Macquarie Journal of International and Comparative Environmental Law
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Macquarie Journal of International and Comparative Environmental Law |
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KHENG-LIAN KOH*
We envision a … green ASEAN with fully established mechanisms for sustainable development to ensure the protection of the region’s environment, the sustainability of its natural resources … (italics added).[1]
Established in 1967, ASEAN – the Association of South East Asian Nations – consists of ten member states, namely, Brunei, Cambodia, Indonesia, Laos, Myanmar, Malaysia, the Philippines, Singapore, Thailand and Vietnam.[2]
To what extent can the ASEAN Vision 2020 on natural resources, quoted above, be realized in a region which is not altogether homogeneous but is disparate to a varying extent in terms of its history, politics, economics, socio-cultural communities, population and natural resources?
The 2002 ASEAN Report to the World Summit on Sustainable Development (WSSD) noted the region’s natural resources in the following terms:
ASEAN’s environment and natural resource endowments are unique and diverse. Forest cover in ASEAN is over 48%, compared to the world average of below 30%. The aquatic ecosystems and the marine environment in ASEAN are highly productive and species rich. In 1998, it contributed 14% of the world’s marine fish production, and contained 35% of the world’s mangrove forests, and 30% of the world’s coral reefs.[3]
Three of the ten ASEAN members, Indonesia, Malaysia and the Philippines, are among the seventeen mega diversity countries in the world.[4]
This paper deals with the policies, strategies, programs and plans of actions in the management of the natural resources in ASEAN. The challenges encountered in the formulation and implementation of the various instruments relating to these, reflect some divergence as well as convergence. The approach to ASEAN’s cooperation is the ‘ASEAN Way’,[5] which may soon be modified by the ASEAN Charter (infra).[6]
This paper focuses on ASEAN at the sub-regional level and not at the national level of member states.
During the last two decades, ASEAN countries have embarked on massive economic development aimed at raising the standards of living of the people. Consequently, the impact of these activities has affected the region’s biodiversity. For example, the clearing of forest land by burning to make way for palm oil plantations in Indonesia has caused untold damage to biodiversity. This is one such example with which ASEAN has still to grapple.
The ASEAN Vision 2020[7] calls for shared values for sustainable development of natural resources. This involves both procedural as well as substantive mechanisms by integrating environmental considerations into development planning. The Vision weaves together demographic dynamics, socio – cultural factors, economic growth, natural resource use and environmental protection.
As environment is a highly political issue, there is bound to be divergence in finding solutions. As in other parts of the world and even within a particular country there are always divergencies in the pursuit of the use of natural resources and sustainable development. Where there are common concerns, it is easier to find a convergence.
I will consider four instances of divergence. First, the approach to decision making – the ASEAN Way. Second, the 1985 ASEAN Agreement on the Conservation of Nature and Natural Resources:[8]
divergence in convergence. Third, the 2002 ASEAN Agreement on Transboundary Haze Pollution:[9]
Thailand’s ‘Interpretative Declaration’,[10] and non- ratification by some ASEAN members. Fourth, the draft ASEAN Framework Agreement on Access to Biological and Genetic Resources:[11]
some conflict of interests.
It is not at all surprising that divergencies occur in an area such as the environment, as issues relating to environmental governance and sustainable development in natural resources require progressive deliberations in order to achieve a clear vision and policy before specific strategies and laws can be formulated. This is seen not only in ASEAN’s cooperation in environment but also in other parts of the world. As N A Robinson notes:
The need for more effective international cooperation to safeguard Earth’s environment had been evident since before the UN Stockholm Conference on the Human Environment in 1972. That Conference provided for the establishment of the United Nations Environment Programme (UNEP), and perhaps it was because of the success of UNEP that nations came to recognize the need for nations to take ever more effective international measures to prevent environmental degradation around the world. The need to do so, however, was not matched by a clear vision about how to do so.[12]
In the context of environmental governance, the ASEAN Way is generally typified by soft laws rather than hard laws. Of course, there are other reasons why many environmental instruments take the form of soft laws.[13] The ASEAN Way also puts the burden of implementation, compliance and enforcement on the member states as there is no central ASEAN bureaucracy.
The ASEAN Way is now ready to move forward to the next stage with a focus on ‘people’ under the forthcoming ASEAN Charter.[14] This is important as the role of the ‘people’ (public participation) plays a part in shaping the management of natural resources. Ong Keng Yong, Secretary General of ASEAN said: ‘a certain formality based on a more legal regime will help ASEAN grow into a more effective regional organization’.[15] Things have changed and ASEAN is meeting new challenges in all spheres including the environment as grimly demonstrated by the Indonesian fires, SARS and avian flu.[16] More teeth are also needed to tackle the problems such as illegal trade in endangered species.
The ASEAN Way has had its strengths and weaknesses.[17] Its weakness has been manifested in attempts to solve the Indonesia Haze. In order to counteract this, an innovative concept of ‘flexible engagement’ was mooted in the late 1990s by the then Foreign Minister of Thailand, Surin Pitsuwan, signifying a divergence in the approach to dealing with the internal affairs of a member state which would have environmental, economic or other impacts.
To understand how the ASEAN Way evolved, we need to understand the history of the formation of ASEAN itself. The Bangkok Declaration of 8 August 1967 which established ASEAN[18] was to
accelerate the economic growth, social progress and cultural development in the region through joint endeavor in the spirit of equality and partnership, in order to strengthen the foundations for a prosperous and equal community of South East Asian nations and to promote regional peace and stability.[19]
Mr S Rajaratnam, the then Foreign Minister of Singapore, at the signing ceremony said: ‘It is easy to give birth to a new organization … It is a mere skeleton that we have erected …’ He pointed out that the difficult task was ‘to give flesh and blood to the concept, by marrying nationalist thinking with regional thinking’. He continued:
We must also accept the fact, if we are really serious about it, that regional existence means painful medications to nationalist practices and difficult adjustments. If we’re not going to do that then regionalism remains Utopian.[20]
The founder members – Indonesia, Malaysia, the Philippines, Singapore and Thailand – had not been in the best of political relationships and some were then hostile to one another. Confidence building through the gentle musyawarah – consensus way of decision-making was the only way – and thus came to be known as the ASEAN Way. And cooperation in the now three communities – ASEAN Security Community; ASEAN Economic Community; and ASEAN Socio-Cultural Community – has gained confidence and is moving forward to the next step – one that is intended to give more teeth. This is the move forward for the ASEAN Community.
This ASEAN ‘Charter Way’ approach would enable ASEAN member states to discuss problems of fires caused by palm oil plantation owners in Indonesia without being regarded as interfering with the internal affairs of the country. At the 33rd ASEAN Minister’s Meeting in July 2000, the then Foreign Minister of Thailand, Surin Pitsuwan, stated that
our initiative on ‘flexible engagement’, which has evolved into ‘enhanced interaction’, is part of our effort to ensure that ASEAN is more effective, cohesive and relevant to the changing world situation.[21]
This concept would also herald a rules-based solution. It could also modify the doctrine of sovereignty and territorial integrity of nations as applied by ASEAN, reflected in the 1976 Bali Declaration of the ASEAN Concord,[22] and could apply in the management of natural resources. This would give ASEAN members legal backing to solutions in the protection of the environment including the protection of natural resources.[23]
The doctrine of sovereignty is related to the notion of the ‘ASEAN Way’. The ASEAN Way has called for an absolute application of the doctrine – ie non-interference with the internal affairs of a country. The provision on non-interference has been incorporated in many ASEAN documents. For example, the Declaration of ASEAN Concord II (Bali, 2003) reaffirmed the fundamental importance of adhering to the principle of non-interference and consensus in ASEAN cooperation:
The ASEAN Security Community shall abide by the UN Charter and other principles of international law and uphold ASEAN’s principles of non-interference, consensus-based decision-making, national and regional resilience, respect for national sovereignty, the renunciation of the threat or the use of force, and peaceful settlement of differences and disputes.[24]
Article 2 (7) of the United Nations Charter reads: ‘nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state …’[25]
In the context of natural resources, the doctrine finds expression in the preamble of the General Assembly Resolution on Permanent Sovereignty over Natural Resources
Bearing in mind its resolution 1314(XIII) of 12 December 1958, by which it established the Commission on Permanent Sovereignty over Natural Resources and instructed it to conduct a full survey of the status of permanent sovereignty over natural wealth and resources as a basic constituent of the right to self-determination, with recommendations, where necessary, for its strengthening, and decided further that, in the conduct of the full survey of the status of the permanent sovereignty of peoples and nations over their natural wealth and resources, due regard should be paid to the rights and duties of States under international law and to the importance of encouraging international co-operation in the economic development of developing countries, …[26]
As already noted, during various ASEAN ministers’ meetings on the Indonesian haze, the Thai Foreign Minister, Surin Pitsuwan, recommended that
perhaps it is time that ASEAN’s cherished principle of non-intervention (ie, the ASEAN Way) is modified to allow ASEAN to play a constructive role in preventing or resolving domestic issues with regional implications.
