Contents. Managing Editor Ray Hervandi. Thinking ASEAN Team A. Ibrahim Almuttaqi Askabea Fadhilla Fina Astriana Muhamad Arif Wirya Adiwena

Project Supervisors Rahimah Abdulrahim Executive Director, The Habibie Center Hadi Kuntjara Deputy Director for Operations, The Habibie Center Managing Editor Ray Hervandi Thinking ASEAN Team A. Ibrahim Almuttaqi Askabea Fadhilla Fina Astriana Muhamad Arif Wirya Adiwena Contents About Thinking ASEAN Articles The EU s Role in Helping ASEAN Mitigate the Development Gap After 2015 ASEAN s Structured Engagement of Civil Society Organizations Cooperation in the South China Sea Under UNCLOS Parts IX, XII, XIII: An Indonesian Perspective Infographic : Development Gap in Southeast Asia ASEAN Round-Up ASEAN Must Work Together to Tackle Issue Why ASEAN Should Embrace Chinese Initiatives ASEAN, Japan to Boost Fight Against Terrorism, Cybercrime 1 2 2 5 8 11 12 12 12 12

Dear readers: A note from the editor Welcome to the October 2015 issue of the monthly Thinking ASEAN! Southeast Asia, it is a cliché by now, is a region characterized by diversity, and this diversity is the common thread for this month s issue. In the region, diversity takes many forms and our articles this month focus on the development gap, the varying level of access civil society gets in ASEAN processes and the manifold positions that parties to the South China Sea dispute take. This issue opens with a commentary, by Naila Maier-Knapp, research associate at Magdalene College, University of Cambridge, that tackles the role of ASEAN dialogue partners, the European Union in this particular case, in helping the association narrow the development gap. It takes a European perspective with particular focus and policy recommendations in relation to people-to-people ties and the underexplored role of overseas Southeast Asian communities in Europe. ASEAN has always been an association for the elites of its member states, but things seem to be changing in the past decade. In this issue s second article, Askabea Fadhilla, researcher for the Habibie Center s ASEAN Studies program, explores ASEAN s engagement of civil-society organizations (CSOs) and its implications for the CSOs position in ASEAN regionalism. Meanwhile, in the last article, Hasjim Djalal, Indonesia s prominent expert on the law of the sea, shares his views on solving the South China Sea dispute. He proposes a way forward through the framework of international law where freedoms of the sea, resources use and the use of the space, such as by shipping, that are now highly regulated, particularly by UNCLOS and by other international conventions. Additionally, Professor Djalal also shares a number of pointers and key questions that will help us better understand the issue from a legal perspective. We close this month s issue of Thinking ASEAN with a look at the development gap among ASEAN member states and several articles we deem relevant to development in Southeast Asia, and why they matter. In particular, we highlight recent articles on regional cooperation on the cross-border haze issue, whether Southeast Asia joining Chinese initiatives is a good idea and on ASEAN-Japanese work on transnational crime. As we look forward to hearing your input on Thinking ASEAN, please do not hesitate to drop me a line at thinkingasean@habibiecenter.or.id if you have comments, suggestions or prospective submissions. Happy reading! Best regards from Jakarta, Ray Hervandi Managing Editor Thinking ASEAN is a monthly publication that aims to provide insightful, cogent and engaging perspectives on issues central to contemporary Southeast Asia and the ASEAN member states. It is a product of The Habibie Center, with the generous support of the Republic of Korea s Mission to ASEAN. The content of Thinking ASEAN does not reflect the official opinion of The Habibie Center or institutions related to the publication. The Habibie Center was founded by Indonesian President Bacharuddin Jusuf Habibie in 1999 as an independent, non-governmental and non-profit organization to promote the democratization and modernization of the country. Responsibility for the information and views expressed in Thinking ASEAN lies entirely with the author(s). For comments, suggestions and prospective contributions, the Managing Editor of Thinking ASEAN can be reached at thinkingasean@habibiecenter.or.id.

