The Association for Southeast Asian Nations (ASEAN), a coalition of 10 Southeast Asian countries formed to promote regional development and security, will mark its 50th anniversary this year. While ASEAN’s longevity is a cause for celebration, it also calls for creative introspection regarding what it can and should do, according to Southeast Asia Program Director Donald K. Emmerson.

“There is a lot that ASEAN cannot do in its present form, under its present leaders, and in presently China-challenged conditions. Yet no one could objectively scan ASEAN’s first fifty years and conclude that the organization has remained the same – once a cow, always a cow.

“Whatever ASEAN does become, its alternative futures should be considered now, carefully and creatively, while there is still time to prefer one scenario over the others and to follow up with steps that make it more likely,” he writes in a paper featured in the February edition of TRaNS: Trans-Regional and -National Studies of Southeast Asia.

ASEAN, he says, needs to reexamine its goals and consider new means to achieve them, to brainstorm better ways of protecting its region from external control, and to reevaluate the nature and efficacy of the “ASEAN Way,” including its self-paralyzing commitment to unanimity as a precondition for collective action.

That commitment has already been breached for economic policy arrangements that allow a “two-speed ASEAN” to exist, where for less developed members, deadlines for economic reform are postponed, while for all other members, the deadlines remain unchanged. So, why not adapt that idea to regional security initiatives as well?

According to Emmerson, the Southeast Asia region is being threatened by China’s efforts to control land features in the South China Sea for the purposes of projecting coercive power. China uses the ASEAN Way’s requirement of consensus by promising economic support to specific ASEAN members in hopes of coopting them into vetoing any move by ASEAN to counter China’s campaign in the South China Sea.

Abetting China’s expansion, he says, are the rival claims to maritime sovereignty by some of ASEAN’s own members. Their failure to settle their own disagreements precludes the bargaining power that a unified ASEAN might bring to the table in talks with China.

Emmerson, who addressed these matters at Stanford in March, argues that a more innovative ASEAN will lead to a more secure region.

Regarding the South China Sea, for example, ASEAN could encourage an effort by its four claimant members to settle their own differences first by drafting an ASEAN agreement, signing it and presenting it to China to sign as well. Even if China refuses, at least ASEAN would have established a common position among the ASEAN countries most directly concerned.

In the paper, he discusses several ways of restructuring ASEAN. They include:

• ASEAN minus X: A subset of ASEAN members would move ahead on economic or security arrangements with the understanding that the remaining subset would join later.
• ASEAN Pacific Alliance: ASEAN would work with Chile, Colombia, Mexico and Peru to create a coalition that would strengthen ASEAN’s trans-Pacific ties.
• East Asia Summit (EAS): ASEAN would try to elevate this annual gathering of leaders, including China and the United States, into a capstone venue for cooperation on regional security.

Emmerson also urges outside observers to generate innovative policy proposals related to ASEAN and present them for discussion informally or in Track II dialogue formats.

“It’s time for ASEAN watchers to generate ideas for the grouping to consider, including initiatives that could be pursued by one, two or more member countries,” he said in a later interview. “The creative involvement of scholars, journalists, businesspeople and other analysts inside member states could socialize such proposals in local policy circles to make them better known and more feasible.”

In line with this vision, Emmerson is co-organizing a trilateral workshop on ASEAN reform, regional security, infrastructure building and economic regionalism. Hosted by the Shorenstein Asia-Pacific Research Center (APARC) and planned for this fall, it will evaluate proposals on these topics generated or compiled by Shorenstein APARC’s Southeast Asia Program and U.S.-Asia Security Initiative; the S. Rajaratnam School of International Studies in Singapore; and the Strategic and Defense Studies Centre in Canberra. Details about the conference will be posted in the coming months.

The China Guiding Cases Project (CGCP) of Stanford Law School held a seminar at SCPKU on November 22, 2016.  Attended by legal practitioners, officials, academics, and students, the event was keynoted by Judge Guo Feng who oversees work on Guiding Cases of China’s Supreme People’s Court.  Other speakers included Judge Guo Feng’s colleagues, Judge Shi Lei and Judge Li Bing. The three judges explained, among other issues, the consideration of factors including “social effects” in the selection of Guiding Cases.  CGCP is planning another seminar to be held at SCPKU in Spring 2018.  Read more. 

Stanford scholars are encouraging the new administration to consider steps to alleviate the uncertainty and anxiety felt by countries in East Asia about U.S. intentions toward the region.

President Donald Trump’s anti-China rhetoric during his campaign and his recent withdrawal of the U.S. from the Trans-Pacific Partnership have contributed to the unease in the region, which is drifting in ways that are unfavorable for American interests, they said.

