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Problems Concerning the International Law-Making Practice of ASEAN: A Reply to Chen Zhida

  • Daniel SEAH (a1)
Abstract

The separate legal personality of ASEAN, an international organization, is a matter of some significance. ASEAN is capable of separate action and can carry rights and obligations on the international plane, as a distinct entity from its Member States. In this Journal, Chen Zhida advances the proposition that ASEAN is entitled to conclude treaties on behalf of its Member States, a practice which, it is argued, should be valid at international law. This paper responds by drawing attention to the difficulties with this argument on technical and conceptual grounds. For technical reasons, it is important to make a meaningful distinction in the ASEAN practice of concluding instruments such as Memoranda of Understandings, which can be distinguished from treaties. At a conceptual level, the treaty practice of ASEAN as a separate legal person must be based on what was consented to by Member States in the ASEAN Charter, a constituent instrument.

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PhD candidate, UCL Faculty of Laws.

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1. This term is widely used in the context of business model innovation; see JOHNSON, Mark W., Seizing the White Space (Business Model Innovation for Growth and Renewal) (Boston, MA: Harvard Business Press, 2010).

2. For a recent example, see ROBERTS, Anthea, “Clash of Paradigms, Actors and Analogies Shaping the Investment Treaty System” (2013) 107 American Journal of International Law 45. Roberts explores how an investment treaty can be interpreted by different legal actors through different paradigms (international law, public law, international commercial arbitration, for instance), which can result in conflicting outcomes on controversial issues because each paradigm carries different assumptions.

3. See BOYLE, Alan and CHINKIN, Christine, The Making of International Law (Oxford: Oxford University Press, 2007), especially at 98–160 and 172.

4. See JOHNS, Fleur, SKOUTERIS, Thomas, and WERNER, Wouter, “Editor's Introduction: India and International Law in the Periphery Series” (2010) 23 Leiden Journal of International Law 1; STAHN, Carsten and BRABANDERE, Eric DE, “The Future of International Legal Scholarship: Some Thoughts on ‘Practice’, ‘Growth’, and ‘Dissemination’ ” (2014) 27 Leiden Journal of International Law 1 at 5.

5. See CRAVEN, Matthew, “What Happened to Unequal Treaties? The Continuities of Informal Empire” in Matthew CRAVEN and Malgosia FITZMAURICE, eds., Interrogating the Treaty (Essays in the Contemporary Law of Treaties) (The Netherlands: Wolf Legal Publishers, 2005), 43. Compare the rejoinder to Craven by Anthony AUST, “Unequal Treaties: a Response” in Craven and Fitzmaurice, ibid., at 81–5.

6. See NOLTE, Georg, “Introduction” in Georg NOLTE, ed., Treaties and Subsequent Practice (Oxford: Oxford University Press, 2013), at 6. But see Sir Michael Wood's remarks on the value of “learned articles” in International Law Commission, “Provisional Summary Record of the 3139th Meeting”, UN Doc.A/CN 4/SR 3139 (2012) at 13.

7. Zhida, CHEN, “ASEAN and its Problematic Treaty-Making Practice: Can International Organizations Conclude Treaties ‘On Behalf of’ Their Member States?” (2014) 4 Asian Journal of International Law 391.

8. The ASEAN Charter, art. 3, January 2008, online: ASEAN Charter <http://www.asean.org/archive/publications/ASEAN-Charter.pdf>.

9. Vienna Convention on the Law of Treaties Between States or International Organizations or Between International Organization, UN Doc. A/CONF.129/15 (1986), art. 2(1)(g): a state or international organization which has consented to be bound by the treaty and for which the treaty is in force.

10. In this paper, “normative” means all norms (including but not limited to rules, principles, and guidelines) which are based on shared understandings that shape state behaviour and can be assessed by reference to legality. See BRUNEE, Jutta and TOOPE, Stephen, Legitimacy and Legality in International Law (An Interactional Account) (Cambridge: Cambridge University Press, 2010), especially at 350–2.

11. On its origins and relevance, generally see ACHARYA, Amitav, Constructing a Security Community in Southeast Asia: ASEAN and the Problem of Regional Order (Oxford: Routledge, 2009), especially chapter 2.

12. See KATSUMATA, Hiro, “Reconstruction of Diplomatic Norms in Southeast Asia: The Case for Strict Adherence to the ‘ASEAN Way’ ” (2003) 25 Contemporary Southeast Asia 104 at 107.

13. This was one of the aims which established ASEAN. See second declaration of the 1967 Bangkok Declaration, (1983) 1331 U.N.T.S. 235, which states: “to promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries of the region and adherence to the principles of the United Nations Charter.”