Issue 4 / October 2015 2 A slum in Manila, the Philippines. Photo Credit: Anton Zelenov. The EU s Role in Helping ASEAN Mitigate the Development Gap After 2015 Naila Maier-Knapp, Research Associate, Integration in Southeast Asia: Trajectories of Inclusion, Dynamics of Exclusion (SEATIDE) Project, Centre for History and Economics, Magdalene College, University of Cambridge Fifteen years after the Millennium Summit spelled out the Millennium Development Goals (MDGs) and provided the overarching guidelines for Southeast Asian states in their national and regional strategy to combat poverty, the year 2015 has witnessed numerous commemorative publications on ASEAN intraregional initiatives to attain the MDGs. In particular, the official launch of the ASEAN Community in December 2015 has stimulated various commemorative publications, which are coupling these intra-asean poverty eradication efforts with the ASEAN Community-building process. Building on statistical or policy-evaluative data, both governmental as well as nongovernmental authors of such publications are portraying ASEAN s regional integrationist path to achieving the eight MDG goals and the 21 MDG targets sympathetically. These favorable sentiments have been by no means brought about only by ASEAN intraregional efforts committed to the realization of a cohesive, caring and sharing ASEAN Community. While ASEAN member states policies and capacities have been central in mitigating the intra- ASEAN development gap, they have been successful especially because of the technical and financial cooperation with international partners. Among these assistance providers, the European Union (EU) has acted as a substantial partner through its member states and the European Commission, and has shown keen interest in providing support to ASEAN regional integration over many decades. 1 Hence, the following paragraphs highlight the EU s longstanding interregional role as a partner to ASEAN in narrowing the intraregional development gap and emphasize the importance of civil society and people-to-people relations. From the 1950s onwards, European technical and financial cooperation with Southeast Asia has taken place mainly at the bilateral level between the individual countries of the two regions. With the accession of the United Kingdom to the European Communities (EC) in 1973, European attention to Southeast Asia increased and further fueled the growing interest in interregional cooperation. The 1970s saw the launch of the EC-ASEAN interregional dialogue

and the Asia and Latin America assistance scheme, marking the official European collective orientation towards Southeast Asia post-decolonization. It was, however, mainly post-cold War developments at the global level that provided an environment conducive to significant intra-european reform of the aid sector and, in turn, facilitated an enhanced opportunity for development cooperation with Southeast Asia. Today, the EU and its member states possess a diversity of communication and cooperation channels at the bilateral and interregional levels to help ASEAN member states mitigate the intra-asean development gap and reinforce ASEAN initiatives, including, among others, the ASEAN Roadmap for the Attainment of the MDGs and the Initiative for ASEAN Integration Task Force. While comprehensive technical and financial cooperation takes place primarily at the bilateral level, there are a number of regional support programs to ASEAN that champion the EU s comparative advantage in economic and political integration. These programs are concerned mainly with the areas of education, market economy, environment, governance and human rights, health and disaster preparedness. They complement the sector-specific national programs top-down by strengthening regulatory frameworks, institutions and overall capacity at the regional level. Current major interregional programs to foster ASEAN integration are the EU Support to Higher Education in the ASEAN Region (SHARE), the ASEAN Regional Integration Support from the EU (ARISE), the EU- ASEAN Project on the Protection of Intellectual Property Rights (ECAP) III, EU-ASEAN Border Management and Migration Program, Regional EU-ASEAN Dialogue Instrument (READI) and the Statistics and Integration Monitoring Program (COMPASS). The ongoing commitment of both sides to such interregional schemes suggests that these programs have been beneficial to the regional partners so far. However, assessing and defining this European role in narrowing the intra-asean development gap through interregional programs is complex. Specifically, it is difficult to quantify this role and, at best, one can describe this role through the summation of a series of indicators related to efficiency, visibility and sustainability of the EU s role performance. For example, proven categories for characterizing and gauging the EU s role in assisting ASEAN with the mitigation of the development gap have been the rising degree of harmonization and institutionalization of regional mechanisms; 2 adoption of European standards; 3 intra-asean cross-border cooperation and flows of persons, goods and information; livelihood and legal status improvements of program-targeted disadvantaged groups; sustainable programs with long-term local interest; ratified agreements and implemented national policies; and the effective and quantified decrease in specific issue areas, including poverty, child mortality, school enrollments, environmental degradation and other areas. The implementation of these programs also invites the incorporation of other international stakeholders to make available greater financial assistance and raise public awareness. While this diversification and internationalization further complicate a clear quantification of the EU as a regional partner to ASEAN according to the listed categories, they expands the room for inclusion of non-governmental