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An Asean identity?

Even the Peranakan (Nonya) dishes, a fusion of Malay and


Chinese recipes, did not escape similar claims. (Ethnic tension
within Malaysia between Chinese Malaysians and ethnic
While the main goals of the Association of Southeast Asian Malays is still on because of the country’s economic policy of
Nations (Asean)– Brunei Darussalam, Cambodia, Indonesia, Bumiputra which gives preferential treatment to the ethnic
Lao PDR, Malaysia, Myanmar, the Philippines, Singapore, Malay majority.) Another example is the Preah Vihar temple
Thailand and Vietnam–are described in trade terms (single issue between Cambodia and Thailand which had to be settled
market and production base, highly competitive economic by the International Court of Justice. In April 2013, about 500
region, equitable economic development, further integration nationalists of the Patriot Thai Group raised the flag of
into the global economy), the documents that have come out of Thailand to assert Thai sovereignty over Preah Vihar.
various Asean meetings talk about many other things.
The examples cited demonstrate that cultures should not be
On the matter of an Asean identity, the Asean Charter (2007), thought to have fixed borders. Many of these cultures evolved
the Asean Declaration on Cultural Heritage (2000) and of late, in the course of time during Hindu, Muslim, Buddhist or
the Asean Socio-Cultural Community Blueprint (2009-20015), Christian periods. Meaning, practices in countries within the
specify “The Asean Identity is the basis of Southeast Asia’s Asean region continued to be shaped by various peoples and
regional interests. It is our collective personality, norms, values events.
and beliefs as well as aspirations as one Asean
Community…..The strategic objective is …to create a sense of Even the legal culture is not an exception. Asean countries
belonging, consolidate unity in diversity and enhance deeper have a mosaic of legislations with traces of foreign influence
mutual understanding among Asean member countries about brought about by periods of Spanish (Philippines),
their culture, history, religion and civilization……”
French (Cambodia, Lao PDR, Vietnam), British (Brunei
There are, however, sorts of “cultural war” among some Asean Darussalam, Malaysia, Myanmar, Singapore) AND Dutch
countries related to cultural heritage. In 2012, it was reported (Indonesia) occupation.
that riots erupted in Jakarta when Indonesian protesters
targeted the Malaysian Embassy over dance heritage, in The lack of knowledge of historical roots and evolution of
particular, the Tor-tor dance. Likewise, some quarters claim particular ways of life and practices can result in too
Malaysia’s national anthem Negaraku is based on Indonesia’s nationalistic and divisive views. There should be space for two
Terang Bulan (Bright Moon). In the area of cuisine, the Yu or more forms of heritages, complementary but not in conflict.
Sheng/Lo Hei, a dish served during Chinese Lunar Festival and
traditionally thought to bring prosperity is separately claimed In short, they should be considered shared cultures that
by the Chinese in Singapore and Malaysia as theirs. transcend political boundaries. In this rubric are the angklung

