ASEAN has a chance to stand up for international peace by allowing Ukraine to accede to the Treaty of Amity and Cooperation. Failing to do so would highlight the weakness of the organisation at a time when small and medium states need to hold firm against great power bullying.
The ASEAN Foreign Ministers have tough decisions to make when they meet today in Phnom Penh, Cambodia. The Myanmar and Ukraine crises will continue to take centre-stage at the 55th ASEAN Foreign Ministers’ Meeting (FMM), alongside other pressing issues such as rising inflation, food and energy security, climate change, and growing tensions among major powers.
The request by Ukraine in June 2022 to accede to the Treaty of Amity and Cooperation in Southeast Asia (TAC) was not Kyiv’s first. In 2018, ASEAN had “held in abeyance” its decision to grant Kyiv’s request for accession due to a lack of consensus. This was ASEAN parlance for the rejection of Ukraine’s application, in lieu of reconsidering the request in the future.
Given that Russia’s war in Ukraine is now into its sixth month, ASEAN faces unprecedented pressure to grant Ukraine the status of a High Contracting Party (HCP) to the TAC as a show of support. Today, Denmark, Greece, the Netherlands, Oman, Qatar, and the United Arab Emirates will sign the TAC at the side-lines of the FMM, which will take the number of signatories to 49. If ASEAN acts quickly enough, Ukraine could be the 50th HCP.
In ASEAN’s view, the TAC is one of the most important legally binding instruments in the organisation governing inter-state relations and beyond. It embodies universal principles such as mutual respect for the independence of all states, the settlement of disputes by peaceful means, and the renunciation of the use of force. These values form the bedrock of ASEAN, such that the TAC is a prerequisite for any formal partnerships between extra-regional nation-states (dialogue partners, sectoral dialogue partners, or development partners) and ASEAN. But the TAC lacks strong enforcement mechanisms or obligations that characterise some bilateral and regional organisations’ treaties under international law (the North Atlantic Treaty Organisation, for example, binds member states with obligations for collective defence against the attack of any one member).
Ukraine’s Foreign Minister Dmytro Kuleba was clear in his application that ASEAN’s acceptance of Ukraine’s accession to TAC would not only send a strong message of support to Kyiv but also signal to the world ASEAN’s “unbiased external policy”.
At the upcoming FMM, ASEAN has a chance to blunt earlier criticism of its mealy-mouthed approach to Russia’s invasion of Ukraine and unwillingness to condemn Russia for its clear violations of international law.
However, despite the urgency, ASEAN has cumbersome procedures that normally would take up to a year to assess whether Ukraine displays sufficient connection to ASEAN and whether it can promote peace and security in the region and the world. In the current circumstances, ASEAN does not have the luxury of time and these considerations are likely moot as Kyiv fights its desperate war against Russia.
ASEAN’s approval of Ukraine’s application will highlight Russia’s intransigence in fighting its unprovoked war and violation of multiple international legal and diplomatic norms in the past half a year. There is a negligible chance that Russia and Ukraine, as TAC High Contracting Parties, would work towards the settlement of disputes with the option of convening a High Council to offer “good services, mediation, inquiry or conciliation” according to Chapter IV of the TAC. Moscow’s behaviour at recent international diplomatic meetings does not bode well for such an outcome.
In this context, ASEAN’s approval of Ukraine’s application would be an indirect indictment of Moscow. Russia, which became a party to the TAC in 2004, has brazenly violated every TAC principle. Olexander Nechytaylo, the Ukrainian Ambassador to the Philippines, has even beseeched ASEAN to suspend its dialogue relations with Russia. However, ASEAN has not responded to this call and is unlikely to, given the different opinions of its members. Approval of Ukraine’s TAC application will be the next-best option.
The inability to uphold the principles underlying one of its most important legal instruments renders the TAC a weak regime. Despite ASEAN describing it as a legally binding agreement with dispute settlement clauses, there is no effective enforcement mechanism. In fact, Russia’s behaviour has made a mockery out of the TAC, along with other international agreements, including the Charter of the United Nations. However, such instruments must still be upheld by peace-seeking countries because not doing so will steer the world further into anarchy.
ASEAN should not forget the reason for its existence. It was the need to create a rules-based regional order 55 years ago that brought a group of diverse countries, some of which were in conflict with one another, to band together. At the upcoming FMM, ASEAN has a chance to blunt earlier criticism of its mealy-mouthed approach to Russia’s invasion of Ukraine and unwillingness to condemn Russia for its clear violations of international law. ASEAN member states need to look beyond their narrow national interests if they want the grouping to remain relevant through the principles and values that it has built upon in the past decades. Approving Ukraine’s accession to the TAC will not directly help to resolve the war or bring the belligerents back to the negotiating table. However, at a time when international legal norms are under assault, ASEAN should make clear its support for such cherished rules and ideals./ BY JOANNE LIN/ FULCRUM