14. Generally see CRAWFORD, James, “International Law as Discipline and Profession” (2012) 106 Proceedings of the Annual Meeting (American Society of International Law) 471 at 472.

15. For this view as a general proposition, see Crawford, ibid.

16. Chen, , supra note 7 at 413.

17. See WARBRICK, Colin, “States and Recognition in International Law” in Malcolm EVANS, ed., International Law, 2nd ed. (Oxford: Oxford University Press, 2006), 217 at 218.

18. That states alone create the law and retain freedom of action unless there is a positive law restriction: S.S. “Lotus” (France v. Turkey), [1927] P.C.I.J. Series A, No 10 at 18.

19. Legality of Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, [1996] I.C.J. Rep. 78 at 25.

20. As defined in Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980) [Vienna Convention], art. 2(1)(a): an “international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” Throughout this paper, I use the word “treaty” to include international agreements.

21. Unless otherwise indicated, the word “Charter” throughout this paper refers to the ASEAN Charter.

22. Inspired by CRAWFORD, James, “A Consensualist Interpretation of Article 31(3) of the Vienna Convention on the Law of Treaties” in George NOLTE, ed., Treaties and Subsequent Practice (Oxford: Oxford University Press, 2013), at 29.

23. In this paper, the term “instrument” is used in a generic sense to refer to both treaties (which are governed by international law) and non-binding instruments including but not limited to Memoranda of Understanding.

24. See detailed discussion in Section II below.

25. Vienna Convention, supra note 20. The Vienna Convention reflects customary international law; see especially Gabčíkovo Nagymaros Project (Hungary/Slovakia), Judgment, [1997] I.C.J. Rep. 7.

26. For an interactional account of how international legal obligations are generated and maintained, see Brunee and Toope, supra note 10.

27. For an elegant account of this approach in general, see Boyle and Chinkin, supra note 3 at 160–2.

28. Chen, supra note 7 at 393 and 419.

29. Ibid., at 393 and 401.

30. Ibid., at 413–19.

31. Ibid., at 401–13.

32. 21 March 1986, UN Doc. A/CONF.129/15, 25 I.L.M. 543 (not in force) [1986 Convention].

33. That is, 15 December 2008.

34. Chen, supra note 7 at 392.

35. Ibid.

36. Ibid., at 392–3 (emphasis added).

37. Ibid. at 393 (emphasis added).

38. Ibid. (emphasis added).

39. This is non-exhaustive and in no particular order.

40. Chen, supra note 7 at 416 and 418.

41. See my discussion in Section III(a) below.

42. Chen, supra note 7 at 400–1.

43. Ibid., at 395 and 401.

44. Ibid., at 398 (emphasis added).

45. Ibid., at 398 (emphasis added).

46. Ibid., at 397–8.

47. Ibid., at 399–400.

48. Ibid., at 399.

49. Ibid., at 393 and 400.

50. Ibid., at 412–13 (emphasis added).

51. Ibid., at 418 (emphasis added).

52. Ibid. (emphasis added).

53. Generally see James CRAWFORD, “Holding International Organizations and their Member States to Account” (2007) Fifth Steinkraus-Cohen International Law Lecture, online: <http://www.unawestminster.org.uk/pdf/crawford_lecture.pdf>.

54. Also see the preambles of the 1986 Convention, supra note 32.

55. 1986 Convention, supra note 32, art. 2(1)(j).

56. This is the purpose of mixed agreements, which refer to the joint conclusion of a treaty by the EU and its Member States. Where the EU lacks exclusive competence in all areas of a treaty to which it is a party, Member States would conclude the same treaty in parallel as a party in their individual capacities as independent sovereign states—thus a “mixed” agreement. Generally see HILLION, Christophe and KOUTRAKOS, Panos, eds., Mixed Agreements Revisited (Oxford: Hart Publishing, 2010).

57. Compare Chen, supra note 7 at 416 and 418. Also see remarks made in 1973 by the Special Rapporteur Paul Reuter in Second Report on the Question of Treaties Concluded Between States and International Organizations or Between Two or More International Organizations, UN Doc. A/CN.4/271 (1973), I.L.C. Yearbook, Vol. II at 92, para. 103.

58. But see Chen, supra note 7 at 400.

59. See Responsibility of International Organizations (Comments and Observations Received from International Organizations), 14 February 2011, UN Doc. A/CN.4/637, at 37, para. 1.

60. Ibid. (emphasis added).

61. 30 March 2010, OJ 2010 C83/01.