He argued that a flexible engagement would enable ASEAN member states to make recommendations and policies in regard to a member state’s internal affairs. At the 31st ASEAN Ministerial Meeting in Manila in July 1998, he elaborated his view that the non-interference principle in the ASEAN Way could no longer be accepted as follows:
Many ‘domestic’ affairs have obvious external or transnational dimensions, adversely affecting neighbors, the region and the region’s relations with others. In such cases, the affected countries should be able to express their opinions and concerns in an open, frank and constructive manner, which is not, and should not be, considered ‘interference’ in fellow-members’ domestic affairs.[27]
He went on to challenge the traditional doctrine of national sovereignty which has also been applied to the hilt in many ASEAN environmental instruments, boldly stating:
ASEAN countries should have sufficient self-confidence and confidence in one another, both to discuss all issues once considered ‘taboos’ … and to speak out on such issues … when necessary and appropriate. [28]
However, he did not go so far as to jettison the principle but only said that it should not be ‘absolute’.[29] This concept caused some alarm among member countries, and the only support for this flexible engagement policy was from the Philippines. The rest preferred the ASEAN Way.
If the flexible engagement policy had been adopted, ASEAN may have recommended the establishment of product eco-labeling for Indonesian palm oil or timber sale items in order to address the direct capital investment that is a cause of the forest fires in Indonesia or the deforestation there and elsewhere. Such an eco-labeling measure would allow informed market decisions to deter the illegal process of setting fires to clear land for investment.
Subsequently, in 2002 the ASEAN members drafted the ASEAN Agreement on Transboundary Haze Pollution.[30] This Agreement entered into force in 2003 with its ratification by seven ASEAN member states, Brunei, Laos, Myanmar, Malaysia, Singapore, Thailand and Vietnam. Indonesia, which has caused the forest fires, has not as yet ratified the Agreement, nor have Cambodia and the Philippines. So although there is common concern among ASEAN countries in dealing with forest fires, there is divergence on implementation for political, economic or other reasons.
This poses the question as to whether the ‘flexible engagement’ concept is a precursor to the formulation of the ASEAN Charter which contemplates a hard law approach.
The ASEAN Way may soon be remoulded to accommodate the ASEAN Charter which was established by the 11th Summit of ASEAN held from 12-14 December 2005 in Kuala Lumpur. It is expected that the ASEAN Charter will give more teeth by providing more formal rules and norms.[31]
However, some of the more recent member states such as Myanmar may prefer to adhere to the ASEAN Way as the Charter may open the gate to interference with internal affairs. The recent issue over Myanmar’s chairmanship of ASEAN has demonstrated that the Charter may be perceived by Myanmar as pressuring it to be more transparent and accountable.[32]
The ASEAN Charter is expected to be submitted at the 13th ASEAN Summit to be held in Singapore in November 2007.[33]
It is expected to give a more rules oriented approach to cooperation including the area of natural resource management. Will ASEAN under the Charter issue Directives to members to amend their laws and establish a mechanism for implementation, monitoring and compliance?[34]
The highest level of cooperation and convergence lies in hard law instruments and the only direct hard law agreement relating to natural resources is the 1985 ASEAN Agreement on the Conservation of Nature and Natural Resources. Yet, after 21 years, this Agreement has not entered into force.[35] Is there a conflict of views among the ASEAN countries which have not ratified the Agreement? A brief survey of its history may throw some light.
At the 6th Meeting of the ASEAN Expert Group on the Environment in 1983, the draft Agreement was adopted. It was signed on 9 July 1985 by the then six member countries – Brunei, Indonesia, Malaysia, Philippines, Singapore and Thailand. To date only three of the six signatory member states, Indonesia, the Philippines and Thailand have ratified it. Singapore, Malaysia and Brunei have not. It is therefore not yet in force.
If signatories to an agreement signify a convergence in its adoption, non-ratification by a signatory state may reflect some divergence.
The question of conservation of nature is very political and with it the question of governance in making decisions. What is the position in a federal state like Malaysia? Is there adequate infrastructure (required under the Agreement) to implement it? Is an inventory of species in place? To what extent can the then ASEAN member states claim ‘ownership’ in drafting the Agreement (as this is an important political consideration for its ratification)? There are other considerations such as the extent of natural resources and the use and conservation of such resources, also the extent to which environmental considerations should be taken into account in economic development.
I have posed more questions than I can answer, but they may assist in determining the convergence or divergence of views on the question of ratification.
At the 1st meeting of the then ASEAN Working Group on Environment (comprising senior officials of the Environment in the then member states) held from 18-20 December 1978 in Jakarta, Indonesia recommended the development of the Agreement. At the 5th Meeting in 1982 it was felt that further studies were needed and for this purpose a Workshop of Legal and Technical Experts was held from 3-5 November 1982 in Manila. The IUCN (the World Conservation Union) Environmental Law Centre and the Commission on Environmental Policy and Administration provided technical assistance in drafting the Agreement.
The scope is very wide and was perhaps too forward-looking at that period of time for member states to implement, as it specified an inventory of flora and fauna among other requirements. Subsequently, when the 1992 United Nations Convention on Biological Diversity[36] came into existence, the question was posed as to whether it had overtaken the Agreement in terms of the contents. Was there still a need for the Agreement? Have there been other ASEAN initiatives that have now rendered the Agreement outdated, otiose or replaced many of its provisions? Should each ASEAN member state proceed with its own ratification of global conventions and implement those in accordance with the ‘common but differentiated responsibilities’ principle? Or, should ASEAN work towards a harmonized biodiversity strategy under this Agreement, together with other ASEAN strategies, programs and plans of action? Has the ‘ASEAN Way’ to cooperation among its members been an obstacle to the hard law approach at the subregional level?
At the 7th and 8th meetings of ASOEN (ASEAN Senior Officials on the Environment) held from 9-11 September 1996 and 8-11 September 1997 respectively, a call was made to assess the relevance of the ASEAN Agreement in ‘present context’, ie, in light of several international related conventions such as the Convention on Biological Diversity,[37]
the Convention on Migratory Species[38] and the Convention on International Trade in Endangered Species.[39]
There is now silence!
