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I. THE ASEAN CHARTER

  • Daniel Seah (a1)
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1 See Tommy Koh, ‘ASEAN at Forty: Perception and Reality’ in Regional Outlook (Southeast Asia 2008–2009), (Singapore: ISEAS Publishing, 2008) at 8.

2 The Charter was signed by the heads of government/State from the 10 ASEAN member States on 20 November 2007 during the 13th ASEAN Summit in Singapore. See ‘Landmark Document Has Come a Long Way’, The Straits Times (Singapore), 20 November 2007, at 6.

3 Also see http://www.aseansec.org/64.htm (accessed 5 September 2008).

4 See http://www.aseansec.org/1219.htm (accessed 23 August 2008).

5 ATSEAN took a tough stand against Vietnam's invasion of Cambodia (formerly Democratic Kampuchea) on 25 December 1978 especially at the United Nations (UN) from 1978–1989. Especially instructive, then, was Vietnam's accession of the Treaty of Amity and Cooperation by Vietnam in July 1992, a treaty which it had rejected during the Cambodia conflict. See generally Ralf Emmers, Cooperative Security and the Balance of Power in ASEAN and the ARF (London: RoutledgeCurzon, 2003) at 20.

6 See generally Rodolfo C Severino, Southeast Asia in Search of an ASEAN Community (Insights from the former ASEAN Secretary-General), (Singapore: ISEAS Publishing, 2006) at 57–67.

7 See Lela Garner Noble, Philippine Policy Toward Sabah: A Claim to Independence, (Tucson: University of Arizona Press, 1977).

8 Generally see Michael Leifer, Singapore's Foreign Policy (Coping with Vulnerability), (London: Routledge, 2000).

9 Generally see Michael Leifer, ‘Decolonisation and International Status: The Experience of Brunei’, International Affairs (Royal Institute of International Affairs, 1944–) Vol 54, No 2 (April 1978) at 240.

10 Rice Condoleezza, ‘Promoting the National Interest’, Foreign Affairs, Vol 79, No 1 (January/February 2000) 45 at 49.

11 ‘ASEAN: Still Attractive at 40’, Straits Times, 8 August 2007, at 24.

12 Surin Pitsuwan, ‘A New Miracle for Tigers and Dragons’ in The World in 2008 (Economist), (Plymouth, St Ives PLC, 2007) at 94.

13 But many ASEAN decisions are in practice reached on the basis of ‘genuine unanimity’. See Severino, above, n 6, at p 34.

14 In this respect Rodolfo Severino, the former Secretary-General of ASEAN, explains that consensus is reached when ‘enough members support it—six, seven, eight or nine, no document specifies how many … ’, ibid.

15 Generally see Henry G Schermers, International Institutional Law: Unity Within Diversity (4th ed), (Netherlands: Brill, 2004).

16 Lee Kuan Yew, From Third World to First (The Singapore Story 1965–2000), (Singapore: Times Editions, 2000) at 371. I refer to comfort level in the sense that ASEAN leaders still attach importance to cultivating personal relations through elite diplomacy by conducting, for example, ‘empat mata’ meetings (Bahasa expression for ‘four-eyes’) where leaders meet preferably without a formal agenda or interlocutors. To this extent, comfort level is a goal in itself and anterior to the expression of confidence in either bilateral or multilateral relations between ASEAN members.

17 See Katsumata Hiro, ‘Reconstruction of Diplomatic Norms in Southeast Asia: The Case for Strict Adherence to the ‘ASEAN Way’’, Contemporary Southeast Asia, Vol 25, Number 1, April 2003, 104 at 117.

18 UNGA Resolution 2625 (XXV): Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations (1970).

19 Ian Brownlie, Principles of International Law, (6th ed), (Oxford, OUP, 2003) at 287.

20 UNGA Resolution 2625 makes it clear that non-intervention is broader than armed intervention and includes ‘the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter.’ See generally Damrosch Lori Fisler, ‘Politics Across Borders: Non-Intervention and Non-forcible Influence Over Domestic Affairs’, 83 (1989) AJIL 1.

