Chapter One: Introduction
Counting from 2017, Association of Southeast Asian Nations [hereinafter ASEAN] is merely turning to a fifty-year-old regional organization, which established by the adoption of ASEAN Declaration 1967 in Bangkok, Thailand with the purposes to accelerate economic development, socio-cultural cooperation, and geographically promote peace and stability in the Southeast Asia region.
The key route of this success comes from the mutual cooperation of ASEAN Member States [hereinafter AMS] in various aspects which benefits to all of members. One of the tremendous ASEAN historic achievements is the ASEAN Charter, which was adopted at the ASEAN thirteenth summit in Singapore on 20 November 2007 and entered into force on 15 December 2008.
Notably, ASEAN was first formed as an ‘institution without legalization’
via the ASEAN Declaration 1967, yet instead it transformed to a ‘more rule-based organization’ through the ASEAN Charter 2007.
As a matter of fact, the ASEAN Charter brought other new changes and initiatives for ASEAN such as conferring its legal personality as an ‘intergovernmental origination’
, introducing the new institutional bodies, importantly reinforcing the commitments of AMS for the roadmap to an ASEAN Community by 2015 comprising ASEAN Political and Security Community (APSC), ASEAN Economic Community (AEC), ASEAN Socio-Cultural Community (ASCC) which were reaffirmed by the AMS in the Bali Declaration of ASEAN Concord II.
As the deadline of ASEAN Community 2015 is now reached, however it is still constituted an embryo integration plan up to the present time. At this instant, the AMS further collectively agreed to conclude their plan for ASEAN Community vision 2025 namely ‘Kuala Lumpur Declaration on ASEAN 2025: Forging Ahead Together’ at the twenty-seventh ASEAN Summit in Kuala Lumpur, Malaysia to effectively respond the challenges and opportunities coming in a decade.
Most compelling evidence of what remain unchanged in the ASEAN Charter is the consensual decision-making which stipulated in ASEAN Charter, Chapter VII, Article 20: “As a basic principle, decision-making in ASEAN shall be based on consultation and consensus”. The current status of ASEAN consensus, after the adoption of charter, is not restrictive as in the past but absolute because the ASEAN Charter provides other flexible decision-making mechanisms, such as ‘ASEAN Minus X’ and the ASEAN Summit. However, to go through these flexible mechanisms, it must be gone through with some conditions. Firstly, ‘ASEAN Minus X’ will be used in ‘the implementation of economic commitments’, but in case there is a consensus to do so.
Next, the AMS will refer to the ASEAN Summit for decisions when consensus cannot be reached.
Through these contexts, I assume that every proposal or matter must be decided by consensus in order to conclude a final decision accordance with the Article 20. Moreover, since ASEAN is an ‘intergovernmental organization’ for AMS to retain their respective sovereignty powers in the decision-making process, the AMS has the rights to block every proposal or common decision that prevails their national interests, especially in political and security matters like South China Sea.
This is because the Southeast Asia region became more prosperous, thus the external powers like China, Japan, the Republic Korea and the US are deemed to influence within the decision-making process through the aid and assistance of each member states. It is crucial to realize that many work plans are diplomatic in nature rather than legal.
European Union [hereinafter EU] has always seen as a ‘point of reference’ for ASEAN to learn in terms of organizational structure, especially on regional economic integration. Conversely, it fundamentally sees that ASEAN chose its own way through the legal personality laid down in the Article 3 of ASEAN Charter rather EU’s supranational model of cooperation. It worth noted that the three ASEAN Community pillars—APSC, AEC, ASCC—‘appear to reflect the [EU] tri-pillar system initiated with the Maastricht Treaty’.
Regarding to this, EU distinctly used decision-making mechanisms through each pillars although it is a supranational organization. In the Common Foreign and Security Policy (second pillar), and Justice and Home Affairs (third pillar)’s decisions made by the Consensus and Unanimity. However, the Qualified Majority Voting (QMV) was used in the first pillar which is European Community (EC). Thereupon, I am for Consensus to be used in the APSC pillar because every sovereign state would have to defense for their respective sovereignty powers over the association in order to retain their internal security from external aggression. Yet, I see that Consensus would be too restrictive and extremely time-consuming in AEC and ASCC pillars because now ASEAN is moving to twenty-first century which would need more flexible decision-making mechanisms to deal with the new challenges and urgent issues within the region such as economy dynamic, environmental protection, poverty and human rights violations. As the realization of the ASEAN Community 2015 is now come to the deadline, it is worth discussing the weaknesses of ASEAN and the new initiatives for ASEAN reformation on decision-making mechanisms beyond 2015 which is the approach of ASEAN Community Vision 2025. Thus, proposals that benefit the whole ASEAN community, particularly within AEC and ASCC would move speedy; and lesser struck down by minorities blocking. Definitely, everything is not perfect and with the ASEAN Charter is a first significant start of the ASEAN which will need a further reformation on its current decision-making mechanisms from the AMS cooperation since the ASEAN Charter opens for the Amendment in Article 38. That is why I want to initiate this study.
I.2. Legal issues
Under the ASEAN Charter, Chapter VII: Article 20 lays down consultation and consensus as a basic principle of decision-making in ASEAN. It is inevitable for ASEAN to reform its decision-making mechanisms in the future if it continuously develops its institutional frameworks towards AEC and ASCC. Hence, I want to pose some legal issues to elaborate within my dissertation as following:
I.3. Study Objectives
- To make ASEAN fully realizes ASEAN Community Vision 2025, is it necessary for ASEAN to maintain ASEAN Way through its decision-making mechanisms for its integration process?
- What are the sources of conflict in ASEAN decision-making processes that refrain ASEAN reaching a final agreement through consensus?
- What are the problems that ASEAN might encounter in the AEC and ASCC 2025 if it hardly maintains the absolute consensus mechanism in its community-building process?
- What sort of practical lessons to be drawn from EU experiences as a successful integration model that ASEAN Community can learn to reform its decision-making mechanisms, towards the AEC and ASCC 2025?
- What are the feasible decision-making mechanisms that ASEAN should reconsider towards AEC and ASCC 2025?
Throughout the above rationales, I want to raise three main objectives of this in-depth study. First, this study ascertains the criticisms and challenges of ASEAN current decision-making mechanisms through case studies which have been decided by the Consensus in order to improve ASEAN current decision-making mechanisms for a better institutional development of ASEAN towards the AEC and ASCC 2025 because it will be only a dream without doing any reformation of ASEAN current institution. Second, it looks for the proper practical lessons from the decision-making mechanisms of EU through ‘tri-pillar system’ which adopted in Maastricht Treaty. Last but not least, this study agrees to remain Consensus in ASEAN decision-making process. With all of mind, it proposes new decision-making mechanisms as alternatives, when Consensus cannot be reached, for the effectiveness of potential future agreements cooperation of ASEAN Decision Making, stated in Article 20, Chapter VII could be enhanced and amended.
I.4. Scopes and Limitations of Study
As mentioned above, the ASEAN community comprises three pillars: Political-Security Community, Economic Community and Socio-Cultural Community. However, the characteristic of this dissertation is a legal study which refrains from any political perspectives plus the opinion of author is to agree to use the consensus within the Political-Security Community. Thus, the scope this study is Articles 20 &21 of the ASEAN Charter and only focus on the study of ASEAN new and flexible decision-making mechanisms for priority areas within Economic Community and Socio-Cultural Community pillars, when the AMS cannot achieve Consensus.
I.5. Research Methodology
This in-depth study consists three methods. The first main method is qualitative, which contains two essential research materials:
- ASEAN Charter
- Treaties of European Union
- ASEAN and EU working papers
- Regional Organization textbooks in the contemporary international law
- Periodical and Journal articles relating to the ASEAN and EU decision-making mechanisms
- Internet sites of ASEAN and EU
The second method is quantitative method. This method will also be used to show the statistical data and survey responses in order to examine the case studies. However, the comparative method will be also conducted to reveal similarities and differences, which will draw the practical lessons from EU and new set of feasible proposals for ASEAN.
Chapter Two: General Aspects of Decision Making Mechanisms in International Organizations and its practices
II.1. Nature of Decision Making in International Organizations
Literally, the decision-making in International Organizations (IOs) is joint-decisions between an international organization itself and member states concerned, thus predominantly these decisions are agreements between IOs and member states.
However, agreements in IOs can be binding and non-binding depending upon the constituent treaty of each international organization. During or at the final stage of the decision-making process, the taken decision will be binding upon the states if there is no any objection or interruption from the member states; and the state parties, whom expressed consent to be bound by the treaty, must keep their agreements and perform in good faith accordance with the principle of pacta sunt servanda
Nevertheless, it is merely non-binding agreements in some cases depends on two reasons. First, it is about the ‘final clauses’ on how the agreement creates legal obligations for further requirements such as ratification or accession. 
Last but not least is the wording of the provision, whether it is to be governed by international law through the phrasing in ‘aim’, ‘shall’, or ‘should’.
However, it worth noted the title of agreements like declaration is non-legally binding in nature already. Through all of stated reasons, I assume that member states intellectually acknowledged of consequences of the taken decisions before giving up their sovereignty under a particular agreement as decision makers.
II.2.The Legal basis of Decision Making and its essence in International Organizations
Legally speaking, the only instrument to establish international organization is Treaty. As Treaty is one of most important sources of international law, Vienna Convention of the Law of Treaties (hereinafter VLCT) defined treaty as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’.
In international legal order States are recognized as the primary subject, while IOs recognized as secondary object.
States collectively create IOs for particular issues or objectives which they could not possibly to address by their own. Henceforth, the role and rules of the IOs will be depending on the member states’ interests. In a basic principle of IOs, this falls under the ‘principle of attributed powers’, which IOs are capable to act with the attributed powers by the member states only.
It basically sets out through the particular legal instrument of the organization itself such as Charter, Treaty or Convention in order to achieve the objectives of the organization. As the founders of the IOs, member states are usually granted to have vital roles and rights in the organization especially in the decision-making process to adopt a proposed institutional act or an agreement on a specific issue. With this in mind, various decision-making mechanisms or procedures explicitly agreed upon by the member states in certain provisions are also required to be passed. The below section will be further illustrating the diversified types of decision-making mechanisms have been applying in the vast majority of international organizations. To be noted, not every proposed institutional act always reach or sometimes such a withdraw case also arises. This due to the lack of support from the member states, and the influence of external actors through the foreign aids and other benefits. Thus they would have to re-bargain and cautiously avoid the accountability of the adopted institutional acts legal outcome and its impacts over their domestic legal orders, where re-negotiations and other alternative decision-making mechanisms are necessarily needed to take place for the adoption of a proposed institutional act.
II.3. Decision Making Mechanisms in International Organizations and its Historical Developments
Decision-making is fundamentally one of the most acts in every international organizations (IOs) since member states will bear the responsibility over the legal consequences once it is adopted. At the international level of decision-making, vital interests and controversial points always come up between the participating states. Hence, the different decision-making mechanisms or modes like consensus, unanimity, and majority principle are being needed and applied by every international organization in order to govern its decision-making and draw the conclusion of a particular issue. Couple of these mechanisms may be stated in the founding treaty or charter of every IOs.
Consensus have been practically using since 1970s by well-known both regional and international IOs such as ASEAN, EU, World Trade Organization (WTO), and specialized agencies of United Nations (UN).
The reasons why the many IOs use consensus as one decision-making mechanisms because it is linked with the principle of sovereign equality of states granting an egalitarian representation of participating states to assure that the voices of minorities are not misheard to the proposed decision during the decision-making process.As noted, the participating states are the autonomous actors within in the IOs comprise with divergent views; and they will inevitably attempt to protect their interests until they are satisfied in nature. In this case, Consensus seeks resolutions to compromise those views and interests through negotiations until the participating states satisfied to agree so. This may possibly be called ‘win-win’ resolutions that are satisfactory to both individual’s and group’s interests, resulting as a final decision and in greater implementation.
Professor Weiler in the Michigan Law School uprightly mentions that ‘reaching consensus under the shadow of the vote is altogether different from reaching it under the shadow of the veto. The possibility of breaking deadlocks by voting drives the negotiators to break the deadlock without actually resorting to the vote.’
Thus, avoiding the formal voting procedure and consent from all of participating states, consensus literally expedites the slow pace of decision-making within IOs.
Up until now, there are two definitions of consensus defining by the international society. Firstly, the United Nations on the Law of the Sea (hereinafter UNCLOS) gives the definition of consensus as ‘the absence of any formal objection’.
Secondly, the Helsinki Conference on Security and Cooperation in Europe provides the meaning that ‘the absence of any objection expressed by a representative and submitted by him as constituting an obstacle to the taking of a decision in question’.
In other words, the consensus will be achieved unless there is no expression of objection from a participating state to the proposed decisions. This due to that the expression of objection by a participating state will be a hindrance to block consensus. Yet it is not satisfied enough to block consensus in case of abstention or remained in silence because not all member states are obliged to affirmatively agree on such agreement to be adopted by consensus.
The section II.3.1.2 will be discussing the success and failure cases on consensus as one of decision-making mechanisms in the Final United Nations Diplomatic Conference on the Arms Trade, Third United Nations Conference on the Law of the Sea Conference (UNCLOS III), in order to provide a better understanding over this issue.
II.3.1.1. A Call for Consensus
Since the achievement of Consensus is without going to the formal voting, President or Chairman at the conference will be playing an important role as facilitators to facilitate the conflicting interests at the table and assure that Consensus will success. A call for consensus will be taken place by the President or Chairman at the end of the conference by asking a question such as ‘Are there any unresolved concerns?’
By the way, since an expression of objection will block the adoption of consensus, if the President or Chairman at the conference do not see any objections raised by the participating states, that means the proposal is adopted through consensus without going to any voting procedures. In other way, the participating states may clap their hands as they satisfied enough to reach agreement on the proposal by consensus. However, state(s) who object(s) the proposal will raise a hand asking for a floor to state its propositions. In this case, the Consensus will automatically fail with a voice of objection to the proposal. Thus, the proposals would prolong to other time of the conference or the voting will come into play in this case based on the set rules of procedure at the conference.
II.3.1.2. Case Studies
- The Final United Nations Conference on the Arms Trade Treaty
The adoption of resolution 64/68 by the UN General Assembly (UNGA) decides to convene a United Nations Conference on the Arms Trade Treaty (ATT) in July, 2012 to ‘elaborate a legally binding instrument on the highest possible common international standards for the transfer of conventional arms’.
The ATT aims to prohibit and uproot the illicit arms trafficking like conventional arms that could be in purpose to ‘commit or facilitate serious violation’ of international humanitarian and human rights laws.
Moreover, the rule of procedure to be adopted at the conference must be consensus. The purpose to use the consensus is to show the transparent manner and to have a robust treaty. Unfortunately, the reaching consensus was failed twice on first in July 2012, and final ATT conference in March 2013 due to the three participating states such as Syria, Iran and Democratic People's Republic of Korea known as North Korea blocked the consensus at the end of the conferences due to their conflicting interests.
North Korea representative took a floor that ‘draft is not well balanced. Some interests have been reflected more than others and some have been ignored.’