The Indonesian forest fires wrought great havoc in terms of economy and public health, not only to Indonesia but also to other ASEAN countries, namely, Singapore, Malaysia, the Philippines and even the south of Thailand. In Indonesia where the fires occurred, there was also great biodiversity loss. This led ASEAN members to cooperate in drafting the above framework Agreement- only the second ASEAN hard law instrument. In contrast to the ASEAN Agreement on Conservation of Nature and Natural Resources,[40] the Transboundary Haze Agreement came into force in November 2003 – seven of the ten member countries having ratified.[41]
Thailand submitted a Declaration[42] on the interpretation of Articles 4(3) and 9(g) of the Agreement. According to Thailand, the phrase, ‘and/or’ appearing in these two Articles, should be read ‘or’. Article 4(3) reads: ‘In pursuing this Agreement, the Parties shall take legislative and/or other measures to implement their obligations under this Agreement.’ The Thai Declaration narrows the scope of the provision by requiring only one of the alternative mechanisms instead of a combination of them. Similar interpretation is to be given to Article 9(g) in relation to measures to control open burning and prevention of the use of fires for land clearing. It is clear that Thailand wants to retain its sovereignty over its natural resources and this would include the right to clear land by burning, which Thailand practices. Thailand has ratified the Agreement.
Indonesia, the country which ‘inspired’ the Agreement, because of its forest fires and also its practice of swidden agriculture, has not ratified the Agreement; nor have Brunei, Laos or Vietnam. There are many reasons why a country may not ratify an Agreement and this may not necessarily mean that there is disagreement with the Agreement itself, or its provisions.
Indonesia participated in drafting the Agreement. Whatever the reasons Indonesia has given for not ratifying the Agreement as yet, it is not difficult to guess that one of the underlying reasons is its adherence to its sovereignty over its natural resources including the methods of land clearing.[43]
This draft Agreement[44] acknowledges the need to ensure the uniformity and consistency of regulations on access to genetic resources and its equitable benefit sharing in the ASEAN region. It sets minimum requirements for national implementation and maximizes opportunities for the conservation and sustainable use of biological and genetic resources.
ASEAN has a common interest to realize the value of biological and genetic resources in the development of products, compounds and substances that have medicinal, industrial, agricultural and related applications. There is an urgent need to protect ASEAN interests in these biological and genetic resources from biopiracy as provided for in the Convention on Biological Diversity. The object of this is to provide a level playing field for all countries wishing to control exploitation of their genetic resources.
There are divergent interests between providers and users of genetic resources in the ASEAN region, particularly in the areas of prior informed consent, and fair and equitable sharing of benefits for indigenous and local communities. The doctrine of sovereignty as viewed by each member state and the concerns of indigenous peoples and local communities, account for divergent views. To date the draft Agreement has not been finalized.
The draft agreement was formulated in the year 2000. In the Hanoi Plan of Action
1999-2004, the deadline set for the adoption of this Agreement was 2004. The deadline has past, as there are still provisions where there are divergent views and no agreement has been reached.
Since 1978, ASEAN has produced a remarkable array of legal frameworks for cooperation in natural resources. Cooperation to safeguard the environment in ASEAN, including natural resources, was not contemplated in the 1967 Bangkok Declaration which established ASEAN. It began soon after the United Nations Conference on the Human Environment held in Stockholm in 1972. Also, as ASEAN members began to develop their economies, common environmental issues emerged which required cooperation in finding solutions.
In 1977, the United Nations Environment Programme (UNEP) commissioned its Regional Advisory Team to visit the then five founder ASEAN member states ( ie, Indonesia, Malaysia, the Philippines, Singapore and Thailand) to determine the priority areas in environment. The result was Phase I of the ASEAN Subregional Environment Programme (ASEP) 1978-1982. One of the six programs in the ASEP was ‘Nature Conservation and Terrestrial Ecosystems’. This was the beginning of ASEAN’s environmental protection of natural resources. Today, after 30 years, cooperation in natural resources is reflected in some thirty-five relevant instruments covering biodiversity, marine and coastal environment, and water resources. The mechanisms include policies, programs, and plans of action, strategies and agreements. They constitute a corpus of environmental laws which can form a basis for harmonization of natural resources management at the ASEAN subregional level with implementation at the national level.[45]
It is important to consider the ASEAN environmental governance structure (focusing on the organizational structure to deal with natural resources) as this is pivotal to the process of convergence in the institutionalization of ASEAN’s cooperation.
ASEAN has established a sophisticated organizational framework. The decisions of the ASEAN summits are transmitted to various levels to be acted upon. Of the six working groups, three deal with natural resources, namely, the Working Group on Nature Conservation and Biodiversity (AWGNCB), the Working Group on Coastal and Marine Environment (AWGCME) and the Working Group on Water Resource Management (AWGWR):
1 ASEAN Working Group on Nature Conservation and Biodiversity (AWGNCB)
The original name of the Working Group[46]
did not include the term Biodiversity – it was then known as the ASEAN Working Group on Nature Conservation and Terrestrial Ecosystems. However, after the Convention on Biological Diversity (CBD) was ratified by many ASEAN member states, it was renamed ASEAN Working Group on Nature Conservation and Biodiversity and the terms of reference were widened to reflect the CBD. Thus, for example, reference to the CBD and the World Heritage Convention[47] were incorporated into the Preamble of the ASEAN Declaration of Heritage Parks 2003.[48] This is one of the recent outputs of the AWGNCB.
2 ASEAN Working Group on Marine and Coastal Environment (AWGMCE)
The terms of reference of this Working Group[49] include the formulation and implementation of regional action plan for sustainable development and management of coastal and marine resources. The Group seeks to strengthen, co-ordinate and co-operate with ASEAN regional bodies and international organizations for the integrated protection, conservation and management of coastal zones and marine environment.
3 ASEAN Working Group on Water Resource Management (AWGWRM)
This Working Group[50] was established by the ASEAN Senior Officials on the Environment (ASOEN) during their 13th Meeting in Siem Reap, Cambodia on 17-19 July 2002. The areas for cooperation include networking and collaborative action on integrated water resources management (IWRM); and exchange of relevant information, expertise, technology and know-how on water management.[51]
4 Other Mechanisms for ASEAN’s Cooperation
Apart from the above working groups, the ASEAN Regional Centre for Biological Conservation (ARCBC – later renamed the ASEAN Centre for Biodiversity),[52]
was established in 1998. It is a joint venture between ASEAN and the European Union (EU). It facilitates ASEAN to meet the World Summit on Sustainable Development Plan of Implementation goal to reduce the current rate of loss of biological diversity by 2010.[53]
In addition, ASEAN’s Dialogue Partners[54]
serve an important function to promote greater cooperation between ASEAN and other countries and international organizations such as APEC and ASEM. More recently, a new caucus was established by the East Asia Summit held from 11-14 December, 2005 in Kuala Lumpur where ASEAN Plus Three (China, Japan and South Korea) met with the new neighbours, India, Australia and New Zealand. This forum has the potential to promote people to people contact and enhance cooperation and promote fields such as ‘environmental protection, prevention of infectious diseases’.[55]
The Summit also pledged to take measures to prevent a bird flu pandemic. Participants agreed to be ‘transparent’, to report any outbreak quickly and set up a network of stockpiles of antiviral drugs. Also, concerns relating to economic development and integration, poverty and eradication and energy security are included, apart from the main stream of political and security measures.
Policy guidelines form the backbone of a region’s perspectives and over time, if adopted by its members, will facilitate harmonization or integration. ASEAN’s policy guidelines on natural resources are found in a number of declarations and resolutions dating from the 1981 Manila Declaration on the ASEAN Environment.[56] The objective of this Declaration was to ensure the protection of the ASEAN environment and the sustainability of its natural resources. It recognizes both that the development processes in ASEAN must be accelerated to meet the growing needs and to eradicate poverty and provide a quality of life, and that these processes can only be sustained if the natural resources are sustained. It stressed the utilization of natural resources to meet the needs of present and future generations, and calls for an integrated approach.