21 Available at http://www.aseansec.org/1217.htm (accessed 5 September 2008).

22 See Arts 1 and 2, TAC, ibid.

23 Arts 18 and 19, TAC.

24 See generally Emmers, above, n 5, at 87. On ‘international society’ by the ‘English School’, which argues that State behaviour must be understood in the context of norms, rules (including international law) and institutions, see generally Hedley Bull, The Anarchical Society (A Study of Order in World Politics, 3rd ed), (London: Palgrave, 2002).

25 Indonesia's annexation of East Timor as the former's province in July 1976 and Vietnam's invasion of Cambodia in December 1978 are examples.

26 But cf Hong Tan Lay, ‘Will ASEAN's Economic Integration Progress Beyond a Free Trade Area’ (2004) 53 ICLQ 935 at 949 and 967; Yongwook Ryu, ‘The Asian Financial Crisis and ASEAN's Concept of Security’, S Rajaratnam School of International Studies (RSIS) Working Papers, No 148, 2 January 2008, available at http://www.rsis.edu.sg/publications/workingpapers.asp?selYear=2008 (accessed 30 March 2008).

27 See Katsumata, above, n 17, at 110.

28 See Declaration on the ASEAN Economic Community Blueprint (2007), at http://www.aseansec.org/21081.htm (accessed 5 September 2008).

29 Severino, above, n 6, at 20–23.

30 A non-binding document, the Bangkok Declaration is nevertheless ASEAN's founding document. Available at http://www.aseansec.org/1212.htm (accessed 5 September 2008).

31 Other instruments such as the Zone of Peace, Freedom and Neutrality Declaration (ZOPFAN, 1971) or Treaty on the Southeast Asia Nuclear Weapon-Free Zone (SEANWFZ, 1995) also did not provide for ASEAN's legal personality, at http://www.aseansec.org/1215.htm and http://www.aseansec.org/2082.htm respectively (accessed 5 September 2008).

32 Unless otherwise stated, all article numbers in this note refer to the ASEAN Charter. Full text of the Charter is available at http://www.aseansec.org/21069.pdf (accessed 5 September 2008).

33 Art 47. Art 47(4) provides that the Charter comes into force when the 10th instrument of ratification (all existing members) is deposited with the Secretary-General of ASEAN. As of 8 September 2008, only the Philippines, Thailand and Indonesia have not ratified the Charter, see http://www.aseansec.org/21762.htm (accessed 8 September 2008).

34 See ‘ASEAN Charter “makes each member that bit stronger”’, Straits Times, 18 July 2008, at H8.

35 On the relationship between the design elements of international agreements, see Raustiala Kal, ‘Form and Substance in International Agreements’ (2005) 99 AJIL 581.

36 Ibid, at 608. For instance, pursuant to Art 25, the interpretation of the Charter will not be resolved by a judicial organ (such as the European Court of Justice) but through ‘appropriate dispute settlement mechanisms, including arbitration, (which) shall be established … ’.

37 Also see Art 5 which stipulates ‘Member States shall have equal rights and obligations under this Charter’.

38 Art 7(2)(a).

39 Art 7(1).

40 Art 7(2)b).

41 Art 7(2)(e).

42 Under Art 31(2)(a), the ASEAN Chairmanship, which is rotational (Art 31(1)), will host the Summit.

43 Severino, above, n 6, at 19.

44 Art 8(1).

45 Art 8(2)(h).

46 Art 8(2)(c).

47 Art 9(5).

48 Art 9(4)(a).

49 Art 9(4)(b).

50 Art 12(1).

51 See Brownlie, above, n 19, at 57.

52 A supplementary protocol will be drafted to clarify the ambit of what ASEAN ‘can or cannot do with its legal personality’, see media release at http://www.aseansec.org/21085.htm. For the debate on whether ASEAN already had legal personality on the basis of subsequent practice or implied powers, see Wang Jiang Yu, ‘International Legal Personality of ASEAN and the Legal Nature of the China-ASEAN Free Trade Agreement’ in China-ASEAN Relations: Economic and Legal Dimensions (John Wong, Zou Keyuan and Zeng Huaquan, eds), (Singapore: World Scientific, 2006), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=893764; Simon Chesterman, ‘Does ASEAN Exist? The Association of Southeast Asian Nations as an International Legal Person’ at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1113612. (accessed 5 September 2008).

