# The Author 2010. Published by Oxford University Press. All rights reserved doi: 10.

1093/chinesejil/jmq025; Advance Access publication 29 November 2010

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ASEAN Charter: Deeper Regional Integration under International Law?

LIN Chun Hung*

Abstract
Southeast Asia is a region rooted in cultural, ethnic, geographic and developmental diversity but generally viewed as a united bloc. Under the steady expansion of globalization and the drastic competition from neighbouring regions, regionalization in Southeast Asia is confronting new challenges and entering a new era. To deal with this, national leaders from the Association of Southeast Asian Nations (ASEAN) Member States decided in 2008 to adopt a new agreement, the ASEAN Charter, to aim for deeper integration in the future. What are the differences in ASEANs position in the international community after adopting the ASEAN Charter? This article plans to analyse ASEANs developmental challenges and the legal contents of the ASEAN Charter, as well as to compare some of the European Unions experiences in order to assess ASEANs new status under international law.

I. Introduction
1. Historically, Southeast Asia has been a politically fragmented region confronted with many internal conicts and external pressures; thus, the process of regionalization in this region has been slow and difcult. Numerous regional conicts over land frontiers and maritime boundaries, and disputed control over newly discovered natural resources, are portrayed as the geopolitical expression of deeper national animosities.1 The most signicant characteristic of the region is that it includes countries run by democracies, monarchies, military leaders and communist parties that have varying interpretations of the relationship between the private sector and the government. The numerous Southeast Asian States represent a full spectrum of political, legal and ideological diversity that veers away from the typical homogeneity of most regional groupings.2 The common experiences in this region were colonialism in the nineteenth century and hegemonic encounters during the Cold War period. Due to Western imperialist

S.J.D., Associate Professor of Law, Feng Chia University Graduate Institute of Financial and Economic Law, Taiwan (email: chunhlin@fcu.edu.tw); Visiting Fellow, Max Planck Institute for Comparative Public Law and International Law, Germany. This article was completed on 28 May 2010. Joseph A. Camilleri, Regionalism and Globalism in Asia Pacic: The Interplay of Economy, Security and Politics, in: Majid Tehranian (ed.), Asian Peace: Security and Governance in the Asia-Pacic (I.B. Taurus, 1999), 52 72. Chun Hung Lin, Critical Assessment of Taiwans Trade and Investment Relationship with ASEAN Countries in the Past, Present and Future, 7 Miskolc JIL (2010), 6182.

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invasion in the nineteenth century, regional conicts such as territorial disputes and national unication aggravated distrust between neighbours and prolonged fragmentation of Southeast Asia.3 Because at that time the region was badly divided by ideological conict and war, the emergence of a shared sense of security was extremely slow and difcult. Internal insurgencies and economic hardship forced Southeast Asian countries to waste their resources on defence and to rely on external powers for security and aid. Those factors restricted the opportunity to create a regional identity throughout the region for a long time. 2. In Southeast Asia, nationalism rooted deeply in ethnic and racial differences is a reection of the regions diversity, geographical dispersal, troubled past and its lack to date of the soothing interconnections that have existed for some time in Western Europe.4 For an organization that is born of a combination of external threats and domestic challenges, a fundamental change in both the external environment and the ideological content is by denition crucial to its future. Facing new challenges in the post-Cold War period and emerging competition from other regions, regionalization in Southeast Asia is confronting transformation and entering a new era.5 At its founding in 1967, the Association of Southeast Asian Nations (ASEAN) was an organization of non-communist countries including Indonesia, Malaysia, the Philippines, Singapore and Thailand, which came together to cooperate actively towards peace, stability, progress and prosperity in the region. Indeed, the challenges facing ASEAN from global power uctuations, from redened security interests and from institutional competition call for new political roles.6 In addition, after the Cambodia issue, regional conicts in Southeast Asia are likely to be less ideologically based.7 3. For deeper integration, ASEAN hoped to build its own regional identity out of the recent ow of regional competition. Its structure stands out as a unique combination of countries united in common efforts to attain economic growth and political cooperation taking place on the Member States conditions. ASEAN later accepted accession of disputed countries, Cambodia and Myanmar, as well as communist countries, Vietnam and Laos.8 With the increase in membership, the current ASEAN faced more difcult challenges. To counter the new challenges and learn from the EUs developmental experiences, ASEAN leaders proposed and enacted the ASEAN Charter. Thus, this article plans to analyse the legal contents of the Charter and assess ASEANs new status under international law, especially focusing on the issues of its legal personality, regional identity, human rights record, organizational structures as well as the harmonization of its community legal system.

3 4 5

6 7 8

Matthew Jones, Conict and Confrontation in South East Asia, 1961 1965: Britain, the United States, and the Creation of Malaysia (Cambridge University Press, 2002), 61122. Aaron L. Friedberg, Ripe for Rivalry: Prospects for Peace in a Multipolar Asia, 18 International Security (1994), 5 33. Economic and Social Commission for the Asia and the Pacic; See Trade and Investment Division (TID), Enhancement of Trade and Investment Cooperation in Southeast Asia: Opportunities and Challenges toward ASEAN-10 and Beyond, Studies in Trade and Investment, UNESCAP, No.ST/ESCAP/ 1882 (1998), 3 34. Donald Crone, New Political Roles for ASEAN, in: David Wurfel and Bruce Burton (eds.), Southeast Asia in the New World Order: The Political Economy of a Dynamic Region (Macmillan, 1996), 4650. Joakim Ojendal and Hans Antlov, Asian Values and Its Political Consequences: Is Cambodia the First Domino?, 11 The Pacic Review (1998), 525 540. The ASEAN was formed on 8 August 1967 by Indonesia, Malaysia, the Philippines, Singapore and Thailand. On 28 July 1995, Vietnam became the seventh member. Laos and Myanmar joined two years later in 23 July 1997. Cambodias membership was deferred due to its internal political struggle. The country later joined ASEAN on 30 April 1999. See Christopher C. Faille, Review of Beyond Japan: The Dynamics of East Asian Regionalism by Peter J. Katzenstein and Takashi Shiraishi (eds.), 55-8 Federal Lawyer (2008), 55.

