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ASEAN and the securitization of transnationalcrime in Southeast Asia

Ralf Emmers

To cite this article: Ralf Emmers (2003) ASEAN and the securitization of transnational crime inSoutheast Asia, The Pacific Review, 16:3, 419-438, DOI: 10.1080/0951274032000085653

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The Pacific Review

, Vol. 16 No. 3 2003: 419–438

The Pacific Review

ISSN 0951–2748 print/ISSN 1470–1332 online © 2003 Taylor & Francis Ltdhttp://www.tandf.co.uk/journals

DOI: 10.1080/0951274032000085653

ASEAN and the securitization of transnational crime in Southeast Asia

Ralf Emmers

Abstract

This article studies the securitization of transnational crime by theAssociation of Southeast Asian Nations (ASEAN) since 1996–97. It first introducestransnational crime as a criminal matter before positioning it within the inter-national security debate through an elaboration of the Copenhagen School and itssecuritization theory. It then examines whether transnational crime has been artic-ulated in security terms in the ASEAN rhetoric. The article demonstrates that themember states have made statements in which they make claims about security inthe context of crime. Yet, there is little evidence that this has encouraged regionalpolicy-makers to adopt common security responses. ASEAN has failed to imple-ment joint actions due to domestic circumstances but also because of its ownconsensus model and resistance to institutional reforms.

Finally, the article suggeststhat the problem of transnational crime could be dealt with more effectively if it wasapproached primarily as a criminal matter rather than as a security issue.

Keywords

ASEAN; Southeast Asia; transnational crime; Copenhagen School;securitization; criminalization.

Introduction

The growing problem of transnational crime in Southeast Asia is an impor-tant issue that needs to be studied more closely. This article examinesASEAN’s strategy of securitizing the phenomenon and analyses why itsdeclaratory anti-crime position has failed to produce an effective policyoutcome. Securitizing crime has simply been a convenient rhetorical device,

Ralf Emmers is a Ford Post-Doctoral Fellow at the Institute of Defence and Strategic Studies(IDSS), Nanyang Technological University, Singapore. His research interests include non-traditional security issues in Southeast Asia and multilateralism in the Asia-Pacific. His bookentitled

Cooperative Security and the Balance of Power in ASEAN and the ARF

has beenpublished in 2003 by Routledge as part of its Politics in Asia Series.

Address: IDSS, NTU, South Spine, S4, Level B4, Nanyang Avenue, Singapore 639798. E-mail:[email protected]

06 PRE 16-3 Emmers (JB/D) Page 419 Monday, June 23, 2003 3:01 PM

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given the fact that ASEAN’s political response has not matched its claimsabout security. Indeed, the article notes that even if criminal activity hasbeen securitized rhetorically, there is little evidence that this has encouragedregional policy-makers to adopt common security responses. The Associa-tion has failed to act upon the issue of transnational crime due to domesticfactors, including the role of corruption, vested interests and a lack ofresources, but also because of its own consensus model and in-built resist-ance to institutional reforms. This failure forces us to remain sceptical aboutthe actual securitization of transnational crime in Southeast Asia. More-over, it suggests that ASEAN should instead pursue a deeper criminaliza-tion of the issue at the regional level, as it does not dispose over thecollective will, joint political instruments and military capabilities to addressit as a security concern.

The article deals with a set of important questions. First, why has ASEANattempted to securitize what are essentially criminal matters? Second, whyhas it failed in its strategy and what does it tell us about the securitizationof crime in Southeast Asia? The article only considers initiatives endorsedwithin an ASEAN framework as well as multilateral decisions that areoperationalized at a bilateral or trilateral level. It consists of four sections.The first introduces transnational crime as a criminal matter before posi-tioning it within the international security debate. In particular, it assertsthat the Copenhagen School provides a coherent framework to definesecurity and determine how an issue becomes securitized. The secondexamines whether transnational crime, and especially drug trafficking andterrorism, has been articulated in security terms in the ASEAN rhetoric.The third seeks to explain why the securitization of criminal activity has notresulted in policy outcomes. The final section argues that the growingproblem of transnational crime in Southeast Asia could be dealt with moreeffectively at a regional level if it was approached primarily as a criminalmatter rather than as a security issue.

Transnational crime and securitization theory

Transnational crime can be addressed both in a discourse of crime and/orsecurity. Let us start with the former. The United Nations (UN) definestransnational crimes ‘as offences whose inception, prevention and/or director indirect effects involved more than one country’ (quoted in Mueller 1998:18). Such crimes must be differentiated from international crimes, which arerecognized by and can therefore be prosecuted under international law, anddomestic crimes that fall under one national jurisdiction. In order to beconsidered as transnational, a crime must involve the crossing of borders orjurisdictions (Williams 1998). The UN has identified eighteen different cate-gories of transnational crime. These are: money laundering, terrorist activ-ities, theft of art and cultural objects, theft of intellectual property, illicittraffic in arms, aircraft hijacking, sea piracy, hijacking on land, insurance


R. Emmers: ASEAN and the securitization of transnational crime

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fraud, computer crime, environmental crime, trafficking in persons, trade inhuman body parts, illicit drug trafficking, fraudulent bankruptcy, infiltrationof legal business, corruption and bribery of public officials, and finally otheroffences committed by organized criminal groups (cited in Mueller 1998).The political motivations behind terrorist activities, which may be driven byideology, ethno-nationalist demands, or religious fundamentalism, distin-guish them from the other categories of transnational crime that deriveprimarily from financial interests. Still, the decision in this article to includeterrorism as an aspect of transnational crime can be justified by the UNclassification and the fact that ASEAN itself lists terrorism as a form ofcriminal activity.