53 For this view, see Chesterman, ibid.

54 ‘ASEAN and the 3 L's: Leaders, Laymen and Lawyers’ at http://www.aseansec.org/17356.htm (accessed 5 September 2008).

55 See Chesterman, above, n 52.

56 Chapter XII, Art 41(7).

57 Articles 133 and 300, European Community (EC) Treaty. But its competence to conclude international agreements is very limited, as indicated in the case of France v Commission [1994] ECR I – 3641.

58 Available at http://www.aseansec.org/17842.htm. Though an informal instrument, some aspects of it are probably legally binding: copyright protection, for instance, will be ‘enforced … in conformity … with international agreements’ of which ASEAN members and China are participants. Contrast the MOU signed by ASEAN's Secretary-General on behalf of the ASEAN Secretariat with the Shanghai Cooperation Organization Secretariat on functional cooperation at http://www.aseansec.org/ASEAN-SCO-MOU.pdf, with the explicit recognition that this MOU ‘shall not be legally binding under international law’ (accessed 3 September 2008).

59 Arts 11(2)(a) and (b) state that the Secretary-General shall carry out its duties and responsibilities in accordance with ASEAN's ‘established practices’ and ‘facilitate and monitor progress in the implementation of ASEAN agreements’ respectively.

60 See Report of the Eminent Persons Group on the ASEAN Charter (EPG Report, 2006), at http://www.aseansec.org/19247.pdf (accessed 5 September 2008).

61 Para 37, EPG Report, ibid.

62 Secretary-General and Secretariat.

63 ASEAN's conduct of external relations.

64 The Framework Agreement on Comprehensive Economic Cooperation between ASEAN and the People's Republic of China was signed on 4 November 2002, at http://www.aseansec.org/13196.htm (accessed 5 September 2008).

65 See Wang and Chesterman, above, n 52.

66 Contrast the specific reference that the Secretariat signed an agreement ‘for the governments of ASEAN member countries’ in the MOU on culture, above, n 58.

67 See preambular para 3, above, n 64. There are similar preambles in ASEAN's FAs with India and Japan, at http://www.aseansec.org/15278.htm and http://www.aseansec.org/15274.htm respectively (accessed 3 September 2008).

68 The Charter does not address this issue.

69 ‘ASEAN Revamp: From Family Business to Global Player’, Straits Times, 12 January 2007, at 33.

70 See Tan, above, n 26.

71 Art 30(2).

72 Art 11(2)(b).

73 Art 20(2).

74 The EPG recommended that the Summit prescribe rules of procedure to govern situations in which either a simple majority, a 2/3 or 3/4 majority might be applied. See para 63, EPG Report, above, n 60.

75 This was for the ASEAN Chairmanship in 2006, of which the Philippines consequently assumed on the basis of rotation by alphabetical order.

76 For an account, see Severino, above, n 6, at 139–143.

77 Art 21(2).

78 See Ellen L Frost Asia's New Regionalism (Singapore: NUS Press, 2008) at 223.

79 Art 21(2): ‘In the implementation of economic commitments, a formula for flexible participation, including the ASEAN Minus X formula, may be applied where there is a consensus to do so.’ (emphasis supplied).

80 Art 23.

81 Art 24. The 2004 protocol is available at http://www.aseansec.org/16754.htm (accessed 5 September 2008).

82 See ‘Landmark Document Has Come a Long Way’, above, n 2.

83 Art 6(2)(a). The Bangkok Declaration states that ASEAN is ‘open for participation to all States in the South-East Asian Region’.