Other policy guidelines laid down by ASEAN have been used in the formulation of the various ASEAN programs, plans of action, strategies, and terrestrial and marine protected areas. The policy imperatives for a sustainable transition in environment and development focused on incorporating environmental factors in economic evaluations. A summary of the various policies for ASEAN’s natural resources includes:
There were also ‘common stands’ taken by ASEAN member states in the Singapore Resolution on Environment and Development[57] on 18 February 1992 to promote its common views at the 4th UNCED Preparatory Committee Meeting which was to be held in New York in March 1992, and the 2nd Ministerial Conference of Developing Countries on Environment and Development, which was to be held in Kuala Lumpur in April 1992. ASEAN’s firm cooperation as a sub-regional organization in the global forum of UNCED is reflected in this Resolution:
The Resolution also confirms ASEAN’s responsibilities, inter alia, in freshwater resources, forests and conservation of biological diversity. Since the 1992 United Nations Conference on Environment and Development (UNCED)[58] and the 2003 World Summit on Sustainable Development (WSSD),[59] ASEAN has progressively cooperated in the area of natural resources and, today, this is reflected in many significant areas.
There are four main general environmental programs/action plans which include natural resource management. These are: the ASEAN Subregional Environmental Program (ASEP) 1988-1992; ASEAN Strategic Plan of Action on the Environment (ASPAE) 1994-1998; Hanoi Plan of Action (HPA) 1999-2004; and Vientiane Action Programme (VAP) 2004-2010. These programs are a continuum.
Beginning with the ASEP, specific priority areas were identified which would benefit from regional cooperation. These ASEP criteria still apply to natural resources programs in which ASEAN has cooperated.
ASEP:
Two of the program areas under ASEP were nature conservation and the marine environment. These were continued with refinements under the ASPAE: Strategy 5 which called for the establishment of a regional framework on biological diversity conservation and sustainable utilization of its components. Strategy 6 dealt with marine environment and called for the protection of marine resources such as mangroves and corals.[60] The HPA dealt with time frames for completion of some of ASEAN’s initiatives including those relating to natural resources. The HPA also focused on a number of factors[61] aimed at bringing about ASEAN’s progress in regional cooperation/integration.[62] Finally, the VAP further seeks to strengthen efforts to meet its commitments in three ‘communities’ including the socio-cultural community – under this pillar the natural resources programs are included.[63]
For example, in nature conservation and biodiversity, the measures to be taken include:
Other program areas and measures under the VAP on natural resources include land, freshwater resources, agriculture (crops, livestock and fisheries), forest fires, and coastal marine environment.
Apart from the above programs and plans, there are specific instruments on the protection of various natural resources:
ASEAN Long Term Strategic Plan for Water Resources, 2003–2025[64]
ASEAN Strategic Plan of Action on Water Resources Management, 2005[65]
ASEAN Declaration on Heritage Parks and Reserves, 1984[66]
ASEAN Criteria for Marine Heritage Areas, 2002[67]
ASEAN Criteria for National Marine Protected Areas, 2002[68]
ASEAN Declaration on Heritage Parks, 2003[69]
ASEAN Ministerial Understanding on Plant Quarantine Ring, 1982[70]
ASEAN Guidelines on Risk Assessment of Agriculture related Genetically Modified Organisms, 1999 [71]
ASEAN Ministerial Understanding on Fisheries Cooperation, 1983[72]
Jakarta Consensus on ASEAN Tropical Forestry of the Third Meeting of the ASEAN Economic Ministers on Agriculture and Forestry, 1981[73]
Joint Statement: ASEAN + 3 Ministers of Health Special Meeting on SARS, Kuala Lumpur, Malaysia, 2003[74]
Joint Resolution: ASEAN +3 (China, Japan, Korea) Aviation Forum on the Joint Declaration and Containment of SARS, 2003[75]
Joint Declaration: Special ASEAN Leaders Meeting on Severe Acute Respiratory Syndrome (SARS), Bangkok, Thailand, 2003[76]
Joint Statement of the Special ASEAN + 3 Health Ministers Meeting on Severe Acute Respiratory Syndrome (SARS), 2003[77]
Joint Ministerial Statement on Prevention and Control of Avian Influenza, Bangkok, Thailand, 2004[78]
East Asia Summit Declaration on Avian Influenza Prevention, Control and Response, Kuala Lumpur, Malaysia, 2005[79]
Memorandum of Understanding on ASEAN Sea Turtle Conservation and Protection, 1997[80]
ASEAN Statement on the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 2004[81]
ASEAN Regional Action Plan on Trade in Wild Fauna and Flora, 2005-2010[82]
ASEAN Statement on Launching of the ASEAN Wildlife Law Enforcement Network (ASEAN-WEN), 2005[83]
It is beyond the scope of this paper to deal with all these instruments. I shall briefly cover a few areas:
1 Forestry
Uncontrolled deforestation, illegal logging and forest fires have been some of the most pressing problems in the region particularly in Indonesia, the Philippines, Malaysia and Myanmar. For example, at some time in February 2006, an entire village in Leyte, Philippines, was buried under a major mud landslide – this bears testimony to the years of illegal logging.[84] The ASEAN Vision 2020 calls for the promotion of sustainable forestry through harmonizing environmental, social, and economic policies in the ASEAN member states. There have been a number of environmental instruments on sustainable forestry. More recently, the ASEAN Ministers of Agriculture and Forestry (AMAF) endorsed the Framework for ASEAN Regional Criteria and Indicators (C&I) for Sustainable Management of Natural Tropical Forests, 2000.[85] The concerns which are addressed by the Framework include criteria setting, institutionalization of certification, eco-labeling procedures, costing, lack of holistic land use planning, economic valuation and transparency, and the harmonization of approaches to sustainability assessment.
2 ASEAN Heritage Parks: Progressive Convergence from 1984 to 2003
This is a landmark example of progressive development from the rudimentary ASEAN Declaration on Heritage Parks and Reserves way back in 1984[86] to the 2003 ASEAN Declaration on Heritage Parks,[87] where 27 Heritage Parks in the ten member states have been designated.
The concept of ASEAN Heritage Parks (AHPs) and transboundary conservation areas was first introduced by the then ASEAN Expert Group on Environment (AEGE) in 1978. AHPs are protected areas of high conservation importance preserving in total a complete spectrum of representative ecosystems of the ASEAN region. There were various stages in its development, beginning from 1978.[88]
Following the recommendation of the AEGE, an ASEAN Workshop on Nature Conservation was held from 15-17 September 1980 in Bali at which an action plan on ASEAN Heritage Reserves was discussed. The Workshop also considered transboundary conservation. The following were some of the issues raised:
The next stage saw IUCN providing the technical assistance to develop an action plan. The focus was on those ecosystems and species that are either significant to the region as a whole or require cooperation to effect their conservation. This led to the 1984 ASEAN Declaration on Heritage Parks and Reserves[89] which was adopted by the Second ASEAN Ministerial Meeting on the Environment on 29 November 1984 in Bangkok and signed by the then six ASEAN member states, namely, Brunei, Indonesia, Malaysia, Philippines, Singapore and Thailand.
The objective of the 1984 Declaration was to assist the governments toward the attainment of conservation and to protect the biodiversity heritage of the ASEAN countries through the establishment of a national integrated protected areas system based on scientific principles.
All the then six ASEAN countries except Singapore designated some AHPs under the 1984 Declaration, which provided for a master plan to be drawn up for each park taking into consideration the following:
However, nothing very much, if at all, was done at national level, and no management plans were drafted for the then six designated AHPs.