Besides, Syrian ambassador to the UN said that his country cannot accept this treaty due to the prohibition of arms transfers to subnational groups (e.g. non-state actors) were not mentioned in treaty.
Also, Iranian ambassador to the UN asked to state for his country that ‘while the rights of arms-exporting states [are] well preserved in this text, the right of importing states to acquire and import arms for their security needs is subject to the discretionary judgment and subjective assessment of the exporting states.’
However, the treaty was transferred by the ninety proponents, including the United States, back to UNGA for the adoption due to endless negotiations and a triple-revised of the treaty text.
Unlike in the conference, when the consensus failed a simple majority and two-thirds majority come into play in UNGA to agree on the text of treaty, where all agreements from 97 votes of 193 member states. Finally, the ATT was adopted by UNGA with a vote of 154, 3 against and 23 abstentions.
- Third United Nations Conference on the Law of the Sea Conference (UNCLOS III)
The United Nations Convention on the Law of the Sea (UNCLOS) took about twenty years to become a legally binding international agreement governing all of oceans space problems in this world, which successfully resulted from the last conference known as the Third United Nations Conference on the Law of the Sea (UNCLOSIII). Notably, the convening of UNCLOS III was adopted by the UNGA Resolution 2750 (XXV) A to confer on ‘the area of the sea-bed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction and its resources are the common heritage of mankind’ and to complete the earlier conferences (UNCLOS I & II).
Simply put, all of the seabed and ocean floor, the subsoil and the resources of the area will be considered as the ‘common heritage of mankind’ without under any sovereignty of states. To legally recognize, it had challenged and caused a lot of complexities plus there were more than 160 representatives of states participated leading too many divergent interests occurred within the UNCLOSIII.
Therefore, the Conference adopted consensus as its rules of procedure in negotiating stage accompanied by a ‘General Agreement’: ‘The Conference should make every effort to reach agreement on substantive matters by way of consensus and there should be no voting on such matters until all efforts at consensus have been exhausted.’
In conclusion, through these two cases, consensus works well in case the all participating states satisfied with the proposed act or their concerns has been resolved. However, there will be a gridlock to have a common final agreement if the participating states voice object the proposed act, if there is a concern or an unresolved concern remain at the end of the conference, unless there is any other alternative decision-making mechanisms provided, such occurred in ATT case. In contrast, UNCLOS seems to more successful and a unique example for international decision-making. The most important point to not overlook of UNCLOS is the active cooperation of several divergent groups having high level of common interests and characteristics to achieve consensus such as group of ‘Archipelagic States, Straits States Group, Oceania Group.’
II.3.2. Voting Power
Consensus seems like a first test of proposed act to see whether it has majority or all support from the participating states. Mostly, IOs always pleads for consensus to show the unity of their organizations. However, in endeavor the failed proposed act and endless negotiations, most of IOs attempt to move failing consensus to formal voting rule when the issues hardly to proceed.
II.3.2.1. Unanimity Voting
Coming to unanimity, it clearly claims to protect the interests of minorities because there could be an effective implementation from the member states when their interests are satisfied.
This is exemplified by the League of Nations as a rule for decision-making for Council and Assembly as manifested in article 5 of the Covenant of the League of Nations:
Except where otherwise expressly provided in this Covenant or by the terms of the present Treaty, decisions at any meeting of the Assembly or of the Council shall require the agreement of all the Members of the League represented at the meeting.
Giving ‘one state-one vote’ and granting a veto right to each member states shows that principle of sovereignty of states should be taken into account within the organization (this will be having a discussion through case studies below). Specifically, the International Economic Organizations (IEOs) member states think that ‘only mutually beneficial agreements can produce effective rules of conduct’.
Mostly, IOs use unanimity to apply in sensitive issues and important matters, such in Council of Europe (this will be raised as a case study below). Besides its advantages, the shortcomings are also exist. Likewise the consensus, one well-known drawback is the obstruction. If the decisions taken against their will, the proposed decisions that benefit the whole organization would be struck or dropped because of one or two states; since all of participating states are affirmatively required to reach a common agreement to be adopted by unanimity. Although unanimity seems stricter than consensus, both of these mechanisms may lead to the ‘vague wordings of the adopted regulations’ in order to reach the compromise level.
Last but not least, in case of dispute settlement and sanctions, the decisions to be passed by these two mechanisms would hardly to exercise if the disputing parties are not excluded in the process of voting for the resolutions. To provide better understanding on the characteristics of Unanimity voting, I am raising two IOs—League of Nations and Council of Europe—for the discussion.
II.184.108.40.206. Case Studies
a. The League of Nations and United Nations Security Council
The League of Nations (hereinafter the League) was established by Treaty of Versailles in 1919 aftermath of the First World War to maintain peace through encouraging national disarmament and being a ‘safeguard the peace of nations’.
The organizational structure of the League divided into three bodies, such as the Assembly, the Council and the Secretariat. Each member state of the League will be the members of the Assembly holding one vote to deal with any issue ‘within the sphere of action of the League or affecting the peace of the world.’
The Council members entitled have one vote, which consists of ‘Representatives of the Principal Allied and Associated Powers’—Britain, France, Italy and Japan as the permanent members—and other four countries elected by the assembly.
Article 5 of the Covenant of the League of Nations a decision-making rules:
Except where otherwise expressly provided in this Covenant or by the terms of the present Treaty, decisions at any meeting of the Assembly or of the Council shall require the agreement of all the Members of the League represented at the meeting.
All matters of procedure at meetings of the Assembly or of the Council, including the appointment of Committees to investigate particular matters, shall be regulated by the Assembly or by the Council and may be decided by a majority of the Members of the League represented at the meeting.
In other words, the Assembly and the Council of the League could only make a decision through a unanimous vote, except the procedural matter which required by Majority voting. As mentioned above, every member state of IOs is self-interested in nature. Thus with a unanimous vote to carry out of any decisions and enforcement in the League, the mutual cooperation of its member states is really needed, especially from the powerful members, such as Britain and France. According to Article 16, the protection of the League’s life was entirely depended on the contribution of member states in terms of financial and military forces. However, aftermath of World War I, Britain and France were still weak, and inclined to use the military forces wherever they were not interested to intervene, which made the League became paralyzed. To simply put, the powerful members were not willing to cooperate and maintain peace due to their differences in policy. Consequently, everything needed to change but only through a unanimous vote. In practices, unanimity strictly required all consent from the member states in most of important matters, thus the work of Assembly and Council was prolonged the decisions, led to the absence of any enforcement and the outbreak World War II after its collapse. Realizing from this mistake, the founder-members of the United Nations (UN) applies several types of majority voting as decision-making rules to all its organs and subsidiary bodies, yet a unanimous vote applies only to five permanent members (hereinafter P5 members) in the United Nations Security Council (UNSC), such as China, France, Russia, the United Kingdom (UK), the US, provided in Article 27 of the UN Charter:
- Each member of the Security Council shall have one vote.
- Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.
- Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.
In this sense, the decision-making rules of Security Council contains two elements. Firstly, a unanimous vote does not apply in the procedural matters. Nine affirmative votes from both permanent and non-permanent members are enough for ‘procedural matters’
. However, in paragraph three of the UN Charter, Article 27, there is a hybrid voting system between unanimity voting and majority voting in substantive matters, where a unanimous vote from P5 members must be included in nine affirmative votes. Thus, if one of the P5 members case a negative vote, a proposed act would be passed since each of P5 members granted a right to veto. One of the reasons is that the decisions on the resolutions are legally binding upon all of member states, which mentioned in the Article 25: ‘The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.’
- The Council of European Union
EU is a unique regional organizations where there is a combination of intergovernmental and governmental. The Council of European Union or Council of Ministers (hereinafter the Council) is one of the three main EU institutions involving in EU legislations where ministers of each EU member state discuss and adopt EU legislation proposed by the European Commission.
Mostly, as laid down in Article 16 of Treaty on European Union (TEU), the European Parliament (hereinafter EP) and the Council work and agree together in the ordinary legislative procedure, which is called ‘codecision’.
(The adoption of legislation of EU and its decision-making process will be discussing in details within Chapter 4).
- The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions.
There are various types governing the decision-making procedures of the Council, such as a simple majority, qualified majority and unanimity. The unanimity voting is required every EU member states to agree or abstain, and used in sensitive areas concerning in the Common Foreign and Security Policy such as EU membership (Art. 311 of TFEU), citizenship, and taxations(Art. 49 of TFEU).
However, abstention does not affect the decision taken according to Article 238, paragraph 4 of Treaty on the Functioning of the European Union (TFEU):
4. Abstentions by Members present in person or represented shall not prevent the adoption by the Council of acts which require unanimity.
II.3.2.2. Simple Majority Voting
However, unanimity voting was less used after World War II and the majority voting was developed as one the decision-making rules in most major IOs, notably in the UN Charter. An international lawyer and director-general of the International Labour Organization, Clarence Wilfred Jenks, stated ‘The battle to substitute majority decision for the requirement of unanimity in international organization has now been largely won’.
As mentioned in case studies above, although the popularity of Unanimity decreased, it is still used to maintain the intergovernmental approach in the maintenance of principle of equality because no states can be enforced against their will under the international law. However, using the majority voting does not mean that there is an absence of the principle of equality because every member states still has one vote for their states. In practice, the IOs easier to reach decisions and avoid where the unnecessary obstructions and objections occurred from the unanimity and consensus; or when these two mechanisms are not achieved. Furthermore, the requirements of specific majorities will depend on the majority rule of each individual international organization and on how the importance of the decision is.The idea of Majority voting in various requirement rules was come up by the IEOs in the 1940s and 1950s, such as the International Monetary Fund (IMF) and International Bank for Reconstruction and Development (IBRD).
When decision is taken by an simple majority voting, a proposal usually required the support for more than half of the unit member states. The advantages of the simple majority is usually reached and eliminated the deadlocks.
II.220.127.116.11 Case Studies
- The United Nations General Assembly
The UN General Assembly (hereinafter UNGA) composes all of current member states of the UN, which are now 193.
Article 10 of the UN Charter, granted the functions and powers for the UNGA:
The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.
The recommendations of the UNGA do not have direct legal binding power, but those have indirect legal power since several powerful member states of the UNGA are also the members of the UNSC.
In language of the recommendations, the General Assembly usually used various terms including ‘“calls upon”, “requests”, “urges”, “invites”, “demands”, “recommends”, “encourages” or “stresses”.’
Regarding decision-making mechanisms in UNGA, the UN Charter provides two types such a two-thirds majority to decide on the important issues
and a simple majority on other issues on the basis of one vote one state to all 193 UN member states.
However, in practices, most recommendations on such issues have been adopted through achieving consensus rather than going to a formal voting system as stated. By the way, some of issues also failed by the consensus thus thanks to the majority voting rules mentioned in Article 18 that have helped out the controversial issues happened.
II.3.2.3. Qualified Majority Voting
The requirements of Qualified Majority Voting (hereinafter QMV) can be a specified percentage (70%, 80%, or 90%) or qualified to set rules laid down in the constitutions or specific treaties of each IOs (two-thirds, three-fourths or fourth-fifths—among these specifications, two-thirds is most common used one). Although a two-thirds is the most common used one, there are some other IOs set a different QMV for particular categories of decisions. In this point, I will be raising two IOs—the Council of European Union and International Labour Organization—that have been using the QMV for their substantive decisions.
II.18.104.22.168. Case Studies
- International Labour Organization
International Labour Organization (hereinafter ILO) is indeed one of UN specialized agencies with a unique special procedure, known as ‘tripartitism’.
Tripartite is to involve governments, employers and employees representatives from 187 member states to discuss on labour standards and policies in order to provide all people with decent work.
As mentioned so far, in most of IOs are using consensus unanimity to decide on the substantive issues rather majority rule. However, what interesting in this point is that ILO exclusively uses a two-thirds majority to adopt its conventions rather than unanimity or consensus. Talking about the composition of ILO is needed in order to understand clearly on the voting procedure. ILO composes of three main bodies such as the General Conference (hereinafter GC) or known as International Labour Conference, the Governing Body (GB), and the International Labour Office.
Firstly, all of conventions and recommendations on labour standards are adopted by delegates—employers and workers—representing each member state of ILO at the conference.
Secondly, the GB is responsible to set up the agenda for the meetings of the GC. However, there is no specific procedure mentioned within the constitution of ILO. It is depending on the determination of GB. Last but not least, the International Labour Office is the permanent secretariat of the ILO with the task to prepare a draft on the issues before the GC and GB.
- The Council of European Union
As mentioned above, there are several types of decision-making rules in EU such unanimity, QMV and simple majority. Historically, all of EU treaties were adopted by unanimity before the Single European Act (hereinafter SEA). The SEA has moved many issues, except some sensitive issues relating to the Common Foreign and Security Policy (see II.22.214.171.124.b). There should be understood that the main purpose of the SEA is to form an internal market or known as single market in European Economic Community (EEC). Moreover, EU comprises 11 member states after the enlargement 1986, thus the divergent of interests started to increase within community. In this sense, it would be hard to adopt new legislation under the unanimity to realize its purpose by 1992 if member states tried to obstruct the process and protect their economic interests. The latest institutional reformation on the QMV is embodied in the Treaty of Lisbon. There are two conditions to be met or ‘double majority’ in the Council to reach a qualified majority: (1) 55% of member states vote in favor (16 out of 28 member states) and (2) at least 65% of the total EU population for the adoption of a proposal by the Commission or the High Representative for Foreign Affairs and Security Policy.
(This will be more detailed in Chapter 4).
Figure 2.1: A Qualified Majority Voting Calculation in EU Council
Source: Council of the European Union (EU)
II. 3.2.4. Weighted Voting
As noted above, IOs generally act in accordance with the principle of equality like on ‘one state-one vote’ basis. At the same time of seeing the word “weighted”, the voting power of member states is not the same. Some might argue that it is greatly biased for the developing, especially poor countries. However, there are various exceptions are justifiably turned into the consideration to allocating the votes to the member states since larger states bear more burden responsibility such as financial contributions, population size, commercial performance, and particularly political and economic strength.
Weighted Voting are currently using within financial institutions such as International Monetary Fund and World Bank.
II. 126.96.36.199. Case Studies
- International Monetary Fund
A great example of IOs using weighted voting system as its fundamental decision-making is International Monetary Fund (hereinafter IMF). All of member states in IMF serve as members of the Board of Governors, which is the highest decision-making body of IMF to reform the structure, admit new member, adopt new laws, review quota and elect the Executive Directors.
In principle, to respect the principle of sovereign equality, IMF provides 250 votes to every its member state. Then, due to the quota of financial contribution (partially both of reserve currency such as the United States Dollar, the Euro, the Japanese Yen, the United Kingdom Pound and the Chinese Renminbi Yuan, and its own currency) from its member states called “special drawing rights” (SDRs), every member state who have contributed will get an additional vote for each part of its quota up to one hundred thousand SDRs.