The fight against transnational crime has already led to many examplesof international cooperation, resulting primarily in the criminalization ofthe issue. Founded in 1923, the International Criminal Police Organization(Interpol) has currently 176 member states and provides a vehicle for theexchange of information and assistance between police forces. TheEuropean Union (EU) formed EUROPOL in July 1999 in an attempt tocombat transnational crime at a European level. The Group of Seven (G7)nations created in 1989 the Financial Action Task Force (FATF) to tacklemoney laundering and it set up the Lyon Group in 1999 to improve inter-national cooperation against transnational crime. The UN has also estab-lished different bodies, which include the UN Commission on CrimePrevention and Criminal Justice and the Commission on Narcotic Drugs,and introduced conventions such as the 1988 UN Convention Against IllicitTraffic in Narcotic Drugs and Psychotropic Substances. Moreover, it organ-ized the Naples Ministerial Conference on Organized Crime in November1994 that led to the Naples Political Declaration and Global Action PlanAgainst Organized Transnational Crime.

Academics and policy-makers have also referred to transnational crimeas a security issue. McFarlane and McLennan claimed in 1996: ‘Trans-national crime is now emerging as a serious threat in its own right tonational and international security and stability’ (1996: 2). Galeotti hassuggested that ‘the struggle against organized and transnational crime willbe the defining security concern of the twenty-first century’ (2001: 216).Among the practitioners, US President Bill Clinton discussed the threatposed by transnational criminal groups during a speech delivered at the UNGeneral Assembly and declared that these ‘forces jeopardize the globaltrend toward peace and freedom, undermine fragile new democracies, sapthe strength from developing countries, threaten our efforts to build a safer,more prosperous world’ (Clinton 1995). His successor, President George W.Bush, has since the terror attacks in the United States on 11 September 2001referred to a ‘war on terrorism’. The securitization rather than the criminal-ization of terrorism has allowed the United States to use more traditionalsecurity responses against al-Qaeda, as for instance indicated by the deten-tion centres in Guantanamo Bay. This can be compared to the so-called war


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on drugs, particularly in connection to drug trafficking from Colombia. Thewar consists of military assistance to the Colombian government to attacknarcotics supply as well as direct US military actions against drug cartelsoperating from that country. It has so far failed, however, to reduce thesupply of narcotics in the United States.

This article discusses ASEAN’s strategy of securitizing transnationalcrime and analyses whether this process has resulted in policy outcomes. Todo so, it is essential to comprehend what is meant by an act of securitization.The Copenhagen School provides a coherent framework to define securityand determine how a specific matter becomes securitized. It emerged at theConflict and Peace Research Institute (COPRI) of Copenhagen and isrepresented by the work of Barry Buzan, Ole Waever and others (Buzan1991; Waever 1995; Buzan

et al

. 1998). Although significant differences existbetween its scholars, the school has developed a substantial body ofconcepts to rethink security.

In

Security: A New Framework for Analysis

, Buzan

et al

. start bydefining security in a traditional military context. They explain that ‘securityis about survival. It is when an issue is presented as posing an existentialthreat to a designated referent object’ (Buzan

et al

. 1998: 21). The security-survival logic is then applied to five categories of security: military, environ-mental, economic, societal and political security (Buzan

et al

. 1998). Thedynamics of each sector are determined by securitizing actors and referentobjects. The former are defined as ‘actors who securitize issues by declaringsomething, a referent object, existentially threatened’ (Buzan

et al

. 1998:36) and can be expected to be ‘political leaders, bureaucracies, governments,lobbyists, and pressure groups’ (Buzan

et al

. 1998: 40). Referent objects are‘things that are seen to be existentially threatened and that have a legitimateclaim to survival’ (Buzan

et al

. 1998: 36). They include the state, nationalsovereignty, national economies, collective identities, and environmentalhabitats. Evidently, referent objects and the kind of existential threats thatthey may face vary across the security sectors.

The Copenhagen School regards security as a socially-constructedconcept. A political concern becomes a security matter through a processof securitization. A securitizing actor defines an issue as an existential threatand asserts that it needs to be removed from the normal process of politicsdue to its declared urgency. Buzan

et al

. argue that security ‘is the move thattakes politics beyond the established rules of the game and frames the issueeither as a special kind of politics or as above politics’ (1998: 23). Desecuri-tization refers to the reverse process. The Copenhagen School stresses theimportance of the speech act (Waever 1995). Securitizing actors articulatean issue in security terms to persuade a relevant audience of its immediatedanger. The concern must be represented as an existential threat (Buzan

etal

. 1998). This criterion enables the school to link security to survival andthus to the reasoning found within traditional security studies. The act ofsecuritization is only successful when the securitizing actor succeeds in



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convincing a relevant audience (public opinion, politicians, military officersor other elites) of the existential nature of the threat. What constitutes anexistential threat is thus viewed as a subjective question that depends on ashared understanding of what is meant by such a threat. Once the securitiz-ation is completed, extraordinary measures can be imposed that go beyondstandard political procedures. The school asserts, however, that an act ofsecuritization does not depend on the use of exceptional means, as it simplyprovides securitizing actors with the right to adopt such actions.

ASEAN’s securitization of transnational crime

ASEAN’s response to transnational crime

Before examining ASEAN’s strategy of securitizing transnational crime,one needs to single out the securitizing actors, the referent objects and therelevant audience. The securitizing actors are the heads of state and govern-ment as well as their foreign ministers and ministers of interior/home affairs.The various senior officials involved with transnational crime and thenational chiefs of police should also be regarded as securitizing actors,though of much less importance. The concerns of these actors are reflectedin the ASEAN declarations and communiqués, which have therefore to beexamined closely. In particular, it needs to be verified whether the securi-tizing actors have labelled transnational crime as an existential threat tosecurity. The prime referent object is the sovereign state. Regional policy-makers are concerned with state security and the preservation of nationalsovereignty and territorial integrity. Yet, as we shall see, the joint declara-tions and communiqués make reference to the dangers of transnationalcrime to the welfare of regional populations, to the social and moral fabricsof societies and to economic prosperity. The ASEAN rhetoric thus adoptsa multisectoral approach to security. This broad conceptualization ofsecurity is not surprising, as the members have adopted the notion ofcomprehensive security since the 1970s. Finally, the relevant audience isessentially restricted to an elite of policy-makers. The actors who express anissue in security terms are the same as those who need to be persuaded ofits existential threat. This does not allow for a dialogue between securitizingactors and a separate audience.