The next stage which could have further developed the AHP concept was in 1985 when the ASEAN Agreement on the Conservation of Nature and Natural Resources,[90], which can be considered ‘back-to-back’ with the 1984 Declaration, was signed by the then six ASEAN countries. Unfortunately, it has yet to enter into force, with only three ratifications out of the six signatories. However, there has been renewed interest in the ratification of this Agreement.[91] Article 13 of the Agreement contains very comprehensive provisions on protected areas and calls for a coordinated network of protected areas throughout the region and for an Appendix to be developed containing principles, objectives, criteria and guidelines in light of the best scientific evidence. It also calls for the conservation of natural areas by private owners, community or local authorities.
Another stage in the process was in Strategy 5 of the ASEAN Strategic Plan of Action on the Environment 1994-1998 (ASPAE) which was to ‘establish a regional framework on biological diversity conservation …’ Strategy 5.1 states that:
… The absence of a regional framework for the protection and conservation of heritage areas and endangered species only exacerbates the situation as management efforts are left to individual member countries. There is a need to develop a framework for the protection of these areas and species so as to ensure that conservation approaches are rationalized.[92]
The ‘Actions’ to be undertaken to implement the Strategy were:
5.1 Promote the development of a framework for the protection and conservation of heritage areas and endangered species; and
5.2 Strengthen capacities for Research and Development (R&D) to enhance biodiversity conservation in the region.
The protection of endangered species in the AHPs would assist in the implementation of CITES, which has been ratified by all of the ASEAN countries.[93]
The Hanoi Plan of Action 1999-2004, a continuum of the ASPAE, provided that in order to protect the environment and promote sustainable development, it is necessary to ‘promote regional coordination for the protection of the ASEAN Heritage Parks and Reserves’.[94]
In 2003 ASEAN kept to its Hanoi schedule and the ASEAN Declaration on Heritage Parks (ADHP)[95] was adopted by the current ten ASEAN member countries.
The Preamble to the ADHP mentions the Convention on Biological Diversity (CBD).[96] All ASEAN countries except Brunei have ratified the CBD (Thailand being the latest to do so in 2004). The ADHP Preamble supports the CBD’s recognition of in situ conservation of ecosystems and natural habitats as a fundamental requirement for the conservation of biodiversity in protected areas. In the ‘Programme of Work on Protected Areas’, the CBD at the 7th Conference of the Parties meeting in February -March 2004 in Kuala Lumpur[97] (Decision VII/28 – Protected Areas – Articles 8 (a) to (e), Annex) recommended that the Program takes into consideration the relationship between protected areas and landscape so that goods and services flowing from the protected areas can be valued.
The ADHP Preamble also takes note of the role of natural sites under the World Heritage Convention to reduce loss of biodiversity. Some of the AHPs may well be future World Heritage sites. The synergies of these with other biodiversity instruments such as the Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat,[98] the ASEAN Agreement on the Conservation of Nature and Natural Resources (though not yet in force),[99] the 1997 Memorandum of Understanding on ASEAN Sea Turtle Conservation and Protection,[100] etc must all be taken into consideration in developing management guidelines for AHPs.
Why, it may be asked, did the process of convergence take so long? It is not surprising, as ASEAN had to take time to mature to understand the importance of environmental sustainability – indeed, the notion of sustainability only came into political legitimacy in the Brundtland Report in 1987.[101] Environmental law was also not quite the top priority in the ASEAN scheme of things as it is beginning to be now.
3 ‘ASEAN Statement on CITES’ (Convention on International Trade in Endangered Species), 2004
In recent years, ASEAN has recognized the need to coordinate joint actions to address the illegal exploitation and trade in CITES-listed species within the ASEAN region. This involves the sharing of information and technical expertise of governmental, intergovernmental agencies, and non- governmental organizations.
At the Thirteenth Meeting of the Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),[102] ASEAN issued a ‘statement’ on 11 October 2004 on the implementation of CITES.[103] It acknowledged that while progress was made at national and ASEAN levels in promoting sustainable use of wild fauna and flora, concerted action within ASEAN was required. Also, the laws in each of the ASEAN member states are inadequate with the result that illegal trade is rife. Many syndicates and networks in the region and beyond, take advantage of this inadequacy.[104]
Some of the main points in the ‘ASEAN Statement on CITES’ read:
1. to enhance awareness of and to ensure further cooperation and coordination among all national agencies involved in wild fauna and flora trade law enforcement including the sharing of intelligence;
2. to further promote regional cooperation through the establishment of bilateral and multilateral arrangements between enforcement agencies responsible for common boundaries to achieve more effective control of illegal international trade in wild fauna and flora and their products;
3. to strengthen enforcement efforts along key border regions, including further building of capacity and capability;
4. to consider undertaking the review of their respective national legislation to facilitate the implementation of CITES if deemed necessary;
Pursuant to paragraph 4 of the Statement, Singapore amended its laws to increase the fines and also to make liability based on per specimen instead of per species.[105]
4 Avian Flu & SARS: Culling Domesticated and Wildlife Species
The problems raised by avian flu and SARS include not only issues of environmental public health but also biodiversity conservation and sustainable development.[106]
In the case of avian flu, millions of poultry and migratory birds have been culled as preventive measures. Also, some habitats of wild migratory species in the region such as wetlands were sprayed with toxic chemicals as a measure to cull migratory species. In the case of SARS, many civet cats and some other species were culled.
The ASEAN countries that have been affected either by avian flu or SARS include Indonesia, Malaysia, Laos, the Philippines, Singapore, Thailand and Vietnam. The other countries in Asia which were affected include the People’s Republic of China, Japan, Republic of Korea and Mongolia. Avian flu has now spread to other parts of the world.
ASEAN has, so far, focused on the health issues rather than the biodiversity conservation aspects of the two zoonotic diseases (see the ASEAN instruments on avian flu and SARS referred to previously. In the case of avian flu, for example, ASEAN has not addressed the ecological impact of culling migratory birds and also the problem of the destruction of habitats/wetlands (where migratory birds have their resting place) as a method of culling migratory birds and other wildlife species. In the VAP (Vientiane Action Plan),[107] measures are being considered to prevent the spread of zoonotic diseases[108] but there is no cross reference to the section on ‘nature conservation and biodiversity’ (VAP, Annex 3: 3.3.8).
At the height of the outbreak of avian flu in 2004, the question of whether migratory birds from the East Asian Flyway are to be ‘blamed’ for the virus was raised.[109] The following questions should be considered by ASEAN:
It should be noted that any indiscriminate culling, whether by deliberate killing or poisoning of habitats, may bring about unintended consequences detrimental to natural resources and biological sustainability. We should heed the grim reminder of what China did in the 1950s when it embarked on a massive killing of birds in the belief that they were eating the rice in the fields. After the culling had been carried out, the rice crops still failed. It was thereafter discovered that the birds were actually eating worms and only incidentally ate some rice grains.
This survey of ASEAN’s efforts in the protection and management of natural resources in the region demonstrates more of a convergence than divergence, not so much in terms of integration (at least not in the context of environment – perhaps more in the economic field) but rather towards the harmonization of policies, programs, plans of action, strategies and guidelines.
It is interesting to note that the former Secretary General of ASEAN, Rodolfo C Severino, in an address on the Future of ASEAN Economic Integration said:
Any comparison between Europe as integrated in the European Union on the one hand and Asia, as exemplified by ASEAN, on the other hand is at best gratuitous and at worst odious. In a talk I gave in Brussels a few years ago, I said that comparing ASEAN to the EU reminded me of that despairing lament of Professor Higgins in My Fair Lady, ‘Why can’t a woman be more like a man?’ This was in reference to the custom of measuring ASEAN’s progress in regional integration against the EU’s achievements. I said then that this was a bit unfair, since ASEAN was never meant to be like the EU, which has a European Commission that negotiates trade agreements on behalf of the Union, a supranational authority with powers of enforcement, and which has now produced a draft constitution. On the other hand, ASEAN member-states have been from the beginning jealous of and sensitive about their sovereignty and remain so, quite apart from the immense diversity of Southeast Asia.[110]
This was spoken in the context of economic integration but it is equally applicable in the approach to natural resources management. What is the difference between the two concepts? The difference seems to be one of degree. ‘Integration’ involves a total fusion, such as an agreement which applies uniformly to all states. ‘Harmonization’ is something less and may be manifested in a less formalistic approach such as adoption of policies, strategies, guidelines, etc.