It should be understood that the main purpose of IMF is to provide loans to it member states—low-income or developing countries—for specific projects to build up their economic infrastructure. Thus, it is no doubt that the predominant creditors in IMF accredited as majority shareholders because IMF needs to give incentive to its creditors since IMF is a financial institution. Currently, the largest quota country is the United States with SDR 42.1 billion ($59 billion) and granted approximately 17% of 85% majority of the total vote.
II.3.3. An Appraisal of Decision-Making Mechanisms in the Contemporary International Organizations
Based on the discussions on the characteristics of each decision-making mechanism in the contemporary IOs and case studies above, I can argue that Consensus seems easier to be achieved within the less political issues, while not many conflicting interests of the participating states putting on the table towards the proposals at the conference. Also, when the participating states are willing to compromise their divergent interests into the common ones; and if they have the common purpose toward the proposals, I argue that Consensus is an expedition mechanism to be used in rules of procedures since it does not go to any further voting for the adoption. In contrast, Consensus tends to provide incentives for participating to states to keep ‘policy-making hostage to national interests.’
Thus, with the shortcoming of consensus, the participating nations will decisively resort to their voting procedures prescribed in their Charters or Founding Treaties in order to avoid and prolong endless negotiations, or in case it is indeed to be adopted for emergent and important situations. In this case, they will use voting based on majorities. With all of mind, Consensus, Unanimity voting, Simple Majority voting and Qualified Majority voting are principally conferred on the principle of sovereign equality giving each member state one vote basis. Even though Weighted voting is being criticized as against to the principle of sovereign equality, which does not give voting power to each participating states equally, it, however, seems still acceptable under international law since the allocation of voting power favors to the predominant contributed member states, especially in the international monetary institutions like IMF and World Bank.
Chapter Three: Association of Southeast Asian Nations (ASEAN) Institutional Structure and Decision Making Mechanisms
III.1. The General Background of ASEAN
Before having an in-depth study on Association of Southeast Asian Nations (ASEAN) decision making mechanism and its structure, it is necessary to have a preliminary understanding of its basic facts which formed the today’s ASEAN. Regarding the birth of ASEAN, it was established on 8 August 1967 by the five founding fathers (ASEAN-5): Indonesia, Malaysia, Philippines, Singapore, and Thailand with the ASEAN Declaration, which is also called Bangkok Declaration. ASEAN started to enlarge its membership with accession of Brunei Darussalam on 7 January 1984 as the sixth member (ASEAN-6). From the period 1995-1999, ASEAN progressively comprised of ten member states with the enlargement of more four member states (CLMV)—Vietnam on 28 July 1995, Lao People’s Democratic Republic (Lao PDR) and Myanmar on 23 July 1997, and Cambodia on 30 April 1999
. The history background leading to the establishment of ASEAN was the recognition of Malaysia as an independent state by Indonesia and the mindsets of other countries within the Southeast Asian region to promote friendly relations, peacefully resolve their disputes and without any external interference in internal conflicts
. In addition to the ASEAN Declaration 1967, the ASEAN member states had also aware that there is a need to jointly foster the economic and socio-cultural development in order to bring the ASEAN becoming a successful regional organization. One of the aims and purposes of the organization spelled out in ASEAN Declaration 1967 is “To accelerate the economic growth, social progress and cultural development in the region through joint endeavors in the spirit of equality and partnership in order to strengthen the foundation for a prosperous and peaceful community of South-East Asian Nations.”
After the end of Cold War, ASEAN has strengthened a deep regional integration with external partnerships both economically and politically through “ASEAN Plus 3—China, Japan and Korea”, the United States, European Union, Russia, Australia, India, Canada and New Zealand.
In addition, concerning on regional cooperation for intra-ASEAN and response to globalization challenges, AMS declared during the Ninth ASEAN summit held in Bali that in order to transform ASEAN to ASEAN Community, “[a]n ASEAN Community shall be established comprising of three pillars, namely political and security cooperation, economic cooperation, and social-cultural cooperation…ensuring durable peace, stability and shared prosperity in the region”
. With the adoption of the ASEAN Charter, ASEAN has clearly set its legal personality under the international law from a loose organization to the rule-based “inter-governmental organization” which was defined under the Article 3 of the ASEAN Charter.
Along with the ASEAN’s motto: “one vision, one identity, one community”
, it seems that ASEAN’s institutional framework development has been boosted and transformed ASEAN to a real ASEAN Community comprising of three distinct pillars: ASEAN Political and Security Community (APSC), ASEAN Economic Community (AEC), ASEAN Socio-Cultural Community (ASCC).
III.2. ASEAN after the Adoption of Charter 2007
Despite the ASEAN Declaration 1967, and even later on there was the adoption of 1976 Treaty of Amity and Cooperation (TAC), it clearly see that ASEAN existed without a legally binding treaty or a charter. Notwithstanding, the proposal of an idea on ASEAN Charter was initiated in 2004 by Malaysian concept paper entitled, ‘Review of ASEAN Institutional Framework: Proposals for change’, and formally adopted as ‘the Kuala Lumpur Declaration on the Establishment of the ASEAN Charter’ at the eleventh ASEAN summit in Kuala Lumpur on 12 December 2005.
With the codification of the ASEAN Charter, ASEAN Leaders have officially appointed a ten-person Eminent Persons Group (EPG) at the 11th
ASEAN Summit in Kuala Lumpur in December 2005 to conduct a report and provide the recommendations for the ASEAN Charter and to accomplish an ASEAN Community.
As a result, on 12 January 2007, the EPG’s Report on the ASEAN Charter was distributed to ASEAN Leaders at the twelfth ASEAN Summit in Cebu.
Equally important, to endorse the EPG’s Report, the ASEAN Leaders unanimously reached a consensus to adopt the ‘Cebu Declaration on the Blueprint of the ASEAN Charter’ and the ‘Cebu Declaration on the Establishment of the ASEAN Community’.
On the same day, the High Level Task Force (HLTF) was accredited to preparing the draft of the ASEAN Charter, which was expected to be ready in the time for ASEAN’s thirteenth summit in Singapore in 2007.
Table 3.1 compares the differences and the similarities of the recommendations between EPG and HLTF. In here, I want to emphasize that throughout the roles of HLTF given by ASEAN Leaders, the three substantial bases that they based on are the ASEAN Leader’s instruction, relevant ASEAN Documents, yet in consideration of the EPG recommendations.
Therefore, the context was a bit contrary.
Table 3.1: Comparison of recommendations between EPG and HLTF
Source: The Making of the ASEAN Charter
||ASEAN Foreign Minister to prepare for summit
||ASEAN Coordinating Council
||Council of the ASEAN Community
||ASEAN Community Council
||Sectoral Seniors Official Meeting
||ASEAN Sectoral Ministerial Bodies
||ASEAN Permanent Representatives
||Committee of Permanent Representatives to ASEAN
||ASEAN National Secretariat
||ASEAN National Secretariat
||ASEAN National Secretariat
Source: Author’s illustration based on the report of EPG and the ASEAN Charter.
||ASEAN Human Rights Body
||Decision-making by Consultation and Consensus in security and foreign policy; Majority Voting in less sensitive issues and non-controversial areas
||Consultation and Consensus in all issues
||In ASEAN Cooperation: “ASEAN Minus X” or “2 Plus X” formula in the decision of Community Councils
||“ASEAN Minus X” in the Economic Commitments
One of the EPG members, Mister Ali Alatas, shows his disappointment to the Charter:
I cannot deny that as a former member of the EPG, I am disappointed that a number of ideas recommended by the EPG failed to obtain consensus support in the High Level Task Force and hence were not included in the final Charter text and comparing it with the text as proposed by the EPG will reveal that a few important EPG recommendations which were dropped in the final text were not completely rejected, but their essence was retained, albeit in more general and vague words (terms). 
Based on the Table 1, there is a worth notice that some of the EPG recommendations have rejected by the ASEAN Leaders. Besides, most of the EPG recommendations also have been accepted and more explicit by HLTF and ASEAN Leaders in the final text, for example, ASEAN Human Rights Body. The ASEAN member states (AMS) collectively adopted the ASEAN Charter on 20 November 2007 at the ASEAN thirteenth summit in Singapore
. The ASEAN Charter thus entries into force on 15 December 2008 following the tenth deposit of instrument of ratification with the Secretary-General of ASEAN.
For the date of ratification of each AMS, please see Table 3.2 below. More importantly, The ASEAN Charter is a legally-binding document, which ‘serve[s] as a legal and institutional framework’ of ASEAN.
Under this legal binding charter, the AMS have shown their commitments to ‘take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of this Charter, and to comply with all obligations of membership’
. In the meantime, the AMS also bound and obligated themselves accord to the fourteen principles
(such as respect on sovereignty, non-interference in the internal affairs, especially promotion and protection of human right etc.) set out in ASEAN Charter, as they ‘reaffirm and adhere to the fundamental principles contained in the declarations, agreements, conventions, concords, treaties, and other instruments of ASEAN’
. Containing 13 Chapters, 55 Articles, and 4 annexes in the ASEAN Charter, unlike the ASEAN Declaration in 1967, the ASEAN Charter reorganizes ASEAN to become a rule-based regional organization comprises with legal personality, rights and obligations of member states, legally binding principles, procedures, decision-making mechanisms, disputes settlement, immunities and privileges and external relations. Secondly, the ASEAN Charter reaffirms the establishment an ASEAN Community underlying on three pillars: ASEAN Political-Security Community (APSC), ASEAN Economic Community (AEC), and ASEAN Socio-Cultural Community (ASCC). Thirdly, the ASEAN Charter reconstructs its new structures with well-defined roles and functions of each institutions for be more efficiency. This can be seen in the ASEAN Summit, ASEAN Community Council, and ASEAN Coordinating Council, which I will explain in the below section.
Table 3.2: Ratification of the ASEAN Charter
III.2.1. ASEAN Decision-making and Implementing Bodies
||Date of Instrument of Ratification
||Date of Deposit of Instrument of Ratification
||18 December 2007
31 January 2008
14 February 2008
14 February 2008
14 March 2008
2 April 2008
11 July 2008
7 October 2008
11 November 2008
15 November 2008
||7 January 2008
15 February 2008
20 February 2008
20 February 2008
19 March 2008
18 April 2008
21 July 2008
3 November 2008
13 November 2008
- November 2008
In 1967, ASEAN was established with a loose and informal institutional structure throughout the ASEAN Declaration 1967, namely Annual Meeting of Foreign Ministers/ ASEAN Ministerial Meeting (AMM), ASEAN Standing Committee (ASC), and Ad-Hoc Committees and Permanent Committees (ACPC), and National Secretariats.
However, ASEAN started to restructure these bodies at its first Summit held in Bali in 1976 because the ASEAN Declaration 1967 did not clearly state about their functions. The first Summit in 1976 created Heads of Government meetings as a supreme-decision-making and policy-making body as it composed of a Head of Government of each ASEAN member country. After 1976, a central ASEAN Secretariat, ASEAN Post-Ministerial Conferences (ASEAN-PMC) with ASEAN dialogue partners, and Senior Officials Meetings (SOM) were introduced to smooth out political dialogue.
Most notably, the Economic Minister’s Meetings was also created, which ‘became the most important decision-making in the economic realm’.
After the adoption of ASEAN Charter 2007, however, ASEAN continuously reformed its system of decision-making and enforcement with the establishment ASEAN institutional mechanisms. Nowadays, decision-making and implementing bodies are divided into four defined groups: the ASEAN summit, the ASEAN Coordinating Council, and the ASEAN Community Council.
III.2.1.1. The ASEAN Summit
Article 7 of the ASEAN Charter places the ASEAN Summit, or known as the meeting of the Heads of Government of the AMS, as the highest decision-making body. To this extent, the Summit is the last resort to ‘decide on matters referred to it under Chapters VII and VIII’ when the AMS fails to reach a consensus and settlement of disputes between member states.
The Heads of State of the AMS are legitimized to:
[D]eliberate, provide policy guidance and take decisions on key issues pertaining to the realization of the objectives of ASEAN, important matters of interest to Member States and all issues referred to it by ASEAN Coordinating Council, the ASEAN Community Councils and ASEAN Sectoral Ministerial Bodies.
The Summit Meetings is now ‘held twice annually, and be hosted by Member State holding the ASEAN Chairmanship.’
In the first summit, all ten of Head of States of AMS will annually discuss about the regional integration issues held in April and May. Furthermore, Leaders of ASEAN’s dialogue partners and UN will be involving in the second summit, which is held in October or November each year. The procedure to convene the summit is set out in Article 31 of the ASEAN Charter, ‘The Chairmanship of ASEAN shall rotate annually, based on the alphabetical order of the English names of Member States.’
This rotation enables every ten AMS to have a chance as a Chairman of ASEAN. More importantly, a member assuming the chairmanship, will play more crucial role than any other AMS. The role of the ASEAN Chairman is to ‘build an ASEAN Community through policy initiatives, coordination, consensus and cooperation’
and to address ‘urgent issues or crisis situations affecting ASEAN’.
Although the chair state plays significant roles as mentioned, it worth noted that all the AMS have equal rights and obligations enshrined under the Article 5, paragraph 1 of the ASEAN Charter. Thus, based on the consent to the idea of equality, the non-chair states and the chair are equally to propose their proposals. As a basic principle for the decision-making procedure, the AMS will agree through the Consensus to adopt the proposals.
Once the proposals adopted, the AMS will have to implement the proposals in order to comply with all obligations of ASEAN membership.
In case a member state does not implement the ASEAN proposals and decisions; or there is a serious breach of the Charter, the Summit is legalized to make a decision.
Apart from the executive functions, the ASEAN Summit also forms as a quasi-judicial body for the unresolved disputes under Article 26, ‘When a dispute remains unresolved, after the application of the preceding provisions of this Chapter, this dispute shall be referred to the ASEAN Summit, for its decision.’
III.2.1.2. ASEAN Coordinating Council
The second highest body is ASEAN Coordinating Council (ACC), which comprises the ASEAN Foreign Ministers and meet twice a year.
The main tasks of ACC is to ‘prepare the meetings’
, and to ‘coordinate the implementation of agreements and decisions of the ASEAN Summit’
. Also, ACC coordinates the work of the ASEAN Community Councils to ‘enhance policy coherence, efficiency and cooperation among them’
and the reports of the three Community Councils to the ASEAN Summit
. Additionally, Article 8(2)(h) stipulates the ACC shall ‘undertake other tasks provided for in this Charter or such other functions as may be assigned by the ASEAN Summit’. On this account, for example, ACC has been tasked at the Nineteenth ASEAN Summit to establish an ACC Working Group (ACCWG) to consider and recommend on the application of the Timor-Leste admission, which is subject to ‘whether Timor-Leste is able to meet the requirements [of admission of new members] of Article 6 of ASEAN Chater.’
III. 2.1.3. ASEAN Community Councils
In order to fulfil the objectives of each of the three pillars of the ASEAN Community, ASEAN Community Councils are created by the ASEAN Charter. These councils are tasked to ‘ensure the implementation of the relevant decisions of the ASEAN Summit’
, along with the coordination ‘the work of the different sectors’
and ‘submit reports and recommendations to the ASEAN Summit on matters under its purview’
. As stipulated in the Article 8(2)(c), ACC—ASEAN Foreign Ministers—is expected to ‘coordinate with ASEAN Community Councils to enhance policy coherence, efficiency and cooperation among them’, but not to intervene the other Community Councils’ reports.
