Managing limitations of traditional sovereignty: Lessons for ASEAN from European Union over-reach & Brexit

As the  Association of Southeast Asian Nations tackles the implementation of its emerging  Economic Community while dealing with fragmented responses to external territorial challenges, the withdrawal of the United Kingdom from the European Union appears to inconveniently give "shared sovereignty" a bad name.  Eugene K B Tan, an associate professor of law at the School of Law, Singapore Management University, explains why effective action requires both collaboration of member states and domestic buy-in and legitimacy:

THE UNITED KINGDOM’S DIVORCE from the European Union (EU) may well be the tipping point for European regionalism. If the EU poorly manages the UK’s exit, or Brexit, it may presage the slow decline and growing irrelevance of the EU in the global political economy. The entire episode also holds lessons for the Association of Southeast Asian Nations (ASEAN).

The tragedy of Brexit is the profound misunderstanding of sovereignty. The concern now is the risk of populist exit contagion gaining traction in other EU member states, all in the name of sovereignty and democratic choice.

To further inter-state cooperation, the EU operates on pooled sovereignty, in which decision-making powers are shared among member states. This is to be contrasted with unanimous decision-making, which gives states the right to unilaterally veto decisions that they disagree with.

Despite the intrinsic appeal of unanimous decision-making, states may pool sovereignty to reduce the likelihood of gridlock. This does not detract from their remaining independent sovereign nations. Instead, they are able to collectively gain and exert influence that none of them could have had on their own.

'Taming' EU member states

On the value that EU provides to member states, Oxford University’s Jacques Delors Professor of European Law, Stephen Weatherill, puts it well: “States give up a degree of power to act unilaterally so that they may participate in the deployment of a collective problem-solving capacity that is a great deal more effective. Resources of power are not finite: Acting through the EU expands the sum of State powers so it becomes greater than its parts.”

Professor Weatherill adds that the EU also seeks to “tame” states’ historical capacity to cause harm to each other. The EU’s rules and institutions do not replace, still less suppress, the several different locations of political authority across Europe. Rather, they create “a credible set of reciprocally undertaken commitments designed to make real promises to solve problems their citizens expect to see solved, and by preventing them from inflicting external harm”.

The creation of a single EU market for goods and services is a good example. The single market demonstrates that EU member states value the benefits of the collective abolition of trade barriers in favour of competition and efficiencies. This is an integration model of sorts for ASEAN..

Not-so-successful initiatives are the free movement of EU nationals within the EU and the creation of a shared currency, the euro. They prematurely shifted regional integration from a free trade area to a broader social and economic union, which is an overreach given the disparities within the EU. In turn, this necessitated — in the name of legal harmonisation—instituting more regulations by an unpopular command-and-control bureaucracy in Brussels, and the making of a supra-national state with institutions such as a regional judiciary and legislature.

What can ASEAN learn from Brexit?

ASEAN is organised quite differently from the EU. For one, there is no pooling of sovereignty. Instead, the ASEAN Charter, the grouping’s constitutional text, speaks of a normative, desired state of inter-state governmentality and cooperation.

Despite its fair share of difficulties and disagreements, ASEAN is a fairly cohesive and successful regional grouping. Next year marks the golden jubilee of its founding in 1967. It has engendered intra-regional amity and comity within Southeast Asia by nurturing a culture of mutual respect and accommodation among member states. This has led to the self-congratulatory mantra that “no two ASEAN member states have ever gone to war with each other”.

However, the past is not a reliable guide to the future should ASEAN become increasingly fragmented, or if unilateral, self-interested assertions of sovereignty take on ascendency. This is not far-fetched in light of China’s rise as a regional hegemon that is keen on bilateral rather than multilateral arrangements, especially over territorial claims in the South China Sea. On another front, several Indonesian ministers have objected to Singapore’s transboundary haze pollution law on the grounds that it violates Indonesia’s sovereignty.

ASEAN has facilitated regional economic development by providing a stable regional security environment. ASEAN members are realistic that their community-building will not be as intensive and extensive as the EU’s. The diversity of history, culture, politics, language, religion and economic development constrains ASEAN from being integrated like the EU.

The abiding demand for and long-standing understanding of the sovereignty norm in ASEAN has resulted in a policy of non-interference and a consensual approach to decision-making. While this is pragmatic, the “ASEAN Way” has been criticised for its failure against recalcitrant member states, such as in Myanmar and the abuse of human rights there when it was under military rule.

Limitations of traditional sovereignty

However, ASEAN is coming to grips with the limitations of traditional sovereignty. The ASEAN Charter seeks to create a rules-based organisation. Increasingly, the principle of “responsible sovereignty”, which enjoins states to take responsibility for the external effects of their domestic actions, is gaining currency. This broader conception of sovereignty entails obligations and duties towards other sovereign states as well as to one’s own citizens.

Sovereignty recognises that states remain the primary actors in the international system. Responsibility, however, highlights the need for cooperation among states, rather than unilateral action, to better meet the most fundamental demands of sovereignty, which is the protection of their people and the advancement of their interests.

Brexit vividly demonstrates that deeper regional cooperation is only possible when there is domestic buy-in and legitimacy. Regional integration must ultimately benefit and be seen to benefit the masses.

As Singapore's Prime Minister Lee Hsien Loong said of Brexit: “The desire to disengage, to be less constrained by one’s partners, to be free to do things entirely as one chooses, is entirely understandable. And yet in reality for many countries disengaging and turning inwards will likely lead to less security, less prosperity and a dimmer future.”

Sovereignty is a double-edged sword. If misused, it would do more harm than good in our increasingly interdependent world. Unilateral state action is grossly inadequate in dealing with major issues such as climate change, financial market regulation, terrorism and migration. 

Sovereignty must galvanise the human desire to cooperate in enlightened self-interest for the greater good.

Eugene K B Tan is associate professor of law at the School of Law, Singapore Management University. First published by TODAY.