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(bamboo) orchestra as well as the gamelan (gongs) ensemble of characterized by equitable utilization ultimately redounding to
Indonesia, Malaysia and the Philippines which are like one. the benefit of the Asean region.
Also batiks which are either Indonesian, Malaysian or Thai like
the wayang kulit (shadow play). A good model for an Asean identity is the Asean Heritage
Parks system which continues to focus on cooperation among
The Philippine Bayanihan Dance Co. researched Singkil and member countries to develop a regional conservation and
found that it has its equivalent in Indonesia and Malaysia, management plan for the current string of over 40 heritage
which should not be a surprise considering the geographic parks in the region. The criteria to determine if the region
proximity of the three countries collectively called qualifies as an Asean heritage park include high ethno-
“Maphilindo” before the birth of Asean. In the same way, the biological significance, uniqueness and respresentativeness.
popular Philippine folk dance Tinikling has a slow movement Designation as a heritage park strengthens cooperation,
version in Thailand. Truly Asean, on the other hand, is kite awareness and appreciation among Asean countries.
flying as a pastime as well as the tube-like-wrap-around
malong, a real-life practical garment for men still evident all Together with the other aspects of the Asean cultural heritage,
over Southeast Asia from Brunei Darussalam to Myanmar to the designation promotes the twin objectives of community
Vietnam. building and identity. Best of all, the concept of an Asean
heritage parks system advances protected area goals expressed
The case of the Preah Vihar temple between Cambodia and in the Convention on Biological Diversity, the Ramsar
Thailand, however, should be viewed in another light. Involved Convention on Wetlands Conservation as well as the World
is sovereignty but a way out is recognition of functional Heritage Convention.
sovereignty as distinguished from territorial sovereignty.
Functional sovereignty refers to specific uses of a resource All this will help forge an Asean identity which is important for
rather than absolute and unlimited jurisdiction within a the future implementation of Asean policies. It is a
geographic space. It means interdependence in the sustainable complementary to the principles of sovereignty and non-
use of a resource emphasizing that states are dutybound to intervention (Asean Way) which can, without the recognition
cooperate with each other to promote development of a cultural bridge, hinder the implementation of Asean legal
sustainability of the common environment. instruments and tools including environmental laws. After all,
what society chooses to preserve of the past defines who we are
Preah Vihar ought to be enjoyed as an Asean tourism resource, today, creates our collective memory and hastens our new
a cultural heritage of both Cambodia and Thailand aside from a development as Asean Community bound by a common
religious destination in the Asean jurisdiction. Or, in different regional identity. In the words of Asean law expert Koh Kheng
words, the change of perception of the role of sovereignty in Lian, “an Asean identity is crucial to bringing about enhanced
relations between states regarding their environment should be cooperation to supplement the Asean Way and make it more

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meaningful, to encourage all to “THINK Asean” instead of Sovereignty over Natural Resources in 1962. The principle
only “Think National.” progressively developed that by 1972, the well-known
Principle 21 of the Stockholm Declaration on the Human
Environment declares the sovereign right of States to exploit
their own natural resources pursuant to their own
environmental policies. However, the right is qualified by the
obligation not to cause any extra-territorial environmental
Changing concept of sovereignty over natural harm.
resources
For many years, the main purpose of international agreements
related to the principle of permanent sovereignty over natural
“…..it is time to bring sovereignty down to earth, cut it down to resources was the maximum use and development of natural
size, resources instead of rational management and conservation of
discard its own rhetoric, to examine, analyze, reconceive the natural resources in order to prevent their depletion or
concept degradation. Perhaps, the reason was the concept of
and break out its normative content; to repackage it, even sovereignty is difficult, if not impossible, to fathom in an
rename it; ecological frame of reference. The very thought of ecology is
and slowly ease the term out of polite language in international based on the notion of interdependence rather than
relations, particularly in law.” independence. In fact, rights of full disposal were granted to
States on the basis of territorial sovereignty rather than a
Louis Henkin (1994) principle of sharing the world’s resources. The trend was
Sovereignty in its widest sense means the supreme, absolute overtaken after the 1972 UN Stockholm Conference on the
and uncontrollable power by which any independent State is Human Environment by resource-oriented multilateral
governed. Through the years, the concept of sovereignty has environmental agreements (MEAs) or treaties. An example is
evolved to include not only territorial sovereignty but the UN Law of the Sea Convention (1982) which adopted the
permanent sovereignty over natural resources (PSNR) as well. regime of “ common heritage of mankind” by which non-State
Fundamentally, PSNR means the State can freely dispose of areas are not freely appropriated anymore by financially
its natural wealth and resources within its territory. capable developed countries for their exclusive use. Similarly,
Correlatively, the principle brings about the State duty to incorporation of the integrated ecosystem approach in the
properly manage its wealth and resources as well as due care of Convention on Biological Diversity (1992) enumerates State
the environment. duties to properly manage its species of plants and animals
which, in effect, limits a State’s exercise of jurisdiction over its
Efforts at formulation of the principle culminated in the natural resources. From unrestrained freedom of action, State
adoption of a UN resolution called Declaration on Permanent