The ASEAN members have sought to promote regional cooperationagainst transnational crime since 1976 and thus recognized the need to dealwith its dangers at an early stage of ASEAN’s institutional evolution. Yet,the Association limited its focus from 1976 until 1997 to the abuse and illegaltrafficking of drugs. The question of drug trafficking was discussed at theBali Summit of February 1976 and mentioned in the ASEAN Concord. Itcalled for the ‘Intensification of cooperation among member states as wellas with the relevant international bodies in the prevention and eradicationof the abuse of narcotics and the illegal trafficking of drugs’ (ASEAN 1976).


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The ASEAN Declaration of Principles to Combat the Abuses of NarcoticsDrugs was adopted in Manila on 26 June 1976 and led to some initialproposals. It was the start of an institutional process against transnationalcrime, which would remain confined for twenty-one years to the issue ofnarcotics. The ASEAN decision to cooperate against drug trafficking partlyresulted from strong US pressure. Similarly, the United States currentlyexpects the Southeast Asian nations to participate in the international fightagainst terrorism and to combat regional extremist movements, including

Jemaah Islamiah

(JI).By the mid-1990s, the ASEAN countries were forced to recognize that in

addition to drug trafficking, other forms of transnational crime had becomea threat to regional development and stability. These issues began to beconsidered at the highest diplomatic level and mentioned in the communi-qués. At the ASEAN Ministerial Meeting (AMM) of July 1996, the foreignministers discussed drug trafficking, human smuggling and trafficking,money laundering and other categories of transnational crime. They sharedthe views that ‘the management of such transnational issues is urgentlycalled for so that they would not affect the long-term viability of ASEANand its individual member nations’ (ASEAN 1996). This statement indi-cated that transnational crime was perceived as a possible threat to thepolitical, societal and economic security of the ASEAN nations. The 30thAMM in July 1997 stressed the necessity for sustained regional cooperationto tackle the problems of terrorism, narcotics, arms smuggling, piracy andhuman trafficking (ASEAN 1997a). At their second informal summit inKuala Lumpur in mid-December 1997, the heads of state and government‘resolved to take firm and stern measures to combat transnational crimes’(ASEAN 1997b).

Endorsed on 20 December 1997, the ASEAN Declaration on Trans-national Crime broadened and intensified regional cooperation againstcrime. It resulted from the first ASEAN conference on the subject organizedin Manila with the participation of the ministers of interior and home affairs.The declaration represented a common position on the issue as well as ajoint statement of political support and cooperation against this inter-connected phenomenon. The collective stand was an expression ofconsensus on the dangers involved. The ministerial meeting played a keyrole in securitizing transnational crime in the ASEAN rhetoric. Ofparticular relevance was the keynote address by Philippine President FidelRamos. He declared that the ‘concept of regional security should extendbeyond the mere absence of armed conflict among and within nations.Enduring regional security continues to be assaulted by transnational crimeand from time to time international terrorism’ (Ramos 1997). The homeministers referred to the 1996 AMM and its call to tackle transnationalproblems to prevent them from undermining the long-term viability of themember states (ASEAN 1997c). They also stated their concern about ‘thepernicious effects of transnational crime . . ., on regional stability and



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development, the maintenance of the rule of law and the welfare of theregion’s peoples’ (ASEAN 1997c). In response, the ministers recognized‘the need for clear and effective regional modalities to combat these formsof crimes’ (ASEAN 1997c). In short, the Southeast Asian elites expressedtransnational crime in security terms and called for the adoption of strongactions.

The 1997 declaration announced that the ASEAN Ministerial Meeting onTransnational Crime (AMMTC) would meet at least once every two yearsand coordinate actions of other bodies involved with the issue, including theASEAN Chiefs of National Police (ASEANAPOL) and the ASEANSenior Officials on Drug Matters (ASOD). The declaration also introducedsome proposals. It encouraged the member countries to exchange anddisseminate information, to sign bilateral treaties and mutual assistanceagreements, to assign police liaison officers to other Southeast Asiancapitals and to explore ways of extending cooperation with the dialoguepartners, the UN and other organizations.

Why did ASEAN decide in 1996–97, after twenty-one years of coopera-tion on illicit drugs, to securitize what are essentially criminal matters?Every securitizing act involves a political decision, as much of the securitylanguage is used for political purposes. The decision by the Southeast Asiangovernments to securitize transnational crime resulted from a series ofmotives. First, portraying criminal activity as a security concern was a wayfor the ASEAN states to move forward on this question and to gain the kindof political momentum necessary for the adoption of appropriate measures.Indeed, the language of security injects urgency into an issue and puts it atthe top of the agenda. This is expected to lead to a mobilization of politicalsupport for new policies, a more effective handling of complex problemsthrough better bureaucratic coordination and the allocation of additionalresources. Second, securitizing transnational crime legitimized the interven-tion of the military and security forces in criminal matters. Finally, andperhaps most significant in the case of the Association, the use of securitylanguage gave the impression that its declaratory anti-crime policy wouldbe translated into concrete action to address a newly-defined security ques-tion. In other words, it would give the illusion that ASEAN was about tomove beyond a proclamation of good intentions and tackle a securityconcern that required both a domestic and regional response.

