New book sheds light on ASEAN’s legal authority

A new book co-authored by Professor Donald Rothwell FAAL and three former ANU Law scholars examines the legal authority of ASEAN. Photo: Tom Fearon/ANU

A new book co-authored by  Professor Donald Rothwell FAAL examines the Association of South East Asian Nations (ASEAN) from a legal and international relations perspective.

Recently published by Cambridge University Press, The Legal Authority of ASEAN as a Security Institution is jointly authored by Professor Rothwell with Professor Hitoshi Nasu, an international law expert at the University of Exeter; Professor Rob McLaughlin, director of the Australian Centre for the Study of Armed Conflict and Society at the University of New South Wales, Canberra; and Professor See Seng Tan, deputy director of the Institute of Defence and Strategic Studies at Nanyang Technological University in Singapore.

The book represents the culmination of a 2013 Australian Research Council Discovery Project by Professors Rothwell, Nasu and McLaughlin, then all based at The Australian National University (ANU) College of Law.

“With this sort of project, it’s ultimately the collaboration with scholars from different areas of expertise that is most satisfying. Working with your ANU colleagues is obviously incredibly rewarding, in addition to working with scholars within the region,” said Professor Rothwell.

The book opens with an overview of ASEAN as a security institution in a legal, normative and institutional framework. Subsequent chapters explore security across nuclear, national, maritime, cyber and food contexts in addition to human trafficking.

“ASEAN has rarely been put under the legal spotlight, so that’s really what we were trying to do with a team of three lawyers and an international relations specialist. Of course, it wasn’t just any legal spotlight; it was a security spotlight,” said Professor Rothwell.

““ASEAN has rarely been put under the legal spotlight, so that’s really what we were trying to do with a team of three lawyers and an international relations specialist.””

Established in 1967, ASEAN has often defied sceptical observers and critics. There was a strong sense among founding members that there were common goals they could seek to promote through cooperation, said Professor Rothwell.

“Over time, this has become known as the ‘ASEAN way’, which is an approach that very much relies on consensus and cooperation while seeking to push disagreement under the covers,” he said.

“ASEAN has been remarkable at presenting a united front on multiple issues, but part of that success is that ASEAN has tended to deal with ‘soft’ issues traditionally. It’s had to develop a harder edge in approaching security issues in terms of its engagement with, for example, China.”

At an ASEAN summit in Bangkok last week, leaders reaffirmed their support for a draft code of conduct for parties in the South China Sea. Although the South China Sea “is not front and centre” of the new book, Professor Rothwell said it remains a critical issue. 

“It will be quite fascinating to see how ASEAN-China engagement plays out. ASEAN has been engaged in a continuous dialogue with Beijing in reaching consensus on a code of conduct, but that process has been quite drawn out without any clear resolution. Given that key states including the Philippines, Malaysia and Vietnam are all critically engaged with China on those questions, that is a big issue that ASEAN needs to deal with.

"There’s a very established ASEAN scholars group as well as students who look at regional issues, so part of the purpose of this book is to make the link between law and security dimensions," he added.

Although ASEAN is the world’s second-most successful regional organisation after the European Union (EU), Professor Rothwell said it is important to avoid comparisons between the two blocs.

“One of the key aspects of the work is that we set out to demonstrate that unlike what is sometimes assumed, ASEAN is not the EU. ASEAN never has the aspiration of trying to get a common set of legal standards at the same level as the EU," he said.

"Nevertheless, for ASEAN to achieve some of its goals, having complementarity within the legal systems is clearly helpful."