and civil society actors into the programs and their implementations. Over the years, this growing involvement of non-governmental actors has consolidated interregional ties and, in fact, provided an additional source of legitimacy and stability for the EU s role conceptions and expectations in Southeast Asia. While the implementation of these programs draws upon European regional experiences and expertise considerably, it also heavily relies on local interest, partnership and societal leadership at the practical level. Furthermore, one needs to be aware that the formally defined divisions between governmental and non-governmental roles and actions do not reflect the reality of demand-oriented aid implementation. In particular, local leadership personalities often times hold competencies both within governmental and non-governmental domains. Nevertheless, they are essential in implementing aid efficiently and function as reliable and established cooperation partners in centering and channelling assistance. The partnerships with these local leaders contribute positively to the sustainability and outreach of programs and, consequently, the tangible dimension of the EU s role performance in development cooperation. At the same time, contemporary overreliance on these intra- ASEAN domestic leaderships and network structures has deemphasized the potential of Southeast Asian communities overseas in playing a supplementary role within EU-ASEAN development cooperation. Southeast Asia s overseas communities are a considerable source of financial and knowledge inflow to many ASEAN member states. In spite of their overseas base, many of these Southeast Asians maintain close ties to their local communities in the respective ASEAN member states and generally possess a certain degree of prestige within these communities, for example, because they have married a wealthy foreigner or because they have managed to study and find work abroad. Current migratory patterns and crises worldwide demand more European attention to these overseas communities, which can assist in managing economic refugees and the export or externalization of conflict. That is, efficient and demand-oriented interregional aid implementation to narrow the ASEAN intraregional gap could possibly receive progressive impetus, provided leadership personalities from these communities are taken into account beyond the European domestic policy dimension of migration and integration. Concomitantly, the active incorporation of these communities into the external development cooperation strategies makes use of their existing Northern South-South networks as complementary channels of assistance. Such a comprehensive approach to development cooperation allows greater diversification of stakeholders, strengthens communityand people-focused aid, raises levels of accountability and minimizes administrative costs 4 in times of austerity. Post-2015, the role of the EU member states and European Commission in supporting intra-asean regulatory harmonization and institutional cohesion will remain notable from the bilateral and interregional perspectives, both top-

Issue 4 / October 2015 4 down from the regional level to the member-state level as well as bottom-up from the member-state level to the regional level. The EU will continue to be an integral actor in promoting ASEAN region-building processes and encouraging greater interregional space for EU-ASEAN economic ties and people-to-people networks. So far, however, this people-to-people space has focused on intra-asean civil society leaders and networks and, in doing so, neglected the potential of overseas Southeast Asian communities. Thus, this commentary makes an introductory case for comprehensive and people-oriented EU-ASEAN development cooperation inclusive of these communities. It believes that in light of the ever-growing significance of these communities in times of migratory imbroglio and global burden-sharing, European technical and financial assistance to intra-asean cohesion could benefit from a redefinition of notions of partnership, leadership, demand-orientation and country-ownership in development cooperation, valorizing these communities in European societies. At the same time, these redefinitions could simultaneously strengthen the ASEAN identity of these communities, in spite of their distance to the motherland. Note 1. For further reading please see, for example, evaluations of EU cooperation with ASEAN at www.ec.europa.eu/europeaid/how/ evaluation/evaluation_reports/index_en.htm. 2. Mely Caballero Anthony, Jörn Dosch, Marcel Goeke, Landis MacKellar, René Madrid and Steven Ney (June 2009). Evaluation of EC Cooperation with ASEAN. Vol.2, p.20. 3. Jörn Dosch, Jan Douwe Meindertsma, Chhaya Jha, Landis MacKellar, Steven Ney and Jatswan Singh (March 2014). Evaluation of the European Union s Regional Cooperation with Asia. Vol.2, p.136. 4. For further reading on the administrative costs of the European aid bureaucracy please see, for example, Stephen Booth and Sian Herbert (2011). EU External Aid : who is it for? London: Open Europe.