Stanford’s Walter H. Shorenstein Asia-Pacific Research Center (APARC) recently published a 27-page report with recommendations on topics of trade and defense that would improve relations between the U.S. and Asian countries. The report, co-authored by eight Stanford scholars, is aimed to help shape U.S. policies in the region.

“The advent of any new administration provides an opportunity to reassess policy approaches,” wrote Gi-Wook Shin, director of the Shorenstein center. “A new mandate exists, and it is our hope that that mandate will be used wisely by the new administration.”

Trade and defense

The biggest trade concern for experts in the region is President Trump’s decision to withdraw the U.S. from the Trans-Pacific Partnership (TPP) and his intention to focus on bilateral agreements instead of multinational pacts.

The agreement, which bound 12 countries in the region by a set of international trade and investment rules, had problems, Stanford scholars said. For example, some have criticized the treaty for not requiring full compliance with international labor standards for all the participating countries. Also, the rules of origin, which were supposed to give preferential treatment to countries in the TPP, were deemed to be weak by many, allowing goods produced outside the TPP to receive benefits.

But it would not be wise or efficient for the U.S. to start negotiations from scratch in the region because the U.S. withdrawal from the agreement, which was touted as a model for the 21st century, already has hurt its credibility with other Asian countries, said Takeo Hoshi, director of the Japan Program at the Shorenstein Center. In addition, Asian countries view the idea of bilateral agreements as an attempt to force trade deals on them that disproportionately benefit the U.S., he said.

“The TPP was not perfect and many problems remain, but they are not removed by abandoning the TPP,” Hoshi wrote in the report. “Completely abandoning the TPP could hurt not only the U.S. economy but also erode U.S. leadership in Asia.”

Hoshi said the U.S. should rely on aspects of TPP that are consistent with the current U.S. trade policy when creating new bilateral agreements, while maintaining and improving existing free trade agreements with other Asian countries.

Another immediate concern for scholars is the maintenance of security and stability in the region.

“The region is unsettled because of uncertainty about us,” said Thomas Fingar, a Shorenstein APARC fellow. “The U.S. has long served as the guarantor of prosperity and security in the region but Asians are no longer convinced that we have the will or ability to do so. This has real consequences … It’s not simply because they are already beginning to act as if we intend to play a less active or positive role.”

If China’s national power and economy continue to expand, it will become increasingly difficult to maintain stability in the region if the U.S. does not continue to play a constructive role. Possible dangers include escalation of tensions between China and the U.S. or its allies following accidents or tactical encounters near areas over which China claims sovereignty.

In the report, scholars recommend a comprehensive review of security in the region to make sure military plans are in place that prioritize management of a possible collapse of North Korea or a sudden military strike coming from the country. Other priorities should include peaceful resolution of China-Taiwan differences and ensuring military access in the South China Sea and East China Sea, wrote Karl Eikenberry, director of the U.S.-Asia Security Initiative at the Shorenstein Center.

“The United States also should engage in a more long-range, exploratory strategic dialogue, first with allies and partners, and then with Beijing, to identify potential areas of mutual interest that can help prevent the unintended escalation of conflicts and reduce already dangerous levels of misperception and mistrust on both sides,” Eikenberry wrote.

China is key

Maintaining a peaceful, productive relationship with China should be of the utmost importance for the U.S., according to the Stanford scholars.

“Managing America’s multifaceted relationship with China is arguably the most consequential foreign policy challenge facing the new administration,” Fingar said.

Although President Trump’s anti-China rhetoric during his campaign made Asian countries anxious about the future, China has been criticized by many American leaders before. Ten previous U.S. presidents were critical of China during their campaigns, but once they assumed office, their tone changed and they adopted a more pragmatic view of U.S. interests in the area, Fingar wrote.

However, while in the past China’s political moves have been predictable for the most part, now that its economy is slowing, the country is increasingly relying on social control and nationalism to reinforce regime legitimacy. This makes China less predictable, according to Fingar.

But the scholars say that there are several opportunities to approach the relationship with China in a way that is beneficial for the U.S. and the rest of the region.

One such opportunity would be for the U.S. to declare its willingness to join China’s newly created Asian Infrastructure Investment Bank, which was formed in early 2016 to support construction projects in the Asia-Pacific region. This would be an “any outcome we win” opportunity that would showcase the U.S. desire to cooperate with China and help establish the region’s confidence in the U.S., Fingar said.

The new administration should also consider pushing for a quick completion of a Bilateral Investment Treaty with China – something that two previous U.S. administrations were not able to achieve. Creating this agreement would help protect things that are important to the U.S. businesses and reassure the willingness of the U.S. to deepen its relationship with China, according to Fingar.