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II. Enactment of the ASEAN Charter

II.A. Historical background
4. After over 40 years as an association for regional cooperation, ASEAN is poised to move towards greater regional integration, this time as a formal international organization with the ability to make decisions binding and enforceable upon all ASEAN Member States. However, ASEAN still has to deal with integration difculties relating to developmental gaps between well-developed and less-developed members, in particular Cambodia, Laos, Myanmar and Vietnam. Acknowledging the need to narrow the developmental divide among Member States, ASEAN leaders reached an agreement to create an ASEAN Community by 2020, known as the Bali Concorde II, made up of three components including the ASEAN Political-Security Community, the ASEAN SocioCultural Community and the ASEAN Economic Community (AEC).9 It is believed that the Bali Concord II appears to map out a different course for ASEAN regional cooperation, namely deeper integration under regionalism.10 The ASEAN leaders are also aware that failure to integrate the diverse markets of ASEAN will mean the group will lose investment and economic opportunities to regional competitors such as P. R. China and India. Some scholars have argued that the political tit-for-tat and intense competition which exist between some ASEAN countries such as Singapore and Malaysia will obstruct bloc integration in ASEAN, so it seems unlikely that ASEAN will achieve a community by 2020.11 5. ASEAN had been operating without a formal charter in the past few decades. Considering the EUs successful experiences, ASEAN countries had signed the Singapore Declaration stating their resolve to complete ratication by all Member States as soon as possible in order to bring the ASEAN Charter into force on 20 November 2007.12 ASEAN had operated under a highly decentralized structure, establishing key institutions for its various elds of cooperation.13 As initially envisioned by ASEANs founding members, ASEAN has promoted constructive political dialogue over the past few decades that has prevented the escalation of political tensions into armed conict between ASEAN countries. In contrast to ASEAN, the EU included 1950s free trade to boost economic growth and to counter the threat posed by the Soviet Union. The EU started with a customs union and a common external trade policy.14 To provide some context, European regionalism within the European Coal and Steel Community was driven by a strong commitment from Germany and France, who acted as shepherds for the original bloc of six countries.15 The Euro entered into circulation roughly 50 years later in 2002. Later on, it brought in the Single European Act and the East European enlargement.16

10 11 12 13 14 15 16

At the 11th ASEAN Leaders Summit in December 2005, it was agreed to put forward the goal of realizing an AEC by 2015. The establishment of AEC is spearheading ASEAN regional integration. The AEC is envisioned to create a single market and production base characterized by a free ow of goods, services, investment, capital and skilled labour by 2020. See Cielito F. Habito, Fernando T. Aldaba and Ofelia M. Templo, An Assessment Study on the Progress of ASEAN Regional Integration: The Ha Noi Plan of Action toward ASEAN Vision 2020, Regional Economic Policy Support Facility (REPSF) Project No. 03/006b (2004), 2 4. See ASEAN: Hanoi Plan of Action (1988). Lay Hong Tan, Will ASEAN Economic Integration Progress beyond a Free Trade Area?, 53 ICLQ (2004), 935967. See ASEAN: Singapore Declaration on the ASEAN Charter (2007). Alan Khee-jin Tan, Recent Institutional Developments on the Environment in Southeast AsiaA Report Card on the Region, 6 Singapore JICL (2002), 891 908. Chun Hung Lin, Regionalization or Globalization? The Telecommunication Cooperation in Europe, 10 Australian ILJ (2003), 95124. Ibid. Tauno Tiusanen and Jatta Kinnunen, EUs Eastern Enlargement and the Future Expansion of the Eurozone, Finland, Northern Dimension Research Centre Publication No. 23, (2005), 14 34.

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6. The 1957 Treaties of Rome laid the foundation for the creation of the EU. However, it was not until the signing of the Treaty Establishing a Constitution for Europe (TCE) that the EU possessed a legal personality, which means that it is able to represent itself as a single body in certain circumstances under international law. Most signicantly, it is able to sign treaties as a single body where all its Member States agree. ASEANs agreement to draft a charter was viewed as crucial because it could introduce major changes in how the original association operates, among them breaking from its tradition of non-interference and mutual respect. The signing of the Singapore Declaration followed swiftly after the ASEAN countries issued the Cebu Declaration on the Blueprint of the ASEAN Charter, noting that ASEAN has matured into a regional organization and is expanding its role as an integrated regional economy and a dynamic force in maintaining regional peace and stability as envisaged in the Declaration of Bali Concord II and its plans of action, roadmaps and the ASEAN Vision 2020, which envisions ASEAN as a concert of Southeast Asia bonded together in a partnership for dynamic development and in a community of caring societies.17 With the introduction of the new charter, ASEAN plans to accelerate its integration by putting it on a similar legal footing to the EU, making it more rulesbased.18

II.B. International legal personality

7. The ASEAN Charter marks a distinct culmination of the 40-year cooperative relationship between the ASEAN member countries. Reviewing ASEANs initial Declaration and related documents, did its establishment expressly present a juridical personality or legal standing at some level under international law? As described above, the original main purpose of ASEAN was anti-communism, and ASEANs actions under its cooperative framework were generally undertaken through a consensus process. Through this kind of cooperative process, ASEAN did not demonstrate its distinct entity character as separate from Member States. Under international law, legal personality confers on an international organization several rights, especially concerning privileges and immunities, e.g. the ability to participate in proceedings as an entity, to bring matters before UN organs by registering its Charter and treaties under Article 102 of the UN Charter as well as to have application of international law to relationships between the organization and other subjects of international law.19 Rather than an independent legal entity, some scholars have argued that ASEAN did not appear to have legal personality as it was not explicitly established as an international organization with such personality.20 The lack of independent entity character is one of the principal reasons why ASEAN is slow not only in reaching agreements but also in implementing them. Prior to the passage of the ASEAN Charter, scholars had criticized ASEANs organizational ineffectiveness due to its requirement of consensus for decision-making.21 8. Resulting from the signing of the ASEAN Charter, ASEAN plans to transform from a regional cooperation to a rules-based organization with legal personality, which can sue and be sued.22 For instance, the European Community stands as a single entity in the WTO, both in negotiations and in dispute settlement. The combined voice within the organization can lend strength to an individual members arguments.23 Article 3 of the Charter has expressly conferred ASEAN with international legal personality.24 The new Charter has enacted the Member States
17 18 19 20 21 22 23 24 See ASEAN: Cebu Declaration on the Blueprint of the ASEAN Charter (2007). Neil Lawrence, The ASEAN Charter: A Human Rights Whitewash?, 17 The Irrawaddy (2010), 1 2. Locknie Hsu, Towards an ASEAN Charter: Some Thoughts from the Legal Perspective, in: Rodolfo C. Severino (ed.), Framing the ASEAN Charter (Singapore: ISEAS Publishing, 2005), 45 52. Ibid. Hsu, above n.19. John Arendshorst, The Dilemma of Non-Interference: Myanmar, Human Rights, and the ASEAN Charter, 8 Northwestern JIHR (2009), 101 121. Hsu, above n.19. ASEAN Charter, art. 3.