62. Ruling 1/78 Re Convention on the Physical Protection of Nuclear Weapons, Facilities and Transports [1978] E.C.R. 2151.

63. Re Convention No 170 of the ILO, Opinion 2/91, [1993] E.C.R. I-1061, at paras. 36–8.

64. i.e. the Common and Foreign Security Policy (CFSP) under chapter 2 TEU.

65. See Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (Report of the Study Group of the International Law Commission), UN Doc. A/CN.4/L.682 (2006); CRAWFORD, James, Brownlie's Principles of Public International Law (Oxford: Oxford University Press, 2012) at xviii–xix. On recent challenges to the coherence of international law, see Joined Cases C-584/10 P, C-593/10 P and C-595/10 P European Commission and Others v. Yassin Abdullah Kadi, (18 July 2013) (Grand Chamber), para. 87; also see CARDWELL, Paul James, FRENCH, Duncan, and WHITE, Nigel, “Yassin Abdullah Kadi” (2009) 58 International and Comparative Law Quarterly 229.

66. Crawford, supra note 14 at 476.

67. Ibid.

68. See Section III(a) below.

69. Chen, supra note 7 at 401, 416, and 418.

70. These questions are addressed in Section III below.

71. See KLABBERS, Jan, The Concept of Treaty in International Law (The Hague: Kluwer Law International, 1996), and “Not Revisiting the Concept of Treaty” in Alexander ORAKHELASHVILI and Sarah WILLIAMS, eds., 40 Years of the Vienna Convention on the Law of Treaties (London: B.I.I.C.L., 2010) 29; cf. AUST, Anthony, Modern Treaty Law and Practice, 3rd ed. (Cambridge: Cambridge University Press, 2013) at 4653.

72. Aust, ibid., at 47.

73. i.e. Memorandum of Understanding Between the ASEAN Secretariat and Secretariat of the United Nations Economic and Social Commission for Asia and the Pacific, 2 January 2002; Memorandum of Understanding Between the ASEAN Secretariat and Secretariat of the Shanghai Cooperation Organization, 21 April 2005; Memorandum of Understanding Between the Secretariat of the Association of Southeast Asian Nations and Secretariat General of the Cooperation Council for the Arab States of the Gulf, 30 June 2009.

74. I am conscious that Chen had instanced instruments for review, which serve as examples and are (probably) non-exhaustive. My approach in this section is to: (i) confine my analysis to his examples, wherever possible; and (ii) use my own examples to illustrate the wider implications of Chen's arguments, which result from his specific examples.

75. Chen, supra note 7 at 397, ftn 32.

76. See preambles of the 2002, 2005, and 2009 MOUs, supra note 73.

77. Chen, supra note 7 at 397, ftn 32: i.e. Cooperation Agreement Between the Association of Southeast Asian Nations (ASEAN) Secretariat and the International Labour Office, 20 March 2007.

78. Ibid., art. 3.

79. Ibid., arts. 1 and 4.

80. Ibid., art. 1.

81. Ibid., art. 7.

82. Ibid.

83. Chen, supra note 7 at 398, ftn 36: i.e. Memorandum of Understanding Between the Association of Southeast Asian Nations (ASEAN) Secretariat and the Ministry of Agriculture of the People's Republic of China on Agricultural Cooperation, 2 November 2002; Memorandum of Understanding Between the Association of Southeast Asian Nations (ASEAN) Secretariat and the Ministry of Agriculture of the People's Republic of China on Agricultural Cooperation, 14 January 2007.

84. See preambles of both MOUs, ibid. However, the 2007 MOU used the term “Member Countries” instead of “Member States”.

85. Chen, supra note 7 at 398.

86. See preambles of both MOUs, supra note 83.

87. For instance, the MOU between the UK and the US concerning the Transfer of Technical Data Relating to the JT-10D Jet Engine Collaboration Agreement to Third Countries (1976) 1068 U.N.T.S. 437.

88. Generally see Aust, supra note 71 at 29–34.

89. Supra note 83.

90. See art. II of both MOUs (under “Areas of Cooperation”), supra note 83.

91. Art. II(8) of both MOUs, supra note 83 (emphasis added).

92. North Sea Continental Shelf Cases, [1969] I.C.J. Rep. 3 at 71.

93. Letter by Clayton YEUTTER (policy adviser to President George H.W. Bush) to Representative John Dingell, Chair of the House Energy and Commerce Committee, quoted in Rose GUTFIELD, “How Bush Achieved Global Warming Pact with Modest Goals” (1992) Wall Street Journal at A1. Generally see Boyle and Chinkin, supra note 3 at 220–1.