One of the most remarkable processes of ASEAN in institutionalizing regional cooperation is the progressive evolution from the ‘ASEAN Way’ to the ‘ASEAN Charter Way’. From the conflict among ASEAN member states in ‘flexible engagement’ when it was first mooted, ASEAN has travelled a long way to an ASEAN Charter in the making. However, it is not clear at this moment the extent to which ASEAN is prepared to go the ‘hard’ way. What is clear is that ASEAN will never be quite the same again. The new approach will spill over into the way ASEAN will deal with the management of natural resources. A more legalistic approach, for example, will give more teeth in the solution of forest fires. Notions of ‘sovereignty’ will spill over from the political to other areas including sovereignty over natural resources. This is an example of convergence from divergence.
The notion of sovereignty, a twin aspect of the ASEAN Way, should be reconsidered in the context of environmental law. When the doctrine was evolved, the main actors in international law were states and the doctrine legitimised states to do what they wanted within their own territory. Today, in environmental law there are many non-state actors ranging from corporations to NGOs and individuals who play a vital role in public participation and in shaping the notion of sustainable development. Functionally, the doctrine of sovereignty has been eroded and states can no longer justify sovereignty to the hilt.
Pursuant to the 1997 Memorandum of Understanding on ASEAN Sea Turtle Conservation and Protection,[111] ASEAN can forge a regional stand to facilitate recommendations which have an impact on natural resources including endangered species such as sea turtles. For example, in the case of United States – Import Prohibitions of Certain Shrimp and Shrimp Products,[112] the World Trade Organization Appellate Body advocated the adoption of effective measures to protect endangered species, such as sea turtles which are recognized under CITES. The Appellate Body further encouraged sovereign states to act together ‘bilaterally, plurilaterally or multilaterally, either within the WTO or in other international fora, to protect endangered species or to otherwise protect the environment’.[113] Thus, ASEAN can at some future date cooperate to deal with a ‘common’ position regarding the use of TED (turtle excluder devices) which would protect sea turtles. This would strengthen the ASEAN MOU on sea turtles.
ASEAN could further cooperate in the area of avian flu and SARS – it can move from the public health to the conservation issues brought about by culling. An ecosystem approach could be taken under the CBD. Farmed poultry comes within the scope of the CBD as it can be considered a domesticated species under Article 2 for the following reasons: A chicken is a bird and today’s chickens are believed to be descended from the red jungle fowl.[114] Article 6 of the CBD deals with general measures for conservation and sustainable use, eg, biodiversity strategies, plans or programs. In planning for a good management system for animal husbandry, ASEAN could cooperate with the relevant secretariats of the various biodiversity-related Conventions.
Regarding the implementation of ASEAN’s initiatives at the national level, the ultimate test for success in convergence from regional to national levels is when member states implement these initiatives, having regard to the extent and time period. The ASEAN Heritage Parks designated in each member state pursuant to the ASEAN Declaration on Heritage Parks illustrate this case in point. The management of the AHPs in each member country would also follow certain guidelines under international environmental instruments such as the Convention on Biological Diversity and the World Heritage Convention noted in the Preamble to the Declaration. Yet another example is the implementation of the ASEAN Statement on CITES, where Singapore amended its Endangered Species (Import and Export) Act 2006, soon after the Statement in 2004.
I might end with the ASEAN theme song, ‘ASEAN Our Way’[115]
ASEAN you are our way
United we all stand
Together as one community
We are ASEAN
A community with diversity
In harmony to foster unity
Proud of our traditions
Working together for integration
Building nations of ASEAN community
In cooperation with dialogue partners
For peace, stability and prosperity
United for the cause of humanity
We are ASEAN
One vision, one identify, one community
Moving forward in a global fraternity
For the cause of justice, equality and unity
Let us come together and be ASEAN
Of one, ASEAN is our way
Let us come together and be ASEAN
Of one, ASEAN is our way.
In future, someone may compose a song, ‘The ASEAN Charter Way’.
* Professor of Law, National University of Singapore and Director, Asia-Pacific Centre for Environmental Law; Paper originally presented at the 3rd Asian Law Institute Conference, Shanghai, China, 25-26 May 2006.
1 ASEAN Vision 2020, Kuala Lumpur, 15 December 1997, <http://www/aseansec.org/ 1814.htm> 28 May 2007.
[2] The ASEAN Declaration (Bangkok Declaration), Bangkok, 8 August 1967, see Kheng-Lian Koh (compiler), Selected ASEAN Documents on the Environment, APCEL Document Series, 1996, ii-iv, <http://www.aseansec.org/1212.htm
> 28 May 2007. The founder members were Indonesia, Malaysia, the Philippines, Singapore and Thailand.
[3] Rodolfo C. Severino, ASEAN Report to the World Summit on Sustainable Development (Paper presented at the WSSD, Johnannesburg, 26 August-4 September 2002) 24 <http://www. aseansec.org/pdf/WSSD.pdf> 28 May 2007.
[4] ‘Rescuing ASEAN’s Mega-biodiversity’ <http://www.myanmar.gov.mm/Article/Article2002/ sept/ sept15c.html> 28 May 2007.
[5] The ASEAN Way emphasizes three main features: decision by consensus (musyawarah) rather than rules; non-intervention in each others’ domestic affairs; and application of the doctrine of sovereignty (infra).
[6] Kuala Lumpur Declaration on the Establishment of the ASEAN Charter, Kuala Lumpur, 12 December 2005 <http://www.aseansec.org/18030.htm
> 28 May 2007.
[7] ASEAN Vision 2020, above n 1.
[8] ASEAN Agreement on the Conservation of Nature and Natural Resources, opened for signature 9 July 1985 (not yet entered into force) <http://www.aseansec.org/1490.htm
> 28 May 2007.
[9] ASEAN Agreement on Transboundary Haze Pollution, opened for signature 10 June 2002 (entered into force November 2003) <http://www.aseansec.org/agr_haze.pdf >
28 May 2007.
[10] Letter from the Thai Ministry of Foreign Affairs, 10 June B.E.2545 (2002).
[11] Draft ASEAN Framework Agreement on Access to Biological and Genetic Resources (24 February 2000) <http://www.grain.org./docs/asean-access-2000-en.pdf
> 28 May 2007.
[12] Nicholas A Robinson, Strategies Toward Sustainable Development: Implementing Agenda 21 (2004) 10.
[13] Edith Brown Weiss (ed), International Compliance with Nonbinding Accords (1997).
[14] ASEAN Charter, above n 6.
[15] The Straits Times (Singapore), 13 December 2005, 6.
[16] See eg Declaration of ASEAN Concord II (Bali Concord II) 7 October 2003 <http://www.aseansec.org/15159.htm> 28 May 2007.
[17] Kheng-Lian Koh and N A Robinson, ‘Strengthening Sustainable Development in Regional Inter-Governmental Governance: Lessons from the ‘ASEAN Way’ (2002) 6 Singapore Journal of International & Comparative Law 640; Kheng-Lian Koh and N A Robinson, ‘Regional Environmental Governance: Examining the Association of Southeast Asian Nations’ in D C Esty and M H Ivanova (eds), Global Environmental Governance: Options & Opportunities (2002) 101.
[18] The ASEAN Declaration, above n 2.
[19] Environmental concerns came later but were approached through the ASEAN Way.