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agreement to establish ASEAN as a juridical personality and legal entity. Some scholars, however, have argued that ASEANs international legal personality is relative or subjective, being attributable to the express recognition of its Member States under the framework of the Bangkok Declaration at the time of its creation.25 ASEANs acquisition of an objective legal personality under the ASEAN Charter, in addition to its relative or subjective legal personality conferred by its membership under the framework of the Bangkok Declaration, has implications for its responsibility as an international organization, and for the residual responsibility of its Member States to third parties. At this point, the passage of the ASEAN Charter seems to have proved and strengthened its legal personality under international law. Thus, one may ask if the ASEAN Charter acts as a constitutional document. A constitutional document may contain norms, statements on sovereignty, rights and obligations and powers in legislative, executive, judicial processes.26 If the ASEAN Charter was designed to serve as a constitutional document for ASEAN, the question is whether the document expressly establishes legal personality as an international organization and therefore makes ASEAN a subject under international law. Since the ASEAN Charter has expressly enacted such a rule, it should be regarded as a constitutional document. 9. Actually, there are some requirements for international organization-hood under international law.27 Firstly, the grant of legal capacity, privileges and immunities to the organization should be presented in the territory of each of its Member States. The ASEAN Charter departs from ASEANs present voluntary model of international personality by expressly conferring ASEAN with legal personality as an inter-governmental organization,28 and providing functional immunities and privileges necessary for the fullment of the purposes of the organization.29 The ASEAN Charter did provide that the conditions of immunities and privileges of the permanent representatives and ofcials on ASEAN duties shall be governed by the 1961 Vienna Convention on Diplomatic Relations or in accordance with the national law of the ASEAN State concerned.30 It allows the association to enjoy specic privileges under domestic law, such as immunities and privileges for its ofcials. 10. Secondly, the possession of the organizations own distinct identity will be apart from that of its members, evidenced by the organizations power to make decisions binding upon the entire membership through the vote of a mere majority of its members. For the associations own distinct identity, these are a strengthening of democratic values, good governance, rejection of unconstitutional and undemocratic changes of government and respect for the rule of law, including international humanitarian law, human rights and fundamental freedoms. The passage of the ASEAN Charter signals important developments for the integration of the Southeast Asian region. The ASEAN Charter recognized that ASEAN has an international legal personality with a region-wide commitment to international law, the rules of an international public order, institutional and Member-State accountability as a platform for compliance as well as respect for political pluralism under a common conception of shared values.31 If ASEAN under the ASEAN Charter were to be viewed as a distinct legal entity from its Member States, it would be difcult to attribute responsibility per se to its Member States for acts ascribed to or authored by ASEAN.32 However, if Member States residual responsibility to third parties is
25 26 27 ASEAN Charter, art. 47(4). Hsu, above n.19. Jan Klabbers, An Introduction to International Institutional Law (Cambridge University Press, 2002), 54 57; also see Reparation, Reparation of Injuries Suffered in the Service of the United Nations Advisory Opinion, ICJ Reports 1949, 174200. ASEAN Charter, art. 3. ASEAN Charter, art. 17. ASEAN Charter, art. 19(2). Diane A. Desierto, Postcolonial International Law Discourses on Regional Developments in South and Southeast Asia, 36 International Journal of Legal Information (2008), 387. Ibid.

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to be afrmed under the ASEAN Charter, the process will likely take the shape of either secondary Member State responsibility, where the third party must rst present its claim to ASEAN, and recourse to the Member States would be had only if ASEAN is in default in providing an adequate remedy, or indirect responsibility, where Member States are deemed a priori responsible to the organization to meet its obligations towards third parties.33 11. On the one hand, there is a need to ensure that the organizations own goals as well as those of Member States would not contradict rules set by multi-lateral organizations in the international community, such as the WTO. At the same time, it is necessary to be aware that actions of one country have important impacts on its neighbours, i.e. economic policies and environmental rules such as building a nuclear power station close to an adjacent Member State.34 In addition to economic goals, ASEAN has stood by its policy of constructive engagement and preventive diplomacy to encourage members to embrace democratic principles and widen democratic spaces.35 One may ponder ASEANs regional identity and the goal of regional integration, which should be stated in its constitutional document. Moreover, it is worth looking into whether the ASEAN Charter was prepared for its own right, as well as for the objectives, functions and competence of ASEAN as an international organization. Such a legal status will enable ASEAN to enter treaties with nonASEAN countries as an entity after signing the ASEAN Charter. If so, it is worth reviewing whether ASEAN itself acts as a treaty party or whether the ten separate members act as separate ` treaty parties vis-a-vis non-ASEAN members. At this point, ASEAN as an international organization with legal personality may enjoy certain rights in domestic systems, e.g. sue in national courts, purchase property, enjoy tax benets and enter into a headquarters agreement with a host country.36 12. As analysed above, ASEANs legal personality has been characterized by the enactment of the ASEAN Charter. The most remarkable point is whether this organizational and constitutional document gives the association separate entity qualication from its Member States. The ASEAN Charter expressly states that ASEANs organizational personality, immunities and privileges of ofcials, self-binding rules and decisions as well as regional identity and goals shall stand for ASEANs legal personality under international law. Although the ASEAN Charter has enacted those important points in its content, there are some doubts regarding ASEANs failure to impose separate entity responsibilities upon its own organs by the consensus process. With the requirements of the consensus process, ASEAN seems to be failing to display its distinct legal entity character. There are also some doubts whether ASEAN and its Member States are bound by and committed to the rules of the international public order. After over 40 years of informal and non-binding cooperative measures and voluntary initiatives by ASEAN Member States, the commitment to institutional and membership accountability under the ASEAN Charter is still a questionable step towards achieving regional compliance with international law. When considering ASEANs satisfaction of international legal requirements for organization-hood, it may also be of concern whether the presence of organs imposed by special tasks, dening the position of members in relation to the organization, is an important concern for establishing international legal personality. This would be related to whether the organization has supranational organs with their own functional responsibilities. In addition, whether ASEAN is ready for a uniform community legal system and well-functioning review and dispute resolution mechanism will also play a key role in the establishment of its own personality. These issues will be analysed below.