The timing of the decision to articulate crime in security terms resultedfrom ASEAN’s enlargement to include Myanmar and Laos in July 1997.Myanmar and Laos are respectively the first and third largest cultivators ofopium poppies in the world. In supplement to the heroin trade, the manu-facturing of amphetamine-type stimulants (ATS) has dramaticallyincreased in Myanmar since the early 1990s. Thailand, in particular, hasperceived the drug trafficking in Myanmar as a significant national securityissue (Dupont 2001). While Bangkok had failed by 1997 to convinceMyanmar to act against the production of narcotics within its frontiers, it


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hoped that Yangon’s membership in ASEAN might lead to more tangibleresults. In short, the inclusion of Myanmar and to a lesser extent Laos servedas a catalyst to securitize transnational crime in the Association. USpressure for action should also be mentioned. While opposed to Myanmar’sadherence to ASEAN due to its brutal military regime and human rightsrecord, the US was also deeply concerned with the scale of heroin and ATSproduction in Myanmar and with the low level of Yangon’s anti-narcoticsefforts.

The second AMMTC was organized in Yangon in June 1999 where trans-national crime was described as a non-traditional threat to security. Theinterior ministers recognized that it ‘was becoming more organized, diver-sified and pervasive, and thus posed a serious threat to the political,economic and social well-being of all nations, including the ASEANMember Countries’ (ASEAN 1999). The AMMTC adopted the ASEANPlan of Action to Combat Transnational Crime, which sought to extendcollective efforts and consolidate regional cooperation. It advocated theexchange of information, legal cooperation, law enforcement, training andinstitutional building. Moreover, the second AMMTC formed an institu-tional structure against transnational crime. The interior ministers agreedthat their meeting would supervise the activities of ASEANAPOL, ASODand the ASEAN Directors-General of Customs (ADGC) and decided toform a Senior Officials’ Meeting on Transnational Crime (SOMTEC) thatwould develop a work programme to carry out the plan of action.

A Work Programme on Terrorism to Implement the ASEAN Plan ofAction to Combat Transnational Crime was finally approved by the secondannual SOMTEC in Kuala Lumpur on 17 May 2002 (ASEAN 2002a). Thislong document offered a more comprehensive strategy against crime. Itfocused on illicit drug trafficking, trafficking in persons, sea piracy, armssmuggling, money laundering, terrorism, economic crime and cyber crime.For each of these categories, the work programme introduced action linesto enhance the exchange of information, legal coordination, law enforce-ment, training, institutional capacity-building and extra-regional coopera-tion. It demanded that some of the action lines be implemented within aperiod of six months. The introduction of a specific time frame for somesuggested measures was a positive development. Still, the actual executionof the action lines will be much harder than their simple endorsement bythe senior officials.

An examination of the ASEAN rhetoric has demonstrated the securitiz-ation of transnational crime since 1996–97. Persuaded of its threat, theheads of state and government and their foreign and home ministers havediscussed the matter in security terms. ASEAN has portrayed transnationalcrime as a threat to state security and regional stability (military security),to state sovereignty and the rule of law (political security), to the social andmoral fabrics of Southeast Asian countries (societal security), and toeconomic development (economic security). In addition to its overall



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approach to the problem, ASEAN has also responded to specific forms oftransnational crime. The following discussion examines its declaratoryposition on and political reaction to drug trafficking and terrorism.

Drug trafficking and terrorism

The heads of state and government introduced at their second informalsummit in December 1997 the ASEAN Vision 2020. On the question ofnarcotics, the leaders optimistically announced that they saw ‘well before2020 a Southeast Asia free of illicit drugs, free of their production,processing, trafficking and use’ (ASEAN 1997d). This declaration wassignificant, as the goal of achieving an ASEAN free from narcotics has sincethen often been repeated. The heads of state and government adopted anill-advised approach by setting themselves an unachievable objective. Drugabuse and trafficking is a problem that will most likely never disappearcompletely and the prime question that needs to be addressed therefore ishow it can be managed. Hoping for its eradication rather than its controlundermined the ASEAN credibility as well as its initiatives to combat thedrug trade.

To achieve the newly-set objective, the foreign ministers issued a JointDeclaration for a Drug-Free ASEAN during their 1998 AMM. It stated thatdrug abuse and trafficking endangers economic development, the moralfabrics of societies as well as the welfare of nations and their populations.The foreign ministers affirmed that the illicit drug trade ‘could escalate tosuch a level where perpetrators can pose serious political and securitythreats to the region’ (ASEAN 1998). The ministers indicated the urgencyof the problem as well as the need for additional political involvement anda better mobilization of resources. Measures were recommended to achievethat goal and included the strengthening of linkages between the differentASEAN bodies involved with narcotics, the adoption of tougher nationallaws, a better sharing of information and more collaboration with thedialogue partners. While suggesting appropriate recommendations, the jointdeclaration failed to address the questions of funding and implementationand to establish a monitoring mechanism. Despite these serious limitations,the objective of creating a drug-free region was not modified. On thecontrary, its schedule was later advanced to 2015 during the 2000 AMM inBangkok (ASEAN 2000a).