[20] The Straits Times (Singapore),17 March 2006, Review 25, excerpts from Gretchen Liu (ed), Singapore Foreign Service: The First Forty Years (2006).
[21] See his Press Briefing on Flexible Engagement, Manila, 24 July 1998.
[22] Declaration of the ASEAN Concord I (Bali, Indonesia, 24 February 1976) <http://www. aseansec.org/1216.htm> at 29 March 2006.
[23] Report of the Eminent Persons Group on the ASEAN Charter (ASEAN: 2006); Cebu Declaration on the Blueprint of the ASEAN Charter <http://www.aseansec.org/19257.htm
> March 2007; (The Cebu Declaration, 13 January 2007 reiterates ASEAN’s ‘conviction that an ASEAN Charter will serve as a firm foundation in achieving one ASEAN Community by providing an enhanced institutional framework as well as conferring a legal personality to ASEAN’) <http://www.sunstar.com.ph/blogs/asean/?p=244
> 1 March 2007.
[24] Declaration of ASEAN Concord II (Bali, Indonesia, 7 October 2003) <http://www.aseansec.org/15159.htm
> 29 March 2006.
[25] Charter of the United Nations, opened for signature 26 June 1945 (entered into force 24 October 1945) art 2(7) <http://www.un.org/aboutun/charter/chapter1.htm> 29 March 2006.
[26] Resolution on Permanent Sovereignty over Natural Resources, G.A Res 1803 17th sess, 1194th plen mtg, UN Doc A/5217 (1962). Many ASEAN instruments have incorporated the UN Charter as well as the above resolution.
[27] Thailand’s Non-Paper on Flexible Engagement (NPFE 98) <http://thaiembdc.org/pr/ pr743.htm> 28 May 2007.
[28] Ibid.
[29] Ibid.
[30] ASEAN Agreement on Transboundary Haze Pollution, above n 9.
[31] ‘Rewriting the ASEAN Way’, The Straits Times (Singapore), 13 December 2005.
[32] ‘New Charter to signal need for reform in Myanmar’, The Straits Times (Singapore), 13 December 2005.
[33] ‘Task Force on Drafting ASEAN Charter meets in Vietnam’, 19-21 April 2007, Hanoi, <http://english.people.com.cn/200704/20/eng20070420_368280.html
> 28 May 2007.
[34] Locknie Hsu, ‘Towards an ASEAN Charter: Some Thoughts from the Legal Perspective’ in Rodolfo C Severino (comp), Framing the ASEAN Charter: An ISEAS Perspective (2005) 45.
[35] The Agreement will enter into force after the sixth ratification, Article 33; Kheng-Lian Koh, ‛ASEAN Agreement on the Conservation of Nature and Natural Resources, 1985: A Study in Environmental Governance’ in Diane Pansky (ed), Governance Stream of the Vth World Parks Congress (2005).
[36] Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993).
[37] Ibid, < http://www.cbd.int/default.shtml
> 28 May 2007.
[38] Convention on the Conservation of Migratory Species of Wild Animals, opened for signature 23 June 1979 (entered into force 1 November 1983) 19 ILM 15.
[39] Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 3 March 1973 (entered into force 1 July 1975) 993 UNTS 243.
[40] ASEAN Agreement on Conservation of Nature and Natural Resources, above n 8.
[41] ASEAN Agreement on Transboundary Haze Pollution, above n 9.
[42] Letter from the Thai Ministry, above n 10.
[43] Alan Tan Khee Jin, ‘The ASEAN Agreement on Transboundary Haze Pollution: Prospects for Compliance and Effectiveness in Post-Suharto Indonesia’ [2005] New York University Environmental Law Journal 647.
[44] ASEAN Framework Agreement on Access to Biological and Genetic Resources (Draft 24 February 2000) <http://72.14.203.104/search?q=cache:uD3C3M4ULyMJ:www.grain.org/
brl_files/asean-access-2000-en.pdf+ASEAN+Agreement+access+to+Biological+resources
&hl=en&gl=sg&ct=clnk&cd=2> 29 March 2006.
[45] The success of the implementation of these instruments depends on the extent to which the member states ratify the 1985 ASEAN Agreement on Conservation of Nature and Natural Resources and adopt the various soft law instruments at the national level.
[46] <http://www.aseansec.org/14547.htm
> 29 March 2006.
[47] Convention Concerning the Protection of the World Cultural and Natural Heritage, opened for signature 23 November 1972, 1037 UNTS 151 (entered into force 15 December 1975).
[48] The forerunner was the ASEAN Declaration on Heritage Parks and Reserves, 1984, which was narrower in scope as it was adopted before the CBD in 1992, and before the inclusion of the six new ASEAN member states. These examples demonstrate the progressive development of ASEAN Heritage Parks which today sees the designation of Heritage Parks in each of its member states. Kheng-Lian Koh, ‘Landscape/Seascape Protection in ASEAN: Challenges and Opportunities’ in Antonio H Benjamin (ed), Landscape, Nature and Law (2005) 103; Kheng-Lian Koh, ‘Land Stewardship and the Law: ASEAN Heritage Parks and Transboundary Biodiversity Conservation’ in Chalifour, Nolon, Lye and Kameri-Mbote (eds), Land Use for Sustainable Development (in press).
[49] ASEAN Working Group on Marine and Coastal Environment <http://www.aseansec.org/ 14541.htm> 29 March 2006.
[50] AEAN Working Group on Water Resource Management <http://www.gwpseatac.ait.ac.th/ aseanwrm.htm> 29 March 2006.
[51] Under the ASEAN Australia Development Cooperation Programme – Regional Partnership Scheme, the ASEAN Strategic Plan of Action on Water Resources Management (Oct 2005) was published, <www.aseansec.org/awgwrm/ASEAN%20Strategic%20Plan%20of% 20Action%20on%20Water%20Resources%20Management.pdf
> 28 May 2007; See also, ASEAN Long Term Strategic Plan for Water Resources Management, 2003 (unpublished – document supplied to writer by the ASEAN Secretariat, Jakarta).
[52] ASEAN Regional Centre for Biological Conservation <http://www.arcbc.org.ph/default.html> 23 May 2007;
ASEAN Centre for Biodiversity <http://www.aseanbiodiversity.org/> 25 May 2007.
[53] WSSD Plan of Implementation <http://www.johannesburgsummit.org/html/documents/ summit_docs/2309_planfinal.htm> para 42.
[54] ASEAN Linkages Outside the Region <http://www.aseasec.org/11849.htm
> 25 May 2007.
[55] Kuala Lumpur Declaration on the East Asia Summit, 14 December 2005. <http://www.aseansec.org/18098.htm
> 25 May 2007.
[56] Manila Declaration on the ASEAN Environment, 30 April 1981 <http:/www.aseansec.org/ 1493.htm> 25 May 2007.
[57] Singapore Resolution on Environment and Development, 18 February 1992 <http://www.aseansec.org/6083.htm> 29 March 2006.
[58] United Nations Conference on Environment and Development <http://www.un.org/geninfo/bp/ enviro.html> 27 May 2007.
[59] World Summit on Sustainable Development <http://www.un.org./events/wssd> 27 May 2007.
[60] ASEAN Strategic Plan of Action on the Environment 1994-1998, <http://www.aseansec.org/ 8950.htm> 27 May 2007.
[61] Hanoi Plan of Action (Protection of the Environment) <http://www.aseansec.org/ cme.HPA.ppt> 27 May 2007.
[62] Cielito F Habito, Fernando T Aldaba, and Ofelia M Templo, An Assessment Study on the Progress of ASEAN Regional Integration: The Ha Noi Plan of Action toward ASEAN Vision 2020 (2004).
[63] Vientiane Action Programme (VAP) 2004-2010 <http://www.aseansec.org/Publ_VAP.pdf-it.pdf
> 27 May 2007.