People floating krathong rafts during the Loi Krathong festival in Chiang Mai, Thailand. Photo Credit: John Shedrick - Flickr. ASEAN s Structured Engagement of Civil Society Organizations Askabea Fadhilla, Researcher, ASEAN Studies Program, The Habibie Center At its inception, ASEAN came into being as Southeast Asia s mechanism to minimize conflict among countries in the region. In that light, the association adopted a regionalism that is characterized by informality, flexibility, consensus and a non-confrontational bargaining style. In practice, ASEAN operated almost exclusively through a series of consultations, dialogues and interpersonal contacts among high officials. This type of engagement popularly known as the ASEAN Way created an elite-centered and sovereignty-bounded regionalism that provided a restricted space to solve transnational issues collectively. It reflected ASEAN s conscious strategy to keep regional affairs from being dominated by particular countries and to exclude undue influence from external forces. As a result, in the past, negotiations within ASEAN took place without mechanisms to accommodate public opinion or input from civil-society organizations (CSOs). Expansions and Limits Simon Tay and Lim May-Ann argues that reciprocal negligence between ASEAN and CSOs 1 influenced this mode of engagement. ASEAN officials viewed civil society as subversives and dissidents, in a similar way to how they were seen in their home countries. 2 They were also unfamiliar with the CSOs function and scope of work. On the other side, civil-society groups perceived ASEAN as an elitist intergovernmental organization that often excluded them from the decision-making process and tended to defend state and private interests. However, over time, the situation evolved following political and social developments in many of ASEAN s member states. One main factor that changed the status quo in the 1990s 3 was the democratization process in many ASEAN countries that grew incompatible with the association s tradition form of engagement. CSOs in Southeast Asia, as a result,

Issue 4 / October 2015 6 demanded participation and inclusion in ASEAN regionalism. The domestic context in different countries throughout Southeast Asia also pushed governments, still the main actors in ASEAN, to adopt a more people-oriented approach to regionalism. Vision 2020, which lays out the notion of consent and greater participation of the Southeast Asian peoples, 4 was among the first ASEAN documents to reflect this changing approach to regionalism. The ASEAN Charter then followed up by setting the first formal set of agreements in ASEAN and provided the legal basis for popular participation in ASEAN affairs. These formal statements indicate ASEAN s affirmation that the people, too, should take part in the its community-building project. While ASEAN documents have called for more engagement with CSOs, through which the people can have a voice, the actual practice falls far short of this ideal. This article considers ASEAN s current engagement to CSOs from three perspectives: (1) a participant-based engagement, (2) a function-based engagement and (3) an issue-based engagement. 5 Participant-Based Engagement ASEAN has indeed started welcoming CSO participation but only for those that have affiliation status and those that are officially invited and selected by the association. In order to obtain affiliation status, CSOs need to meet several requirements. CSOs should be non-profit organizations committed to ASEAN s objectives. CSOs need to be able to explain their background and reasons for applying and also provide ASEAN with detailed information on the organization. The application requires approval from all ASEAN member states. 6 Aside from those formal requirements, CSOs are also expected to conduct their activities within ASEAN and invite state officials to attend. They should not operate outside Southeast Asia or be related in any way with international agencies or non-asean member states. This last requirement, in effect, excludes the participation of loosely-structured CSOs. Non-affiliated CSOs, meanwhile, can participate in ASEAN forums as long as the ten member states agree to invite them. 7 This creates a mechanism where most of the attendees are government-organized non-governmental organizations that do not contest policies set by national governments. Function-Based Engagement Moreover, the function of many CSOs that are dialogue partners to ASEAN is often limited to being sources of information and public-relations conduits for the association. As dialogue partners in many of ASEAN s consultative meetings, CSOs provide the association and its member countries with vital information on the former s scope of work and expertise. The drafting of the ASEAN Charter is a prominent example of CSOs (under)involvement in the ASEAN process. CSOs representatives were invited by the ASEAN Eminent Persons Group (EPG) to present recommendations for the Charter in consultative meetings called Consultations with the People. However, when the Charter was finally made public, it didn t reflect the CSOs recommendations. 8 From ASEAN s institutional perspective, CSOs are also useful at raising the association s profile at the popular level. Affiliated CSOs, for example, are allowed to put ASEAN in their names. Also, in order to create one sense of identity, ASEAN asks them to popularize ASEAN s emblem, flag or anthem. These functions are again a reminder of ASEAN s top-down impulse. Issue-Based Engagement The last mode of engagement limits CSOs according to the political sensitivities of the issues they focus on. CSOs that deal with human rights in the region, for instance, receive only limited access in ASEAN forums. Meanwhile, CSOs that focus on noncontentious issues such as development, poverty reduction, or social welfare, get far wider latitude in ASEAN forums. This trend is visible on the ASEAN list of 58 affiliated CSOs, of which most are professional or trade and industry organizations. Those three categories show a similar pattern: the level of inclusion of CSOs is subject to ASEAN, and member countries, policies. This proves a gap between ASEAN s initiative to shift the engagement in a more popular direction and the actual practice when the association finally invites CSOs. By limiting the CSOs participation in terms of their status, function and issue, ASEAN s engagement with CSOs is systematically directed toward consensus and keeping things in line with the member states national interests. The implication of this mode of engagement results in the CSOs limited ability to contest policy and contribute in the decisionmaking process. Some