94. See penultimate section at the end of both MOUs on agricultural co-operation, supra note 83.

95. See chapter IV (Organs), The ASEAN Charter, supra note 8, art. 11.

96. i.e. this appeared in the preamble, supra note 84.

97. Supra note 83 (emphasis added).

98. On the lack of care in drafting MOUs because it is not regarded as requiring the same close attention as drafting treaties, see Aust, supra note 71 at 45–6.

99. Especially under the general (and now customary) rule of interpretation under art. 31 of the Vienna Convention.

100. Supra note 83.

101. Ibid.

102. See arts. IX of both MOUs, supra note 83.

103. Chen cited six (possibly non-exhaustive) examples, supra note 7, ftn 37 at 398. They are: Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Transport Cooperation, 27 November 2004; Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Cultural Cooperation, 3 August 2005; Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the World Organization for Animal Health (OIE) on Technical Cooperation, 3 June 2008; Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Cooperation in the Field of Non-Traditional Security Issues, 10 January 2004; Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Cooperation in the Field of Non-Traditional Security Issues, 18 November 2009; Memorandum of Understanding Between the ASEAN and the Government of the People's Republic of China on Strengthening Sanitary and Phytosanitary Cooperation, 20 November 2007.

104. The exception in this third category is the MOU with the World Organization for Animal Health, 2008 (ibid.), whose preamble says: “the governments of the Member Countries of the association of Southeast Asian Nations (ASEAN), hereinafter referred to individually as ‘Member Country’ or collectively as ‘ASEAN’ duly represented by its Secretary General of the ASEAN Secretariat …” (emphasis added).

105. This is the preamble of the MOU on Phytosanitary Cooperation, 2007, supra note 103 (emphasis added).

106. Chen, supra note 7 at 398.

107. Ibid., at 398–9.

108. Supra note 103.

109. See reference to “Parties” in the preambles of both MOUs, supra note 103.

110. See the Montevideo Convention (Convention on the Rights and Duties of States), 26 December 1933, 165 L.N.T.S. 19 (entered into force 26 December 1934), art. 1, which is accepted as declaratory of customary international law.

111. Contrast the consistent reference to “Member States” in the free trade agreements, which I discuss below.

112. Contrast Chen's views on the MOU with the World Organization for Animal Health (2008): “One of the treaties even expressly provided for obligations of Member States which were separate and distinct from the obligations of the ASEAN Secretariat”, supra note 7.

113. Para. 2(4), supra note 103.

114. Supra note 103.

115. See art. 2(3)(b) of both MOUs, supra note 103 (emphasis added).

116. Art. 8 of both MOUs, supra note 103.

117. See Chen, supra note 7 at 392, 413, 416, 418, and especially 419.

118. See DENZA, Eileen, “Responsibility of the European Union in the Context of Investment” in Malcolm EVANS and Panos KOUTRAKOS, eds., The International Responsibility of the European Union (European and International Perspectives) (Oxford: Hart Publishing, 2013), at 215.

119. See Chen, supra note 7 at 407 and 419.

120. Ibid., at 401, 416, and 418.

121. See Chen's analysis of ASEAN's problematic practice, supra note 7 at 396–401.

122. For a discussion of enforcement as a multifaceted concept, see BRUNEE, Jutta, “Enforcement Mechanisms in International Law and International Environmental Law” (2005) 1 Environmental Law Network International Review at 113.

123. Ibid., at 3.

124. Ibid., at 9.

125. This was endorsed by the International Court of Justice on numerous occasions: for a recent example, see para. 47, Gabčíkovo Nagymaros Project (Hungary v. Slovakia) [1997] I.C.J. Rep. at 39. Now see International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts (2001), which was taken note of and the text reproduced in GA Resolution 56/83 (12 December 2001). I refer throughout to these articles as ARS [ARS].

126. Draft Articles on the Responsibility of International Organizations, with commentaries, UN Doc. A/66/10 (2011): I use the words “draft articles” throughout this paper, although the General Assembly dropped the word “draft” when they took note of the International Law Commission's work in its resolution, at para. 3.

127. For a criticism of the distinction between primary and secondary rules of international law, see CARON, David, “The ILC Articles of State Responsibility: The Paradoxical Relationship between Form and Authority” (2002) 96 American Journal of International Law 857 at 870–2.

128. Generally see PRONTO, Arnold and WOOD, Michael, The International Law Commission (1999–2009) (Volume IV: Treaties, Final Draft Articles, and other Materials) (Oxford: Oxford University Press, 2010) at 129.

