Keynote Address by
Dr. Surakiart Sathirathai
Chairman of the Board of Directors of
Siam Premier International Law Office
on
"The Role of Law in Advancing Unity in Asia"
The Asian Law Students' Association Conference 2007
Pinitprachanart Building, Chulalongkorn University
20 January 2007
I am very honoured and delighted to be invited to deliver
a keynote speech at an occasion that I should regard as
a home coming. Spending 4 years as a student here and over
a decade both as a faculty member and Dean of this prestigious
legal institution, the profound attachment I have with this
distinguished institution is never fading. In whatever positions
I have taken in the intervening years after the day I have
left and today, I never forgot that one important part of
my life was all the valuable time of the years I spent in
this faculty. That is why I always look forward to it every
time I have the opportunity to come back to the Faculty.
And today is surely no exception.
I am even more pleased to learn that I am given the opportunity
to address this year's ALSA Conference with a theme: Going
Beyond Differences - Embracing Unity and to talk about the
role of law in advancing unity in Asia. This is because
the subject matter lies so close to my heart. I am a firm
believer in living in harmony with differences. I am a firm
believer in turning differences into strength. And I am
a firm believer in turning the differences of Asia into
our a source of unity, prosperity and solidarity.
Throughout my tenure as Foreign Minister between 2001-2005
and as Deputy Prime Minister overseeing foreign policy between
2005-2006 as well as throughout my campaign months for the
position of the Secretary-General of the United Nations,
I have advocated the unity of Asia to create a stronger
Asia as Asia is rising to emerge as a new power in the international
arena. But having been divided for so long, both as a result
of the colonial powers' deliberations and the inherent cultural
and socio-geo-political nature of nations in our continent,
Asia has been slow in recognizing its potentials through
differences.
Asia, as home to over half of the world's population, is
a continent so diverse that, unlike other continents, we
have in Asia countries of all major faiths, the Muslim faith,
the Buddhist faith and the Christian faith. We have in Asia
hundreds of languages and dialects. We have in Asia different
cultural heritages and ethnics from the Chinese to the Indian
and the Arabian.
Despite that and after long efforts of convincing others
to believe in what I did as Foreign Minister, the Asia Cooperation
Dialogue or ACD was eventually established in 2002 and marked
the first ever Asia-wide cooperation. It was created out
of Thailand's conviction in drawing strength from differences
and diversity. The diversity that has kept Asia apart must
become the diversity that binds Asia together.
The ACD is an open, evolving, non-institutionalized and
inclusive cooperation. Started with 18 members, the ACD
now comprises 30 Asia members from all corners of Asia.
The ACD is the missing link of Asia and aims at tapping
into the inherent strength of Asian countries in order to
yield mutual prosperity and sustainable development to the
peoples of Asia. This framework represents a new paradigm
of cooperation. The ACD takes the form of annual ministerial
dialogues and joint projects in 19 areas of functional cooperation,
ranging from key issues of tourism to SMEs, energy security
to agriculture, and ICT to poverty alleviation. Participation
in these projects is on a voluntary basis, and on each member's
comfort level, readiness and comparative advantage.
With such approach, every member has a sense of participation
and willingness while no one feels isolated or left behind.
Each of the 19 projects has between 10-15 participants.
But when you put them together, you will get a cobweb of
19 areas of cooperation with participation from all corners
of Asia. This is how we, having recognized differences,
build our strength based on diversity.
One of the major ACD projects is the financial cooperation
for which Thailand is prime mover to create the Asian Bond
Fund and Asian Bond market. This new financial architecture
of Asia will enable Asia to make use of her own foreign
reserves to build our own wealth in Asia.
In this way, "law" in a broad sense provides an
international regulatory framework for such cooperation
to commence. The declaration of the result of each meeting,
an agreement to have a foreign ministers' meeting on an
annual basis, the setting up of the working groups and participation
based on voluntary basis, all of these were achieved because
of countries agreed to "the framework". Thus,
from this aspect, it is the regulatory framework that makes
all of such cooperation happened. It is the regulatory framework
that can translate the political will to something "actionable".