Article 21, paragraph 1, spells out that ‘Each ASEAN Community Council shall prescribe own rules of procedures'. As we seen that this article provides with a broad context, which requires further interpretation on decision-making mechanism in certain cases other than Consensus from the ASEAN Community Councils.
III. 2.2.4. The ASEAN Secretary-General
The Secretary-General is appointed by the ASEAN Summit with non-renewable term of five years.
As mandate in Article 11(2)(b), the Secretary-General ‘facilitate[s] and monitor[s] progress in the implementation of ASEAN agreements and decisions and submit an annual report on the work of ASEAN to the ASEAN Summit’. The term “ASEAN agreements” applies to all agreements that have been adopted in ASEAN or in name of ASEAN and also the ASEAN Charter also included. In this regard, the Secretary-General’s reports will be submitted and reviewed annually by the Summit on the issue that any obligations or objectives of the ASEAN Charter or Member States’ efforts have not be implemented or met.
II.2.2. ASEAN Decision-Making Mechanisms
II.2.2.1. The “ASEAN Way”: The consensus decision-making method
What makes ASEAN become a different regional organization from others is the “ASEAN Way”. Talking about the “ASEAN Way”, it can be referred to a set of norms and the consensus decision-making method 
. First of all, ASEAN’s norms are principles of non-interference in the internal affairs of one another, sovereignty and the absence of use of force
. It is worth noting that ASEAN was established aftermath of the confrontation (konfrontasi
in the early 1960s between Indonesia and Malaysia-Singapore
. In addition to the first element, ASEAN states preserved these norms to prevent from both intra and extra regional interventions, and thus these norms are further enshrined in Article 2 of Treaty of Amity and Cooperation (TAC) as fundamental principles of ASEAN to promote peace and stability in the Southeast Asia
. Accordingly, there are six fundamental principles set out in Article 2 of TAC:
a. Mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations;
b. The right of every State to lead its national existence free from external interference, subversion or coersion;
c. Non-interference in the internal affairs of one another;
d. Settlement of differences or disputes by peaceful means;
e. Renunciation of the threat or use of force;
f. Effective cooperation among themselves.
Coming to the second element, the consensus decision-making method. In ASEAN practices, the state officials used both informal and conventional communications to promote a mutual understanding. Seemingly, decision-making is one the most important tools for any international organization to govern every activity in the organization’s life because there will be legal effects to the implementation process once a formal decision adopted. The old ASEAN consensus decision-making method is still evidently maintained, which sets out in the ASEAN Charter in accordance to Article 20, paragraph one, ‘As a basic principle, decision-making in ASEAN shall be based on the consultation and consensus.’
Based on my research, the ASEAN Declaration 1967 did not regulate how the decision-making proceeded, thus every decision has solely based on consensus and consultation throughout the ASEAN’s history on decision-making mechanism.
ASEAN Leaders commonly agreed under the paragraph tenth of the Joint Communique of Fifth AMM in Singapore in 1972 stated: ‘They noted in particular the development of an ASEAN consensus in decision making in accordance with the ASEAN spirit of solidarity.’
It should be noted to not confuse between the unanimity and consensus. Within the ASEAN context, consensus does not mean the all member states must agree, but no any member state expressly objects the proposal
. The practices of this decision-making mechanism come from the Malay cultural (Javanese Village, Indonesia) practices of musyawarah
to compromise the different interests of each state in order to reach an agreement, which introduced by Indonesian President Sukarno and the Indonesian people to Southeast Asian diplomacy
. The Prime Minister of Singapore, Lee Kuan Yew said at the Fifteenth AMM that ‘ASEAN had made progress in an Asian manner, not through rules and regulations, but through musyawarah and consensus. Most important, ASEAN countries have made a habit of working together and of consulting each other over common problems.’
To put it simply, musyawarah
means a process of discussion and consultations, and mufakat
means the consensus with a view that ‘the leader should not act arbitrarily or impose his will, but rather should make gentle suggestions of the path the community should follow, being careful always to consult all other participants fully and to take their views and feelings into consideration before delivering his synthesis conclusions’
. According to Subandrio, Former Indonesian Foreign Minister, ‘negotiations in the musyawarah
spirit take place not as between opponents but between friends and brothers’.
The practices the consensus decision-making method has developed to other forums such as the East Asian Summit (EAS), the ASEAN Regional Forum (ARF), and ASEAN + 3 through the purpose of promotion of regional integration in Asia-Pacific region.
Underlying the given tasks, the EPG noted that the “ASEAN Way”— the consensus decision-making method — should be updated, but it should be preserved as a guiding principle and ASEAN should further consider with flexible decision-making mechanisms to accelerate regional integration.
As a result of this reason, the EPG recommended that “Consensus decision-making is especially appropriate for decisions in more sensitive areas of security and foreign policy…while decision-making by consultation and consensus should be kept for all important decisions, majority voting can be used in less sensitive and non-controversial areas.”
In this connection, the followings are the final recommendations of EPG:
The ASEAN Charter should institutionalise a more effective decision-making process.
- The decision-making process in ASEAN shall, as a general rule, be based on consultation and consensus, especially on decisions in more sensitive areas of security and foreign policy.
- On other areas, if consensus cannot be achieved, decisions may be taken through voting, either on the basis of a simple majority, or on the basis of a 2/3rd or 3/4th majority.
- The ASEAN Council shall prescribe rules of procedure governing situations when there may be voting by a simple majority, a 2/3rd majority or a 3/4th majority.
- On certain ASEAN cooperation issues or projects, the formula for flexible participation of “ASEAN minus X” or “2 plus X” may be applied, to be decided upon by the relevant Councils of the ASEAN Community.
- Decisions on temporary suspension of rights and privileges of membership shall be taken by unanimity, without participation of the Member State or Member States to which the decision will be applied.
However, the ASEAN still maintains “ASEAN Way” within its decision-making mechanism via the adoption of the ASEAN Charter in 2007, although the majority voting was recommended by the EPG.
III.2.2.2. The flexible decision-making “ASEAN Minus X”
Notwithstanding, there is a flexible decision-making mechanism was introduced in the implementation of economic cooperation, which is called “ASEAN Minus X” formula. Article 21, paragraph 2, spelled out that ‘In the implementation of economic commitments, a formula for flexible participation, including the ASEAN Minus X formula, may be applied where there is a consensus to do so.’
As noted in table 1, “ASEAN Minus X” formula was recommended by EPG in their report, which stated that ‘[t]he flexible application of “ASEAN minus X” or “2 plus X” formula may be applied, subject to the discretion of the relevant ASEAN Community Councils.’
It worth noted that the idea of “ASEAN Minus X” is not a new formula, since it was introduced—at the time ASEAN composed of 5 original members—by Singapore in 1980 to promote intra-ASEAN trade, which later on has been used in ASEAN Free Trade Area (AFTA) and ASEAN Investment Area (AIA). Former Singapore Prime Ministers, Lee Kuan Yew explained ‘ASEAN Minus X’ as following:
So long as members who are not yet ready to participate are not damaged by non-participation, nor excluded from future participation, the power of veto need not be exercised… when four agree and one does not object, this can still be considered a consensus, and the four should proceed with a new regional scheme.
He further added that “When four agree [on a particular scheme] and one does not, this can still be considered as consensus and the five-minus-one scheme can benefit the participating four without damaging the remaining one.”
As ASEAN’s today composed of ten-membership, it was renamed to ten minus x. However, ‘ASEAN Minus X’ happens only there is a consensus from all ten members to accept who will go first and later. To exemplify, in the case of ASEAN Free Trade Area (AFTA), the
CLMV member states have been given flexibility to remove all tariffs by 2018 under the AEC, while the ASEAN-6 member states were already done by 2010.
III.2.2.2. The ASEAN Summit Decision
In addition, the ASEAN Charter also set out an alternative for the non-consensus issues, ‘Where consensus cannot be achieved, the ASEAN Summit may decide how a specific decision can be made.’
In this sense, the consensus plays such a significant role to be made by AMS on every issue and cooperation sector, and if they cannot have a common agreement by consensus, the Summit will seek another alternative decision-making mechanisms on a particular issue. This raises a substantial question on how such a decision can be made by the Summit specifically, either by majority vote or other decision-making mechanisms.
III.3. Criticisms of ASEAN Decision-Making Mechanism
Firstly, I argue that ASEAN closely integrated and faced with the challenges of globalization coming in a decade. Secondly, I also argue that ASEAN current decision-making mechanisms seems inefficient since proposals or projects that would benefit the development and the interests of the ASEAN community can be obstructed by the dissenting AMS through expressly disagrees if that proposal constraints with their national interests. Thirdly, dissenting states do not have to be bound by the collective decisions, although they are reached.
Henceforth, I will seek the criticisms on ASEAN Decision-Making mechanism as being ineffectual mechanism towards two pillars: ASEAN Economic Community and ASEAN Socio-Cultural Community within this section. In the meantime, I pull out three criticisms of ASEAN Decision-Making Mechanisms from the above sections in the scope of Chapter VII, Articles 20 & 21, which will be a crucial cornerstone to analyze the effectiveness of AEAN Decision-Making Mechanism towards the AEC and ASCC 2025. One of the three criticisms I will explain below is the practices of musyawarah
from the Javanese Village. Next, I will talk about a legal capacity following an unclear decision-making mechanisms on non-consensus, and serious breach and non-compliance issue of the ASEAN Summit decision. Last but not least, I will point out the procedure rule of ASEAN Community Council as a vague one.
III.3.1. The “ASEAN Way”: Javanese Village practices of musyawarah and mufakat
Article 20(1) lawfully stated that ‘As a basic principle, decision-making in ASEAN shall be based on consultation and consensus.’ As I mentioned above, the practice nature of ASEAN consensus decision-making method is one the “ASEAN Way” elements and from musyawarah
(consultation) and mufakat
(consensus) components in Javanese Village, Indonesia. At village level, a consensus requires a strong guidance from a village elder, thus this raises a question at a regional level whether the significance of these processes suitable to use within inter-state relations in Southeast Asia. First and foremost, the AMS will ‘go along so long as their basic interests were not disregarded’,
that is because at the regional level member states engage their national interests to deal with issues or agree compared to village level, although consensus does not need every state to agree on a particular proposal or decision in the ASEAN context. Second, the transposition of village practiceto the regional level is completely different because states are elders. As AMS ‘reaffirm[s] and adhere[s]’ the principle of sovereignty equality in the Article 2(2)(a), they cannot legitimately claim the position of leadership in the regional or even international deliberations. Thus all states will have to claim and recognize the principle of sovereignty equality instead of leadership. Third, the ASEAN consensus is absolute, although it should be not to compare with unanimity because the proposals or decisions in ASEAN will be not adopted if there is no all AMS’s support. That is an ideal to not ‘embarrass any individual ASEAN member in international fora.’
Even though in the case of the flexible decision-making mechanism called “ASEAN Minus X”, the consensus also significantly applies. Article 21(2) ‘In the implementation of economic commitments, a formula for flexible participation, including the ASEAN Minus X formula, may be applied where there is a consensus to do so.’ It clearly see that even though it is adopted in the Charter, it will come into play only when all of AMS agree to do so or otherwise.
III.3.2. The Unclear of ASEAN Summit Decision-Making Mechanism
III.3.2.1. Non-Consensus Issue
Article 20 (2) legally stated that ‘Where consensus cannot be achieved, the ASEAN Summit may decide how a specific decision can be made’. In this sense, since the ASEAN Summit has been set out in Article 2(2)(a) as a ‘supreme policy-making body of ASEAN’, the AMS will only refer to the Summit as a highest when they are cannot reach consensus for the proposal agreement or the dispute of other matters. It worth noted that, the Article 20(2) did not clearly stated on what decision-making mechanisms or modes that the Summit is going to use for the decision. Hence, I see that the unclear of non-consensus decision-making mechanism whether the Summit decide through the majority voting or other method should be at issue and in question for the further interpretation and development of the ASEAN Charter. To my perspective, I assume that although that non-consensus issue can be brought to the Summit for further decision, the Summit still maintain the decision-making based Conesus to decide on such cases since the Article 7(1) gives the right to ‘the Heads of State or Government of the Member States’ as the members within the ASEAN Summit. Thus, the process itself reflected as a clear political if the cooperative proposal’s objective or interest conflicts with their national interests due to the role of Head of States or Government. This means that the proposals still fail even though the proposal benefits the whole community interest since the national interest prevails over the regional concerns.
III.3.2.2. Serious Breach and Non-Compliance Issue
Article 20(4) formally stipulated that ‘In the case of serious breach of the Charter or non-compliance, the matter shall be referred to the ASEAN Summit for decision.’ Similarly to the Article 20(2), there is a question on how the ASEAN Summit decides, either through consensus or majority voting system, on such cases when the member state breached the Charter or did not comply with the decision ASEAN Summit. It worth noted that the EPG also found out in their report that, ‘ASEAN’s problem is not one of lack of vision, ideas, or action plans. The problem is one of ensuring compliance and effective implementation. ASEAN must have a culture of commitment to honour and implement decisions, agreements and timelines.’
To this extent, the Secretary-General of ASEAN will do report and submit to the Summit in case there is an absence of implementation. However, it has been criticized that ‘the absence of an explicit implementation schedule for the ASEAN Charter’, the reports of Secretary-General will be useless and ineffective in this case. 
III.3.2.3. The Vague Procedure Rule of ASEAN Community Council
Article 21(1) legitimately spelled out that ‘Each ASEAN Community Council shall prescribe its own rules of procedure. It clearly see that the Article 21(1) is vague in nature since there is no clear what kind of decision-making procedure that the each Community Council is going to use. With the role and function of the ASEAN Community Council, they have no power to adopt the proposal, but they will submit their reports and recommendations to the ASEAN Summit. In addition, as mentioned that the Summit comprise of the Head of States or Governments of each member state, there will be national interests partially engage. Hence, if their national interests are not satisfied with the purpose or objective of the proposal, I assume that they will expressly object and proposal will eventually be a gridlock or even dropped. During the summit, if any state rejects the proposal, the meeting and discussion will come to an end.
III.4. Sources of conflict in ASEAN Decision Making Mechanisms
Before doing the analysis on the effectiveness ASEAN Decision Making Mechanisms through case studies, determining and understanding of the sources of conflict in ASEAN decision-making process are deserved for attention. This section will raise as the hypotheses along with identification of each AMS positions involving in the debates to bargain their interests on a proposal during decision-making process in order to manifest what causes AMS to hardly reach a common decision through consensus.