In October 2000, ASEAN organized in Bangkok the InternationalCongress in Pursuit of a Drug-Free ASEAN 2015 in association with theUnited Nations Office for Drug Control and Crime Prevention (UNDCP).It led to the formulation of the Bangkok Political Declaration in Pursuit ofa Drug-Free ASEAN 2015 and to the adoption of a new plan of action, theASEAN and China Cooperative Operations in Response to DangerousDrugs (ACCORD). The latter seeks to eradicate or at least seriously reduce


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the production, trafficking and consumption of narcotics in Southeast Asiaby 2015. It created a Plan of Action that relies on four central pillars:

1. Proactively advocating civic awareness on dangers of drugs andsocial response

2. Building consensus and sharing best practices on demand reduc-tion

3. Strengthening the rule of law by an enhanced network of controlmeasures and improved law enforcement co-operation and legis-lative review

4. Eliminating the supply of illicit drugs by boosting alternativedevelopment programmes and community participation in theeradication of illicit crops

(ASEAN 2000b)

While the ACCORD is only a declaration of intent, it at least addressessome of the limitations that have undermined previous collective efforts.First, it further regionalizes cooperation against narcotics by includingChina. The regional production, trafficking and consumption of narcoticsshould be viewed as an East Asian problem rather than just a SoutheastAsian one. It needs therefore to be addressed through broader cooperativestructures. Second, the ACCORD aims to tackle the issue of supervision byestablishing a monitoring mechanism and introducing target dates. If imple-mented, this could be an important step in a cooperative process where theadoption of binding measures will most likely remain unattainable in theshort to medium term.

In short, the ASEAN members have indicated the security threats posedby the drug trafficking problem to the political, economic and social stabilityof the member states in various declarations and communiqués. TheACCORD is the most ambitious plan put forward by the ASEAN countriesto tackle this ostensible threat. Very little progress has so far been made,however, on the implementation of common measures and on the delicatequestions of supervision and funding. More time has been spent demandingcollaboration than on the adoption of policy responses. Furthermore, theAssociation has set itself an unachievable objective through the Joint Decla-ration of a Drug-Free ASEAN, which has undermined its credibility as aregional institution committed to fighting illicit drugs.

As a result of 11 September and the Bali bombings on 12 October 2002,ASEAN’s more recent response to transnational crime has been dominatedby the threat of terrorism. The ASEAN leaders adopted a strong declara-tory position on the issue of terrorism at their summit in November 2001.Terrorism was depicted in the press statement as a ‘formidable challenge toregional and international peace and stability as well as economic develop-ment’ (ASEAN 2001a). The heads of state and government endorsed attheir summit the ASEAN Declaration on Joint Action to Counter



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Terrorism. It declared their commitment to counter, prevent and suppressall acts of terrorism in adherence to international law and the UN Charter.It called for regional efforts to combat terrorism and the introduction ofcounter-terrorist measures, which included the improvement of nationalmechanisms to fight terrorism, the ratification of all anti-terrorist conven-tions, more cooperation among law enforcement agencies and betterexchanges of information (ASEAN 2001b). Still, the relevance of thesebroad recommendations was questionable, as the issue of implementationwas never addressed. Kusuma Snitwongse points out that no concrete stepswere taken at the summit ‘beyond the notion that further studies were tobe made at the Special ASEAN Ministerial Meeting on TransnationalCrime’ (2002: 10–11).

In addition, the ASEAN declaration on terrorism did not derive from areal consensus among the member states. The existence of divergentdomestic interests between Indonesia on the one hand and Malaysia, thePhilippines and Singapore on the other undermined the attainment of aregional agreement and the formulation of tangible measures. Malaysia’sPrime Minister Mahathir Mohamad and Philippine President Gloria Maca-pagal-Arroyo quickly made the political calculation of supporting theAmerican war on terrorism and used it for political benefits. Mahathir tookadvantage of 11 September to discredit the Islamic Party of Malaysia (PAS)by portraying it as a party of Islamic militants. Arroyo was prompt todescribe Abu Sayyaf as an international terrorist movement and acceptedUS military assistance to eliminate its members on Basilan Island. Singa-pore contributed immediately to the war on terror. It feared the domesticconsequences of a terrorist act perpetrated by an extreme Muslim group, assuch an attack could shatter business confidence and affect communalrelations. In contrast, Indonesia’s President Megawati Sukarnoputri facedthe difficult situation of having to respond to the pressure from the US andneighbouring states while protecting a government that depended onmoderate Muslim organizations opposing a political response againstIslamic groups. Megawati’s ambivalence and lack of political will led to arefusal to arrest Islamic fundamentalists, especially Abu Bakar Baasyirregarded by Singapore and Malaysia as one of the leaders of JI. The absenceof anti-terrorist measures in Indonesia frustrated the United States andsome ASEAN partners, as later indicated in a speech delivered by theSingaporean Senior Minister Lee Kuan Yew in February 2002. He declaredthat the city-state would be at risk of terrorist attacks as long as leaders ofregional extremist cells were at large in Indonesia.

At the 35th AMM in Brunei in July 2002, the ten ASEAN members andthe United States signed a joint declaration on counter-terrorism. Theagreement was a political statement that confirmed

ASEAN’s commitmentto the war against terrorism.

It stipulated ‘the importance of having aframework for cooperation to prevent, disrupt and combat internationalterrorism through the exchange and flow of information, intelligence and


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capacity-building’ (ASEAN 2002b). Nonetheless, it failed to includeconcrete measures against terrorism. The signatories were asked to improveintelligence sharing and collaboration among their law enforcement agen-cies, to provide assistance on border surveillance, immigration and financialissues and to comply with UN resolutions on terrorism. The declaration wasa non-binding agreement that might be compared to an anti-terrorismaccord reached by Indonesia, Malaysia and the Philippines in May 2002 andlater signed by Cambodia. Significantly, the ASEAN–US statement did notrefer to military operations or to the deployment of American troops inSoutheast Asia. Prior to its adoption, Vietnam and Indonesia rejected anyclause that might be regarded as allowing the involvement of US forces inthe region and thus undermining the principles of national sovereignty andnon-intervention in the affairs of other states.

Finally, the seriousness of the terrorist threat in Indonesia was demon-strated by the devastating attacks on the island of Bali in October 2002 thatkilled almost 200 people. This consolidated the view that the subregion hadbecome a second front in the war on terror. Nonetheless, ASEAN’sresponse was limited and disappointing. The heads of state and governmentsigned another Declaration on Terrorism during their summit in PhnomPenh in early November 2002 in which they pledged to carry out the anti-terror measures adopted previously. The document simply stipulated thatthe ‘ASEAN countries shall continue with practical cooperative measuresamong ourselves and with the international community’ (ASEAN 2002c).