Ironically, it is the regulatory framework that creates
the "non-binding" atmosphere which encourages
people to engage more with one another. This is how law
can advance unity in Asia.
Let me turn to APEC. APEC is the only inter-governmental
grouping in the world operating on the basis of non-binding
commitments, open dialogue and equal respect for the views
of all participants. Unlike the WTO or other multilateral
trade bodies, APEC has no treaty obligations required of
its participants. Decisions made within APEC are reached
by consensus and commitments are undertaken on a voluntary
basis. Again from a legal perspective, non-binding commitments
are one of the forms chosen. It is the regulatory framework
of non-binding, commitment which has led to the agreements
and implementation of many projects under APEC. It is interesting
to note that commitments where everyone agrees not to be
"legally bound" that cooperation is bound to take
place legally.
As a loose consultative forum, APEC has become the premier
economic forum in the Asia-Pacific region, comprising 21
member economies, spanning four continents, representing
one third of the world's population, over 50 percent of
world GDP at more than 19 trillion US dollars, and about
47 percent of global trade. The sheer economic mass of the
APEC economies combined makes it the logical platform for
region-wide economic cooperation.
The Bogor goals of free and open trade and investment in
the Asia-Pacific region by 2010 for developed economies
and 2020 for developing economies continue to be the defining
goals of APEC. Realizing these goals will take much commitment
and joint effort. Since APEC is not a negotiating body,
much of its progress on the trade liberalization front will
be driven by the results of the multilateral negotiations
in the WTO as well as regional and bilateral trade arrangements.
When Thailand hosted and chaired APEC 2003, we believed
that it was a crucial year for APEC not only in terms of
its core agenda of trade and investment but also to address
the challenges of global economic downturn, strengthening
the multilateral trading system, and the impact of international
terrorism and the SARS epidemic on regional economic stability.
Because of our belief in building strength out of diversity,
Thailand chose the theme " A World of Differences:
Partnership for the Future". It captured the potential
of APEC and the direction in which it should be heading.
We recognized that the diversity and strength that lie in
each and every APEC economy can serve as synergies for prosperity
in the region. Only through forging a sense of equal and
strong partnership, by bridging the gaps that set us apart,
can these diverse strengths be harnessed and APEC's potential
fully tapped. The outcome of APEC 2003 as reflected in the
Chairman's Statement has led to many cooperative projects
leading to the following summit in Chile. Again, the appropriate
regulatory framework of APEC is key to success in building
unity in Asia and Pacific regions.
As for ASEAN, ASEAN has evolved during the past four decades
not because of the law binding all of us or legal enforcement
forcing ASEAN to cooperate. Rather, it is the role of law
or legal notion in a broad sense which has created ideas
of consensus, choices of different kind of documents as
evidences of our meetings, our agreements to do things or
not to do things, a very loose commitment like political
declaration to ASEAN Free Trade Agreement (AFTA) where countries
undertook to lower tariffs at a certain percentage at a
certain time. Recently, ASEAN has agreed to advance further
by setting up the objectives of the ASEAN Community based
on three pillars, i.e. ASEAN Economic Community, ASEAN Security
Community and ASEAN Socio -Cultural Community. Leaders of
ASEAN have endorsed such objective with Action Plans attached
to each pillar. These are commitments which can only be
changed by consensus. This is, to me, the genius of law
which provides many forms of cooperation, many forms to
choose in order to create unity, to live together based
on differences in culture, language, religion and economic
and political environment. The legal architect of each region
in Asia can pick and choose the form which best fits his
or her regional environment.
While ASEAN in the past based its successful evolution on
rather non-rule based organization, ASEAN at present has
decided to turn its organization that has been based on
the will of the member states more than a rule-based style
of operation into a charter-run international organization.
As the process of drafting the ASEAN Charter has begun,
there is a need to ensure that such a charter will serve
as a source of unity in ASEAN. Through the Charter, ASEAN
would be transformed into an organization that is relevant
to the people and to the changing times. The Charter can
make ASEAN more effective in dealing with the challenges
that lie ahead by providing a legal and institutional framework
for partnership and cooperation.