III.4.1. ASEAN Way: Principle of Non-Interference
As mentioned above, principle of non-interference is one of the ASEAN norms, which was first mentioned in Article 2 of the TAC, to refrain from external intervention in the internal affairs of AMS in order to respect the sovereignty and independence of AMS. This norm even has internally and externally been called for ‘the adjustment and abandonment,’
but it is till subsequently formalized in Article 2(2)(e) of the ASEAN Charter. To support in a positive way, this principle is very defensive during and post of cold war for AMS to free from external aggression because back to 1990s many political security of Southeast Asian countries were in disorder, and affected by the United States and Soviet Union. Nowadays in the contemporary globalization era, there are many new security issues need to be concerned in the world, especially within Southeast Asia region, such as poverty, environment degradation, human rights violations, natural disasters, and transnational crimes etc. At the same time, ASEAN is forging towards ASEAN community vision 2025, thus ASEAN will have to face a lot new opportunities and challenges. To all these reasons, the principle of non-interference currently seems to be a barrier to deal with regional problems in terms of decision-making in ASEAN because it provides ‘non-democratic members of ASEAN confidence in their immunity to external intervention.’
III.4.2. Enlargement: Diversityamong the ASEAN Member States
The enlargement of ASEAN membership from five original members to ten AMS leading ASEAN becomes more diversity in terms of economic development levels, socio-cultural and history, political systems.
These would have impact directly to decision-making process of ASEAN, since every AMS has divergent interests on every each proposed act. Economically, more economic developed states like Singapore and Thailand tend to support the promotion of regional economic integration, while countries like CLMV are more cautious since their economic development levels are fragile even though different conditions apply to them in the framework of ASEAN economic integration.
Culturally, Islam and Hinduism are most majorities within ASEAN. Last but not least, in political spheres, AMS range from ‘developing democracies (e.g Indonesia, the Philippines and Thailand)’ to a dictatorial state (e.g Myanmar).
III.4.3. ASEAN States Behaviors
Markedly, AMS are not supposed to give up their respective sovereignty powers and diverse interests for the collective interests in ASEAN, while ASEAN is expected to serve the interests of AMS.
Thus, ASEAN seems to be an instrument to promote each individual interests and preferences of AMS.
III.4.4. Chairship System
The ‘chairship system’ means ‘an institution for reconciliation of interests where the chair assumed by one of the member states plays a role of agenda-setting’.
In practical, this is true while consensus is exclusively for every proposed act by AMS to gone through before the ASEAN Summit takes action. The summit will takes place annually and there is no permanent place to convene the summit. In this case, AMS will take role to be a chairman country accordance to alphabetical order of their countries’ names. Thus, the chairman country will have more influence in the proposed act.
III.4.5. ASEAN Dialogue and External Partner (ADEP)
ASEAN Dialogue and External Partner (hereinafter ADEP) countries are also play an important role in the decision-making process. It is worth noting that almost ASEAN states are developing countries and really need the support in terms of both economic and politics. In the meantime, the ADEP countries have tried to influence and frame the ASEAN proposals through their assistance or donation in particular issue.
Table: 3.3 List of ASEAN Dialogue and External Partner
III. 5. Case Examination and Analysis on the effectiveness of ASEAN Decision-Making Mechanisms
Within this section, I will examine and do analysis the case studies that have been gone through the Consensus to show the effectiveness of ASEAN decision-making process to seek the reformation on decision-making based consensus and another possible voting mechanisms into order to streamline ASEAN regional integration framework towards the ASEAN Economic Community and Socio-Community Cultural 2025, which will substantially support the proposals of my topic in the Chapter 6. I will examine four cases in different aspects of ASEAN Cooperation such as Territorial Disputes in South China Sea, ASEAN Charter 2007, Human Rights in Myanmar and ASEAN Free Trade Area as followings.
III.5.1. Territorial Disputes in South China Sea
The claimants of territorial disputes in South China Sea were involved with China and five AMS such as the Brunei, Indonesia, Malaysia, Philippines and Vietnam over Spratly and Paracel islands, since the South China Sea is ‘believed to hold substantial oil and gas resources.’
After several military conflicts happened between China and several AMS, there was a Consensus from AMS on the adoption of ASEAN Declaration on the South China Sea or known as Manila Declaration (hereinafter Declaration) in 1992 with the purpose to ‘resolve all sovereignty and jurisdictional issues pertaining to the South China Sea by peaceful means, without resort to force.’
Even the Declaration was adopted, most AMS reluctantly to support this Declaration due to the fears in terms of political interests with China. Furthermore, in order to gain more support from the great powers like Japan and United States in this issue, Philippines called for support its position in the ASEAN Region Forum Senior Officials Meeting (hereinafter AFR-SOM). AFR-SOM is the only multilateral forum involving most of claimants between China and AMS to enforce China to address disputes in the South China SEA. Thus, Philippines thought that its proposal would help against aggression from military of China over the South China Sea if its proposal had been supported by most of members, especially from AMS and great powers. Unfortunately, to maintain relationship with China, some non-dispute AMS Cambodia, Malaysia, Thailand and Singapore were scared to against China in the forum. Finally, ‘senior officials of ASEAN members rejected a Philippine proposal to present a collective position on the Spratly issue, because of Chinese sensitivities.’
With this failure, some AMS decided to individually cooperate their military relationships and exchanges with US to ensure their security within the South China Sea issue.
The South China Sea was a significant challenge issue throughout the ASEAN solidarity. Notably, China is an important trade and investment partner with most of AMS. Thus, most of AMS were reluctant to publicly offend China. In nature, the Consensus in ASEAN is not binding, unless AMS have will to do so. In this case, it divided into two groups: disputants and non-disputants member states leading to different interests. Half of AMS are disputants or claimants over the South China Sea Disputes, while the other half are not. As explained in Chapter 2 and Chapter 3 on Consensus, Consensus can be reached without resort to voting unless there is no a voice of objection of the participating states. In this point I argue that, although all AMS reach consensus to adopt the Manila Declaration, some dissenting states like non-disputants AMS were not to expressly object the proposal due to three reasons. First, they want to maintain their solidarity within the organization by considering as a common interest over the military aggression of China. Second, the proposal would be benefit to the other half of AMS, particularly the disputants AMS. Third, the Manila declaration is not binding upon the non-disputants or dissenting state over the implementation process. However, the non-disputants AMS tended to care more of their benefits from China in terms of security, political and security, which giving their incentives to obstruct the proposal of Philippine in the ARF-SOM. Thus I assume that when there is an issues involving the external partners, if AMS get more benefits from the outside players rather than supporting the proposal against them, they will tend to go against the proposal. Thus each of disputant AMS would have to individually seek their own alternatives.
III.5.2. ASEAN Charter 2007
The initiation of ASEAN Charter came from the proposal of Indonesia in 2003 with the purpose to bring out the ASEAN to a more ‘rules-based organization’. After the Report of EPG on ASEAN Charter and HLFT done, the AMS reached a final agreement on the ASEAN Charter at the Cebu ASEAN Summit meeting in 2007. The adoption of ASEAN Charter fundamentally shows the commitments of AMS to adhere to the principles of democracy, and promote and protect human rights.
However, there is no clause stating on legal consequence or punishment in the absence of implementation from AMS although the ASEAN Secretary-General is responsible to monitor the implementation. In addition, the decision based Consensus allows each AMS to have a voice of objection on any decision, plus the principle of non-interference is still lied down within the ASEAN Charter.
As mentioned in III.4.2, in terms of political spheres, AMS divided into two groups: Democracy and Non-Democracy. In this case, the AMS reached consensus because their divergent interests are applicably mentioned in the Charter. For example, the non-democracy member state like Myanmar tends to go for the principle of non-interference rather the promotion of democracy in the region, while the democracy member states like Indonesia, Philippines, Singapore and Thailand may pro to promote the democracy and human rights in the region. This shows that both groups satisfied with their compromise interests. Furthermore, the AMS achieved the Consensus easily on the adoption of ASEAN Charter because there is a loophole giving AMS do not have to comply with the decision made, especially non-democracy AMS. These are the reasons why the ASEAN Charter leaves so many vague instructional structure and enforcement mechanisms.
III.5.3. Human Rights in Myanmar
The accession ASEAN membership of Myanmar took place in 1997. The incentive of Myanmar upon this ASEAN membership is the principle of non-interference stipulated in the TAC. In the meantime, Myanmar has been severely criticized by international community over its domestic policies and human rights concerns. This issue had caused many illegal acts arose toward its neighbors concerns, particularly Thailand. In order to deal with these issues, Thailand called for the AMS support on its proposal namely ‘flexible engagement’ upon Myanmar issue.
The idea of ‘flexible engagement’ is to allow AMS comment and discuss on another domestic policies of another AMS if there is a cross-border violation of any AMS.
However, most of AMS, particularly Myanmar rejected this proposal from Thai Foreign Minister.
After Aung San Suu Kyi detained in the house of military junta in 2003, ASEAN started to more worry the criticism from the international community toward the reputation of its organization when Myanmar took the chairmanship in 2006. Eventually, there was a threat on ASEAN from the international community such as EU, US and UN. Consequently, ASEAN issued ‘an unprecedented joint statement calling for Suu Kyi’s release’
and Myanmar made a decision to ‘relinquish its turn to be the Chair of ASEAN in 2006’.
The Human Rights case in Myanmar has manifested on how ASEAN could handle its principle of non-interference. In this case, there are also external partners played apart like the first case—Territorial Disputes in South China Sea, but it is a reversed one. To illustrate, under the pressure of international community, ASEAN collectively reached consensus to issue the statements in response of Myanmar’s issue in order to maintain the economic interests, political interests, and the reputation of organization itself at the same time. However, Myanmar did not voice an objection to the statements although it dissatisfied because there are three reasons. First, I argue that Myanmar did not afraid the legal consequences of statements since there was no any legal binding power contain in these resolution statements. Second, Myanmar could bilaterally seek other alternatives with China and India to pursue its own interests for the survival of its military junta. Last but not least, to set aside the principle of non-interference in order to intervene on the domestic policies of Myanmar, there must be a consensus from all of other AMS including Myanmar itself. With these reasons, I assume that Myanmar might intellectually acknowledge beforehand with no fears to not object the proposals.
III.5.4. ASEAN Free Trade Area
Notably, when the idea of AFTA was first proposed by Lee Kuan Yew, Singapore Prime Minister, the proposal was rejected due to the economic incapability of each AMS.
Thus, the idea of ASEAN Free Trade Area (AFTA) was revived once again by Anand Panyarachun, Thai Prime Minister through the endorsement from Singapore Prime Minister Goh Chok Tong.
Eventually, the AMS reached a consensus on the establishment of AFTA within 15 years under the Framework Agreements on Enhancing ASEAN Economic Cooperation in 1992.
The purpose of AFTA is to ‘reduce or eliminate non-tariff barriers between and among each other [member states in ASEAN] on the import and export of products as specifically agreed upon under existing arrangements or any other arrangements arising out of this Agreement.’
The AFTA for intra-ASEAN trade and investment falls under the Common Effective Preferential Tariff (CEPT) Scheme. However, it is important to realize that AFTA comprises of two groups: ASEAN-6 (Brunei Darussalam, Indonesia, Malaysia, the Philippines, Singapore and Thailand) and ASEAN-4 known as CLMV group (Cambodia, Laos, Myanmar and Viet Nam) due to the late membership in ASEAN. Since AMS have different economic development levels, the Agreement provides the ‘General Exceptions’ for AMS to take measures when necessary ‘for the protection of its national security, the protection of public morals, the protection of human, animal or plant life and health, and the protection of articles of artistic, historic and archaeological value.’
There are two reasons that AMS did not voice an objection over the proposal. First, I argue that if a proposal serves the best common interests of AMS in this case, thus they are likely to reach a Consensus without hesitation. Second, all of AMS need to handle economic challenges in the global economy. Furthermore, the ‘General Exceptions’ provides more incentives and flexibilities than negative impacts on each AMS. Hence, each of AMS are satisfied enough to agree on the proposal of AFTA.
After the illustration of the four cases, a key to reach consensus on a proposal, when a proposal serve only the best common interests. However, I see that during the decision-making process in ASEAN, there are always two groups: the Approval Group (AG) and Rejection Group (RG). When AG and RG tried to compete between collective interests and the individual interests, the individual interests prevail. Thus, there always leads a proposal to the deadlock. Unless, one of the group seek the alternative proposal or resolution. Moreover, a dissenting or dissatisfied state may not express an objection on a proposal, unless there is a loopholes within a proposal which means the proposal does not have binding power in nature. However, there two options that a dissenting or dissatisfied state may obstruct the decision. First, if it feels strongly disadvantaged on certain issue or proposal. Second, to pursue its own desired outcome, it will prolong the bargaining process.
Chapter Four: European Union (EU) Institutional Structure and Decision Making Mechanisms
To be a cornerstone for Chapter 5, I will focus more on the decision-making mechanisms of EU ‘tri-pillar system’, especially the Pillar One called European Communities or the Community rather Pillar Two and Three under its ‘Community Method’ initiated by the Maastricht Treaty due to limitation study of this dissertation. Notwithstanding, to precisely keep this dissertation in the field of legal research for future contemporary legal studies, at the same time to strongly support my proposals in the last Chapter (Chapter V), I will also discuss the decision-making mechanisms of EU after the abolition of this three-pillar structure by the Treaty of Lisbon, which is the EU latest amendment treaty, to draw practical lessons from EU decision-making mechanisms for AEC and ASCC 2025 as a proposal for my dissertation.
IV.1. The General Background of EU
What differentiates European Union (hereinafter EU) from other international organizations is its institutional design under the hybridity of Intergovernmental and Supranational elements. EU is a unique regional organization with the given both legal personalities of intergovernmental and supranational elements within its institutional framework to operate on different areas of policy making. EU was first formed as a European Coal and Steel Community (hereinafter ECSC) in 1950 aftermath devastation of Second World War comprised of six founding member states (hereinafter ‘the Six’) such as Benelux countries (Belgium, Netherlands, Luxembourg), France, Germany, Italy, with the initiative of Schuman Declaration, and the key important players: Jean Monnet and Robert Schuman.
The creation purpose of ESCS is to ‘contribute to economic expansion, the development of employment and the improvement of the standard of living in the participating countries through the institution, in harmony with the general economy of the member States, of a common market’.
The seven rounds of EU enlargement, which took place in 1973 (United Kingdom, Denmark, and Ireland), 1980 (Greece), 1986(Spain and Portugal), 1995(Austria, Finland and Sweden) and 2004 (Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia, and Slovakia), 2007 (Bulgaria and Romania) and 2013 (Croatia) empowered EU to become a successful regional organization with 27 member states.
However, the BREXIT
case reduced EU member states from 28 to 27 in 2017. The two basic treaties governing the decision-making of EU today’s day-to-day operation are Treaty of European Union or known as the 1992 Treaty of Maastricht, and the Treaty on the Functioning of the European Union or known as European Community (hereinafter EC) Treaty, adopted by the 1957 Rome Treaties and modified by the 2007 Lisbon Treaty. To not get confusion, the term ‘EC’ will be referring to the development of EU before Maastricht Treaty 1993; and the term ‘EU’ will be referring after 1993 in this chapter.
