THE ROLE OF ASEAN LAW ASSOCIATION IN FOSTERING RELATIONSHIP & STRENGTHENING COOPERATION BETWEEN ASEAN COUNTRIES IN EXERCISING LEGAL ENFORCEMENT By: Prof. O.C. Kaligis 1
TABLE OF CONTENTS 1. FOREWORD...3 2. CHANGES IN INDONESIA S LAWS AND REGULATIONS...5 3. IMPACT OF INDONESIAN LEGAL CHANGES IN BILATERAL RELATIONSHIP BETWEEN ASEAN MEMBERS...7 a. The case of Indonesia and Singapore...7 b. The case of Indonesia and Vietnam...10 4. IMPACT OF INDONESIAN LEGAL CHANGES IN MULTILATERAL RELATIONSHIP BETWEEN ASEAN MEMBERS...12 a. The case of South China Sea...13 5. CONCLUSION...15 2
FOREWORD The role of ASEAN member countries has risen in the world s geopolitics, and the raise of such importance is not only in one or some member countries, but in all of the ASEAN member countries as a whole. In the past few years, China s economy has increased while the European Union countries is facing a crisis. As the neighbouring countries to China, ASEAN member countries is also being highlighted as each ASEAN member countries experienced increase in economic and political cooperations with China. As the oldest and strongest organization in south east asia, ASEAN has been the attention of other large organizations and countries, and currently, the strengthening of relationship between each member country has become stronger and should be viewed as of utmost importance. 3
In fostering relationship and increasing economic cooperation, legal system, enforcement and cooperation is an important aspect that regulates conflict that may arise from such activity, and should prevent such conflict to arise while business and economic activity is being held. In relation with this year s Asean Law Association s (hereinafter ALA ) workshop, that will address international law issues in the ASEAN Economic Community, including international issues in the South China Sea, cross border issues on environmental problems, criminal law and access to justice for the ASEAN Economic community, as a representative from Indonesia, I would address those issues from the perspective of a legal practitioner in Indonesia. 4
2. CHANGES IN INDONESIA S LAWS AND REGULATIONS As one of ASEAN member countries, Indonesia with the new President s administration are facing numerous changes, both in the laws and also regulations. The current administration has different officials and views in exercising and maintaining sovereignty, being strict in laws and regulations while also maintaining flexibily with current changes in international laws and business activity. The current change in Indonesian laws and regulations that may correlate with other ASEAN member countries among others are: 1. Law of the Seas 2. Fisheries Laws 3. Laws on Oil and Gas 4. Laws on Minerals 5. Laws on Transportation 6. Laws on Communications 5
7. Laws on Aerial Space 8. Laws on Forestry 9. Laws related to Government Officials and Regional Autonomy 10. Laws on Taxation 11. Laws on Trade 12. Laws on Drugs Trafficking 13. Laws on Defense 14. Laws on Citizenship 15. Laws on Immigration The afore mentioned laws are some laws that might correlates directly with other ASEAN member countries, but numerous changes might also occurs and will impact other ASEAN member countries. 6
3. IMPACT OF INDONESIAN LEGAL CHANGES IN BILATERAL RELATIONSHIP BETWEEN ASEAN MEMBERS In December 2014, the few instances that correlates with changes in Indonesian laws and impacted other ASEAN member countries as an example are: a. The case of Indonesia and Singapore During a cooperative military training between Singapore and Indonesia, it was found that one of the delegation from Singapore was holding an Indonesian citizenship. It was found out that the Indonesian citizen was involved in the military training; representing Singapore because such individual is currently studying in Singapore. According to the statement of the Singaporean military representative, in accordance with Singaporean law, any adult male studying and/or residing in Singapore is obligated to serve in military service. This matter was later handled through diplomatic 7
communications between Indonesia and Singapore; despite some comments and opinions that any Indonesians serving in another state s military activity and/or actions on behalf of another state should be compelled from his citizenship. This case is an example in which legal regimes, laws and regulations regarding a national citizenship may impact a bilateral relationship. Due to the fact that ASEAN member countries are closely related, and with the coming ASEAN court and arbitration, these matters can be a case that falls under the ASEAN court and arbitration jurisdiction. Assessment on the cost and possible execution should an ASEAN court and arbitration be handling such case must also be published and socialized, therefore the ASEAN community would consider and choose ASEAN based trial and arbitration 8