33 34 35 36

Klabbers, above n.27, 311 312. Joergen Oerstroem Moeller, Towards an ASEAN Charter: Lessons from the European Union, in: Rodolfo C. Severino (ed.), Framing the ASEAN Charter (Singapore: ISEAS Publishing, 2005), 5358. Oriol Casanovas, Unity and Pluralism in Public International Law (Holland: Martinus Nijhoff, 2001), 124125. Hsu, above n.19.

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II.C. ASEAN regional identity and objectives

13. Forming a solid bloc, Member States should recognize some common standards of conduct and basic principles to adhere to. Without such standards and principles, the organization cannot become a true entity. Such standards are often criteria for membership in an association. For different regional organizations, standards and principles are based on, and reect, common values and norms, and these give credibility to the associations and provide a basis for a regional identity and for the regions members to develop a sense of that identity.37 For example, the Charter of the Organization of American States and the Constitutive Act of the African Union embodied some common principles, values and norms.38 In Europe, the European identity is the result of both European history and culture. Mainly, the EU is based on some values, e.g. the respect for human dignity, fundamental rights, freedom, democracy, equality and the rule of law.39 Those common values and norms were expressed by several legal documents such as the Treaties of Rome, the Treaty of Maastricht and the Treaty of Lisbon, to name a few. Indeed, the identication of common values and principles within a regional bloc serves to dene a regions image of itself and helps to cultivate a deeper sense of regional identity among its members.40 Without common values and principles explicitly adopted, any established organization cannot, on the basis of objective criteria, call its members to unite or account for acts of the region as a whole. 14. Generally speaking, since Southeast Asia is more a geographical than a political, economic and cultural region, it is more difcult for ASEAN members to engender mutual trust to move quickly on effective regional integration and on strengthening common standards and values.41 However, the establishment of ASEAN has expressed Member States adherence to certain common values and principles. Those common values and principles were set forth in the Bangkok Declaration of August 1967, the Declaration of ASEAN Concord of 1976, the Treaty of Amity and Cooperation in Southeast Asia of 1976, ASEAN Vision 2020 of 1997, the Declaration of ASEAN Concord of 2003 and the Vientiane Action Program of 2004. In the 1967 Bangkok Declaration, it was stated as respect for justice and the rule of law in the relationship among countries of the region.42 The 1976 ASEAN Concord mentioned reliance on peaceful processes in the settlement of intra-regional differences and mutual assistance in case of natural disasters.43 There were also fundamental principles enacted in the Treaty of Amity and Cooperation in Southeast Asia of 1976. The Treaty dened its purpose as being to promote perpetual peace, everlasting amity and cooperation among their peoples which would contribute to their strength, solidarity and closer relationship. Certainly, the 1976 ASEAN Concord and 2003 ASEAN Concord II stressed development of an awareness of regional identity and the promotion of a common regional identity.44 However, these common values and objectives were not embodied in a single authoritative ASEAN document throughout the past decades.
37 38 Leo Suryadinata, Towards an ASEAN Charter: Promoting an ASEAN Regional Identity, in: Rodolfo C. Severino (ed.), Framing the ASEAN Charter (Singapore: ISEAS Publishing, 2005), 4144. Hannah Forster and Colin Granderson, Defending and Promoting Democracy: Regional Organizations and Universal Norms, in: OAS Secretarist (ed.), Democracy Bridge: Multilateral Regional Efforts for the Promotion and Defense of Democracy in Africa and America (Washington DC: OAS, 2007), 35 37. Ronan McCrea, Religion as a Basis of Law in the Public Order of the European Union, 16 Columbia JEL (2009), 81 120. Rodolfo Severino, Framing the ASEAN Charter: An ISEAS Perspective, in: Rodolfo C. Severino (ed.), Framing the ASEAN Charter (Singapore: ISEAS Publishing, 2005), 3 32. Cosmas Milton Obote Ochieng, The EU ACP Economic Partnership Agreements and the Development Question: Constraints and Opportunities Posed by Article XXIV and Special and Differential Treatment Provisions of The WTO, 10 Journal of International Economic Law (2007), 363 391. ASEAN: Bangkok Declaration (1967). Rodolfo C. Severino, The ASEAN Charter: An Opportunity Not to Be Missed, 12 UNISCI Discussion Papers (2006), 163 172. Elena Asciutti, The ASEAN Charter: An Analysis, 2 Perspectives on Federalism (2010), 43 46.

