This chapter examined the emergence of regional organizations in Europe and Southeast Asia in the context of decolonization processes in the mid-20th century. It started from the assumption that one – though not the single – condition for their coming-into-being was the creation of primary and secondary institutions regarding the relations between intra- and extra-regional actors, and made the case that the discursive processes surrounding these institutionalization processes were heavily informed by the legacy of colonial primary and secondary institutions. The Second World War was the main exogenous source influencing the discursive power position of actors challenging or defending certain institutions. While Southeast Asian discourses of decolonization were rather pro-active, institutional change in Europe was carried out in response to declining relative power and in an attempt to ward off further challenges to the legitimacy of European actors. Actors in both regions partially endorsed global primary and secondary institutions, but they also drew substantial boundaries delimitating their regional international societies from the global level.
The narrative illustrates that the normative context of building EC and ASEAN rules was more complex than existing accounts of the imperial origins of European integration and the postcolonial literature on early Southeast Asian regionalism suggest.
In both instances, secondary institutionalization was carried out in an ambiguous and contested primary institutional context. However, a main difference can be discerned: in Southeast Asia, the creation of vague rules regarding member states’ external relations in the Bangkok Declaration reflects a changed interpretation of the non-interference norm that brought it into tension with non-alignment, which was itself a contested
64 Acharya (2001: 55) points at another aspect of the half-hearted institutionalization of non-alignment:
Indonesian policy-makers feared that a highly formalized declaration of neutrality would make the regional states dependent on guarantees of the great powers. Thus, a stronger institutionalization of non-alignment would have resulted in practices inconsistent with the primary institution of sovereignty.
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notion and eventually was institutionalized in a more vague interpretation as anti-hegemonism. However, secondary institutionalization did not subsequently prompt further change on the primary level (Figure 2). Organizational traits of the ambiguous norm of anti-hegemonism can still be found in today’s ASEAN: the formal enshrinement of the imperative of ‘ASEAN centrality’ in official documents65 and the incorporation of the Declaration on a Zone of Peace, Freedom and Neutrality (ZOPFAN) in ASEAN’s (2009) white paper on the Political-Security Community demonstrate a persistent concern about the potential domination of regional affairs by foreign actors.
In Europe, meanwhile, the relation between primary and secondary institutions was more dynamic. The development of early secondary institutions relating to the external relations of EEC member states unfolded in a primary institutional context informed by the tension between colonial institutions that had survived the wave of Asian decolonization and integrationist institutions. Subsequently, these secondary
65 Art. 41 para. 3 of the ASEAN Charter (2007) demands that ASEAN be the “primary driving force in regional arrangements that it initiates and maintain its centrality in regional cooperation and community building”. The Concept Paper of the ASEAN Regional Forum (1995: Art. 3–4), a sort of cooperation blueprint for the grouping, ascribes to ASEAN the “obligation to be the primary driving force of the ARF”.
Constitution
Regional practices
Non-intervention as external norm Non-alignment
Non-interference as internal norm Anti-hegemonism
Bangkok Declaration rules on relations with foreign powers
Constitution Institutionalization
Institutionalization Figure 2: Change in Southeast Asian institutions relating to external relations
139 institutions catalyzed the dismissal of those colonial institutions by altering preference structures, and led to the emergence of developmentalism as a new primary institution governing external relations. Eventually, the boundaries of the regional international society were redrawn and the Euro-African became a genuinely European international society. The notion of developmentalism reinforced these boundaries, as it constituted a distinct set of principles and norms that differed from the global international society and was based on a clear inside-outside distinction. Thus, while the EECʼs secondary institutions were themselves informed by institutional tensions on the primary level, they also served to transform primary institutions and contributed to the consolidation of a decolonized European international society.
That being said, institutional ambiguities persist. The primary institution of developmentalism reproduces notions of inequality that may be understood as (post-)colonial undertones and display a certain tension with the declared promotion of sovereign equality in the EEC’s external relations since the Yaoundé Convention.
Hovering over these issues is the perennial tension in the European international society between the primary institutions of pooled sovereignty and national self-determination.
The EEC’s association framework translated this ambiguous context of primary institutions into secondary institutions that are characterized by specific rules and procedures that emphasize the community aspect of dealing with former colonial territories (Figure 3). Relics of European colonialism, such as the EUʼs Cotonou Agreement on development cooperation with the ACP countries and the treaty provisions regarding its ‘Outermost Regions and Overseas Countries and Territories’
can be seen as the contemporary heritage of the institutional pathway adopted in the early days of regional organization-building (Treaty Establishing the European Economic Community 1957, Part Four and Art. 227; see also Müller 2001).
