Our enquiry is set against the broader theme of how political and legal cultures provide incentives and constraints on creating a legal regime within the ASEAN sub-regional context. Specific factors in this regard include the rich variety between its members in terms of political systems. Within the ten ASEAN states, the polities range from the authoritarian to the more democratic. They notably include socialist regimes (Vietnam, Laos), Westminster-influenced parliamentary democracies (Malaysia, Singapore), a Malay Muslim monarchy (Brunei), polities dominated by the military (Myanmar), and secular presidential-based systems (Indonesia, Philippines) where the influence of religion on public life is a significant factor. Given the diversity in terms of politics, ethnicity, culture, languages, colonial history and levels of development, it is not surprising that pragmatism and functionalism were the key unifying forces extant within ASEAN.
Key to the later turn to a more rules-based regime was the desire of ASEAN and its Member States for deeper regional integration, which was complicated by the persistence to a large degree of the ‘ASEAN Way’ or a non-legalistic, diplomatic approach towards managing international relations. In this section we thus sketch the trajectory ASEAN has embarked upon towards the goals of legal integration, and the institutions it has set up, before approaching the question of whether it is at all justified to speak of an ASEAN legal order or legal regime and what that might mean.
ASEAN Charter: continuity or rupture?
With the advent of the ASEAN Charter, which was adopted at the 13th ASEAN Summit in 2007 and entered into force in December 2008, the question arises as to whether a new form of governance has taken shape. Does it confirm, modify or supersede what has been described as the ‘ASEAN Way’? To some extent, the ASEAN Charter was designed to signal a shift from the ‘ASEAN Way’ in international affairs. All the same, it may be more accurate to view its contents as a confirmation of existing practice, or an evolutionary modification pursuant to deeper regional integration, particularly economic integration. The ‘ASEAN Way’ has been the time-honoured modus operandi governing the conduct of ASEAN members since the creation of the grouping on 8 August 1967. How do relational governance and a rule-oriented approach towards institutionalised co-operation inter-relate?