39 40 41

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15. In the light of the great historical, cultural and political diversity among the ASEAN members, one might think that it would be difcult for ASEAN to adopt similar principles, values and norms in common. However, without an authoritative document to dene its regional identity and objectives, ASEAN cannot credibly set the direction in which it is headed. Recognizing the necessity to adopt an organizational constitution, ASEAN Member States decided to launch a charter, signed in November 2007, with the layout of ASEANs own identity and basic objectives.45 Prior to the passage of the ASEAN Charter, ASEAN Member States had to conduct their own national reviews, analysis and monitoring to ascertain compliance with the rules, with no legally binding authority to resolve disputes among ASEAN members. The Charter dened the organizational purposes to include strengthening democracy, promoting rule of law and protection of human rights and fundamental freedoms, which give the organization more identity.46 Also, the provisions in the Preamble of the ASEAN Charter widen ASEANs orientation from political and economic cooperation towards adherence to the principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms.47 While the ASEAN Charter afrms the fundamental principles in the Bangkok Declaration, and subsequent agreements, the ASEAN Charter introduces a novel clause by making respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice and adherence to the rule of law, good governance, the principles of democracy and constitutional government key principles to govern the conduct of ASEAN and its Member States.48 16. With the signing of the ASEAN Charter, Member States have assumed the obligation of not attempting to defeat its purposes, one of which is adherence to multi-lateral rules. ASEAN Member States have to afrm adherence to rules of the international legal order, such as the United Nations Charter and international law, including international humanitarian law, the principle of non-intervention and all multi-lateral trade rules, emphasizing respect for the different cultures, languages, and religions of peoples of the ASEAN, given their common values in the spirit of unity in diversity.49 Thus, Member States are expressly obligated to take all necessary measures to effectively comply with all obligations, including the enactment of appropriate domestic legislation, to effectively implement the provisions of this Charter and to comply with all obligations of membership in relation to these broader purposes and principles of conduct.50 Most importantly, the ASEAN Charter appears to dilute the consensus requirement in the decision-making process. While the Charter states that basic principle, decision-making in ASEAN shall be based on consultation and consensus,51 the failure to achieve a consensus will vest the ASEAN Summit with the authority to decide how a specic decision can be made, a mechanism by which the ASEAN Summit can opt out of the consensus requirement on a case-by-case basis.52 The consensus requirement, though it marks ASEANs special character, has been criticized as a failure to distinguish ASEANs own identity from its Member States. 17. Without the recognition of the collective importance of regional identity, the future of ASEAN appears tentative. Judging from past ASEAN activities, if there are economic gains, the ASEAN leaders would certainly be more open to the idea of liberalizing and integrating their economies.53 Confronting the rise of P. R. China and India as well as the successful
45 46 47 48 49 50 51 52 53 Severino, above n.43, 163172. ASEAN Charter, art. 1(7). ASEAN Charter Preamble, seventh clause. ASEAN Charter, arts. 2(2h) and 2(2i). ASEAN Charter, arts. 2(2j), 2(2k), 2(21), 2(2m) and 2(2n). ASEAN Charter, art. 5(2). ASEAN Charter, art. 20(1). ASEAN Charter, art. 20(2). Dean A. DeRosa, Regional Trading Arrangements among Developing Countries: The ASEAN Example, Research Report 103 (International Food Policy Research Institute, 1998).

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deeper integration of the EU, ASEAN leaders have to choose the path of deeper integration or face the loss of substantial business opportunities. To achieve deeper integration, ASEAN leaders thus adopted the ASEAN Charter in 2008 with the intention of moving closer to an EU-style community.54 18. Since there is a common desire to foster an ASEAN community rather than just promote closer cooperation, a binding constitution with clear and denite objectives for forming a regional identity is necessary. Recognizing this, the ASEAN Charter codies fundamental objectives and regional identity in a comprehensive way. In sum, the Charter has expanded ASEANs purposes towards strengthening democracy, promoting rule of law and protecting human rights and fundamental freedoms, along with the UN Charter, international law and international humanitarian law. Even so, unlike EU Member States with predominantly Christian and economically developed experiences, ASEAN is one of the most diverse areas in the world based on its multiethnic, multi-lingual and multi-religious background.55 Therefore, it is not easy to dene the ASEANs regional identity in an explicit manner with a single document.

III. Some steps for deeper integration beyond adoption of the ASEAN Charter
III.A. Constituting supranational institutions?
19. It is important to note that deeper integration in ASEAN cannot be successfully achieved without the establishment of a stronger institutional structure with a better enforcement mechanism. After the ASEAN Secretariats creation in 1976, it functioned similarly to an executive organ. However, the ASEAN Secretariat had no legal authority to resolve disputes among members and remained weak in terms of formal powers. Internally, the ASEAN Secretariat could not authoritatively call for compliance with ASEAN agreements, or initiate arrangements to advance and uphold ASEANs purposes. Externally, ASEAN lacked a central authority to speak on its behalf and conclude agreements or conduct actions with other organizations and States. Recognizing this fault, the ASEAN Summit decided to streamline and strengthen the ASEAN organizational structure, especially the functions of the ASEAN Secretariat in 1992. Essentially, the ASEAN Summit established the position of Secretary-General, who was to be appointed on merit and given an enlarged mandate to initiate, advise, coordinate and implement ASEAN activities.56 Although the ASEAN Secretary-General was in 1992 given the mandate to take initiative, the power in practice is too circumscribed to full this mandate with any effectiveness. Without a more cohesive structure and a clearer regional identity, the Secretary-Generals functions and authority in practice fall far short of what seems necessary to carry forward regional purposes with expanded objectives and common values, to deal effectively with growing transnational challenges, to ensure compliance by Member States with legally binding commitments or to support ASEAN bodies functions.57 20. The ASEAN Summit, composed of Member States leaders, functions as the supreme policy-making body of ASEAN, with powers to deliberate, provide policy guidance and make decisions on key issues pertaining to the realization of ASEAN objectives, including taking appropriate actions in emergency situations.58 Thus, the ASEAN Summit could be afrmed
54 Hank Giokhay Lim and Kester Yi-Xun Tay, Regional Integration and Inclusive Development: Lessons from ASEAN Experience, Asia-Pacic Research and Training Network on Trade Working Paper Series, No. 59 (2008), 15 17. Suryadinata, above n.37. ASEAN: Joint Communique of the 25th ASEAN Ministerial Meeting, Manila, Philippines, 21 22 July 1992. Suryadinata, above n.37. ASEAN Charter, arts. 7 and 20.