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sovereignty was interpreted in a more functional way to mean regimes co-exist but barely interact. Be that as it may, the
specific uses of a resource rather than absolute and unlimited trend, as can be observed, is towards a legal interpretation that
jurisdiction within a given geographical space. is humankind-oriented, under which sustainable development
and environmental preservation are approached from a global
Functional sovereignty is bolstered by reference of various perspective. At its core is cooperation aimed at implementation
PSNR-related UN resolutions and treaties to “mankind” of the right to development, the wise management of natural
referring to areas and resources beyond the limits of national resources, equitable sharing of transboundary natural resources
jurisdiction or the “global commons.” In this connection, and the global commons for preservation for the coming
mention should be made that at the 1992 UN Conference on generations. With this legal thinking and the concomitant
Environment and Development in Rio de Janeiro, proposals framework, sovereignty over natural resources as the
were made to characterize biological and genetic resources as fountainhead of rights and obligations can very well continue
well as the world’s forests as the “common heritage of to serve as a basic principle of public international law. The
humankind.” Thus, the three Rio treaties recognize that change above-enumerated treaties incorporate the law of
in the Earth’s climate and its adverse effects are a common interdependence in the sustainable use of natural resources
concern of humankind (Climate Change Convention); that the emphasizing States are under the duty to cooperate with each
conservation of biological diversity is a concern of humankind other to promote development sustainability of the common
(Convention on Biological Diversity); and desertification and environment.
drought are problems of global dimension and human beings in
affected areas should be at the centre of concerns to combat With this latest development in the increasing appreciation of
desertification and to mitigate the effects of drought PSNR, is it not time to re-think and re-actualize sovereignty in
(Convention to Combat Desertification). Note that in those order to formally recognize its functional role as demanded by
treaties people, humankind and the environment as such are changing times?
objects rather than subjects of international law. As objects,
indirectly they have rights under or are beneficiaries of After all, the general principle that ensues from all this is that
international law through subjects of international law, the Earth’s biosphere is the common heritage of all life on
referring to the State actors in the international legal system. earth of which humanity is the steward.
Sovereignty has served as the foundation of public
international law since the Peace of Westphalia (1648) with
sovereign states as the principal actors in international
relations. But as can be gleaned, times have changed. What
does the principle represent in the changing world? Current
thinking maintains permanent sovereignty over natural Common sovereignty over transboundary natural
resources as a State-oriented law under which natural resources resources

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feasibility of alternative means – including the availability of
other resources—to satisfy these needs and the possibility of
Transboundary natural resources transcend national compensation to one or more of the States concerned as a
jurisdictions, which means that the exercise of jurisdiction of means of adjusting conflicts among uses. The essence of the
one state affects the environment of one or more other states or principle of equitable utilization is that instead of laying down
areas a norm with a more or less specific content, it rather prescribes
a certain technique aimed at reaching an equitable result in
Owing to the original and traditional interpretation of each concrete case.
“sovereign rights of sates over their natural wealth,” resources
become depleted or exhausted as each state seeks to maximize The principle has been applied in many multilateral
its own benefit by exploiting the resources. Also, existing environmental agreements or treaties specifically those
international law on transboundary natural resources tends to concerning the use of the waters of international watercourses.
be piecemeal and uneven when dealing with the issue of Examples are the Indus Waters Treaty between India and
transboundary waters, e.g. ECE Transboundary Watercourses Pakistan (1960) and the Agreement Regulating the Withdrawal
Convention (1992), Danube Convention (1992); and living of Water from Lake Constance between Austria, Federal
resources, e.g. Whaling Convention (1946), Antartic Marine Republic of Germany and Switzerland (1996) which
Living Resources Convention (1980). determined the delimitation of the rights and duties of each
State over the transboundary waters.
The international challenge for coordination and cooperation to
ensure the equitable and sustainable or reasonable utilization An example in Southeast Asia is the Agreement on the
and management of transboundary natural resources was Cooperation for the Sustainable Development of the Mekong
brought forth by two international legal studies done by the River Basin (1995) drawn in accordance with the principle of
World Commission on Environment and Development (1986) safeguarding sovereignty, territorial integrity and mutual
and the International Council of Environmental Law (2004) benefit.
which expound on the principle that States are entitled to a Aside from treaties, the equitable utilization principle was also
reasonable and equitable share in the beneficial uses of a a recommendation in the 1972 UN Stockholm Conference on
transboundary natural resource. According to this principle, no the Human Environment which says “The net benefits of
use or category of uses is inherently superior to any other use hydrologic regions common to more than one national
or category of uses. Whether a certain use is reasonable or not jurisdiction are to be shared equitably by the nations concerned
has to be determined in the light of all relevant factors in each (Recommendation 51). It was also a recommendation of the
particular case. These factors may include, inter alia, Action Plan adopted by the 1977 UN Water Conference which
geographic, hydrologic, climatic, biologic or ecological declared that “ In relation to the use, management and
conditions, the existing use made of the natural resource, the development of shared water resources, national policies
economic and social needs of the States concerned, the
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should take into consideration the right of each State . . . to The growth of the principle of permanent sovereignty over
equitably utilize such resources (Recommendation 91). natural resources is closely associated with two main concerns
Furthermore, highest courts or arbitral tribunals in Germany, at the time of the creation of the United Nations in 1945. These
the United States, Switzerland and India have also frequently are (i) the economic development of developing countries; and
applied the principle of equitable utilization in the sharing of (ii) the self-determination of colonial peoples. The principle
waters of interstate watercourses. progressively developed that by 1972, the well-known
principle of the Stockholm Declaration on the Human
To efficiently manage what is left of the earth’s natural Environment declares the sovereign right of States to exploit
resources, a “relaxed” concept of sovereignty was thought of their own natural resources pursuant to their own
through equitable sharing of transboundary natural resources environmental policies. However, the right is qualified by the
and the global commons. It appears on the basis of State obligation not to cause any extraterritorial environmental harm.
practice that a rule of customary international law has emerged Principle 2 of the Rio Declaration on the Environment and
requiring States to cooperate in the conservation and Development restates Principle 21 as mentioned and confirms
management of transboundary natural resources. that sovereignty does not only give rise to State rights but to
State obligations and responsibilities as well.