IV.2. The Institutional Design of EU under the Hybridity of Intergovernmental and Supranational elements
IV.2.1. Supranational features
Identically, the institutional system of EU is far different from other IOs, which is governed by respective dual elements: the supranational and intergovernmental. The idea of supranational means independent state gives decision making authority to a ‘supra-national body’. According to Neill Nugent, moving from cooperation to integration, the autonomy states may not completely control over the developments of the organization, especially on the decision-making power since they are voluntarily loss some their national sovereignty to the organization.
In this sense, the EU has its independent institutions with differential conferred power deciding on executive (the Commission), judicial (European Court of Justice) and legislative acts (the Council of EU and EP) throughout the given of majority voting power. In this case, I raised two examples to manifest the supranational in reality.
E.g (1). The French Constitution:
‘[t]he Republic shall participate in the European Union constituted by States which have freely chosen to exercise some of their powers in common by virtue of the Treaty on European Union and of the Treaty on the Functioning of the European Union. . .’
E.g (2). The German Law:
‘with a view to establishing a united Europe’, the Federation ‘may transfer sovereign powers by a law with the consent of the Bundesrat [the upper house]’.
IV.2.2. Intergovernmental features
As previously discussed within Chapter 2, in international legal order, States are recognized as the primary subject, while IOs recognized as secondary object.
States collectively create IOs for particular issues or objectives which they could not possibly to address by their own. Henceforth, the roles and rules of the IOs will be depending on the member states’ interests. This falls under the ‘principle of conferral’ as one of the fundamental principles in EU, which will covering later in this Chapter, Sec. IV.5. Likewise, the power and role of EU are limited by the intergovernmental element, since the creation of today’s EU originally initiated by treaties and decisions of its member states. According to Neill Nugent, in the intergovernmental element:
[A]rrangements whereby nation states, in situations and conditions they can control, cooperate with one another on matters of common interest. The existence of control, which allows all participating states to decide the extent and nature of this cooperation means that national sovereignty is not directly undermined.
To point out this, a fully intergovernmental institution in EU is the European Council consisting Heads of State and Government, which the taken decision must be made by Consensus, except provided otherwise.
The role of European Council is to provide ‘the general political directions’ for the EU.
For more details see this Chapter, Sec IV.6.4. Another example to point out is whenever the unanimity is taken place in the EU decision-making such as, the amendment on EU treaties, and the Foreign and Security Policies.
IV.3 A Concise on the Evolution of EU Treaties on the European Integration Process before the Lisbon Treaty
Before naming as EU, this regional organization has gradually reformed its institutional structure, especially decision-making mechanisms, through many treaties because the deepening core of EU integration comes from the evolution of treaties adopted by the decisions of its member states. The sections below will be explaining on how EU treaties evolved on both EU institutional structure and integration process at the same time with its decision-making mechanisms before the Treaty of Lisbon which is from Treaty establishing the European Coal and Steel Community to the Treaty of Nice.
IV.3.1. Treaty establishing the European Coal and Steel Community 1951
The signature of Treaty establishing the European Coal and Steel Community (hereinafter ECSC Treaty) or known as Treaty of Paris took place on 18 April 1951 and thereafter entered into force on 23 July 1952.
The idea to create coal and steel community was potentially seen by the Six as important tools in two different areas. First, it is worth noting that the ECSC was purposely created during the post-World-War-II or can be called Cold War period to integrate European countries in order to prevent another war threats in the production of weapons from coal and steel.
Second, coal and steel would improve the European industry production. Although the purpose of ECSC tended to focus on economic community at the same time political ambitious, in the perspectives of Schuman and Monnet European Integration means reconciling relations between France and Germany.
To operate and monitor the Community, the ECSC Treaty established four institutions by giving different functional powers such as a High Authority, a Common Assembly, a Special Council and a Court of Justice. Among these four institutions, the Six decided to empower the High Authority as the main decision-making body with 'supranational character' to 'take decisions, make recommendations or deliver opinions'
overall issues related to the coal and steel production for a common market by partly giving up of their sovereignty to achieve the objectives set out in ECSC Treaty.
Jean Monnet believes that the 'proposed organisation' would be less effective if the principle of supranationality is negotiable. Placing the High Authority under the 'principle of supranationality', Article 14 of the ECSC stipulated the taken decision and recommendations must be binding (except its opinions) and decided by 'a majority of its members'.
IV.3.2. Treaties of Rome: EEC and EURATOM treaties 1957
After realized that the creation of coal and steel community alone would not successfully to establish a Common Market or Internal Market
for European Integration in the future, Jean Monnet started to propose a new atomic energy community together with ECSC since '[a]tomic energy had already revolutionized strategic doctrine and seemed poised to replace coal and oil as the elixir of the future'. With this idea, Foreign Minister of Belguim Paul-Heneri Spaak presented his final report on behalf of Benelux Countries in the foreign minister meeting in Venice in 1956 which led to the official establishment of the Treaties of Rome in 1957. The Treaties of Rome resulted into two treaties, simultaneously two communities such as the Treaty establishing the European Economic Community (EEC Treaty), which established the European Economic Community (hereinafter EEC) and the European Atomic Energy Community (hereinafter Euratom) established by Treaty establishing the European Atomic Energy (Euratom Treaty).
Notably, the Treaties of Rome are referred as EEC Treaty in practice. To differentiate from the ECSC Treaty, the EEC treaty was developed as framework treaty, which composed of 'principles, objectives, and procedures' requiring the institutions to provide concrete form with legislative instruments in order to achieve the outline of policy objectives; and it had no lifetime, yet subject to be amended by the subsequent treaties.
Furthermore, there was slightly reformation in EEC Treaty on its institutional structure and decision-making mechanisms from the ECSC Treaty. For example, the HA in ECSC was no longer existed under the ECC Treaty. The institutions established under the EEC treaty were the Council, the Commission and the European Parliament with distinctive functional powers to serve both of national and Community interests. Later on, the Treaty Establishing a Single Council and Single Commission of the European Communities in 1965 better known as Merger Treaty merged the institutions operating the three communities- ECSC, EEC, and ERUATOM- under a common institution.
IV.3.4. Single European Act 1957
A historical event that should never be forgotten during the EEC Treaty is the “empty chair crisis”. The President of France, Charles De Gaulle opposed to the policy areas regarding the internal market and agriculture to be employed under the Unanimity rather than QMV up until Luxembourg Compromise in 1966.
In spite of that compromise, to complete the Internal Market within 31December 1992, the Single European Act (SEA) which was signed on 17 February 1986 in Luxembourg and entered into force on 1 July 1987 with the endorsement of EC Commission White Paper.
The objectives to amend the existing treaties can be found in the preamble of the SEA, which they are solemnly determined ‘to improve the economic and social situation by extending common policies and pursuing new objectives, and to ensure a smoother functioning of the Communities’.
SEA is the first amendment treaty on the EEC Treaty providing new provisions and the institutional machinery, notably, the decision-making mechanism to smooth out the integration process and harmonization of community legislation.
IV.3.4. Treaty of Maastricht 1992 to Treaty of Nice 2001: the Roadmap of ‘Three-Pillar’ structure of EU
The birth of the EU came from the signature of the Maastricht Treaty known as Treaty on European Union (hereinafter TEU) took place on 7 February 1992 in Maastricht, Netherlands. The TEU can be considered one of the most major reform treaties in historical evolution of EU. While TEU transformed European from the Community to the Union, it clearly sees that the European States wanted its Community to go further than just economic objective. For example, renaming the EEC Treaty to the EC Treaty. The TEU established a three-pillar structure, which composed of three Communities. The first pillar comprised the three Communities: ECSC, EEC and Euratom, while a Common Foreign and Security Policy fell under the second pillar, and Cooperation on Justice and Home Affairs governed by the third pillar. In addition, the entry into force of the Treaty of Amsterdam on 1 May 1999 brought the amendments and expansion of the three-pillar with new provisions. For example, the name of third pillar was changed to ‘Police and Judicial Co-operation in Criminal Matter’.
Nevertheless, the Treaty of Amsterdam did not work much on institutional structure, especially on the decision-making in EU for next stage of enlargement. Only up until the Treaty of Nice. Notably, the allocation of votes to work on the QMV.
IV.3.5. Treaty of Lisbon 2007: the Abolition of the ‘Three-Pillar’ Structure of EU
After the failure on the attempt to adopt EU Constitutional Treaty, the European Council called for further deliberation to find other possible ways to the Constitutional Treaty.
This leads to the convening of a new intergovernmental conference on July 23, 2007 in Lisbon, Portugal to ‘complete its work as quickly as possible, and in any case before the end of 2007, so as to allow for sufficient time to ratify the resulting Treaty before the European Parliament elections in June 2009.’
Eventually, the signature on the Treaty of Lisbon took place on December 13, 2007. Following the trend of Treaties of Maastricht, Amsterdam and Nice, the Lisbon Treaty or known as ‘Reform Treaty’ amended the existing treaties; abolished the ‘Tri-pillar system’ of EU; and moved most of EU policy areas governing by unanimous voting to QMV.
More importantly, the Treaty of Lisbon replaces all of articles contained the word “Community” to the word “Union” in all EU treaties.
Table. 4.1. Policy areas under the QMV after Treaty of Lisbon
Source: European Union
IV.4. The Community Method: The EU three-pillar structure
|Asylum (Art. 78(2) TFEU)
|Immigration (79(2) TFEU)
|Transport (Art 91(1) TFEU)
|Freedom of movement for workers (Art. 48 TFEU)
|Criminal judicial cooperation (Art. 82(1) TFEU)
|President of the European Council election
|Foreign Affairs High Representative election
|Citizens’ Initiative regulations (Article 24 TFEU)
|Intellectual property (Art. 118 TFEU)
|Tourism(Art. 195 TFEU)
|Civil Protection (Art. 196 TFEU)
|Emergency international aid(Art. 213 TFEU)
|The EU budget
|Humanitarian aid (Art. 214(3) TFEU) and many more…
(EC, Euratom & ECSC)
Cooperation on Justice and Home Affairs
Common Foreign and Security Policy
CFSP & JHA Intergovernmental
The Community Supranational
Figure. 4.1: A three-pillar structure of EU
The term ‘Community Method’ was introduced to break the intergovernmental deadlock on the European integration since its founding treaty or ECSC Treaty. It is characterized by supranational element which is completely different from the traditional practices of IOs. Under the Community Method, the members of the Community have commonly agreed on the establishment of independent institutions, such as European Commission, the Council of Ministers or Council of EU, the European Parliament and European Court of Justice. As discussed in Chapter 2, an IO is created by the independent sovereign states, thus the competences of the IO itself will be conferred by the member states. Thereupon, in the process of EU integration, the member states of EU still retain the intergovernmental element on sensitive areas, though members states agreed on the supranational element operated in the Community. As mentioned in IV.2.4, the EU was born from the Treaty of Maastricht or TEU, which set up three distinct policy areas such as the European Communities (hereinafter the Community), Common Foreign and Security Policy (hereinafter CFSP), and Cooperation on Justice and Home Affairs (hereinafter JHA) under an umbrella (see Figure 4.1). The structure of TEU divided into seven titles as followings:
-Title I ‘Common Provisions’ which shared by the three pillars
-Title II Provisions amending the Treaty Establishing the European Economic Community with a view to establishing the European Community
-Tiltle III Provisions amdending the Treaty Establishing the European Coal and Steel Community
-Title IV Provisions amending the Treaty Establishing the European Atomic Energy Community
-Title V Provisions on a Common Foreign and Security Policy
-Title VI Provisions on Cooperation in the Fields of Justice and Home Affairs
-Title VII Final Provisions
IV.4.1. The three-pillar characteristics
According to Article A of the Maastricht Treaty ‘[t]he Union shall be founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty.’
In other words, the three European Communities—ECSC, EEC, EURATOM—are continuously exist and enjoy their own right under the European Union established by the Maastricht Treaty. These three European Communities can be constituted as the pillar one or the Community Pillar. The Community Pillar is governed by the supranational co-operation. Thereupon, competences of the member states are transferred to the Community Pillar to directly be bound by the adopted legislation from supranational institutions like EP and the Council. However, the pillar two and three required the intergovernmental co-operation. In this sense, participating states as the decision-makers in the decision-making process of the pillar two and three which have power to stop or veto on the proposed act, unlike the pillar one. Notably, the Court of Justice has no jurisdiction over the second pillar, and with limited jurisdiction over the third pillar, since they are not governed by the laws adopted by the EU legislators like EP and the Council.
Furthermore, as an independent sovereign states in intergovernmental co-operation, the roles of the shared Community institutions are limited due to its fundamental principles. This will be discussing in detail in IV.4.
IV.5. Fundamental Principles of EU Decision-Making
Before deeply going through the analysis of the decision-making of EU, understanding of the fundamental principles of its decision-making is needed. There are three basic principles governing the competences of EU to make decisions in each policy areas, such as ‘principle of conferral’, ‘principle of subsidiarity’ and ‘principle of proportionality’, which will be discussing in the below sections. From this part onwards, I will begin to discuss about the EU decision-making during and after the three-pillar. Thus my legal bases will be stretching from the Treaty of Maastricht to the Treaty of Lisbon or known as the ‘Reform Treaty’. To provide an easy understanding, the term “Pre-Lisbon” will be referring for the discussion before the Treaty of Lisbon existed, which is from the Treaty of Maastricht to Treaty of Nice, and the term “Post-Lisbon” will referring after the Treaty of Lisbon, which is a ‘Consolidated version of the Treaty on European Union’.
IV.5.1. Principle of Conferral
Article 3b (1)
of Treaty of Maastricht mentions that:
The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein.
of Consolidated version of the Treaty on European Union stipulates that:
2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
As discussed in Chapter 2, the creators of IOs are sovereignty states, which under no control of any states or entities. In this sense, according to the provisions, it manifestly sees that the competences of EU to achieve the objectives gets from or conferred to it by its member states as specified within the Treaties. Thus, with the limited competences, EU must not perform any act or make any decisions beyond what has set out the Treaties.
IV.5.2. Principle of Subsidiarity
Article 3b (2)
of Treaty of Maastricht lays down that:
In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member states and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.
of Consolidated version of the Treaty on European Union states that:
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
In the EU, there are three main competences: ‘exclusive competences’, ‘shared competences’, and ‘supporting competences
As mentioned above, the EU competences are conferred by its member states to achieve the objectives laid down in the Treaties, thus between these three competences only the policy areas
in the exclusive competence that EU alone can ‘legislate and adopt binding acts.’
However, thanks to the principle of subsidiarity, EU can also exercise its own competence in the policy areas in the shared competences
such as, internal market, social policy, agriculture and fisheries etc., which shared between EU and its members under a condition.
According to the provision, if the EU wants to intervene and exercise its competence in the policy areas fell under the shared competences, there must justification from EU legislator that ‘the objectives of the proposed action…be better achieved at Union level’ rather than at local or national level.
It should be noted that, as a regional organization under the mixture of intergovernmental and supranational elements, the EU is empowered to have exclusive competence in the first pillar (the Community) with supranational cooperation rather the CFSP and JHA. In a sense, the justification will be reviewed by the Court of Justice.
However, in the perspectives of scholars Schermer and Blokker, the principle of subsidiarity tends to be more political principle than a legal principle which widen more the ‘the activities and powers by Union’.