CSOs seek refuge by creating what Kelly Gerard called as created spaces outside ASEAN structured arena. However, these independent spaces also have limited means to influence the process inside ASEAN since it is not part of ASEAN-led processes. CSOs and the South China Sea Issue This structured engagement practice extends to regional discussions of the long-debated South China Sea issue. The CSOs roles in mitigating the dispute has been prominent in their intensive studies on various aspects of the disputes. However, the types of CSOs involved have been limited to a group of locally based think tanks and academic institutions that serve as sources of information for the association and its member states. While expectations abounded that ASEAN would include CSOs that are directly affected by the disputes in the South China Sea, such as fishermen s unions, ASEAN has only extended participation in formal discussions to preferred CSOs. 9 Another contributing factor aggravating the situation is the nature of the South China Sea disputes. Because the conflict continues to be framed in terms of national sovereignty, CSOs are not seen to have any standing. This is in contrast with CSOs involvement in ASEAN s development-focused discussions. ASEAN s preference

for including CSOs only in non-contentious areas, especially in development areas, is line with its economic reform agenda after the Asian Economic Crisis. 10 Conclusion Although ASEAN is moving away from an exclusively state-driven agenda, its engagement with CSOs is still very much influenced by the insistence to keep central member states national interests and sovereignty. Its insistence was perhaps crucial at ASEAN s establishment in 1967, but the different nature of challenges from non-state actors and issues that matter to the people make this approach increasingly untenable. Notes 1. Simon Tay and Lim May-Ann, Assessment and Overview: ASEAN and Regional Involvement of Civil Society Organizations, http:// www.siiaonline.org/files/siia_asean.civil society organizations. engagement-assessment_and.overview.pdf. 2. Consuelo Katrina A. Lopa. 2012. CSOs Engagement with ASEAN: Perspectives and Learnings. Building Bridges and Promoting People to People Interaction in South Asia. p. 56. 3. Amitav Acharya. 2003. Democratization and the Prospects for Participatory Regionalism in Southeast Asia. Third World Quarterly. Vol. 24. No. 2. pp. 375-390. 4. Alan Collins. 2008. A People-Oriented ASEAN: a Door Ajar or Closed for Civil Society Organizations? Contemporary Southeast Asia. No. 2. p. 316. 5. For further detail, see Kelly Gerrard, From the ASEAN People s Assembly to the ASEAN Civil Society Conference: The Boundaries of Civil Society Advocacy. Contemporary Politics 19, No. 4 (2013): 411-426 and Explaining ASEAN s Engagement of Civil Society in Policy-making: Smoke and Mirrors. Globalizations 12, No. 3 (2015): 365-382. 6. Kelly Gerard. 2014. ASEAN s Engagement of Civil Society Organizations: Regulating Dissent (New York: Palgrave Macmillan). p. 82. 7. Kelly Gerard. 2014. ASEAN and Civil Society Organizations Activities in Created Spaces : The Limits of Liberty. Pacific Review 27. No. 2. pp. 271. 8. Andre Asplund. 2014. ASEAN Intergovernmental Comission on Human Rights: Civil Society Organizations Limited Influence on ASEAN. Journal of Asian Public Policy 7. No. 2. pp. 194. 9. Kusnanto Anggoro. 2015. 25th Talking ASEAN on In Pursuit of Peaceful Settlement in the South China Sea: The Roles of Civil Societies. 29 September 2015. 10. Gerard, Explaining ASEAN s Engagement, p.14.

Issue 4 / October 2015 8 Cooperation in the South China Sea Under UNCLOS Parts IX, XII, XIII: An Indonesian Perspective What China Has Been Building in the South China Sea. Photo Credit: C.I.A., NASA, China Maritime Safety Administration. Hasjim Djalal, a prominent expert on the law of the sea and formerly Indonesian ambassador to the United Nations, Canada and Germany. Editor s Note: In this abbreviated article, Professor Hasjim Djalal shares his views on solving the South China Sea dispute. He proposes a way forward through the framework of international law where freedoms of the sea, resources use and the use of the space, such as by shipping, that are now highly regulated, particularly by UNCLOS and by other international conventions. Additionally, Professor Djalal also shares a number of pointers and key questions that will help us better understand the issue from a legal perspective. The Legal Instruments for Resolving Disputes The United Nations Charter provides in Article 33 that: the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall first of all seek a solution by (1) negotiation, (2) inquiry, (3) mediation, (4) conciliation, (5) arbitration, (6) judicial settlement, (7) resort to regional agencies or arrangements, or (8) other peaceful means of their own choice. However, a resolution to the South China Sea dispute may be more complicated than commonly known facts would suggest. The Republic of China is not a member of the UN or a Party to the UN Convention on the Law of the Sea (UNCLOS) 1982. Moreover, ASEAN members, such as Myanmar, Thailand, Cambodia and Laos, are not all involved, have claims or even border on the South China Sea. The judicial settlement to the South China Sea dispute may be invoked through the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), or some other regional mechanisms. While China has judges at the ICJ or ITLOS, it has no interest or inclination to invoke ICJ or ITLOS. This is despite the fact that some ASEAN countries have in the past invoked the ICJ to settle their disputes even when none of them has judges at ICJ or ITLOS. Examples of this include Indonesia and Malaysia on the case of Sipadan-Ligitan, Malaysia and Singapore on Pedra Branca, Cambodia and Thailand on Preah Vihar. Now, the Philippines also seems willing to use the judicial settlement mechanism.