129. The draft articles on the responsibility of international organizations are controversial and do not reflect customary international law. See Responsibility of International Organizations (Comments and Observations Received from International Organizations), supra note 59.

130. ARS (2011), supra note 125, art. 2; Draft Articles on Responsibility of International Organizations, supra note 126, art. 4.

131. Pronto and Wood, supra note 128 at 143.

132. Barcelona Traction Case, [1970] I.C.J. Rep. 3 at 32, para. 33; East Timor (Portugal v. Australia), Judgment, [1995] I.C.J. Rep. 90 at 102, para. 29.

133. Agreement Establishing the ASEAN-Australia New Zealand Free Trade Area, 27 February 2009 [AANZFTA] (emphasis added) (note: this treaty was signed after the Charter's entry into force).

134. For clarity and to facilitate the discussion below, I call this “Word 1”.

135. I call this “Word 2”.

136. Agreement on Trade in Goods of the Framework Agreement on Comprehensive Economic Cooperation Between The People's Republic of China and the Association of Southeast Asian Nations, 29 November 2004 (emphasis added).

137. AANZFTA, supra note 133.

138. I explain the implications of ASEAN acting in a co-ordinative sense below.

139. i.e. “Word 1”, supra note 134.

140. i.e. “Word 2”, supra note 135.

141. Supra note 136.

142. i.e. “Word 2”, supra note 135.

143. The 2004 treaty is concluded in English but a Chinese text is available for reference. Chinese and English texts are available online: <http://fta.mofcom.gov.cn/topic/chinaasean.shtml>.

144. i.e. “Word 1”, supra note 134.

145. i.e. “Word 2”, supra note 135.

146. In short, the AANZFTA did not adopt this sentence “collectively, ASEAN, or ASEAN Member States or individually ASEAN Member State”.

147. AANZFTA, supra note 133.

148. For instance, this practice was reprised in the preamble of the Agreement on Dispute Settlement Mechanism Under the Framework Agreement on Comprehensive Economic Cooperation Between the Association of Southeast Asian Nations and The Republic of India, 13 August 2009 [Dispute Settlement Treaty].

149. In contrast to the Dispute Settlement Treaty, ibid., the preambles of two other cognate treaties of 2009 between India and ASEAN used the older, prolix preamble of the 2004 Treaty between ASEAN and China (supra note 136): see Agreement on Trade in Goods Under the Framework Agreement on Comprehensive Economic Cooperation Between the Association of Southeast Asian Nations and The Republic of India, 24 October 2009; and Protocol to Amend the Framework Agreement on Comprehensive Economic Cooperation Between the Republic of India and the Association of Southeast Asian Nations, 13 August 2009.

150. Adopted by the ASEAN Coordinating Council (i.e. ASEAN foreign ministers) on 17 November 2011 [2011 Rules].

151. Under Rule 2 of the 2011 Rules, the term “international agreement by ASEAN” means: “any written agreement, regardless of its particular designation, governed by international law … .” In other words, this is a “treaty” as defined under art. 2(1)(a) of the Vienna Convention (supra note 25), a term which I continue to use here for consistency.

152. Rule 2, supra note 150.

153. Rule 1(2) (emphasis added).

154. As reflected in the “ASEAN Minus X” formula (a variable geometry approach): see Declaration on ASEAN Economic Community Blueprint (2007), especially paras. 21(ix), 22(a), and 72(v) at 11, 12, and 27. On the development gap of ASEAN Member States, generally see Sanchita BASU DAS, “Enhancing Regional and Sub-Regional Cooperation and Connectivity in ASEAN” (2013) Institute of Southeast Asian Studies Working Paper 3, online: ISEAS <http://www.iseas.edu.sg/documents/publication/iseas_working_paper_sanchita_basu_das.pdf>.

155. See Annex 1 of 2004 Treaty, supra note 136.

156. ARS, supra note 125, art. 1.

157. But ARS, supra note 125, art. 55, reflects the residual nature of the secondary rules of state responsibility by allowing states to create special rules, which would then not determine the extent and the conditions for the existence of an internationally wrongful act.

158. See chapter IV (Organs), The ASEAN Charter, supra note 8, art. 9.

159. AANZFTA, chapter 16, supra note 133, art. 1(6). Also see their role under the “institutional arrangements” provisions of the Framework Agreement on Comprehensive Economic Cooperation Between The People's Republic of China and the Association of Southeast Asian Nations, 4 November 2002, art. 16.

160. i.e. Draft Articles on International Responsibility of International Organizations (2011), supra note 126.