“In my view, how we’re going to establish or reestablish relations with China is key,” Shin said. “Will there be more tension? That’s really important. This affects not only the U.S., but also our allies in the region.”

Alex Shashkevich is a writer for the Stanford News Service.

A hot springs summit between Japanese Prime Minister Shinzo Abe and Russian President Vladimir Putin next week hopes to solve the 70-year-old dispute over an isolated string of islands that Russian and Japanese nationalists both claim as their own, according to Daniel Sneider, associate director for research at the Shorenstein Asia-Pacific Research Center.

Read the commentary piece in Foreign Policy here.

Speaking at the Shorenstein Asia-Pacific Research Center on Tuesday, U.S. Secretary of the Navy Ray Mabus underscored the importance of partnerships in the Asia-Pacific region and need for an adaptable force to meet the rapidly changing security environment around the world.

Mabus began by recognizing William J. Perry, a Stanford emeritus professor and former U.S. secretary of defense, with a Distinguished Public Service Award for his exceptional record of public service and collaboration on alternative energy initiatives, and set the stage for a conversation on innovation in the Navy and Marine Corps.

Throughout his remarks, Mabus highlighted the challenges of preparing for today’s security landscape and offered examples of how the Navy engages them.

The Navy must not be complacent in its ways, he said, especially in a context of eroding trust in multilateral institutions, unpredictable threats, and increasing competition for resources as sea levels rise.

“You’re not going to be able to tell what those next threats are. You never will. But what you can do is make sure that whatever they are you can respond,” he said. “You’ve got to be flexible.”

Mabus, who has led the Navy administration for the past seven years, said four “Ps” – people, platforms, power and partnerships – have guided his approach to improve force capabilities and rapid-response time.

Reviewing his own record as secretary, he cited updates to policies that extend family leave time, boost diversity in the force, and explore alternative energy sources for Navy aircraft and ships, including the earlier launch of the “Great Green Fleet,” a carrier strike group that uses biofuels.

Partnerships in Asia

Implementing the U.S. rebalance to Asia strategy has been a focus of the Navy’s interaction in the region.

“We’re doing it diplomatically, we’re doing it economically, we’re doing it in every region that we as a government are active in,” said Mabus, who formerly served as U.S. ambassador to Saudi Arabia and governor of Mississippi.

Sixty percent of the United States naval presence is located in the Asia-Pacific region and it is poised toward growth, Mabus said. Three more guided missile destroyers will be stationed in Japan and be "on station when North Korea launches one of its missiles," he said.

“If something does happen, if a crisis does erupt, we’re already there,” Mabus said, emphasizing the importance of force readiness.

Responding to crises effectively, however, requires an awareness and interoperability between many countries, he said. To practice and prepare, around 500 naval exercises occur between the United States and other countries each year, including Malabar, a trilateral exercise between India, Japan and the United States, and the biannual 27-nation Rim of the Pacific “RIMPAC” exercise, which China joined last year.

South China Sea issues

Answering a question from the audience about fortifications being built by China on land features in the South China Sea, Mabus said, “We don’t think any one country should try and change the status quo.”

Mabus reaffirmed the United States’ commitment to both sail and fly over the land features in accordance with international law. The American naval presence in the region has been there for 70 years and will remain steadfast, he said.

He noted the importance of upholding international law and warned of the dangers of setting a precedent of reinterpreting the U.N. Convention on the Law of the Sea regarding the South China Sea, attempting to do so would have “a really dramatic impact, not just there, but around the world."

A main goal for the U.S. Navy is to continue engagement between China and the United States, he said. The two countries already collaborate on a number of bilateral measures, such as scheduled passing exercises and visits by the navies to each other’s ports of call.

“What we want China to do is to assume the responsibilities of a naval power, to work with us, and to make sure that freedom of navigation is ensured.”

Gi-Wook Shin, a Stanford professor of sociology and director of Shorenstein APARC, concluded the event by thanking Mabus, and recognized the secretary’s friendship with the late Walter H. Shorenstein, after whom the center was named.

International fact-finding reports on issues like war crimes suffer from too much legal jargon and a counterproductive culture of blame, a Stanford legal scholar says.

Rather than let “legal discourse” dominate such reports, international fact-finding agencies should use clearer language in such documents, allowing these institutions to tell a more complex, multifaceted and socially accessible story, wrote Shiri Krebs of Stanford Law School in a new working paper.

In recent years, Krebs points out, international fact-finding has become a popular response to armed conflicts and political violence around the world. For her research, she conducted two survey experiments in 2013 and 2014 of nationally representative samples of 1,000 to 2,000 Americans while also compiling and analyzing a dataset of U.N. fact-finding missions.