Securitization and the absence of policy outcomes

Even if criminal activity has been securitized rhetorically, there is littleevidence that this has encouraged regional decision-makers to adoptcommon policy responses. Transnational crime has not been addressedforcefully regardless of its declared urgency. The cooperative response hasbeen characterized by a low rather than an extreme level of politicizationdespite the language of security used in the ASEAN rhetoric. Repetitiveand empty statements on the need for cooperation have only given anillusion of progress. Consequently, ASEAN’s response has primarilyconsisted of a rhetorical device. The members have adopted modest decla-rations that have failed to move beyond the proclamation of good inten-tions. They have focused on non-binding and unspecific measures withoutaddressing the question of funding, setting target dates and establishingmonitoring mechanisms to assess progress. Appropriate measures wouldhave to deal with all these issues and would need to be binding to lead tomore tangible results. A major problem is that such initiatives would goagainst ASEAN’s traditional modalities and its tendency to focus on theproclamation of intentions rather than action, which has affected a wholerange of issue areas besides crime.

The absence of policy outcomes questions the purpose of securitization.



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According to the Copenhagen School, a security act does not depend on theuse of strong measures, but simply on an intersubjective understanding onwhether a given referent object faces an existential threat. This articlechallenges the significance of securitization when it does not go hand inhand with actions and policies to address the ostensible threat. Instead, itproposes a different understanding of when an issue is fully securitized. Thisshould demand discursive (speech act and shared understanding) and non-discursive (policy implementation and action) dimensions. A security actshould depend on a language of security that persuades an audience of thenature of the threat and on the implementation of appropriate measures toaddress it. This modified understanding of the theory enables us to claimthat ASEAN’s securitization of transnational crime has been weak. Thequestion remains, though, why a rhetorical securitization has not resultedin policy outcomes.

ASEAN’s inability to cope with transnational crime partly results from aseries of domestic factors, including the role of corruption, vested interestsand a lack of resources. The links between domestic instability, poverty andtransnational crime need to be stressed. A majority of Southeast Asiancountries have remained states that suffer from fragile domestic institutionsand socio-economic problems. Corruption as well as poorly-financed lawenforcement agencies have undermined domestic attempts to combatorganized gangs. The poverty and economic disparities that persist in theregion also diminish ASEAN’s ability to tackle transnational crime, partic-ularly the issue of human smuggling and trafficking. Let us mention theproblems of piracy in Indonesian waters and drug trafficking in Myanmarand Thailand to illustrate the role of corruption, vested interests and lackof resources in the case of some Southeast Asian countries and their impacton transnational crime.

The problems of poverty, corruption and lack of resources explain whysea piracy is currently out of control in the Indonesian waters and in theMalacca Straits. Even greater poverty and increased unemployment inIndonesia since the East Asian financial crisis of 1997–98 have transformedpiracy into an attractive source of income. Experts explain that ‘increasingnumbers of Indonesia’s coastal inhabitants are turning to piracy, in order toaugment their declining incomes’ (

Jane’s Terrorism & Security Monitor

2000: 16). Rampant corruption among maritime officials and port workersenables the pirates to be well informed about the movements of ships andthe composition of their cargoes. Rivalry between the Indonesian police andnavy also undermines efforts to prevent piracy attacks. Moreover, theproblem is still viewed as secondary in Indonesia despite the fact that it isdamaging its weak economy. Little has been done by the central govern-ment, which lacks the funds and political will to address the issue. Navy andcoastguard budgets have been reduced since 1997. The maritime forcesremain poorly equipped, lacking fast patrol boats and sophisticated weap-onry. Only 30 per cent of the navy’s 113 ships are said to be fully operational


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(Pereira

2002). This seriously questions the navy’s ability to address the seapiracy problem within Indonesia’s territorial waters.

In addition to corruption and ineffective naval authorities, sea piratestake advantage of jurisdictional limitations and often commit their crimesin the territorial waters of one state before seeking sanctuary under anothercountry’s jurisdiction. Most ASEAN members refuse to prosecute pirateswho found sanctuary in their territory for crimes committed outside of theirown jurisdiction. These criminals are also rarely extradited. A solution tothat problem is offered by the 1988 Rome Convention on the Suppressionof Unlawful Acts against the Safety of Maritime Navigation, which providesa legal structure for interstate cooperation against piracy. It empowerssignatory states to extradite or prosecute pirates arrested in their territorialwaters for crimes committed under the jurisdiction of other countries.During his speech to the third AMMTC in October 2001, Singapore DeputyPrime Minister Lee Hsien Loong announced that the city-state had decidedto sign the 1988 Rome Convention and he asked the other Southeast Asiannations to ‘consider acceding to the Convention as part of our collectiveeffort and resolve to fight crime at sea’ (Lee 2001). Except for Vietnam andSingapore, none of the ASEAN members has ratified the convention. Thecase of sea piracy indicates, as is argued in the final section, that the South-east Asian states should primarily pursue a criminalization rather than asecuritization of transnational crime.