IV.5.3. Principle of Proportionality
Article 3b (3)
of Treaty of Maastricht provides that
Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.
of Consolidated version of the Treaty on European Union says that:
4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.
Similarly to the other principles mentioned above, the principle of proportionality limits the powers exercised by the EU. The provision already gave such a straightforward meaning which the action by EU must not go further than its limitation to what is necessary to achieve the objectives of the Treaties.
In conclusion, it can be seen that the Pre-Lisbon and Post-Lisbon, the principles of conferral, subsidiarity, and proportionality are stated in both treaties. However, the arrangements of the name of principle of conferral and principle of proportionality were not clearly stated in the Pre-Lisbon, which cause some minor changes. In a sense, the meaning of the provisions remained unchanged.
IV.6. The EU Decision-making and Implementing bodies under the Hybridity of the Intergovernmental and Supranational elements
Although the EU integration process is under the mixture of the supranational and intergovernmental cooperation/elements, its institutions are shared as a ‘single institutional framework’, which conferred to have their respective tasks and powers on the various policy areas.
The EU institutional system has been academically named as ‘institutional triangle’ to certify the decision-making power exercised in EU (see Figure 4.2).
The European Commission
The European Parliament
Figure. 4.2: The interaction of the three independent institutions of EU
These three institutions were introduced by the Treaties of Rome 1957 with the distinct conferred functional powers to carry out on EC/EU measures as mentioned in IV.2.2. Another important institution that should be overlooked is the Court of Justice, which is entrusted to ensure the measures and compliance of EU. However, I will only discuss on the main EU decision-making institutions due to scope of my dissertation topic. The three main decision-making bodies that I will be discussing are the European Commission, the Council of the European Union, and the European Parliament. The roles and powers of these institutions will be explaining as follows.
IV.6.1. The European Commission
The European Commission (hereinafter the Commission) is an executive body and a ‘guardian of the treaties’ of EU.
The Commission composes of two-thirds of the number of member states with a unanimous decision from the European Council and the approval of European Parliament.
Nonetheless, the Commission members are not in the form to representative of their own countries presenting their national interests. They are rather negotiate on General/the Community interests since , the Commission is conferred as a supranational institution staying independently from the governments influence in order to protect the general interest of the EU, which ‘neither seek nor take instructions from any Government or other institution, body, office or entity.’
The origin of the Commission comes the HA, which was the main decision-making body created by the ECSC to attain the objectives set out in the Treaty. However, after the establishment of ECSC and Euratom, its main decision-making power had been transferred to the Council. Thereafter, the exclusive right of the Commission retains is ‘the right of legislative initiative.’ The right of legislative initiative requires the Commission to propose European Laws with the surety that the member states cannot deal by themselves as set out in principle of subsidiarity; and implement the laws once they adopted by the Council of EU and European Parliament. It also ensures that the Treaties are implemented. In this case, the Commission will bring the member states fail to comply with the obligations of Treaty, which provided in the Article 4(3) to the European Court of Justice.
IV.6.2. The Council of European Union
Another essential decision-making body in EU is the Council of European Union, but traditionally known as the Council of Ministers (hereinafter the Council). The changing of this name is due to the introduction of the Union throughout the adoption of the three-pillars—the Community, CFSP, and JHA—in 1993.
Article 16 of Consolidated version of the Treaty on European Union, the Council is conferred to adopt all laws proposed by the European Commission and the budget of EU jointly with the European Parliament. Besides these tasks, the Council is also responsible on ‘policy making and coordinating functions’ e.g. EU Economic Policy.
By all means to the first pillar—the Community—the Council needs to make sure on the attainment of the set out objectives within the treaty and ‘the co-ordination of the general economic policies of the member states by taking the major policy decisions of the Community.’
With the composition of 28 ministers from each member state countries, it respectively changes on the discussing policy areas. To exemplify, the ministers of economic will responsible on the discussion of economic policy; and the agriculture ministers will eligible to discuss only on the agricultural policy. The most important point is that each of those ministers has a power to ‘commit the government of the Member State in question and cast its vote.’
IV.6.3. The European Parliament
European Parliament is an institution represents the citizens’ interests of EU.
The origin of European Parliament (hereinafter EP) comes from the Common Assembly established in ECSC Treaty. However, the representatives came from the domestic parliament of each member states granted with ‘supervisory powers.’
After its rename in 1962 to share a common institution for three communities—ECSC, ECC, and Euratom—its roles and powers incrementally enhanced by adopted Treaties. Up to the present time, the EP has three main powers: (1) power over legislation, which it has to agree on EU law with the Council based on the proposal from the Commission; (2) power over the EU budget deciding with the Council; and (3) supervisory power. The composition of EP is stipulated as follows:
of Consolidated version of the Treaty on European Union
The European Parliament shall be composed of representatives of the Union's citizens. They shall not exceed seven hundred and fifty in number, plus the President. Representation of citizens shall be degressively proportional, with a minimum threshold of six members per Member State. No Member State shall be allocated more than ninety-six seats.
In addition, the seats of members of the EP are distributed to every EU member states based on their population.
IV.6.4. The European Council
The European Council has no authority to adopt the law as the Council and the EP, however it is an intergovernmental institution which plays an important role to define ‘the general political directions’ for the EU since it composes of the Head of States and Governments, and the President of the Commission.
In this sense, the political directions European Council will leave such tasks to the three institutions mentioned above to work into legislative acts. The meetings of European Council or known as ‘European summits’ take place four times every year.
IV.7. The EU Decision-making Mechanisms under the Hybridity of the Intergovernmental and Supranational elements
IV.7.1. Qualified Majority Voting in the Council and Unanimity of European Union
Unlike the European Commission, the Council is an institution under the hybridity of intergovernmental and supranational elements, and its decision-making mechanisms are divided into two such as QMV and Unanimity.
IV.7.1.1. Qualified Majority Voting
For an alternative to the using of unanimous voting in the IOs, the majority voting was introduced after World War II.
Although, the QMV was first introduced in the EEC Treaty (Post-Lisbon named as EC Treaty), the decisions of the Council were still governed by unanimity due to “empty chair crisis” by a strong opposition French President Charles De Gaulle as discussed in section IV.3.4 above. However, thanks to the SEA that the QMV has significantly extended into more policy areas in 1986 to achieve the Common Market mentioned in EEC Treaty and eliminate the paralysis of national’s diversity caused by its enlargement. To point out on the EC decision-making improvements, the SEA has extended QMV in the Council to cover more areas rather than Unanimity for Single Market measures except the measures regarding ‘taxation, the free movement of persons, and the rights and interests of employed persons’, and introduced Cooperation procedure with the European Parliament and the Council, which will be covering later beside this section.
There are couple reasons behind the move from Unanimity to QMV to decide over more areas. Firstly, the unanimity often prolongs the EC member states to reach a unanimous agreement. Secondly, EC member states thought that the inadequate efficacy of the existing treaties requiring Council to act unanimously could cause obstacles in ‘the creation of common market and further integration’.
In addition to this idea, the eighth President of European Commission, Jacques Delors, believed that the internal market could not achieve ‘unless unanimity gave way to qualified majority voting in the Council.’
Last but not least, the QMV could easily make the Council deal with the controversial measures or issues and expedite the decision-making process to achieve internal market by the end of 1992 at the same time.
As a consequence, 264 out of 282 White Paper (94 percent) measures for the EC single-market program to set out were adopted by the Council accordance to the EC Commission calculation by September 10, 1993.
The voting power of QMV in the Council is defined heavier than a simple majority in the Commission. The allocation votes of QMV is weighted on the population of a member state in EU.With attention to its origins, the decision-making based QMV in the Council of Ministers in the EEC comes from the German federal system in the upper house called the Bundesrat, which consists of 'member of the Land [Länder] governments'(Art. 51).
Each Land shall have at least three votes; Länder with more than two million inhabitants shall have four, Länder with more than six million inhabitants five, and Länder with more than seven million inhabitants six votes.
This decision-making mechanism led to the debate over two topics in the Council. The first one is about the equality of states in terms of population, which poses a question that 'why should a country of 50 million inhabitants have to do what is preferred by five countries of one million inhabitants each, just because they are five-to-one in terms of states, while being one-to-ten in terms of people?'
This does not entirely pose on the population, but also partly economic influence. The second debate topic is democracy which challenge between the minority rights and majority rule.
Traditionally, the concept of the Community called 'the balance of power' giving each nation not to dominate the Community. A permanent representative of Belguim to the EC, Philippe de Schoutheete explained his perspectives on the QMV system based on his ten-year experience that ‘a system based on majority vote was more efficient than a system based on the rule of unanimity, but not because votes would take place very often.’ He added that ‘[t]he mere possibility for the presidency to be allowed to call a vote encouraged everybody to look for compromise, whereas with unanimity each single participant knew he had a right of veto and would hence be less inclined to find common ground with its partners.’
At the present time, most of Council’s decisions are adopted by QMV, except some sensitive issues relating to the Common Foreign and Security Policy.
The application of QMV has been reformed several times due to alleged criticisms up until the post-Lisbon period that ‘requirements for a qualified majority have always been a battleground between the Member States, and more especially between small, medium-sised and large Member States.’
Markedly, in the pre-Lisbon period, there was not much reform on the EU decision-making, especially QMV. The major reform on the QMV took place twice: Treaty of Nice (Pre-Lisbon) and Treaty of Lisbon (Post-Lisbon).
- Pre-Lisbon: Application of Qualified Majority Voting
In the pre-Lisbon, the smaller member states was comparatively protected as the larger member states under the QMV. To exemplify, 5 votes given to Belgium with population of 10 million, while Germany received only 10 votes with the population of 82 million (see Table 4.2). For this reason, in the actual outcome within the majority rule, the smaller states is being more advantaged than by the traditional equal voting power distributed to each member state as discussed in Chapter 2. However, prior to the conclusion of Treaties of Amsterdam and Nice, the participating states called for a reform on the allocation of votes in the Council due to the overrepresentation of the smaller member states with an unreasonable extent, which will not reflect the reality of the Union and the lager member states.
Thus, after the entry into force of Treaty of Nice in 2004, the provisions provided a new system on the allocation of votes based demographic criterion of each member states. In this period, the larger member states like France, Germany, Italy and the UK gained from 10 to 29 votes, while smaller member states like Belgium, Greece and Portugal moved from 5 to 12 votes.
Meanwhile, the Council should meet three criterion: (1) 260 positive votes out of 352 votes, (2) at least half of the member states, (3) at least 62 percent of the total population of the EU. However, in circumstance whereby the proposal does not come from the initiative of the Commission two-thirds are required. The table below will be showing the allocation of votes in the Council to each member states based on demographic criterion before its abandon on October 31, 2014.
However, the validity of the 2007 pre-Lisbon mechanism mentioned above will be remaining from 1 November 2014 March 31, 2017 before its disappearance if only members of the Council request to do so.
Table 4.2. The allocation of votes for QMV before its abandon
Source: Protocol (no 36) on Transitional Provisions (2007), Title II Provisions Concerning the Qualified Majority
||Pre-Lisbon (Nice Treaty)
- Post-Lisbon: Application of Qualified Majority Voting
However, even after the entry into force of Treaty of Nice, QMV required higher percentage to reach, which is about 72 percent.
The satisfactory of QMV demographic criterion started in post-Lisbon after Treaty of Lisbon entered into force, which is called ‘double majority voting’. This new mechanism starts to employ on November 1, 2014. Under this new mechanism, the QMV requires ‘at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union.’
The member states of the Council may wish to block the proposal if they form at least four member states which represent at least 35% of total EU population.
At this instant, I will test this mechanism to see it works.
Table 4.3: Voting Calculator of the QMV after November 1, 2014
Source: the Council of European Union
||≥16 (55%) States
||65% EU Population
||35% EU Population
||65.89% EU Population
||34.11% EU Population
: Represents Positive Vote, : Represents Negative Vote
Assuming that these 28 member states are deciding on a particular proposed act. According to the mechanism mentioned above, a taken decision must be met two criterion: at least 55% =16 of member states and at least 65% of EU population. In addition, to block the decision there must be a 4-state group comprise 35% of EU population. Based on the table above, the highest percent of EU population is granted to Germany (15.93%), and then to France (13.04%). In this case, there are 23 positive votes and 5 negative votes from Finland, France, Germany, Greece, and Hungary. Nevertheless, these 5 states are not capable to block the proposal since they are comprised only 34.11%, which is less than 35% though there are two opposed largest states on the track. Simultaneously, the 23 positive votes are together comprised more than 16 member states with 65.89%. In this circumstance, the proposed act is satisfied with the rules and thus adopted. Lately, according to Article 4, Section 2 of the Draft Decision of the Council relating to the Implementation of Article 16 (4) of TEU and Article 238 (2) of TFEU, after 1 April 2017, the decision-making in the Council will be employing under new mechanism comprising two criterion: (a) at least 55 % of the population, or (b) at least 55 % of the number of Member States for the blocking minority.
In the decision-making of IOs, the Unanimity is unavoidable, even in the EU. As discussed in Chapter 2, a unanimous voting indicates to the ‘one state-one vote’ principle granting a veto right to each member states and showing that interests of all member states should be taken into account within the organization. Henceforth, to achieve a unanimous voting, all of participating states must cast in positive votes on a proposal. Likewise, each member in the Council reserves a veto right to vote on the proposal within the political in sensitive areas concerning in the Common Foreign and Security Policy such as EU membership (Art. 311 of TFEU), citizenship, and taxations(Art. 49 of TFEU).
However, abstention does not affect the decision taken according to Article 238, paragraph 4 of Treaty on the Functioning of the European Union (TFEU):
4. Abstentions by Members present in person or represented shall not prevent the adoption by the Council of acts which require unanimity.
IV.7.2. Co-decision procedure between the Council of European Union and European Parliament
The Co-decision procedure was first introduced in SEA 1986 to reflect the principle of democracy, which is one the key values founded within the EU.
After the Treaty of Lisbon, the Co-decision is now renamed as the ‘Ordinary Legislative Procedure’ (hereinafter OLP). As a norm of legislation to meet the principle of democracy, the OLP is empowered the EP to cooperate the decision with the Council in the legislation process to pass the EU laws based on the proposals of the Commission.
In a sense, there must be a common agreement from the Council (QMV) and the EP to pass the proposal from the Commission under this procedure. If there is no agreement on the proposal, a conciliation committee will be set up within six weeks after three months of second reading for the coordination.
Chapter Five: Proposals for the Reformation of ASEAN Decision-Making Mechanisms towards AEC and ASCC 2025
Since the ASEAN Charter is a first significant start of the ASEAN itself, thus to enable the further reformation for better institutional mechanisms, the ASEAN Charter openly provides the provisions for the Amendments of the ASEAN Charter under the Article 38 to all of new initiatives proposed by the member states.
As discussed in Chapter 3, the ASEAN Charter left a lot of criticisms to its decision-making mechanisms, especially towards the community-building in ASEAN. In my perspectives, the EU continuously stands out as an important reference for ASEAN to learn from.