Emerging environmental challenges such as climate change


mitigation, food and water security and disaster management
add new dimensions to environmental issues. No country can
Sovereignty as a responsibility in the Asean deal with those challenges alone. States must continually
identify common priorities to deal with those concerns. It must
enhance coordination among states and even challenge the
Sovereignty in its widest sense means the supreme, absolute dichotomy between regional and national interests,
and uncontrollable power by which any independent State is reexamining principles of sovereignty and non-interference in
governed. Through the years, the concept of sovereignty has the context of environmental challenges. Asean response in this
evolved to include not only internal or territorial sovereignty regard are the on-going cooperative efforts to promote
but also permanent sovereignty over natural resources. conservation activities which include, among others, (i) The
Fundamentally, it means the State can freely dispose of its “Heart of Borneo” initiative to create a transboundary
natural wealth and resources within its territory. Correlatively, biodiversity sanctuary straddling Malaysia, Brunei Darussalam
the principle brings about the State duty to properly manage its and Indonesia against illegal logging and clearing land for palm
wealth and natural resources as well as due care of the oil plantations; (ii) The Asean Heritage Parks program which
environment. Derived from this principle is also the right of the consists of identified and proclaimed protected areas of high
State to pursue its own socioeconomic and environmental conservation importance in each member country, preserving
policies.