UNCLOS 1982 also has a mechanism for the settlement of disputes. Practically all interested parties on the South China Sea issues have ratified UNCLOS 1982 except Chinese Taipei/Taiwan and Cambodia. Other mechanism for resolving disputes would be by invoking third party mechanisms, such as mediation, or even conciliation and arbitration. Apparently the relevant parties have not seriously considered these mechanisms, particularly because of the insistence of China to deal with it through bilateral relations directly with each of the respective claimant state, despite the fact that the issues and disputes are basically more than simply bilateral disputes. There is also the modality of a High Council in the ASEAN Treaty of Amity and Cooperation (1976) that deals with disputes between ASEAN member states. But this High Council has never been invoked, although Indonesia did try once (on Sipadan and Ligitan case) to no avail. Other peaceful means of their own choice, as referred to in Article 33 of the UN Charter and in various articles of UNCLOS 1982, may also include agreement on joint development or joint cooperation. Everybody in the Workshop Process on Managing Potential Conflicts in the South China Sea, organized by Indonesia within the last 23 years, supported this mechanism, which was originally suggested by China. However, after intensive discussions and studies on this issue on several working group meetings, the difficulties were on defining the area for such joint development, the subjects which would be jointly developed, the participants in such a joint development area, and the modalities or mechanisms for such programs. Resort to Regional Agencies or Arrangements With regard to the South China Sea, it is not easy to find regional agencies or arrangements that can be invoked. Perhaps the ASEAN-China dialogue or the Declaration on Conduct (DoC) between ASEAN members and China that is now being negotiated to become a more legally binding Code of Conduct (CoC). The problem would be how to include Chinese Taipei/ Taiwan in the process while Myanmar and others in ASEAN which are not in the South China Sea disputes are in the process. Other peaceful means of their own choice may include tracks one, one and a half, or two, such as the South China Sea Workshops (SCSW) on Managing Potential Conflict in the South China Sea. This process include all the claimants to the disputes and the non-claimants of ASEAN countries. The South China Sea Workshop has established three levels of studies of the South China Sea involving all the 10 ASEAN countries plus China and Chinese Taipei/Taiwan, including: a. A yearly discussion of the workshop held in Indonesia; b. Discussion in the various Technical Working Groups held in the various capitals or cities in the participating authorities; c. Study Groups/Groups of Experts meeting on specific topics in the various locations in the area around the South China Sea. The Informal South China Sea Workshops, attended by all participants from the 10 ASEAN countries and participants from China and Chinese Taipei/Taiwan, have three objectives, namely: a. To develop cooperative programs in which everyone can participate and learn how to cooperate rather than how to confront each other; b. To encourage dialogue between the relevant parties to solve their own problems, including maritime delimitation. Indonesia so far has concluded more than 17 maritime boundary agreements with its neighbors (the last one was with the Philippines on the EEZ boundaries in the Celebes Sea and in other areas between the two countries), and continue to negotiate the remaining maritime boundaries with all its neighbors. c. To promote the confidence building process so that every party will understand and respect the others, to settle whatever disputes or potential disputes that they may have. The South China Sea Workshops have originally discussed six issues with each participating authorities requested to lead the topics or other sub-topics in the discussions, such as: a. Political and security issues b. Territorial and jurisdictional problems c. Marine scientific research d. Marine environmental protection e. Safety of navigation, shipping and communication f. Mechanism for cooperation Generally, the South China Sea workshop process has been motivated by UNCLOS 1982, particularly by Article 122 and 123 of Part IX, which directed the countries around enclosed and semi-enclosed seas, like the South China Sea, to cooperate and coordinate their policies on the management of marine living resources, the conduct of marine scientific research, and the protection of marine environment, and at the same time, as appropriate, inviting other interested parties or organizations to cooperate with them. It should also be noted that Part XII of UNCLOS 1982 on Protection and Preservation of the Marine Environment also stipulates obligation of states to protect and preserve the marine environment (Article 192), despite their sovereign rights to exploit their natural resources (Article 193). In addition, Article 197 also stipulates that states shall cooperate on a global and, as appropriate, on a regional basis, to protect and preserve the marine environment. Equally, it should also be remembered that Part XIII of UNCLOS 1982 on marine scientific research also stipulates that states and competent international organizations shall, in accordance with the principle of respect for sovereignty and jurisdiction and on the basis of mutual benefit, promote international cooperation in marine scientific research for peaceful purposes (Article 242 (1) of UNCLOS 1982).