84 Andrew Harding, ‘Global Doctrine and Local Knowledge: Law in South East Asia’ (2002) 51 ICLQ 35 at 48 (note 45). For a historiographical view that ‘Southeast Asia’ is a name that simultaneously describes and invents reality, see Emmerson Donald K, ‘Southeast Asia: What's in a Name?’, Journal of Southeast Asian Studies, Vol 15, No 1 (March 1984), at 1.

85 As a matter of law, there is no valid basis in State practice to claim that democratic government is required by the traditional criteria of statehood. But for the view that international law can help to measure the legitimacy of a government and the democratic process in which they operate, see Thomas Franck, ‘Emerging Right to Democratic Governance’ 86 (1992) AJIL 44.

86 See generally Barry Buzan and Gerald Segal, Anticipating the Future (London: Simon & Schuster, 1998).

87 Art 6(2)(d) states that admission should be based on ‘ability and willingness to carry out the obligations of membership’.

88 Damien Kingsbury, ‘Timor-Leste: The Harsh Reality After Independence’ in Southeast Asian Affairs 2007 (Singapore: ISEAS Publishing, 2007) 363 at 369.

89 Also see Kingsbury, ibid, at 373.

90 On the juridical State see Robert H Jackson, Quasi-States: Sovereignty, International Relations and the Third World, (UK, CUP, 1990).

91 Harding, above, n 84, at 38 and 49.

92 Ibid, at 49.

93 Art 14 (2). A High Level Panel has been established to submit a first draft of the Body's terms of reference for the 14th ASEAN Summit in December 2008. See Joint Communiqué of the 41st ASEAN Ministerial Meeting at http://www.aseansec.org/21771.htm (accessed 26 August 2008).

94 ‘ASEAN is Maturing’, Straits Times, 1 August 2007 at 24. But see ‘Past it At 40?’, Economist, 4 August 2007, at 47.

95 Joint Communiqué, ASEAN Ministerial Meeting 1993 at http://www.aseansec.org/3666.htm (accessed 5 September 2008).

96 Singapore's Second Minister for Foreign Affairs neither confirmed nor denied this point in Parliament, stressing instead that the body is at an ‘early stage’ and its development must be taken ‘a step at a time.’ See Singapore Parliamentary Reports, Vol 83 (27 August 2007) at cols 1313–1314, at http://www.parliament.gov.sg/Publications/sprs.htm (accessed 9 September 2008). But see ASEAN's reference to the UDHR in Joint Communiqué, ibid.

97 Statement by Foreign Minister George Yeo in Singapore Parliamentary Reports, Vol 84 (28 February 2008), at http://www.parliament.gov.sg/Publications/sprs.htm (accessed 5 September 2008).

98 Rodolfo Severino has suggested that the body will probably focus on capacity building such as helping member States to train prosecutors and judges to be more aware about human rights issues, see ‘Judge My ASEAN Work? No Problem’, Straits Times, 18 July 2008, at 31.

99 The rest of this paragraph draws on the account by Severino, above, n 6, at 110.

100 Art 29 provides that this agreement enters into force on the 60th day after the deposit of the 6th instrument of ratification, available at http://www.aseansec.org/agr_haze.pdf (accessed 9 September 2008).

101 See http://www.aseansec.org/15129.htm (accessed 9 September 2008).

102 A respiratory disease in humans caused by the SARS coronavirus which probably originated in Guangdong province in China.

103 For an account, see Severino, above, n 6.

104 See statement by Singapore's Representative during a UN Security Council meeting on Myanmar (S/PV.5753) on 5 October 2007, at http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.2802231/ (accessed 5 September 2008).

105 See Statement by ASEAN Chair (September 2007) at http://www.aseansec.org/20974.htm (accessed 5 September 2008).

106 Above, n 104. The Secretary-General's Special Adviser on Myanmar has said that he intends to continue to engage the ASEAN States in his activities because Myanmar is a member of ASEAN, at http://www.un.org/apps/news/story.asp?NewsID=24314&Cr=myanmar&Cr1 (accessed 10 September 2008).