161. Although the MOUs on technical co-operation as discussed above are not likely to be affected by the draft articles: see commentary of draft articles, supra note 126 at para. 15 at 10–11.

162. Art. 6, Draft Articles on International Responsibility of International Organizations, supra note 126.

163. For clarity, this is a reference to an agent (i.e. a representative) of ASEAN. It is distinct from the agency argument by Chen, which argued that ASEAN is acting as an agent of its Member States in concluding agreements.

164. See commentary of draft articles, supra note 126, paras. 3–6 at 18.

165. Ibid.

166. But arts. 17–19 of the Charter accord broad immunities to ASEAN and it is, therefore, unlikely to be sued on many matters in the domestic courts of its Member States. Also see 2009 Agreement on the Privileges and Immunities of the Association of Southeast Asian Nations, 25 October 2009.

167. See supra note 126.

168. i.e. Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, UN Doc. A/Res/55/153 (2000), para. 2. See Jacob Katz COGAN, “The Decline of ‘Drafts’ ” (2014) International Organizations Law Review 1 at 2.

169. Cogan, ibid. at 1–2.

170. See Boyle and Chinkin, supra note 3 at 182–3.

171. Generally see Cogan, supra note 168 at 3; Boyle and Chinkin, supra note 3 at 183.

172. Commentary of draft articles, supra note 126, para. 5 at 3.

173. i.e. either in the Charter (which is more difficult because of amendment rules under art. 48), or expressly as an instrument to which all ASEAN Member States agree.

174. i.e. art. 64 on lex specialis, supra note 126.

175. On lex specialis, see Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, supra note 65, paras. 111–22.

176. Boyle and Chinkin, supra note 3 at 212.

177. Supra note 103.

178. i.e. Framework Agreement on Comprehensive Economic Cooperation Between the People's Republic of China and the Association of Southeast Asian Nations, 4 November 2002.

179. See preamble paragraphs of this MOU on transport, supra note 103.

180. MOU on transport, supra note 103, art. II(2).

181. See preamble of the MOU on phytosanitary co-operation, supra note 103. For examples of these treaties, see the Framework Agreement on Comprehensive Economic Agreement, supra note 178; 2004 Treaty, supra note 136; and Agreement on Investment of the Framework Agreement on Comprehensive Economic Agreement Between the People's Republic of China and Association of Southeast Asian Nations, 15 August 2009.

182. For example, see arts. I and II(2)(d) of the MOU on Phytosanitary Cooperation, supra note 103.

183. 1867 U.N.T.S. 493 (entered into force 1 January 1995).

184. MOU on Phytosanitary Cooperation, supra note 103, art. II(3).

185. See Section I above.

186. On this point, see Boyle and Chinkin, supra note 3 at 212.

187. In the different context of municipal law, see the thesis on a “criteria of legality”, Lon L FULLER, The Morality of Law (New Haven: Yale University Press, 1969). For an interpretation of Fuller's thesis in the international legal context, see Brunee and Toope, supra note 10, especially chapter 1.

188. See Brunee and Toope, supra note 10. For a range of views on considerations of legitimacy in international law, see (2004) 98 American Society of International Law Proceedings 261–73.

189. For example, see the Copenhagen Accord, UN Doc. FCCC/CP/2009/L.9 (2009). Generally see REDGWELL, Catherine, “The Wrong Trousers: State Responsibility and International Environmental Law” in Malcolm EVANS and Panos KOUTRAKOS, eds., The International Responsibility of the European Union (European and International Perspectives) (Oxford: Hart Publishing, 2013), at 257.

190. See Chen, supra note 7, at 413–19.

191. Ibid., at 401–13.

192. i.e. consistent with the meaning as defined in art. 2(1)(j) of the 1986 Convention, supra note 32, and art. 2(b), Draft Articles on the Responsibility of International Organizations, with commentaries, supra note 126.

193. To simplify the analysis in this hypothesis, we assume that these competences are broadly based on, can arise, and can be addressed under art. Y(c).

194. Under the hypothesis, this means a general duty of co-operation in the form of a specific or general measure by ESANA Member States to ensure compliance with the obligations, which arise from the treaty in question.

195. Pursuant to art. Y(c), supra note 193.

196. i.e. ESANA and ESANA Member States concluded this treaty as separate and individual parties with another contracting party: if ESANA contains a total of three Member States, for example, then there are five parties to this treaty (i.e. ESANA, three ESANA Member States, and the contracting party).