Corruption and a lack of resources have also undermined efforts toaddress the growing problem of drug trafficking and consumption in South-east Asia. The drug trade has provided organized criminal groups withexceptional financial resources that enable them to dispose over modernmilitary equipment and to corrupt politicians, judges and police authorities.Discussing the extent of the corruption problem in Thailand, Sangsit Piri-yarangsan indicates that ‘drug trafficking rings cannot stand on their own:they must depend on the mechanism and power of the state’ (quoted inCorben 2001: 26). The situation is much worse in Myanmar. Untroubled byYangon with which a ceasefire agreement has been signed, the United WaState Army (UWSA) disposes over 10,000 soldiers and exercises almost fullcontrol over the Shan State in Northeast Myanmar. The UWSA is estimatedto control 80 per cent of the opium–heroin trade as well as most ATS-producing laboratories in the country (

Straits Times Interactive

2003).Owing to the growing evidence of complicity between the military govern-ment in Yangon and the drug traffickers, Dupont writes that Myanmar is‘the most egregious example of a drug-tainted regime in East Asia’ (Dupont1999: 445). Thailand regards the UWSA as an immediate threat to its societyand national security. Yet, the Thai authorities are poorly equipped to dealwith the narcotics problem and their activities are severely restrained by thefact that they have no influence on the production of ATS in the Shan Stateof Myanmar. Yangon has so far shown little interest in the Thai-repeateddemands to crack down on the drug-trafficking activities of the UWSA.



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These various domestic impediments help explain the absence of jointpolicy implementation against forms of transnational crime. In addition, itis important to mention two factors that are part of ASEAN’s own institu-tional experience and that have undermined its response to transnationalcrime; namely, its consensus model and its resistance to institutionalreforms. ASEAN generally limits its activities to the proclamation ofcommon positions and the formulation of non-binding measures. Itsdecision-making is defined by a practice of consensus building that ensuresthe sovereign equality of the member states and guarantees that no decisionis ever imposed on a member. This decision-making process is inadequateto combat transnational crime. It is based on an intergovernmentalapproach to cooperation, which depends on the narrowly-defined interestsof the participating states. ASEAN’s response to transnational crime thusrests on an overlap between domestic priorities and a need for regionalcooperation. National considerations take precedence in case of disagree-ments. Some members can slow down or even stop multilateral cooperationif they believe that collective actions may undermine their domesticinterests.

ASEAN’s resistance to institutional reforms is most adamant

vis-à-vis

itscardinal principles of national sovereignty and non-intervention. The issueof transnational crime is linked to the question of national sovereignty. Onthe one hand, transnational criminal activities are a threat to the nationalsovereignty and integrity of independent states and endanger the survivalof their governments. On the other, interstate cooperation against crimerequires some surrendering of state sovereignty. A section of national sover-eignty needs therefore to be abandoned for it to be protected more effec-tively. Yet, a paradigm shift

vis-à-vis

the questions of national sovereigntyand non-intervention has not yet occurred within the Association. Thai-land’s Foreign Minister Surin Pitsuwan suggested in June 1998 the need toamend the basic principle of non-intervention, which caused disagreementbetween the members at the AMM of July 1998. Only supported byThailand and the Philippines, the notion of ‘flexible engagement’ wasrejected by the other members that feared interference in their domesticaffairs. The foreign ministers eventually agreed on the euphemistic compro-mise of ‘enhanced interaction’.

The failure to introduce institutional reforms has led to a clash betweenthe necessity to achieve deeper multilateral cooperation against trans-national problems and domestic priorities to oppose any kind of restrictionson these traditional principles. ASEAN’s adherence to these basic princi-ples has helped consolidate the national sovereignty of the member coun-tries. When the Association was first established in 1967, they constitutedthe only way available for weak states to strengthen their domestic legiti-macy and promote regional stability. They now represent, however, alimiting factor in the management of transnational crimes and they shouldbe adjusted to enable the member states to discuss more openly each other’s


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domestic problems and address transnational issues. An important question,though, is how norms can be modified in light of a changing internationalenvironment. It is often argued in the academic literature that a crisis canchallenge specific norms and force the relevant actors to acknowledge theirreduced relevance and applicability. Interestingly, the financial crisis, the1999 East Timor crisis and the Bali bombings did not cause such a funda-mental rethinking in Southeast Asia.

A need for further criminalization

Rather than securitizing transnational crime, the ASEAN governmentsshould pursue a deeper criminalization of the issue. This can be defined asthe practice of legislating and enforcing existing laws against the differentcategories of transnational crime. The growing problem of transnationalcrime in Southeast Asia could be dealt with more effectively at a regionallevel if it was approached primarily as a criminal problem rather than as asecurity issue. This derives from the fact that these are essentially criminalmatters that require a concrete judiciary response rather than abstractsecurity language and that ASEAN itself does not dispose over the collec-tive will, joint political instruments and military capabilities to address themas security concerns. To fight transnational crime effectively, the ASEANmembers should start by criminalizing all its aspects and signing bilateraland multilateral arrangements on mutual legal assistance that would helptheir law enforcement authorities in the investigation and prosecution ofcriminal offences. There is indeed a need for overlapping contractual agree-ments at a bilateral and multilateral level that would complement eachother in the fight against criminal activity.

Some ASEAN countries have been slow to criminalize aspects of trans-national crime due to some of the domestic factors discussed above;namely, corruption, vested interests, and a lack of training and resources.This is translated in the fact that they do not dispose over the necessarylegislation to prosecute specific categories of crime. Indonesia, for example,does not have laws against people smuggling and trafficking and its judiciarysystem often prosecutes these crimes merely for visa offences. This is insharp contrast to Thailand that has adopted tougher laws over the last fewyears, including the 1997 Trafficking in Women and Children Act. The ruleof law is only partially applied in Myanmar and Cambodia; two states wherecorruption and domestic struggles for control undermine administrativeand judiciary systems. They therefore provide ideal environments fororganized crime. Vietnam’s legal system is also incomplete, particularly

vis-à-vis

criminal activities. In short, one sees in the case of some ASEANcountries a failure to criminalize transnational crime at a national level,which complicates any attempt to respond regionally to such activity. Toaddress this fundamental shortcoming, all ASEAN members should beencouraged to ratify the 2000 UN Convention Against Transnational Crime,



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and its Protocols on Human Smuggling, Sex Trafficking and the IllicitTrafficking in Firearms. Cyber crime, corruption and additional forms oftransnational crime have either been addressed or are in the process ofbeing addressed by the Convention. Once it gains international legalstanding, the ASEAN nations that have adhered to the protocols will beforced to translate these instruments into national law.