instead of a constant diplomatic communications. A referral to an ASEAN arbitration instead of diplomatic communications can be established if the ASEAN community at large believes that an ASEAN arbitration is an indepent body, which decision can be executed in each ASEAN member country. Most importantly, a cost effective and time efficiency will also become a consideration for parties from each ASEAN member country will also be another important factor that will be considered highly by each parties. This is what ALA should strive to publish, socialize and educate to ALA community at large, and through ALA, this important role that ASEAN based arbitration and trial would play, can be socialized effectively and will be exercised soon. 9
b. The Case of Indonesia and Vietnam Another example of how Indonesian domestic legislation, particularly in relation to international law, has impact with Indonesian bilateral relationship is when the new Minister on Fisheries gave a different view on abolishing illegal fishing in Indonesia. There was no new legislation being passed with regards to Indonesian law of the seas, laws or regulations regarding ships or fish. However, Indonesian new Minister of Fisheries is exercising the same laws, rules, and regulation in a much more strict manner compared to the previous Minister of Fisheries. The result of a stricter view of the same international law namely the United Nations Convention on the Law of the Seas (1972), resulted in the shooting and burning of illegal fishers and boats, 3 (three) of them known as having registered in Vietnam. 10
The exercise and execution of such laws resulted to another diplomatic communications, and perhaps if the ASEAN based arbitration and trial is already in effect, such matters could be brought in front of such arbitration/trials. The examples mentioned above shows how a change in a domestic laws, regulations, administration, and public officials, will bring a different view, changes, interpretations and policy. This will bring sparks to bilateral relationships between each ASEAN member countries, and rather than communicating bilaterally, if ASEAN based arbitration and trial is already effective, this would create a less time consuming diplomatic communique between each state. The writer is therefore of the view that the exercise of an ASEAN based arbitration and trial is inevitable and is of utmost importance. 11
4. IMPACT OF INDONESIAN LEGAL CHANGES IN MULTILATERAL RELATIONSHIP BETWEEN ASEAN MEMBERS In the aforementioned chapters, the Writer has elaborated aspects that relates to bilateral relationship among ASEAN member countries that might arise either from a geopolitical changes or also from other changes that occurs domestically. In this chapter, the Writer will further elaborate on how certain changes might affect not only relationship between an ASEAN member country with another ASEAN member country, but also relationship between ASEAN non member countries with member(s) of ASEAN. The writer will further elaborate such matters as follows: 12
a. The case of South China Sea South China Sea borders numerous countries, with the detailed positions which are as follows: 1. South of Mainland China, including the island of Taiwan, in the east; 2. East of Vietnam and Cambodia; 3. West of the Phillipines; 4. East of the Malay Peninsula and Sumatra; 5. North of the Bangka Belitung Islands and Borneo Aside from this bordering states, which involves a lot of ASEAN member countries, and also non member Countries, such as: States and territories with borders on the sea (clockwise from north) include: the People's Republic of China (including Macau and Hong Kong), the Republic of China (Taiwan), the Philippines, Malaysia, Brunei, Indonesia, Singapore, and Vietnam. 13
Aside from the state borders and entailed sovereignty which is prone to dispute, another important fact regarding South China Sea is the fact that there are numerous natural resources in South China Sea itself and the pivotal role that South China Sea plays in the world of shipping and Transportation. Currently, numerous countries are having disputes in relation to the South China Sea, which are as follows: a. Indonesia, China, and Taiwan over waters of the Natuna Islands b. The Phillipines, China, and Taiwan over Scarborough Shoal c. Vietnam, China and Taiwan over waters west of Spratly Islands d. China and Vietnam over Paracel Islands e. Malaysia, Cambodia, Thailand and Vietnam over areas in the Gulf of Thailand f. Singapore and Malaysia along the Strait of Johor and the Strait of Singapore 14
With the current competing claims, the most common similarity between the States is the fact that almost all of the States that is currently in dispute in the matters of South China Sea are members of ASEAN. Therefore, a settlement of dispute through ASEAN based arbitration and/or court is of necessity and would be the most cost effective and time efficient in this dispute 5. CONCLUSION a. It is of utmost importance that an ASEAN based arbitration and/or court be in effect in immediate time b. Socialization, education and practice related to the ASEAN based arbitration/court would need to be conducted by ALA members. c. In order for the ASEAN based arbitration/court to be the first procedure to be chosen for the parties, the most important characteristics that must be maintained are : i. The independency of the court/arbitration 15
ii. The fact that the decision of the arbitration/court can be executed in the member states iii. Proceeding in such court/arbitration would be time efficient and cost effective (Haghia) 16