197. Pursuant to art. Y(c), supra note 193.

198. Supra note 150.

199. In this regard, see the broad duty of co-operation in art. 5(2) of the ASEAN Charter: Member States shall take “all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of this Charter and to comply with all obligations of membership” (emphasis added). The duty of co-operation is also implied in more general provisions in arts. 1(15), 2(2)(m), and 2(2)(n) of the Charter, which contain aims and purposes of maintaining ASEAN's proactive role in co-operation with external partners.

200. See Title I (Categories and areas of Union competence) of Treaty on the Functioning of the European Union, supra note 61. For example, once the EU exercises its exclusive competence on the customs union (art. 3(a) TFEU), then only the EU (not EU Member States) may legislate and adopt legally binding acts. In the area of shared competence in, for example, transport (art. 4(2)(g)), EU Member States can only exercise their separate competence on transport matters if the EU has not (or ceases to) exercised its competence (art. 2(2) TFEU). Generally see Piet EECKHOUT, EU External Relations Law, 2nd ed. (Oxford: Oxford University Press, 2012).

201. The EU has insisted that it is different from “traditional international organizations” because its “internal order … is separate from international law” and accordingly the relationship between the EU and its Member States is governed by EU law, a “distinct source of law”. See comments of the European Commission to the International Law Commission, Responsibility of International Organizations (Comments and Observations Received from International Organizations), 106, paras. 20–1, supra note 59.

202. The EU has “important law-based foreign relations powers that have a tendency to develop over time”; see para. 1 at 7, supra note 59. Its competences on the Common Foreign and Security Foreign Policy are set out in Title V TEU and Part Five TFEU, supra note 61.

203. See the eight examples in Section I above.

204. The rules are an outcome of art. 41(7) of the Charter, which provides: the procedures for concluding such agreements shall be prescribed by the ASEAN Coordinating Council in consultation with the ASEAN Community Councils.

205. 2011 Rules, see Rule 2, supra note 150.

206. Ibid., Rule 4.

207. Ibid.

208. Ibid.

209. Ibid., Rule 3.

210. Charter, art. 10.

211. 2011 Rules, see Rule 4(2), supra note 150.

212. For instance, at the proposal stage of a putative treaty, relevant domestic procedures in each ASEAN Member States may have to be fulfilled in tandem with the 2011 Rules, which are co-ordinated by the Committee of Permanent Representatives, who will inform their respective national authorities. For an account of Thailand's internal treaty process in this regard, see Benjamin SUKANJANAJTEE, “Promoting ASEAN Economic Community Through Greater Participation and Transparency in Treaty Making Procedures: Thailand's Internal Process and ASEAN Rules of Procedure”, online: ASEANLaw <http://www.aseanlawassociation.org/11GAdocs/workshop4-thai.pdf>.

213. i.e. in their individual capacities as independent sovereign states.

214. 2011 Rules, see Rules 3–5, supra note 150.

215. Art. 31(2), Vienna Convention, supra note 20. The International Law Commission has stated in its ongoing work on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties” that the “weight” of a subsequent agreement as a means of interpretation depends (among others) on its “clarity”, “specificity”, and whether (or how) it is repeated: see Draft Conclusion 8 in Report of the International Law Commission on the Work of its Sixty-Sixth Session, UN GAOR, 69th Sess., Supp. No. 10, UN Doc. A/69/10 (2014) at 177–200, para. 75.

216. i.e. its consultative aspects; see Katsumata, supra note 12.

217. In terms of an organ's (relative) degree of involvement during a treaty's negotiation, contrast the 2011 Rules with the European Parliament's competence that includes a legal right to be kept informed during the negotiation process when the EU concluded a treaty with Mauritius in 2011, concerning conditions of suspected pirates after transfer. This is because the EU is founded on “democratic principles” and therefore its decision-making process on external relations must bear scrutiny by the European population through Parliament as its representative intermediary: see paras. 79 and 81, Case C-658/11 European Parliament v. Council (24 June 2014).

218. Chen, supra note 7 at 418.

219. Generally see SAROOSHI, Dan, International Organization and Their Exercise of Sovereign Powers (Oxford: Oxford University Press, 2007), especially chapter 4.

220. On the separate legal personalities as a condition, see Sarooshi, ibid., at 35, and Chen, supra note 7 at 414.

221. On this point more generally, see Crawford, supra note 22 at 31.

222. Ibid.

223. See Sarooshi, supra note 219 at 46–9.

224. I use the term “some form of control” here in a generic sense to indicate the necessity of establishing a principal's control over the agent beyond the usual decision-making processes within that international organization. The terms “effective control” and “direction and control” have more specific and narrower meanings (thus avoided in the agency context here) under the international responsibility of states and international organizations. See generally Sarooshi, supra note 219 at 38–41.