The ASEAN countries have failed so far to establish effective lawenforcement cooperation at the regional level through the signing of extra-dition treaties and mutual legal assistance treaties (MLATS). It is almostimpossible to prosecute criminals in the countries where they have foundrefuge, as problems regarding jurisdiction are bound to arise duringproceedings. An extradition treaty, either at a bilateral or multilateral level,leads to the delivery of suspected or convicted criminals by the state wherethey have taken refuge to the state that asserts jurisdiction over them.Extradition treaties are therefore essential instruments to combat trans-national crime. Most Southeast Asian countries have signed bilateral extra-dition treaties with the United States and other countries but very few witheach other. Thailand, for instance, has bilateral extradition treaties withMalaysia, Indonesia and the Philippines. Manila has only signed such bi-lateral agreements with Thailand and Indonesia. Some regional countries,including Malaysia and Thailand, extend legal cooperation to states withwhich they do not have bilateral treaties through the scope of their ownextradition acts. At a regional level, there is no Southeast Asian extraditionconvention in contrast for example to the 1957 European Convention onExtradition. Extraditions on an ad hoc basis are not widely conducted in theregion and tend to be slow, as judges often attempt to determine the guiltof the respondent during the extradition procedure.

MLATS aim to increase judicial assistance and to regularize and ease itsprocedures. Such treaties involve, among others, the right to summonwitnesses, to compel production of evidence and issue search warrants. FewMLATS are in place in Southeast Asia. For example, Thailand passed in1992 the Act of Mutual Assistance in Criminal Matters that can be appliedto any requesting state and Singapore passed the Insurance (Amendment)Act of 1995 that allows its justice department to assist a foreign authorityin investigating a foreign offence. At a multilateral level, no ASEANconvention on mutual assistance in criminal matters has been signed incontrast to the 1959 European Convention on Mutual Assistance inCriminal Matters. The Philippine Justice Secretary Hernando Perez arguedat the 5th Meeting of the ASEAN Law Ministers in June 2002 that themember countries could greatly benefit from bilateral or multilateralarrangements on mutual legal assistance. No concrete measures wereadopted, however, and the joint communiqué only declared that theASEAN states ‘should establish mechanisms, such as mutual legal assist-ance, in criminal matters and extradition, in order to prevent and combattransnational crime and terrorism’ (ASEAN 2002d).


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Finally, the strengthening of ASEANOPOL could serve as an effectivetool for law enforcement authorities in the investigation of criminaloffences. The first conference of the chiefs of national police was held inManila in October 1981 to support the implementation of rules and regula-tions, promote law enforcement and develop new police methods amongthe member countries. Since its creation, it has been involved in the sharingof intelligence and police expertise and in combating domestic and trans-national crime. ASEANAPOL has set up three ad hoc commissions thatdeal with drug trafficking, arms smuggling, counterfeiting, financial crimes,credit card fraud and the extradition of prisoners. The police chiefs agreedin April 1999 to create a regional anti-crime database on known andsuspected criminals and their activities. Despite these achievements,ASEANAPOL has primarily remained a forum for the regional enforce-ment agencies to meet annually and discuss police matters. ASEAN shouldseek to strengthen ASEANOPOL to improve law enforcement and increasethe exchange of information between Southeast Asian police forces. Thiscould be achieved for instance by setting up liaison offices in the respectiveASEAN countries, which would help identify and arrest suspects. Suchmeasures would contribute to a further criminalization of transnationalcrime in Southeast Asia.

Conclusion

ASEAN has securitized transnational crime since 1996–97, partly inresponse to its enlargement to include Myanmar and Laos. The memberstates have acknowledged the nature of the threat and articulated the issuein security terms. Transnational crime has been portrayed in the communi-qués as a threat to state security and regional stability (military security), tostate sovereignty and the rule of law (political security), to the social andmoral fabrics of Southeast Asian countries (societal security), and toeconomic development (economic security). This has indicated the urgencyof the problem and led to political attention at the highest diplomatic level.The heads of state and government and their foreign ministers have formu-lated a common position and announced at numerous occasions their will-ingness to increase cooperation against this multifaceted problem. Yet, thesecuritization of crime has so far remained a rhetorical device that has notresulted in concrete policy outcomes. ASEAN has failed to implement jointactions due to domestic circumstances, including the role of corruption,vested interests and a lack of resources, but also because of its ownconsensus model and resistance to institutional reforms.

The absence of policy outcomes questions the purpose of securitizingtransnational crime, beyond the objective of giving the impression that adeclaratory anti-crime position is about to be translated into concreteaction. In that respect, this article has challenged the significance of thenotion of ‘securitization’ when it is assessed simply at the declaratory level.



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A security act should instead depend on a language of security thatpersuades an audience of the ostensible threat and on the implementationof measures to address it. ASEAN does not seem to dispose over thepolitical will, joint political instruments and military capabilities to tackletransnational crime as a security concern. Moreover, the problem of crimein Southeast Asia might be dealt with more effectively if it were addressedthrough a deeper criminalization rather than securitization of the issue. Theregion suffers from a lack of sufficient mechanisms and procedures toextradite suspected or convicted criminals, to exchange information andevidence, and to ensure cooperation between law enforcement agencies.These are some of the legal issues that the ASEAN members will need tofocus on to respond to transnational crime in the immediate future.

Acknowledgements

The author wishes to thank Dr Helen Nesadurai and

The Pacific Review

’sanonymous referees for their valuable comments.

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