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in total a complete spectrum of representative ecosystems of appreciation of the concept of sovereignty over natural
the Asean region; (iii) The Asean Turtle Conservation and resources. Looking back, the decades after the 1972 UN
Protection Memorandum of Understanding between the Stockholm Conference on the Human Environment could well
Philippines and Malaysia to jointly manage, protect and be described as decades of clarifying and updating the earlier
conserve all species of turtle and their habitats in the region economic and political concept of sovereignty and integrating
through unified management, conservation and protection it into the present legal thinking—a dynamic response to
strategies; (iv) The Sulu Sulawesi Marine Ecoregion as part of changed circumstances and insights in the changing world.
the Asean Marine Heritage Areas about which conservation
plans for joint implementation are in place to protect and
conserve the coral triangle bounded by the Philippines,
Malaysia and Indonesia.
Asean: Indonesian haze not a sovereignty issue
The involvements of Asean countries mentioned above
demonstrate the right of states, within the framework of other
principles and rules of international law, to manage natural Illustrative of Asean cooperation on the principle of
resources in accord with developmental and environmental sovereignty over natural resources is the Asean response to the
policies and objectives. It confirms that a state’s sovereignty recurring Indonesian haze, which has been affecting the
over its natural resources involves a number of duties. Among neighboring countries specifically Singapore, Malaysia and
them: (i) The duty to ensure benefits for the whole population southern Thailand since 1982.
and not to compromise the rights of future generations; (ii) The
duty to prevent harm to the environment of neighbouring states It is the result of land-clearing fires for palm plantations and
or areas beyond national jurisdiction. This implies a prudent the practice of swidden (kaingin) agriculture particularly on
use of natural resources not only to protect biodiversity but also peat lands in Indonesia.
to prevent and control pollution. Gradually, it has become
recognized that under international law, natural resources Only in 2002 did Asean formulate a hard law instrument on the
management is no longer exclusively within the jurisdiction of issue: the ASEAN Agreement on Transboundary Haze
individual states and that sovereignty is a responsibility and not Pollution (ATHP). Although generally applicable to all Asean
an absolute right. states, it was formulated in response to the Indonesian haze. It
took effect in November 2003 with the ratification by nine
There is much discourse nowadays about sovereignty vis-a-vis member states. Indonesia has yet to ratify, which rendered the
natural resources and economic growth, natural resources and Agreement essentially ineffective.
conflict in use and natural resource governance mechanisms;
proof that the 21st century marks an increasing and continuing In October 2006, Singapore decided to raise the issue at the UN
General Assembly, a permissible move under Article 2 of

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ATHP, which specifically states that the Agreement’s objective the range of situations in which individual member states
is to prevent and monitor transboundary haze pollution through would be justified in appealing to non-interference to ward off
concerted national efforts and intensified regional and outside involvement in their internal affairs. As serious threats
international cooperation. Indonesia, however, invoked the to sustainable development and human security more broadly,
principle of sovereignty and non-interference in domestic transboundary environmental issues would be classified as
affairs. (A word must be said about the Asean way of doing beyond the scope of “internal affairs” and would be subject to
things. Cooperation is done through consensus. There is no regional governance despite sovereignty.
Asean Parliament to issue laws, regulations and directives to its
members and no enforcement agencies. Non-interference in the It is interesting to compare Asean’s response to the Haze issue
domestic affairs of a member State is the rule of conduct.) with the threat posed by zoonotic diseases, e.g. SARS, avian
flu, swine flu (H1N1) during the last 7 years which raised not
This controversy illustrates the complex political and economic only issues of human security but also challenged animal
dimensions of the haze problem as well as the conflict between protection, the protection of biodiversity and ecosystems and
national and regional interests confronting the Asean. The the pursuit of sustainable development, i.e. sustainability of the
successful adoption and ratification of ATHP attests to Asean’s chain of animal food production.
growing stature as a transnational environmental lawmaker.
But, at the same time, the controversy demonstrates the The threat of a pandemic drove Asean to act with prompt
obstacles in Asean’s path towards environmental regulatory response with no less than 25 Asean soft law instruments.
effectiveness. Possibly, Asean’s response to zoonotic diseases was more
successful as a result of the threat of pandemic not only in the
Perhaps it is time for Asean to take a strong stand, that the region but also in many parts of the world. In the words of
principle of sovereignty be modified in the context of eminent Asean law expert, Koh Kheng Lian, “Asean should
environmental law. Far from undermining state sovereignty, use its rich history of cooperation among States to build . . .
enhanced cooperation in the area of environment will environmental cooperation . . . This would enhance respect for
strengthen states’ sustainable development. By adopting a sovereignty, not undermine it; it can be argued that the inability
flexible engagement approach to transboundary environmental to avert an environmental disaster is a greater loss of sovereign
issues, Asean member states could discuss complex problems authority than cooperation in agreed programs to control the
such as the Indonesian Haze without being accused of harm. Asean’s deferential approach to other’s domestic affairs
interfering with the internal affairs of the country. can inadvertently lead to violations of Principle 21 of the UN
Declaration on the Human Environment in which all States
Flexible engagement is not yet an accepted principle in the acknowledge that each must act so as not to harm the
Asean, but its application to transboundary environmental environment of each other.”
issues is relevant. Flexible engagement is an attempt to delimit