Krebs said, “Legal discourse is ineffective in resolving factual disputes, disseminating controversial information and creating a shared narrative of ‘what happened,’ as well as in mobilizing public opinion and influencing attitudes on sanctioning in-group offenders and on reparations for out-group victims.”

Krebs is a Law and International Security Fellow at the Stanford Center for International Security and Cooperation, as well as the Christiana Shi Stanford Interdisciplinary Graduate Fellow in International Studies at Stanford Law School. Her study is also supported by the Stanford Laboratory for the Study of American Values.

Krebs said her research shows that the writing techniques in legal discourse – “binary legal judgment, ‘hot’ legal terminology and legal framing” – harms the perceived credibility and persuasive value of fact-finding reports.

Framing refers to the process by which people develop a particular conceptualization of an issue or reorient their thinking about an issue.

The most surprising findings of the study for Krebs were witnessing the intense polarizing effect of legal judgments on people’s beliefs about military actions, depending on their political and ideological views, as well as realizing just how much “legal framing” doesn’t matter in shaping attitudes on accountability.

Instead, a “moral framing” of the incident would have been a better way to get the public involved in holding those responsible for alleged war crimes accountable, Krebs said.

“Using a moral frame is more effective than a legal frame in influencing attitudes on accountability and mobilizing public support to prosecute U.S. war criminals and to compensate Afghan victims,” she said in an interview.

One of the incidents Krebs studied involved the U.S. gunship attack on a Doctors Without Borders hospital in Kunduz, Afghanistan, on Oct. 3, 2015, where 42 people, mostly patients and hospital staff members, were killed.

She said that in the days and months following the attack, several investigations were carried out by the U.S. military, NATO, the U.N. Assistance Mission in Afghanistan and Doctors Without Borders.

“However, the multiple fact-finding efforts failed to resolve the controversies concerning what happened. The decision to describe the events using a legal language – such as ‘war crimes’ and ‘criminal responsibility’ – shifted the focus of attention from the impact of the attack on medical services in conflict zones, the suffering of the victims of the attack or the organizational structures that enabled the attack to occur, to intense legal debate between legal scholars and practitioners concerning the applicable law,” Krebs said.

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‘Legalization of truth’

Krebs’ research built on studies from three disciplines – law, psychology and political science. She is concerned about what she describes as “an increasing ‘legalization of truth’ phenomenon,” defined as when agencies adopt legal terminology and jargon to “construct and interpret facts outside the courthouse.” It is not necessary and sometimes not productive to do so, she believes.

Such an approach lacks the emotional appeal and ability to focus public attention on problems that moral expressions or other types of social truth-telling entail, she said. Using a legal frame only conveys to the audience the legal context of what happened – not the human element that people can relate to and rally behind.

While some may view the law as objective and uniform, Krebs said, many people have negative attitudes toward lawyers and perceive their language to be overly technical and manipulative. Simply, most people become less engaged in a public debate once it is framed in legal wording, partly because they don’t understand the legal nuances, and partly because they think lawyers can manipulate the truth to fit their clients’ needs.

In contrast, she said, people tend to better understand and engage in conversations about morality – “it allows for a more complex variation and a more versatile spectrum between right and wrong, true and false.”

Improving fact-finding

International agencies can make the fact-finding report process more efficient by considering other types of discourse, Krebs said.

“A broader, non-legalistic interpretation of truth, such as a narrative, social or restorative truth, may be better suited to contribute to a collective narrative of contested events, create a ‘shared history’ and disseminate otherwise threatening facts,” she said.

Krebs points out that scientific and medical literature concludes that the threat of judicial involvement is enough to prevent people from coming forward with information about an incident that they were involved in.

“Judicial involvement can, therefore, engender a climate of fear and silence, in which it can be difficult, if not impossible, to get access to information that may be critical to finding out what happened and to prevent similar errors in the future,” she said.

And so, in situations where people are reluctant to report and disclose information, agencies should promote “blame-free alternatives to legal fact-finding,” which could, potentially, motivate individuals to share information and experiences openly, Krebs said.

She said the attack on the Kunduz hospital is only one recent example of the impact of legalization of truth on public debates; “legal discourse influences our public domain and our conversations concerning many other controversial social issues.”

CISAC senior fellow Scott Sagan decodes the enduring lessons and secret messages hidden in the hauting battlefield drawings of the Lakota Chief known as Red Horse, who fought against Lt. Col George Custer and his Seventh Cavalry forces during their infamous defeat in 1876, in this story for the New York Times' Sunday Review section.