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The analysis of the dynamic relation between primary and secondary institutions contributes to Comparative Regionalism literature by showing that normative arguments connected to decolonization processes set the regional organizations in Europe and Southeast Asia on specific pathways. The institutional legacies pointed out in this conclusion demonstrate that the results of the discursive struggles at these critical junctures have a bearing on the shape of the contemporary regional organizations. The English School-based approach also brings into focus that the institutionalization practices in both regional international societies did not imply a complete de-stratification and institutional ambiguities and tensions persisted. In the case of Europe, the institution of developmentalism created an exclusive identity based on ideas of inequality, which left it in unclear relation to the EEC’s proclamation of sovereign equality as a guiding principle of external relations. In Southeast Asia, meanwhile, the continued contestation of the primary institution of anti-hegemonism, its unresolved relation to the primary institution of non-interference and its vague translation into ASEAN’s secondary institutions indicate a continued dependence, actual or apprehended, of internal on external actors. In this sense, both regional international societies are essentially post-colonial phenomena.
Constitution Constitution
Constitution Institutionalization
Institutionalization
Institutionalization
Yaoundé Convention
Developmentalism Pooled
sovereignty Gradual sovereignty
Concert of empires Pooled sovereignty
Regional practices EEC
Association framework
Figure 3: Change in European institutions relating to external relations
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6 Regionalization: legal integration and new hierarchies
The preceding chapter showcased that the processes of building regional organizations in Europe and Southeast Asia were tightly linked to efforts of consolidating the decolonization of the two regional international societies. While the EC and ASEAN were fundamentally different, they both subsequently underwent quite fundamental changes in their legal framework. The EC successively developed a set of rules that granted individuals of its member states certain rights and therefore constituted them as legal subjects of the European regional international society. These rules were extended and formally enshrined in the Treaty of Maastricht signed in 1992, which simultaneously transformed the Communities into the EU. Roughly fifteen years later, ASEANʼs legal framework also underwent a process of formalization, which culminated in the signing of the ASEAN Charter in 2007. The Charter endowed ASEAN with legal personality, and reformed and strengthened existing mechanisms for dispute settlement between its member states.
As Alter and Hooghe (2016) note, legal integration is “a game changer in regionalism that stands for more than just a commitment to use legal means to resolve […] disputes; it signals a commitment to uphold specific community values.” As such, it is part and parcel of a broader process of regionalization of the European and the Southeast Asian regional international societies. I use the term regionalization in a narrow sense to describe institutional changes that lead to significant transformations of the structure of a regional international society once the regional organizations are set up. The term is also used in Regionalism literature, especially by Hettne and Söderbaum, where regionalization denotes a process of increasing ‘regionness’.
Regionness is the degree to which “a geographical area is transformed from a passive object to an active subject capable of articulating the transnational interests of the emerging region” (Hettne and Söderbaum 2002: 461; see also Warleigh-Lack 2006).66
A number of Comparative Regionalism authors have paid attention to legal aspects of regionalization. For example, they noted that Asian regionalism is less
‘legalized’ than that of other regions, meaning that agreements are generally less
66 On the one hand, this is a broader definition of the term than that employed in much of the New Regionalism literature, where regionalization is used in a more narrow sense to distinguish societal, bottom-up processes from the conventional, more top-down oriented notion of regionalism. On the other, it is narrow in that it excludes initial processes of institutionalizing regional primary and secondary institutions, which I deal with in this thesis under the rubric of decolonization.
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formalized and less binding in character (Higgott 2014).67 In some cases, this leads to an almost ideal-typical juxtaposition of European ‘strong’ legalistic versus Asian
‘weak’ non-legalistic regionalism, where the actual developments towards regionalization for example in Southeast Asia are brushed over for the sake of sustaining a neat typology or theoretical argument (Kanthak 2012; Katzenstein 2005).