Nevertheless, after incrementally discussed and illustrated on the decision-making mechanisms practices in IOs (Chapter 2) and EU (Chapter 4), I can see that the reformation is not just about proposing something new for ASEAN but also making it sounds more attractive and effective, thus I will be offering my final assessment on what sort of practical lessons to be drawn from both decision-making practices under these both chapters. As a result, I have come up with four proposals for the reformation of ASEAN decision-making mechanisms towards AEC and ASCC 2025, which will be elaborating in the following sections.
V.1. The Exhausted Consensus and the Move to QMV
As previously discussed in Chapter 2, the Consensus clearly comes up with both of benefit and shortcoming. In the first place, Consensus is a decision-making process requiring a common consent from all of participating states without going to the formal voting procedure, thus it literally expedites the slow pace of decision-making within IOs with short deliberation.
However, to block consensus, an expression of objection from a dissenting state is sufficient to do so. In this sense, the consensus will be achieved unless there is no expression of objection from a participating state to the proposed decisions.
With attention to the current ASEAN decision-making mechanisms, the main provisions on ASEAN Consensus (see Chapter 3) are legally stipulated in ASEAN Charter, paragraph 1 of Article 20, ASEAN decision-making is solely based on consultation and consensus, which operates in every single policy area of three ASEAN Community pillars unlike the EU three-pillar structure.
The outcome of the deliberation on the characteristics of ASEAN institutional structure and its decision-making mechanisms in Chapter 3 manifestly shows that though the entry into force of ASEAN Charter constructs ASEAN becomes a rule-based regional organization, there are still loopholes within the ASEAN decision-making mechanisms which may lead the proposals or projects of ASEAN Community always stay only in language and the folder of document, which will never exist into action or put into practice.
It is true that, the last five decades ASEAN was created to prevent the war, and maintain peace and security along with the purpose to promote eco-socio cooperation in the Southeast Asia region which have been declared in the ASEAN Declaration 1967. With these aims and purposes, ASEAN currently maintains its decision-making based consensus to decide on all issues due to the language stated in Article 20(1) of the ASEAN Charter. However, in the virtue of a collective promise and awareness of AMS to bolster the ASEAN institutional framework on a deeper regional integration process through the ASEAN Community vision beyond 2015 comprising three pillars: AEC, ASCC, APSC, it clearly sees that there is an urgent need for ASEAN to reform its decision-making mechanism to allow AMS has an alternative possible vote if the current decision-making based consensus does not work or obstructs the process to reach a final agreement, while each of AMS has a veto power within their hand.
Also, the question on how the Summit decides on non-consensus issues in paragraph 2 appears to be vague, since consensus or any other decision-making mechanism is not mentioned.
Therefore, while ASEAN closely integrated and faced with the challenges of globalization coming in a decade, I can argue that ASEAN current decision-making mechanisms seem inefficient for the deeper integration in 2025 because proposals or projects that would benefit the development and the interests of the ASEAN community can be obstructed by a dissenting AMS through expressly disagrees if that proposal constraints with its national interests.
To practically learn from the EU, the first thing to note the differences down between EU and ASEAN is their legal personalities. For the European Communities (pillar one of EU), it is operated under the hybridity of intergovernmental and supranational elements. In this context, the majority voting power, especially the QMV, is given by the EU member states to the independent decision-making bodies like the Commission and the Council for the adoption of the proposals, especially on whereby the Community interests take place. Despite of its supranational element, not all majority due to the intergovernmental element, notably in Common Foreign and Security Policy (pillar two), Cooperation on Justice and Home Affairs (pillar three) required the intergovernmental co-operation, which is a unanimous voting. In this sense, participating states as the decision-makers in the decision-making process of the pillar two and three which have power to stop or veto on the proposed act, unlike the pillar one. Learning from the EU three-pillar structure, I propose ASEAN to have two track decision making mechanisms for the proposals under the AEC and ASCC 2025. A first track, ASEAN can maintain its consensus but move the term to “Exhausted Consensus”. The term “Exhausted Consensus” is originated from the Third United Nations Conference on the Law of the Sea Conference (UNCLOS III) (see Chapter 2), with the clause ‘The Conference should make every effort to reach agreement on substantive matters by way of consensus and there should be no voting on such matters until all efforts at consensus have been exhausted.’
The fact that I borrow the term “Exhausted Consensus” because the behavior of ASEAN states are not willing to voluntarily give up their national interests over the regional interests, plus the absence if supranational element in ASEAN. Under these circumstances, the “Exhausted Consensus” can leave some space for the participating states, in case they failed to reach Consensus, to consult and seek compromise until they feel exhausted with the compromising stage.
It worth noted that, the Article 20(2) did not clearly stated on what decision-making mechanisms or modes that the Summit is going to use for the decision.
Hence, I see that the unclear of non-consensus decision-making mechanism whether the Summit decides through the majority voting or other method should be at issue. This presents a precise opportunity to question whether any other decision-making mechanisms other than the failed Consensus for the further interpretation and development of the ASEAN Charter. With this intention, the participating states can move on to the QMV, which is a second track of ASEAN decision-making mechanisms. The QMV may eliminate the deadlock, when a dissenting state is stubborn with minor issues.
The requirements of QMV are divided into two: (1) under the discussion in Chapter 2 shows that the QMV rules under the general practices, are two-thirds and three-fourths of total member states. However, the rule of QMV under the EU practices is quite different from the general practice of other IOs. As discussed in Chapter 4, the rule of QMV under the EU practices is based on the population of EU member states. In light of this these proposed mechanisms and rather using consensus for overall issues, ASEAN logically needs to distinguish what sort of issues are subject to Exhausted Consensus and QMV for more efficacy of the institutional decision-making. According to the Professor Severino, there are five types of issues should be divided:
- Matters fundamental to ASEAN such as amendments to fundamental ASEAN documents, the admission of members and the appointment of the Secretary-General
- Matters that involve the suspension of members or the imposition of sanctions
- Matters involving economic arrangements and agreements dealing with transnational problems
- Matters relating to administrative and budgetary issues
- Procedural matters.
Throughout these five types of issues, I propose that all matters related to the points (c), (d), and (e) should be moved to the proposed decision-making mechanisms, while all matters related to point (a) and (b) should be remained under the consensus, since they are mostly substantive issues searching for the unity of organization.
V.2. Opting the Supranational element
It clearly proofs that ASEAN has shown its community-building commitments by following a single market of European Community under the ASEAN Charter but it did not actually follow the institutional design of European Community’s single market at all. ASEAN Charter defines single market as an area where there is ‘free flow of goods, services and investment; facilitated movement of business persons, professionals, talents and labour; and freer flow of capital’
, whereas the Single Market under the Treaty of European Economic Community means ‘an area without internal frontiers in which the free movement of goods, persons, services, and capital is ensured’
. Comparatively, the definitions over the Single Market between these two regional organizations are quite similar. However, it is worth noted that there is no free movement of persons in ASEAN, only on facilitation of the professionals because ASEAN has no intent to jump on the ASEAN Citizenship policy.
Definitely, to become a successful ASEAN Community, it takes time to happen. However, it should be questioned that how much time will it take? It clearly shows that ASEAN will inevitably to reform with its current institutional mechanisms; and without a strong a commitment to partly sacrifice the national autonomy over the regional interests, the ASEAN Community would be hard to realize. A critique idea on reserving the national autonomy in economic integration is that ‘the reservation of national sovereignty in order to defend national interests…forms a barrier to economic integration…Therefore, the successful working of economic integration depended on the surrender of national sovereignty in favour of common and uniform rules imposed by the constituent states upon themselves’
. Thus for the future direction of a successful regional bloc, ASEAN needs to opt on the supranational element within the AEC and ASCC 2025. A core reason to this proposal is to propose the AMS to balance between their national interests and regional interests over the regional institutions when the measures on AEC and ASCC, so that the effects of proposed decision-making mechanisms will be streamlined. Before the existence of ASEAN Community took place, there were attempts to transform ASEAN Community to “ASEAN Union”. First, it was from the proposal of Prime Minister of Malaysia, Mahathir Mohamad, which called for the establishment of an ASEAN Union in 2003.
Another one was from the EPG, which set out in the EPG Report, paragraph 23.
However, these attempts were failed. In this regard, I argue that these attempts were rejected due to three reasons: (1) before the existence of ASEAN Community (2) the absence of ASEAN Charter (3) too ambitious movement at that time. Yet, ASEAN is now moving towards ASEAN Community 2025, thus obtaining more supranational element in regional institutions is needed to avoid the dominant of national interests over regional interests and attain the progress of AEC and ASCC 2025. This can be practically learned from the European Commission. Comparing the roles of ASEAN Secretariat and the European Commission are partially similar. Currently, it has been argued that the ASEAN Secretariat is kindly regard to a regional body, which is headed by the Secretary-General to oversee ‘the implementation of ASEAN agreements and decisions, and submit annual report on the work of ASEAN to the ASEAN Summit’ in order to actively promote the community interests and regional integration.
By doing so, ASEAN Secretariat needs to be independent from government personnel for the effective monitoring the implementation from the AMS, especially in non-compliance case. In addition, the adequate resources are also needed for this effectiveness of monitoring mechanism and this becomes another shortcoming of ASEAN Secretariat. A critic notes that since AMS prefers to preserve the national sovereignty which is solely based on consensus as mentioned above, the budget of ASEAN Secretariat is simultaneously based on ‘the principle of equal contribution’.
The application of this principle brings ASEAN to face with the dependent of external donors. As discussed in Chapter 3, ASEAN external partnership is one of the sources of conflicts in ASEAN decision-making mechanism, which the donors tries to influence and frame the ASEAN proposals through their assistance in particular issue. Thus, ASEAN cannot independently act to attain its objective since it has to accommodate the external partner’s interests. However, to solve this problem, the ASEAN Secretariat needs to grant its right to propose an annual budget with the approval of AMS throughout the decision-making mechanisms proposed in the V.1.
V.3. The Frequency of ASEAN Summit
As discussed in Chapter 3, ASEAN Summit is the highest decision-making body composes of the Heads of State or Government in AMS.
In this case, the ASEAN Summit has a solid power to adopt proposals, while taking a role as a policy guardian to realize the ‘objectives of ASEAN.’
More importantly, the ASEAN Summit is last resort to decide non-consensus
and unresolved disputes in ASEAN
. Comparing to the EU, the ASEAN Summit sounds similar to the European Council, while Heads of Government and States plays an important role to deicide over the political direction of the EU.
Nonetheless, the European Council has no authority to adopt the proposals from the Commission.
An important point to learn from EU is that the European Council has more frequent meetings than ASEAN Summit. In this context, The Summit Meetings is ‘held twice annually, and be hosted by Member State holding the ASEAN Chairmanship’
, while the European Council meetings take place four times a year
. As mentioned above, the language on decision-making of ASEAN Summit appears to be vague, which questions the ASEAN Summit itself on what sort of decision-making mechanism is going to be used. In this case, I propose ASEAN Summit to takes place three to four times a year. Henceforth, the frequency of ASEAN Summit will bring the controversial issues to be solved, and expedite the integration process under the AEC and ASCC 2025 at the same time.
V.4. The extension of “ASEAN Minus X” towards ASCC
Article 21, paragraph 2, spelled out that ‘In the implementation of economic commitments, a formula for flexible participation, including the ASEAN Minus X formula, may be applied where there is a consensus to do so.’
As explained in Chapter 3, the “ASEAN Minus X” allows the AMS who are ready to implement the agreements will go first, while the ones are not yet ready will go afterwards with the special timeline for the performance of their commitments. The use of formula “ASEAN Minus X” is a good start to expedite the community-building progress. However as seen in Article 21, the use of ASEAN Minus X is applied to the economic filed only, where there is an absence of use within the second pillar (ASCC) and third pillar (APSC). I argue that it is unlikely to use this formula in the APSC because most of policy areas under this pillar are highly related to security and political sensitive areas. In this regard, I am for Consensus to be used in the APSC pillar because every sovereign state would have to defense for their respective sovereignty powers over the association in order to retain their internal security from external aggression. Yet, I see that Consensus would be too restrictive and extremely ASCC pillars because now ASEAN is moving to twenty-first century which would need more flexible decision-making mechanisms to deal with the new challenges and urgent issues within the region such as economy dynamic, environmental protection, educational system, poverty and human rights violations. Thus, indeed, this formula should be extended and used in ASCC where the policy areas cover in less highly sensitive areas such as: ‘human development, social welfare and protection, social justice and rights, environmental sustainability, regional identity, and ways to narrow development gaps’
In conclusion, the loopholes within the ASEAN Charter are required further institutional reformation from AMS. In addition, since the decision-making mechanism is one of the most important tools to drive efficacy of organization itself, the reformation on the current ASEAN decision-making mechanisms solidly based on the Consensus must be prioritized and done. As observed, the use of consensus as one of the decision-making mechanisms has been widen to various international contemporary organizations, notably in the ASEAN. The discussion in Chapter Two offers that under the practices of IOs, though the Consensus is an expedition decision-making mechanism due to its unique character—the opting out of any voting procedure—the participating states still go for the voting procedure when they cannot obtain a common consent under the Consensus. With benefit of consensus, it expedites the process of decision-making in the organization and respects a common voice throughout a common consent of all AMS. Yet, with shortcoming of consensus, it tends to obstruct the process of decision-making, especially towards the process of the ASEAN community-building in the future. Another key point of the ASEAN decision-making mechanisms reformation, thanks to a prior-decade birth of EU that possibly provides ASEAN for experiences and preferences. Comparing to EU, several decision-making mechanisms are employed in the community process, such as simple-majority, QMV, Unanimity and Consensus. This due to the fundamental principles to operate in the EU are under the hybridity of the supranational and intergovernmental elements. Thus fundamentally compare to EU integration, the adherence of ASEAN Consensus and the principle of non-interference within the community-building leaves an obstacle for ASEAN to achieve a real community in the future, although the AMS laid its commitments to deepen the ASEAN Community. It is undeniable that the purpose to form ASEAN in 1967 was to preserve regional security while regional integration was for ASEAN Community. Obviously, the changing of economic, political and legal circumstances in twenty-first century on the formation of ASEAN in 1967 and ASEAN Community in 2007 brought ASEAN to the crossroads between maintaining the consensus and going for other possible voting mechanisms. It was hoped that after the existence of ASEAN Charter the Consensus will apply to fundamental issues rather non-sensitive issues, yet it turned out apply to all issues. Correspondingly, with overall discussions in this dissertation, it propose ASEAN with four proposals for further reformation on ASEAN decision-making mechanisms. Firstly, ASEAN needs to open for a possible voting when deciding on non-sensitive issues under, and move to QMV. Second, in order to make this new mechanism effectively, partially giving in the national sovereignty of AMS is needed. This is to empower a monitoring institution, ASEAN Secretariat to be more independent without under any government personnel control. Last but not least, a real ASEAN Community comprises of the three pillars—AEC, ASCC, and APSC. However, as observed the commitments of AMS lies more in the implementation on AEC, thus the implementation on the ASCC issues should not be overlooked. So, formula “ASEAN Minus X” should be extended towards the ASCC since the current implantation formula applies only on AEC.
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