55 56 57 58

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as the supreme decision-making body of the organization. However, while decision-making remains primarily based on consultation and consensus, if consensus cannot be achieved, the ASEAN Summit may decide how a specic decision can be made, or joint actions among members may not be reached. Reviewing the current ASEAN structure, the ASEAN Coordinating Council, composed of Foreign Ministers from the Member States, coordinates the implementation of agreements and decisions of the ASEAN Summit.59 It originally took place in the ASEAN Ministerial Meeting, and was held at least once a year. The Charter has provided that the ministerial bodies may maintain the senior ofcials forums, working groups and technical bodies currently operating under their respective jurisdictions and set up new ones if necessary. The signing and ongoing ratication process of the ASEAN Charter institutionalizes ASEANs Vision 2020. Pursuant to this vision, ASEAN leaders resolved in 2003 to facilitate the creation of the ASEAN Community through three pillar communities including the ASEAN Security Community, the AEC and the ASEAN Socio-Cultural Community. With three pillar communities, ASEAN Community Councils composed of the ASEAN Political-Security Community Council, the ASEAN Economic Community Council and the ASEAN Socio-Cultural Community Council continue the work of the ASEAN pillar communities and submit recommendations and reports to the ASEAN Summit for decision.60 21. Although there had been a strengthening of its institutions as described above, ASEAN still maintains a very loose organizational structure. ASEAN does not operate on the overriding principle of using a formal, detailed and binding institutional structure to prepare, enact, coordinate and execute policies for integration.61 Some scholars have argued that ASEANs development should involve different ministries, not just the foreign ministries which have traditionally been involved in ASEAN decision-making and require higher-level coordination with each ASEAN Member State.62 Some scholars have suggested that ASEAN members should follow the EUs example by establishing separate ministries serving as national secretariats or placing the national secretariats under the direct control of the national leaders.63 Those thoughts and suggestions have been partly implemented and led to the signing of the ASEAN Charter in 2008. While negotiating the constitution, some scholars believed that there was an opportunity to decide whether to place responsibility in a particular ASEAN organ for promoting and implementing integration initiatives, and promoting an ASEAN perspective like the EU Commission.64 Structural changes included the establishment and maintenance of ASEAN Sectoral Ministerial Bodies, the ASEAN Secretariat, the Committee of Permanent Representatives, National Secretariats and the ASEAN Foundation, which collectively coordinate report-gathering throughout ASEANs operational functions, for the formulation of recommendations for ASEAN policy-making.65 Meanwhile, the ASEAN Charter establishes that each ASEAN member station a permanent representative in Jakarta, the location of the ASEAN Secretariat.66 A committee of permanent representatives was proposed to serve as the liaison with the ASEAN Secretariat, ministerial councils and ASEAN national secretariats to be established within the various ASEAN members national governments.67 The ASEAN Charter requires ASEAN member governments to establish national secretariats that

59 60 61 62 63 64 65 66 67

ASEAN Charter, art. 8. ASEAN Charter, art. 9. Denis Hew, Roadmap to an ASEAN Economic Community (Singapore: ISEAS Publications, 2005), 2639. Fidel v. Ramos, The World to Come: ASEANs Political and Economic Prospects in the New Century, Global Forum 2000: The World to ComeValue and Price of Globalization, 17 May 2000. Hew, above n.61. Ramos, above n.62. ASEAN Charter, arts. 10, 11, 12, 13 and 15. ASEAN Charter, art. 12. ASEAN Charter, art. 13.

Lin, ASEAN Charter 831

will serve as the information hubs and coordination centres for ASEAN integration in each country.68 22. Most importantly, the ASEAN Charter establishes that the ASEAN Secretariat and SecretaryGeneral enjoy the usual privileges and immunities of working for a supranational organ, like the Commission in the EU.69 This is in keeping with the ASEAN Charters provision of international legal personality for ASEAN.70 The ASEAN leaders also agreed that the Secretariats professional staff would be appointed on the principle of open recruitment and that representation of all ASEAN countries in the Secretariat should be ensured.71 The ASEAN Charter attempts to address this issue by authorizing the ASEAN Secretariat to monitor the implementation of community decisions and rulings by ASEAN member governments.72 However, unlike what the Treaty of Rome does for the European Commission, the ASEAN Charter does not assign any coercive authority to the ASEAN Secretariat or Secretary-General, and the ASEAN Secretariat is given only the power of adverse publicity through regular reports on implementation.73 Many scholars have pointed out that ASEAN should establish EU-style supranational institutions with rule-making organs such as an ASEAN legislative mechanism, an organizational executive mechanism for the implementation of rules and decisions, as well as a judicial institution for interpreting and enforcing ASEAN rules and decisions. However, ASEAN seems to be failing at building an institution that is supranational in nature, viz. ASEAN Commission, to expedite regional integration. The main reason often comes from ASEAN leaders predisposition to give priority to domestic interests over ASEAN-wide interests. 23. Historically, most ASEAN members had different political and economic ties with Western countries since becoming independent, and were concerned more about these extra-ASEAN partners for deeper relationships than intra-ASEAN integration. Also, ASEAN members historically exhibited the envy and antagonism that have existed between intra-ASEAN countries such as Malaysia and Singapore.74 With this historical background, the developmental directions of mutual respect and diversity of content had become the principles and informal decisionmaking patterns within ASEAN. Even after adopting the ASEAN Charter, the process of ASEAN integration came down to nominal uniformity, but against this historical backdrop the procedure has been substantially delayed due to the twin pillars of national sovereignty and non-interference. The ASEAN Charter attempts to address this issue by authorizing the ASEAN Secretariat to monitor implementation-related decisions and rulings by ASEAN member governments.75 However, the ASEAN Secretariat is hampered by the power of adverse publicity through regular reports on implementation.76 24. Reviewing the structural transformation after the ASEAN Charter, there is no institution that acted as a de facto supranational decision-making organ within the community; there was, at most, a coordinating body. Unlike in the EU, ASEAN leaders have repeatedly rejected the idea of supranationality, which may require them to give up some level of domestic sovereignty.77 Under the EU system, there is a regulatory institution, the European Commission, responsible for ensuring that EU law, including regulations, directives and decisions, is applied throughout all
68 69 70 71 72 73 74 75 76 77 ASEAN Charter, art. 13. ASEAN Charter, arts. 17, 18 and 19. ASEAN Charter, art. 3. Severino, above n.40, 3 32. ASEAN Charter, art. 27(1). Ibid. For example, there are many areas of contention between Singapore and Malaysia, such as water issues, etc. See Tan, above n.11. ASEAN Charter, art. 27(1). Ibid; also see ASEAN Secretariat, An ASEAN Economic Community by 2015, ASEAN Fact Sheet (2008), AEC/001-2. Edmund W. Sim, The ASEAN Charter: One of Many Steps towards an ASEAN Economic Community, 14 International Trade LR (2008), 109 116.