I already outlined the various explanatory approaches to these very general differences in Section 2.2. For the purpose of this Chapter, I am more interested in how and why specific legal secondary institutions developed at the regional level. In this context, Comparative Regionalism literature has focused on the study of regional courts and dispute settlement mechanisms. Most of this literature is concerned with the general rise in the use of more formal judicial dispute settlement across the globe and argues that the European model diffused to other regions (Alter 2012). The proliferation of dispute settlement mechanisms has also been described as a sort of spillover resulting from the increasing use of multi-purpose international organizations on a regional scale (Alter and Hooghe 2016: 541). In this respect, Southeast Asia is more of an outlier case, as its dispute settlement mechanisms, while growing, are less judicialized than those of other regions (Alter and Hooghe 2016).
There are also approaches explaining variation in legal integration. Those paying attention to domestic factors argue that formal dispute settlement is more common among democracies (Jo and Namgung 2012) or states with a civil law tradition (Duina 2006). Another line of argument is that differences can be explained via functional demands or institutional links, in the sense that stronger dispute settlement will be set up in regions that display either high economic interdependence (Haftel 2013; Korte 2012) or ‘deep’ regional trade agreements (Allee and Elsig 2014). Alter (2012: 145; see also Korte 2012) connects this idea to the diffusion concept, arguing that regions with a free trade agreement, such as ASEAN, tend to ‘download’ dispute settlement mechanisms from the global script embodied by the WTO, whereas common markets like the East African Community rather emulate the regional court model of the EU. However, she also concedes that this theory does not apply to all cases, and as ASEAN launched its
67 For an early statement of this finding, see Kahler (2000).
143 common market initiative, the ASEAN Economic Community, in 2015 without establishing a regional court, the argument has become even less convincing.68
What the Comparative Regionalist study of legal integration lacks, so far, is an account of the discursive processes leading to the establishment of rules and procedures in the legal realm, and how these were informed by common normative considerations (Alter and Hooghe 2016: 550–553). Insofar as norms are acknowledged, scholars usually refer to legalization as a means of increasing international legitimacy, as Korte (2012) does for the case of ASEAN. However, these arguments assume that there is only one, global normative point of reference, whereas distinct regional normative patterns are left out of the picture.
The analytical approach of this thesis can fill these gaps, as it draws attention to how legal integration is connected to the fundamental normative constitution of regional international societies. In English School terms, regionalization implies a move away from the institutions of the classical Westphalian international society and is its anarchical structure, where states are by and large the only legitimate actors. Using Watsonʼs (1992; see also Diez and Whitman 2002a) terms, higher levels of regionness imply a move from independent constituent units to a more hierarchical or imperial international society. It therefore goes beyond the notions of ‘solidarization’ and stratification in that it implies a relocation of legitimate actorness at the aggregate regional level, while solidarization and stratification happen among basically like units, usually states. Since ideas about legitimate actorness and appropriate behaviour are condensed into international institutions, regionalization from an ES perspective is a process of change in and of primary and secondary institutions that gradually relocates authority on the regional level.
In the legal realm, this implies changing norms and rules that impinge on the role of the nation-states as the sole source of judicial authority. Using this process-based concept helps in two ways: first, it allows me to subsume institutional dynamics that may run at different speeds and intensities under the same concept and render them comparable by placing them on a continuum from weak to strong regionalization. It therefore acknowledges that all regional organizations contain elements of relocating
68 Other cases are also hard to explain with this theory, such as that of Mercosur, which has only made minor steps towards a formal judicial body since its creation in 1991 (Alter 2014: 86, 374).
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authority, but some do so more than others. In this way, I can circumvent the ideal-typical juxtaposition of legalist European vs. non-legalist Southeast Asian regionalism evident in many Comparative Regionalist studies and focus instead on actual institutional changes towards legal integration in both regions. And second, it puts the focus of attention on the practices – in particular, discursive practices by dominant and oppositional actors – that lead to such changes.
Based on these conceptual considerations, the following two sections present a comparative study of regionalization in Europe and Southeast Asia in the legal terrain.
In this sense, I use the terms of legalization and legal integration interchangeably to denote regionalization in those realms of international society that are concerned with the ‘sanctity of agreements’ (2004: 189; see also Bull 1977: 16–20) and the definition of binding rights and obligations. Legalization is thus understood in a broader sense than just instances of the formal codification of rules (Goldstein et al. 2000), which would imply that the study could be limited to secondary institutions. Taking up Finnemore and Toopeʼs (2001: 749–750) claim that the legitimacy of law may also depend on less formal institutionalization practices, and that it needs to be compatible with “the larger moral fabric of society”, I also examine the context of primary institutions and how it was connected to the secondary institutionalization practices.