107 ASEAN cites 53,836 persons are missing, 2.4 million as affected and 84,537 are dead at http://www.aseansec.org/21765.pdf. (accessed 9 September 2008).

108 See opening address by Singapore Prime Minister Lee Hsien Loong during 41st ASEAN Ministerial Meeting, ‘ASEAN as Partner of Major Powers’, Straits Times, 22 July 2008, at 19.

109 Compare for instance the quiet but strenuous diplomacy which was used to persuade Myanmar to give up its Chairmanship of ASEAN in 2005, as noted above. Singapore's foreign minister briefed the media with a transcribed account of an ‘intimate and private discussion among close family members on a sensitive matter’ in which the ASEAN foreign ministers conveyed their ‘frank views’ to their Myanmar counterpart. See Severino, n 6, at 141.

110 But contrast the position taken by the US and UK during the Security Council meeting in 2007, above, n 104.

111 Chapter VII, Art 39 of the UN Charter.

112 The junta's role is acknowledged in the establishment of the Yangon-based Tripartite Core Group, an ASEAN-led coordinating mechanism, comprising the Myanmar government, ASEAN and UN that facilitates humanitarian assistance into Myanmar after Cyclone Nargis, whose model of collaboration has been endorsed as ‘effective’ by the UN Secretary-General's Special Adviser, at http://www.aseansec.org/21880.htm (accessed 31 August 2008).

113 Also see statement by Singapore's representative, above, n 104.

114 See ‘Pragmatic But Never Passive’, Straits Times, 12 March 2008, at 28.

115 An ASEAN-led process that includes ASEAN, China, Japan and the Republic of Korea since December 1997 committed to cooperation at various levels and in various areas, especially in the economic, social and political fields, at http://www.aseansec.org/16580.htm (accessed 5 September 2008).

116 See remarks by Singapore's foreign minister in ‘Good US-China Ties Vital for Asian Peace’, Straits Times, 19 January 2007, at 6.

117 See above, n 69.

118 There are suggestions of converting the six-party talks on North Korea's nuclear programme into a permanent framework for East Asia which would be led by the US, China and Japan, and without ASEAN's involvement. See Simon Tay, ‘It's Time for ASEAN to Deliver’, Straits Times, 16 July 2008, at 20.

119 An intergovernmental organization, the SCO was established in June 2001 and includes China, Russia, Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan.

120 A regional architecture proposed by Australian Prime Minister Kevin Rudd that includes the entire Asia-Pacific region, especially the US, China, India and Japan. The idea has received a cool but polite response from ASEAN, which reiterated its centrality in any regional architecture. See ‘Rudd Makes a Plug for his Asia-Pacific Vision’, Straits Times, 13 August 2008, at A8.

121 See E Goh, ‘Great Powers and Southeast Asian Regional Strategies: Omni-Enmeshment, Balancing and Hierarchical Order’, RSIS Working Papers, No 84, July 2005, at http://www.rsis.edu.sg/publications/workingpapers.asp?selYear=2005 (accessed 30 March 2008).

122 See Rice, above, n 10.

123 Above, n 5.

124 There is no space to rehearse the developments here, save to say that the decision of the Temple of Preah Vihear (Merits), [1962] ICJ Rep 6, which granted sovereignty over the temple to Cambodia, did not conclusively resolve the matter. See Achara Ashayagachat, ‘Outmanoeuvred at Every Turn’, Bangkok Post, 27 July 2008, at http://www.bangkokpost.com/topstories/topstories.php?id=129100 (accessed 2 September 2008).

125 Though amendments to the Charter in future are not foreclosed: see K Kesavapany, ‘Robust Exchange Good for ASEAN and Charter’, Straits Times, 25 July 2008, at H23.

126 See Ryu, above, n 26.

127 Chesterman, above, n 52.

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