832 Chinese JIL (2010)

Member States.78 There is also the European Council, the main decision-making body of the EU; ministers of the Member States meet within the Council to discuss different issues. It may be argued that a lack of this sort of power in the decision-making body is the fatal weakness of future ASEAN integration. In addition, the ASEAN Charter also provides no recourse for the ASEAN Secretariat should a member government be unable or unwilling to implement agreements; that is, it lacks a supranational decision-making or law-making organ for legislating community law, or for enforcing any ASEAN protocols or resolution of disputes.

III.B. Making uniform the set of community laws

25. As mentioned above, ASEAN has tried to gain recognition as a regional entity and has, to a rising degree, acted as one. Through such recognition, ASEAN Member States negotiated and enacted a series of agreements and declarations aimed at deeper integration. Since the signing of the ASEAN Charter, more and more effective agreements have been enacted for the economic integration stream. There are dozens of agreements and declarations dealing with a wide range of economic issues, e.g. the 2009 ASEAN Trade in Goods Agreement, the 2008 Manila Declaration on Intensifying ASEAN Minerals Cooperation and the 2009 ASEAN Comprehensive Investment Agreement. Although many of its agreements are technically binding, ASEAN has no central institutions to uphold compliance with them. Most ASEAN agreements have been dependent on the voluntary compliance of Member States, because those agreements provide no recourse for the ASEAN system on how State governments should implement the measures. There are also no mechanisms for calling Member States to account in case of non-compliance with binding agreements. 26. In the past, ASEAN countries preferred to have their commitment based on consensus and provided loose framework agreements with exible practices rather than a concrete, legally binding regime.79 This is the main obstacle to deepening ASEAN regional integration, as evidenced by the modest success in ASEAN regional cooperation. To achieve deepening integration, ASEAN leaders have to adopt a harmonious legal system and the mutual recognition principle. However, due to nationalistic pressures, the ASEAN leaders have to safeguard their domestic economies and protect jobs rst instead of pushing ahead with ASEAN integration. With such pressures, there is a risk that the budding endeavours for regional integration could turn into intense competition and possible political confrontation rather than cooperation. To deter past hostilities from creating present and future roadblocks, to achieve regional identity and to ensure future integration, there are still a multitude of steps to be achieved among ASEAN members. 27. Compared with ASEAN, the EU legal system has binding legal force throughout every Member State, on par with national laws. In fact, acceptance of an ASEAN community law to govern the association, whether binding or guiding only, with principles that can be applied at the national level, would help ASEAN with future integration. However, reviewing the current ASEAN agreements and declarations, there is nothing to show that ASEAN members are ready to move towards community law for deeper integration. ASEAN declarations, agreements and action plans are usually vague and too general to set practical rules of cooperation.80 In typical ASEAN fashion, the ASEAN leaders sometimes failed to dene clearly the meaning of its resolutions, leaving the ASEAN Secretariat clueless as to how to implement the protocols signed at the summit.81 Using neutral and vain words, such as promoting, conducting, encouraging or developing, those agreements appear legal achievements on some points, but their substantial practice in fact is questionable. Because of political, economic, cultural, social and ethnic differences, ASEAN members often consider self-interest
78 79 80 81 Paul Craig and Grainne de Burca, EU Law, Text, Cases and Materials (Oxford University Press, 2007), 268303. Ibid. Tan, above n.11. Ibid.

Lin, ASEAN Charter 833

instead of looking for collective benets.82 For example, the ASEAN members still presently maintain their own investment boards to approve investments according to their respective domestic laws.83 Some of these domestic laws are more restrictive than others and fail to reach similar standards for investment within ASEAN.84 The main reason is no doubt that ASEAN Member States still exhibit a predilection to focus on a competitive position in order to attract external investment, rather than internal cooperation. 28. Since the ASEAN members have been reluctant to encourage the formation of a binding uniform legal system, stemming from a fear of impinging on ASEANs long-held principles of non-interference and consensus, it seems that ASEAN members are hard pressed to develop a uniform legal system similar to the EUs in the community. Judging from the EUs developmental history, imposing a denite legal structure, instituting more formalized rules and roles and giving ASEAN an international legal personality will help transform ASEAN from an informal club into a true international organization.85 However, those decisions and agreements concluded within ASEAN present behavioural norms rather than formal rules and regulations, and this situation has occupied the central position.86 Some scholars have argued that the legal systems of the ASEAN members differ greatly, ranging from common law as in the case of Singapore to civil law systems such as that in Indonesia, and hybrids of both, such as in Thailand, which makes it difcult to build a community law.87 However, since the EU consists of branches which have had different legal traditions for centuries, this may not be the best reason to question the difculty of formation of an ASEAN community law. Some scholars also have argued that ASEAN is likely relying on the modes of consultation and consensus principles to reach agreements on the delicate issues of harmonizing the domestic laws of ASEAN members into a regional legal system that respects cultural sensitivities and national sovereignty.88 The author believes the latter may be a better explanation for the current state of ASEAN. 29. When ASEAN reaches a consensus decision to take actionfor example, its decision to implement uniform lawsthe next challenge is to implement this decision at the domestic level, which is more difcult than forming a common consensus at a regional level. Since ASEAN leaders lack the rm political will to process and implement those agreements, and because of the diversity in legal development among members, implementation of ASEAN agreements has been difcult to effect to date. In fact, most ASEAN declarations and agreements have merely declared intentions and objectives to implement closer regional cooperation. The author therefore believes that the ASEAN countries may rst need to nd the political will and the political basis for realizing the ultimate goal of regional integration. They need to elaborate and delineate a course of action and a set of procedures for implementing recognized policies.89 30. Although related issues were not mentioned within the content of the ASEAN Charter, ASEAN integration seems to be not necessarily moving towards deeper integration; therefore, many measures and policies adopted by ASEAN still remain at the level of promoting cooperation instead of implementation of substantial legal agreements. Scholars have pointed out that until the
82 83 84 85 86 87 Ibid. Michael Ewing Chow, ASEAN China F.T.A.: Trade or Tribute?, 10 Singapore YBIL (2006), 251. Ibid. Sim, above n.77. Tan, above n.11. For example, the Philippines legal system is rooted in strong inuences from US laws. Common law forms the basis for the legal systems of Brunei, Malaysia and Singapore. Indonesia follows the construct of the Dutch legal system. On the other hand, Thailands legal system derives from an amalgamation of the civil and common law systems. See Deborah A. Haas, Out of Others Shadows: ASEAN Moves toward Greater Regional Cooperation in the Face of the EC and NAFTA, 9 American University JILP (1994), 809. Ibid. Shara L. Aranoff, Regional Trade Organizations: Strengthening or Weakening Global Trade?, 88 ASIL Proceedings (1994), 309.