Let me now turn to the issue of law in a narrower sense,
or the meaning that is more commonly known to us. Take international
law, there are the abiding international legal principles,
customs and norms governing the inter-state relationship.
There must be the political will of member states that binds
them into a group of states with common and shared value
and objectives. But because our world today, both in Asia
and the world at large, witnesses differences and diversity
as common features, the legal principles and the rule of
international law that are capable of building, holding
and advancing unity must be equally capable of producing
justice and fairness. No law can uphold unity if it fails
to recognize or produce necessary degree of justice, fairness
and equity.
The modern role of international law in the 21st century
must be one capable of making the element of justice and
equity more normative in its development. Take the case
of trade liberalization. All countries, rich or poor, are
aware that more trade can bring better standard of living,
prosperity and growth to its citizens and economy. All countries
want to trade more. But not all countries have attained
the same level of economic development, the same level of
resources, the same level of trade facilitations to be ready
to embark on the implementation of the same rules of trade
liberalization. That is why in some sports like golf the
system of handicap has been invented because fairness is
not equality but fairness is the ability to enable all to
compete in a just manner. Likewise, it is not fairness to
expect the LDC (the Least Developed Countries) to enter
the free trade arena under exactly the same rules set and
implemented by the developed countries nor to expect the
developed countries to always treat the LDC as charity.
The WTO-based rules of trade liberalization will continue
to meet resistance and non-compliance if they are not matched
by measures to help build greater capacity for developing
and least developed countries to better compete more justly.
Unless and until that happens, discrepancies will continue
to cause discontents amongst nations. That is why special
treatments have to be accorded to countries which need them
in order to be able to participate fully in the WTO system.
The role of the law, therefore, is to recognize and respect
the differences and the diversity and create an environment
through justice and fairness so that such differences and
diversity can no longer be seen as obstacles or hurdles.
In domestic jurisdiction as well as in international law,
this perception is essential in order to prevent differences
and diversity from turning into sources of confrontation.
In domestic jurisdiction where differences and diversity
exist such as in the case of minorities or cultural and
ethnic differences, where rules and exceptions can be sufficiently
determinant and coherent, the perception of fairness can
be promoted and bring about subsequent unity.
Therefore, while law creates conformity and consistancy,
law must also recognize differences. Although law must have
universal application, the role of lex specialis as an exception
is key to strengthen unity and peace. In many countries,
legal systems do recognize the different family law, inheritance
law, law concerning education or even different dispute
settlement process in various parts of the country to coexist
within the same country without undermining the sanctity
of sovereignty. In some cases, one country can have more
than one economic systems recognized by law. Hong Kong and
Macau Special Administrative Region (SARS) are successful
example of one china policy.
Thus, law in a narrow sense plays both a general law of
making sure that people observe and respect the same rule
and also a special law of recognizing differences in some
areas both of which aim at creating unity and peace in the
society. Therefore, I wish to urge lawyers and students
of law to pay greater attention to different roles of law
and look at law from both narrow and broader sense of the
word. To me, law therefore has a deeper and wider meaning
than rules. It refers to framework for cooperation. It means
recognizing differences, solutions to problems, conflict
avoidance, dispute settlement, dialogue, and negotiation.
It means human rights, human dignity and freedom. And it
means justice and fairness.
Law has played a key role in both international and national
levels in turning differences and diversity of such community
into a source of strength, harmony and unity. Law offers
many forms and substances for the drafters to choose in
order to fit a particular environment and situation so as
to achieve unity and peace. As our continent, Asia, is increasingly
expected to become a unified force in this globalized world,
while simultaneously turning differences and diversity into
strength, law, both in domestic and international jurisdiction,
must play its unifying role. And if it is our conviction
that the unity of Asia is for the benefits of all Asians,
let us turn our conviction in the role of the law, in these
broader terms, to make such unity a reality. Let us turn
our conviction in the role of law and justice to help turn
differences and diversity into strength and harmony. And
finally, let us contribute in the ability of our people
in Asia to drive for a successful formula for unity in every
corner of our continent for Asia's better future.
Thank you.