225. The “on behalf of” formulation by Chen is clearest in this sense: see Example (1), supra note 41.

226. Sarooshi, supra note 219 at 46 and 49.

227. See Chen, supra note 7 at 414.

228. See Chen's analysis, supra note 7 at 413–16.

229. Also see Charter, art. 11.

230. The general principle is to resolve all disputes in a timely manner through dialogue, consultation, and negotiation (Charter, art. 22(1)). Other dispute-settlement mechanisms are acknowledged under Chapter VIII of the Charter, but these avenues are not intended to harmonize ASEAN laws in a “constitutional” way, as I will explain shortly.

231. Under Charter, art. 51(1), the ASEAN Secretariat is allowed to interpret the Charter at the request of any Member State. But the 2012 Rules of Procedure for the Interpretation of the ASEAN Charter, 2 April 2012, has made it clear that, under Rule 2(1), the ASEAN Secretariat's interpretation “shall be non-binding”, and more importantly, “non-authoritative”.

232. Generally see DESIERTO, Diane A., “ASEAN's Constitutionalization of International Law: Challenges to Evolution Under the New ASEAN Charter” (2010–2011) 49 Columbia Journal of Transnational Law 268.

233. On the principle of effectiveness, generally see GARDINER, Richard, Treaty Interpretation (Oxford: Oxford University Press, 2010) at 60.

234. 1986 Convention, supra note 32.

235. Generally see FOOTER, Mary E., “International Organizations and Treaties: Ratification and (Non) Implementation of the Other Vienna Convention on the Law of Treaties” in Alexander ORAKHELASHVILI and Sarah WILLIAMS, eds., 40 Years of the Vienna Convention on the Law of Treaties (London: British Institute of International and Comparative Law, 2010), 183 at 193–4.

236. Chen, supra note 7.

237. Legality of Use by a State of Nuclear Weapons in Armed Conflict, supra note 19, para. 25.

238. See Chen, supra note 7 at 411–13.

239. See (1982) I.L.C. Yearbook, Vol. II(II), at 43.

240. Supra note 126.

241. Some provisions have been criticized for being unrealistic because of an international organization's limited mandate from its Member States: for example, see the draft articles on coercion (art. 16) and countermeasures (art. 22), supra note 126. For criticisms by Sir Michael WOOD and Maria VICIEN-MILBURN, see “Legal Responsibility of International Organizations in International Law” (10 February 2011), online: Chathamhouse <http://www.chathamhouse.org/sites/files/chathamhouse/field/field_document/il100211summary.pdf>. For general comments by the Special Rapporteur Giorgio Gaja in response to criticisms, see Eighth Report on Responsibility of International Organizations, UN Doc. A/CN.4/640 (2011).

242. Generally see BRÖLMANN, Catherine, The Institutional Veil in Public International Law: International Organizations & the Law of Treaties (Oxford/Portland, OR: Hart Publishers, 2007); “The 1986 Vienna Convention on the Law of Treaties: The History of Draft Article 36 bis” in KLABBERS, Jan and LEFEBER, René, eds., Essays on the Law of Treaties: A Collection of Essays in Honour of Bert Vierdag (The Hague/Boston, MA: Martinus Nijhoff Publishers, 1998), at 127–34.

243. See Chen, supra note 7 at 401–3 and 416–19.

244. (1977) I.L.C. Yearbook, Vol. II(I), at 125–7.

245. See Chen, supra note 7 at 404–5 (emphasis added). On Draft Article 60(2), see (1964) Year Book of the International Law Commission Vol. II, at 16–17.

246. See Crawford, supra note 22 at 30.

247. Its substance is reflected in the preamble and art. 74(3) (i.e. savings provision) of the 1986 Convention, supra note 32.

248. (1972) Year Book of the International Law Commission Vol. II, para. 43 at 183 (emphasis added).

249. (1973) Year Book of the International Law Commission Vol. II, Question 7 at 93 (original emphasis). Compare the Commission's language with the “on behalf of” formulation in Examples (4)–(5), supra notes 44–49.

250. (1982) Year Book of the International Law Commission Vol. II, para. 10 at 46.

251. Ibid.

252. Ibid. at 44–6.

253. Ibid, para. 10 at 46 (emphasis in original).

254. See arts. 1(15), 2(m), and 41(3) of the Charter.

* PhD candidate, UCL Faculty of Laws.

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Asian Journal of International Law
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