrate CMLV into theregional market for trade in goods.Furthermore, the ASEAN-6 must initiatein earnest development assistance toCLMV. Without this developmentassistance, CMLV members will havedifficulty integrating their economies withthe ASEAN-6 and the concept of an AECwill have less credibility and effectivenessin creating a consumer market of 500million and a credible economic entity inSoutheast Asia. This commitment shouldbe embodied in the new VAP, which shouldreflect a development agenda that is botheconomically and environmentallysustainable.

Beyond AFTA and the AEC, ASEAN mustgradually integrate economically with theexpanding and dynamic Northeast Asianeconomies of China, Japan and SouthKorea. Increasing East Asian integrationis not a policy choice but a policy necessityfor ASEAN in order to keep its economyvibrant and competitive in the globalmarket place. By default, ASEAN’s positionas the ‘hub’ of East Asia should be leveragedfor maximum gain. How much benefitASEAN can derive from its ‘hub’ positionis critically dependent on how well andeffectively ASEAN can move forward fromthe ASEAN Free Trade Area to the ASEANEconomic Community.

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