Issue 4 / October 2015 10 Who are the parties to the disputes? Littoral states, and who are they? Are Thailand, Cambodia, Laos, Myanmar, Singapore littoral states of the SCS? Is Indonesia a disputant? Indonesia has no territorial claim to the features, but if the Chinese nine dotted lines are territorial then it could overlap with Indonesia s EEZ and Continental Shelf. China has said informally that it does not have problem with Indonesia). Who are interested non-littoral states? a. Certain ASEAN Members b. The users of the Disputed Sea and its features, particularly for international navigation and overflight? c. Those who have global strategic security interests in the area, such as the United States, Japan, Australia, South Korea, and perhaps also India and Russia. Is Chinese Taipei/Taiwan a party to the dispute? Can an entity be a party to the disputes? Can Chinese Taipei/Taiwan be regarded as a South China Sea entity? Are Myanmar, and for that matter Thailand, Cambodia, Laos, even Singapore to be regarded as parties in the South China Sea disputes because these states signed the DoC with China and they are not exactly in the South China Sea or involved in the disputed area? Is ASEAN a party to the South China Sea disputes? The Way Forward In conclusion, devising cooperative programs on technical, scientific and environment matters are relatively easier than dealing with resources issues but much more difficult in dealing with territorial claims and jurisdictional issues. A number of projects or agreements have been reached and have or are being implemented by the informal Workshop Process, such as biodiversity expedition, study on climate change and sea level rise, training program through South East Asia Networking of Education and Training. Some implementation of the progress still wait for the appropriate time, such as the study on hydrography, assessment of living and non-living resources, some other biodiversity expedition, joint development and many others. In view of the complex issues of the South China Sea, I have suggested on a number of occasions the formula of 6+4+2 or 6+4+1+1. In other words, the six ASEAN non-claimants to sovereignty over islands and features in the South China Sea (Indonesia, Singapore, Cambodia, Laos, Thailand and Myanmar) act as facilitators and should encourage and invite the four ASEAN claimants (Philippines, Brunei, Malaysia and Vietnam) to sit down and negotiate the matter with the two non-asean claimants (China and Chinese-Taipei), albeit informally. The ASEAN Chairman could take this initiative. The model of Jakarta Informal Meetings (JIM), inviting the relevant parties during the Cambodian Conflict in the 1980s to informal cocktail parties in Bogor and Jakarta, could be used as an example. The reaction to this suggestion has been mixed, but I have not heard objection from the disputants. In the meantime, ASEAN as a group could and should continue to induce China to agree and to accelerate the formulation and agreement on the Code of Conduct (CoC) for the SCS on the basis of the already agreed Declaration of Conduct (DoC) of 2002 and its guidelines and others. In fact, Indonesia has already drafted a certain Zero Draft for the CoC. It would also be helpful if the relevant ASEAN Countries could settle their own maritime boundaries with their neighbors, particularly between Malaysia and the Philippines, as already indicated by Malaysia and Brunei Darussalam. The relevant parties in the SCS should clarify as precisely as possible the nature of their claims as well as the legal basis for those claims. It would be a monumental development if the concerned parties would also agree to seek solution through third party mechanism, either through arbitration or judicial adjudication, or even through other regional mechanism. In the meantime, the Indonesian initiated the informal Workshop Process on Managing Potential Conflicts in the SCS that has lasted for more than 23 years should continue as already agreed by all the relevant authorities of the SCS. In this context, it is essential to promote cooperative programs, including on the possibility of joint development, on joint marine scientific research, and on marine environmental protection, to encourage dialogues between the parties that are involved in territorial and jurisdictional disputes, and to develop confidence building process and measures through diplomacy rather than military. It is very essential to maintain and promote peace, stability and development in the area of the SCS, and that the rule of law should be developed, established, and respected by all, and that the military engagement and other hostile act should be avoided as effectively as possible, perhaps by developing some rules of engagement between the law enforcement as well as the military authorities in the SCS area. The non-scs countries should be helpful and should be very careful in dealing with the SCS issues and disputes so that they will not be perceived as complicating the situation, thus potentially could produce more tensions in the area. At the same time, bigger countries in the region should be mindful of the views of their smaller neighbors. The bigger countries should be careful so that they are not perceived to be dominating or bullying their smaller neighbors.

Development Gap in Southeast Asia Mutual prosperity is a goal for all ASEAN member countries. However, the fact tells a different story as the development gap rremains an issue although Southeast Asia will soon establish an economic community. A comparison is often drawn between the ASEAN Six (Singapore, Brunei, Malaysia, Indonesia, Philippines, Thailand) and the CMLV countries (Cambodia, Myanmar, Laos, Vietnam) to highlight the differences among ASEAN countries. However, it should be noted that two ASEAN countries Singapore and Brunei leaves the rest of ASEAN behind in terms of the wealth of their nations. The Human Development Index in Southeast Asia Most ASEAN countries have reached medium HDI levels, with Singapore and Brunei Darussalam at high HDI levels. Myanmar is Southeast Asia s laggard in HDI terms, while Cambodia and Laos have yet to reach 0.6 on the HDI scale. Moreover, GDP per capita varies widely across the region. Top 3 GDP per capita (2014) 1. Singapore - USD 56,286 2. Brunei - USD 41,424 3. Malaysia - USD 10,784 Bottom 3 GDP per capita 1. Cambodia - USD 1,104 2. Myanmar - USD 1,277 3. Lao PDR - USD 1,729 In Southeast Asia, the gap between the countries with the highest and the lowest GDP per capita in 2014 is USD 55,182

