Consensus makes it difficult for ASEAN to become an independent and
effective institution that disputants look to in a third party. Even if it is achievable,
consensus often requires a lengthy process of negotiation, and thus may not help to
resolve disputes in a timely manner. Meanwhile, quickly escalating disputes may
undermine regional peace, and therefore cannot wait until consensus arises.
There are ways to modify the consensus rule or to add more flexibility to the rule
without having to revise the ASEAN Charter. Article 20 of the ASEAN Charter states
that ‘‘[n]othing shall affect the modes of decision-making as contained in the relevant
ASEAN legal instruments’’. This means that ASEAN may conclude a specific
instrument to offer a new way of making decisions, as it has done with the 2004
Protocol on Enhanced Dispute Settlement Mechanisms for economic disputes. The
negative consensus rule of the 2004 Protocol means that the ACC will automatically
decide to ‘‘direct’’ the parties to resolve their disputes unless there is a consensus not
to do so. Article 20(2) of the ASEAN Charter further provides that ‘‘[w]here
consensus cannot be achieved, the ASEAN Summit may decide how a specific
decision can be made’’. If consensus by all ten Member States proves infeasible,
ASEAN could make decision by using, for instance, the consensus minus X formula.
This means that ASEAN could still retain its consensus rule, but the rule is only
applicable to Member States that are not party to a dispute. In other words,
Cambodia and Thailand would still attend ASEAN’s meetings and make their
statements, but ASEAN’s decision could be considered as adopted as long as the
other eight members agree. Such an adjustment in ASEAN’s decision-making process
with regard to dispute settlement and management will hopefully increase the
effectiveness of ASEAN and thereby further ASEAN’s contribution to maintaining