[64] Obtained from ASEAN Secretariat.
[65] Obtained from ASEAN Secretariat.
[66] <http://www.aseansec.org/1491.htm> 29 March 2006.
[67] Obtained from ASEAN Secretariat.
[68] Obtained from ASEAN Secretariat.
[69] <http://www.aseansec.org/15524.htm> 29 March 2006.
[70] <http://www.aseansec.org/6175.htm> 29 March 2006.
[71] <http://www.aseansec.org/6226.htm
> 29 March 2006.
[72] <http://www.aseansec.org/6177.htm
> 29 March 2006.
[73] <http://www.aseansec.org/1338.htm
> 29 March 2006.
[74] <http://www.aseansec.org/14745.htm
> 29 March 2006.
[75] <http://www.aseansec.org/aviation_sars.htm
> at 29 March 2006.
[76] <http://www.aseansec.org/14749.htm
> 29 March 2006.
[77] <http://www.aseansec.org/14746.htm> 29 March 2006.
[78] <http://www.searo.who.int/LinkFiles/Meetings_joint_statement-asean3.pdf> 29 March 2006.
[79] <http://www.aseansec.org/18101.htm
> 29 March 2006.
[80] <http://www.aseansec.org/1895.htm
> 29 March 2006.
[81] http://www.aseansec.org/16470.htm 29 March 2006.
[82] <http://www.traffic.org/news/ASEAN.html> 29 March 2006.
[83] <http://www.aseansec.org/17933.htm> 29 March 2006.
[84] ‘Mud wipes out Philippines Village’, reported BBC News: Asia-Pacific 17 February 2006 <http://edition.cnn.com/2006/WORLD/asiapcf/02/18/philippines.landslide/index.html> 28 May 2007.
[85] Framework for ASEAN Regional Criteria and Indicators for Sustainable Management of Natural Tropical Forests <http://www.aseansec.org/630.htm> 29 March 2006; http://www.aseansec.org/agr_pub/forest1.doc> 27 May 2007.
[86] ASEAN Declaration on Heritage Parks and Reserves (Bangkok, 1984) above n 66.
[87] ASEAN Declaration on Heritage Parks, above n 69.
[88] Apichai Sunchindah, ‘ASEAN Initiatives in Protected Areas Management’ (paper presented at the Second Regional Forum for Southeast Asia of the IUCN WCPA, Pakse, Laos, 6-11 December 1999); Kheng-Lian Koh, ‘Land Stewardship and the Law: ASEAN Heritage Parks and Transboundary Biodiversity Conservation’ in Chalifour, Nolon, Lye and Kameri-Mbote (eds), Land Use for Sustainable Development (in press); see also Kheng-Lian Koh, ‘Landscape/Seascape Protection in ASEAN: Challenges and Opportunities’ in Antonio H Benjamin (ed), Landscape, Nature and Law (2005) 103.
[89] Above n 66.
[90] Kheng-Lian Koh, ‘ASEAN Agreement on the Conservation of Nature and Natural Resources, 1985: A Study in Environmental Governance’ (paper presented at the Vth IUCN World Parks Congress on Protected Areas, Durban, 8-17 September 2003) <http://law.nus.edu.sg/apcel/ publications/pub/kohkhenglian/ASEANPaper.pdf> 27 May 2007.
[91] Kheng-Lian Koh, ‘Conventions and their Implications on the ASEAN States’ (paper presented at the Environmental Management Seminar for Southeast Asia, Cavite, Philippines, 6-17 October 1997).
[92] Above n 8.
[93] ASEAN Strategic Plan of Action on the Environment 1994-1998, <http://www.aseansec.org/8950.htm> 29 March 2006. The above quotation is not found on the above website which only gives a summary. However, the writer has a copy of the original version which includes this paragraph under Strategy 5.1; Kheng-Lian Koh (compiler), Selected ASEAN Documents on the Environment (APCEL Document Series) 1996, 207.
[94] Hanoi Plan of Action 1999-2004, above n 61.
[95] ASEAN Declaration on Heritage Parks (Yangon, Myanmar, 18 December 2003) above n 69.
[96] Above n 36;<http://www.biodiv.org/convention/articles.asp> 29 March 2006.
[97] <http://www.biodiv.org/meetings/cop-07/default.asp> 29 March 2006.
[98] Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar) opened for signature 2 February 1971, 1971 UNTS 14583 (entered into force 21 December 1975).
[99] Above n 8.
[100] <http://www.aseansec.org/6185.htm> 29 March 2006.
[101] World Commission on Environment and Development, Our Common Future (1987) (the Brundtland Report).
[102] Above n 39.
[103] ASEAN Statement on CITES (Bangkok, 11 October 2004) <http://www.aseansec.org/ 16470.htm> at 28 May 2007.
[104] Jolene Lin, ‘Tackling Southeast Asia’s Illegal Wildlife Trade’ (2005) 9 Singapore Year Book of International Law 191.
[105] Endangered Species (Import and Export) Act 2006 (Singapore) <htt7p://agcvldb4.agc.gov.sg> 28 May 2007.
[106] See Kheng-Lian Koh, ‘One World-One Health, Avian Flu & SARS: The Policy and Legal Challenges of Zoonotic Diseases’. <http://www.sde.nus.edu.sg/MEM/seminars/One%20 World%20One%20Health%20s%27pore.ppt> (paper presented at a Workshop on The Threat of Emerging Diseases to Human Security and Conservation, and the Implications for Public Policy, Bangkok, Thailand, 15 November 2004) (see <http://www.iucn-vsg.org>; For an updated version of this paper in PowerPoint, see <http://www.sde.nus.edu.sg/MEM/seminars/ One%20World%20One%20Health%20s%27pore.ppt>. ‘Avian flu early warning system given green light’ <http://www.cic-wildlife.org/index.php?id=185>; Convention on Migratory Species, Resolution 8.27 [CMS_COP8[1].pdf]; Ramsar Convention, Resolution IX.23 – Highly pathogenic avian influenza and its consequences for wetland and waterbird conservation and wise use <http://www.ramsar.org/res/key_res_ix_23_e.htm
>;Convention on Migratory Species – Migratory Species and Highly Pathogenic Avian Influenza – <http://www.cms.int/bodies.COP/cop8/documents/proceedings/pdf/eng/CPRes_8_27_Avian_Influenza_eng_rev_pdf> at 3 February 2006.
[107] Above n 63.
[108] Above n 63, Annex 3: 1.7.13.
[109] ‘Migratory Birds to Blame?’ see The Straits Times (Singapore), 29 January 2004.
[110] Rodolfo C Severino, (Speech delivered at the joint conference of INSEAD and the Asia-Europe Foundation on Regional Integration in Europe and Asia: Pasts, Presents and Futures, Singapore, 7-8 July 2003); See also Rodolfo C Severino, ‘The ASEAN Way and The Rule of Law’ (Speech delivered at the International Law Conference on ASEAN Legal Systems and regional Integration, Kuala Lumpur, 3 September 2001) <http://www.aseansec.org/2849.htm
> 28 May 2007.
[111] Above n 80.
[112] WT/DS58/AB/R, Decision of the WTO Appellate Body, adopted 6 November 1998. This case deals with Article XX of the GATT 1994, para g. The Appellants included two ASEAN countries, namely, Malaysia and Thailand.
[113] Ibid 185.
[114] The Straits Times (Singapore), 9 February 2005.
[115] Lyrics by the Malaysian Foreign Minister, Dato’ Seri Syed Hamid Albar, presented at the 13th Non-Aligned Movement Summit, Kuala Lumpur, 20-25 February 2003; also presented at the 39th ASEAN Ministerial Meeting, 22-28 July 2006, Kuala Lumpur, <http://web5.bernama.com/events/amm/?type=ts> 28 May 2007.
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