Issue 4 / October 2015 12 ASEAN ROUND-UP ASEAN Must Work Together to Tackle Issue New Strait Times Online - October 6, 2015 The haze pollution couldn t come at a better time as the economy in the region is tested with the weakening currency. It is estimated that the crisis costs US$9 billion from disruptions to air travel, healthcare expenses and other haze-related damages. Malaysia s companies are said to be the responsible parties for the forest and peat fires in Sumatera and Kalimantan. Malaysia is expected to adopt a new law similar to the one enacted by Singapore, namely the Transboundary Haze Pollution Act to allow regulators to prosecute companies or individuals who cause severe air pollution by illegally burning forests in neighboring countries. Read more: http://www.nst.com.my/news/2015/10/aseanmust-work-together-tackle-issue Why it matters: Even as all ASEAN member states have ratified a regional mechanism, namely the ASEAN Agreement on Transboundary Haze Pollution, the widespread haze crisis in the region remains a major issue even after nearly twenty years. It shows that the agreement has not been effective in pushing the member states to work together in implementing measures to prevent, monitor and mitigate the problem. Why ASEAN Should Embrace Chinese Initiatives East Asia Forum - October 2, 2015 The longstanding dispute in the South China Sea involving China and four ASEAN member countries has challenged the centrality and unity of ASEAN. The major fallout was seen during the ASEAN Foreign Ministers Summit in 2012, leading to the non-issuance of joint communiqué for the first time in ASEAN s 45 years of existence. This fallout has caused severe trust deficit within ASEAN while some claimants accused their colleagues of being lured by China s big money at the expense of regional interests. But rather than taking unrealistic and counterproductive steps to isolate China, member countries should focus on how they can take advantage of these initiatives to strengthen ASEAN. Read more: http://www.eastasiaforum.org/2015/10/02/whyasean-should-embrace-chinese-initiatives/ Why it matters: Although a number of regional initiatives have been raised by ASEAN to solve the issue, such initiatives have proven to not being effective much. The effort to establish a code of conduct in the South China Sea, for instance, has made little progress. Evidently there is a need for commentators and practitioners in the region to look beyond state-centric approach to the conflict settlement in South China Sea by involving civil society to take part in settling disputes in Southeast Asia and the larger Asia Pacific as they also have been instrumental in designing the latest milestone of ASEAN, the ASEAN Community. ASEAN, Japan to Boost Fight Against Terrorism, Cybercrime The Diplomat - October 3, 2015 October 1, 2015, marked ASEAN and Japan s second ASEAN Plus Japan Ministerial Meeting on Transnational Crime (AMMTC + Japan) in Kuala Lumpur. Two main particular concerns of the meeting were terrorism and cyber crime. This is not a surprising move considering the rise of the Islamic State threat has spooked some ASEAN states. The statement reaffirmed the importance of strengthening counterterrorism capacity and cooperation as well as the sharing of experience, knowledge and information including through the ASEAN-Japan Counter Terrorism Dialogue. Read more: http://thediplomat.com/2015/10/asean-japan-toboost-fight-against-terrorism-cybercrime/ Why it matters: The ASEAN Japan relation officially began in 1973, and it has been progressive ever since, particularly in the trade and investment sector. However, as ASEAN moves to embrace the ASEAN Community, Japan has also been supporting ASEAN to tackle issues that hamper its establishment, including the non-traditional issues of terrorism and cybercrime. On one side, this attempt would perfectly assist ASEAN in technical and financial terms in countering the issues. Meanwhile Japan sees this cooperation as part of their response to the changing regional dynamics.

The Habibie Center was founded by Bacharuddin Jusuf Habibie and family in 1999 as an independent, non-governmental, non-profit organisation. The vision of The Habibie Center is to create a structurally democratic society founded on the morality and integrity of cultural and religious values. The missions of The Habibie Center are first, to establish a structurally and culturally democratic society that recognizes, respects, and promotes human rights by undertaking study and advocacy of issues related to democratization and human rights, and second, to increase the effectiveness of the management of human resources and the spread of technology. Cover Image: Wat Phantao Photo Credit: Wikimedia.org The ASEAN Studies Program was established on February 24, 2010, to become a center of excellence on ASEAN related issues, which can assist in the development of the ASEAN Community by 2015. The Habibie Center through its ASEAN Studies Program, alongside other institutions working towards the same goal, hopes to contribute to the realization of a more people-oriented ASEAN that puts a high value on democracy and human rights. The objective of the ASEAN Studies Program is not merely only to conduct research and discussion within academic and government circles, but also to strengthen public awareness by forming a strong network of civil society in the region that will be able to help spread the ASEAN message. With the establishment of ASEAN Studies Program, The Habibie Center aims to play its part within our capabilities to the ASEAN regional development. ASEAN STUDIES PROGRAM The Habibie Center Jl. Kemang Selatan No.98, Jakarta Selatan 12560 (P.) 62 21 781 7211 (F.) 62 21 781 7212 www.habibiecenter.or.id www.thcasean.org facebook.com/habibiecenter @habibiecenter