By Natasha Fernando 29 January 2019
The Indian Ocean Region has gained traction in regional multilateral cooperation with policy dialogues centering on economic cooperation, trade and investments, the Belt Road Initiative and security centered discussion spanning non-traditional security challenges, maritime territorial disputes, and regional stability. The development of the ASEAN Regional Forum, the Shangri-La dialogue of Defence Ministers, the Shanghai Cooperation Organization (SCO), Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC), Indian Ocean Rim Association (IORA) and South Asian Association for Regional Cooperation (SAARC) are all attempts at some form of regionalism. None of these were as successful as the European experiment of regional integration. According to Amitav Acharya this is a new multilateralism that has made possible for weaker states to shape the security agenda. However there are certain realities that small or developing states must grapple with to achieve integration: limited resources, varying military-capability, threat perceptions, and incongruent political and security interests.
Security Cooperation is an open ended and overarching concept which in simple terms means cooperation among countries on various security related matters. This may include military exercises, arm transfers, military procurement, intelligence and information sharing, mutual assistance in cooperation on combatting transnational organized crime, terrorism, and various other security threats. For the functioning of these organizations certain legal arrangements are made on areas of mutual cooperation listed above. Not all security arrangements have legally binding effect, justiciable in domestic courts, or even in international courts and tribunals in some cases. For example: the implementation of the BIMSTEC Convention shall only be submitted to reviews at meetings and any state could refuse to cooperate, while dispute settlement will occur through diplomatic channels.
Do conventions of regional organizations make sense?
The legal nature of agreements of international governmental organizations depends on how authoritative the organization is. The United Nations for example is established under a Charter which is authoritative in the sense it codifies the main principles of international relations such as sovereign equality and use of force. The treaties such as Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights (ICCPR) create state obligations. Such laws have been adopted in domestic legislature depending on whether the state is monist or dualist. Even these laws have been met with contention: for example ICCPR Article 14 on Right to a fair trial is subject to the largest number of reservations. The binding nature of treaties is in the peremptory norms from which derogation is not allowed for States and none-compliance of such norms may result in sanctions. These cover: use of force between states, prohibition of slavery and genocide among others.
In the case of regional organizations, the legal authority is derived from the establishing charter. However the level of integration and the type of organization are attributes in determining whether such charters, treaties and agreements create real legal obligations. The NATO for example is a Collective defense organization which creates obligations on the members under Article 5 which clearly states an armed attack on any one member state is considered an attack against all embedding the principle: “all for one and one for all”.
Asian regional organizations do not necessarily create such obligations because of the sovereign independence of all states. According to Amitav Archarya, the Asian and African organizations have made regional platforms under an autonomous framework inspired by anticolonial and non-alignment discourses. Sovereign equality and non-interference are principles which are closely observed in such discourses. Even the SAARC Regional Convention on Suppression of Terrorism, explains that states should cooperate to the extent permitted by national laws.
The legal conventions are multifold with each convention having similar provisions on the same subject matter. For example: BIMSTEC, SAARC, and ASEAN all work on transnational organized crime but without an exhaustive definition and these conventions fall short of the standards envisioned in United Nations treaties. This is usually due to the reluctance in states to render their jurisdiction to a supra-national organization hence to limit jurisdiction to only national courts. Furthermore, the overlapping membership of these regional organizations could result in divergent commitments. For example: there are various other bilateral security understandings among members of regional organizations including US Collective Defense Arrangements such as the Southeast Asia Treaty.
The world is becoming increasing multipolar and multiteralism has created inter-dependence which require states to enter multiple commitments at bilateral, regional and multilateral level. A militaristic dimension to multilateralism (such as that of NATO) is unnecessary in the Asian part of the world which is volatile and insecure. Security cooperation is best achieved though periodic reviews on the implementation of what is envisaged in security-related conventions, not wholly dependent on legally binding agreements or norms. This creates opportunities to understand the strengths, weaknesses, opportunities and threats at the ground-level for a more coordinated approach. Also, to stay updated with evolving nature of crime and changing modus operandi. However, diplomatic channels should be more engaging and strengthened to discuss common security threats and breaches and not confine such threats to only of national importance. This is due to the wide scope, complexity and nuances of non-traditional security threats some of which maybe transnational in nature or a regional problem.