88 89

834 Chinese JIL (2010)

legal rules created or enforced by supranational organs become more precise, predictable and reliable, the rules will not gain in international acceptance and legitimacy.90 The founding documents dene ASEAN activities as State-led, not as the product of any formal and permanent decision-making ASEAN institutions.91 As a result, the publics reproach following non-enforcement will increase and sovereign action or inaction aimed at barring their effectiveness will become less legitimate.92 Therefore, ASEAN members should encourage giving priority to the overall benets to ASEAN, and not just to themselves. Acceptance of an ASEAN community law, whether binding or guiding only, with principles that can be applied at the national level, will also help deepen the ASEAN members future integration.93 The EU model has shown that the existence of supranational institutions that are legally and organically independent of national bureaucracies would advance regional economic integration. At this point, it could perhaps be said that the ASEAN Charter is another declaration without substantial legal binding or enforcement. Under such circumstances, if ASEAN retains its level as cooperation among members or diplomatic community, it will be difcult for ASEAN to process deeper integration like the EU does.

III.C. Establishing a review mechanism for dispute resolution?

31. The other important task for deeper regional integration to function efciently is creating a policy review and dispute appellant mechanism.94 Reviewing the EU case of regional integration, the model is well-designed with mechanisms for policy review and dispute resolution. Though such well-functioning mechanisms are still developing in many regional blocs, they do exist and are progressing in development. Failure to establish a review mechanism for proper political review will handicap ASEAN as it tries to compete against these other markets.95 Traditionally, the inevitable disputes among ASEAN members have been managed and contained, some settled by diplomatic means. For the formation of a formal institutional infrastructure and organizational integration, a much more structured, detailed, and binding legal document, Protocol on Dispute Settlement Mechanism, was adopted by ASEAN in 1996; however, this Protocol is yet to be invoked by any member state.96 This is probably because ASEAN has no credible mechanisms for settling disputes in an objective and binding manner. For example, in the rst ASEAN investment arbitration, the 2003 case of Yaung Chi Oo Trading Pte Ltd vs. Government of Myanmar Union,97 the arbitration tribunal supported by ASEAN eschewed the opportunity to pave the way for developing ASEAN law or even establishing an efcient and powerful appellate organ.98 Instead, it decided that it had no jurisdiction to hear the dispute on very technical grounds, to avoid unnecessary arguments among members.99 Some scholars also have argued that the critically important reason is that the foreign investment expected through deeper ASEAN integration is developing towards a system of judicial decision rather than the route of diplomatic resolution.100
90 91 92 Tan, above n.11. Eero Palmujoki, Regionalism and Globalism in Southeast Asia (New York: Palgrave, 2007), 1011. Horacio A. Grigera Naon, Sovereignty and Regionalism, 27 Law and Policy in International Business (1996), 1073 1078. 93 Sim, above n.77. 94 Ibid. 95 Ibid. 96 Hew, above n.61. 97 Yaung Chi Oo Trading Pte Ltd v. the Government of Myanmar Union, ASEAN Case No. ARB/01/1, Award, 8 ICSID (World Bank) 452, 42 ILM 540 (2003). 98 Ibid. 99 Scott Vesel, Clearing a Path through a Tangled Jurisprudence: Most-Favored-Nation Clauses and Dispute Settlement Provisions in Bilateral Investment Treaties, 32 Yale JIL (2007), 125. 100 Tan, above n.11; also see Mohamed Ariff, Trade Investment and Interdependence, in: Simon S.C. Tay, Jesus Estanislao and Hadi Soesastro (eds.), A New ASEAN in a New Millennium (Singapore: ISEAS Publishing, 2000), 4565.

Lin, ASEAN Charter 835

32. The 2004 ASEAN Protocol on Enhanced Dispute Settlement Mechanism governs formal dispute resolution in ASEAN,101 but the Protocol focuses on disputes arising from ASEAN economic agreements. Aimed at economic dispute resolutions, the Protocol has been criticized and less invoked among members because of the dispute resolution process.102 Firstly, ASEAN members have continued to apply the consensus principle informally and in the opposite manner, with members very reluctant to invoke the Protocol, such that panel requests are not made unless there is a consensus.103 Such dispute resolution systems are bogged down by the need for ASEAN way consensus among members and national leaders reluctance to bring cases against fellow ASEAN members. The national bureaucrats who may have caused the problem in the rst place are involved in the dispute resolution process itself. The author therefore believes that allowing for majority approval of dispute resolution decisions, rather than consensus, would improve the system. Besides, members may wish to consider whether there should be an overall ASEAN judicial mechanism that handles non-economic disputes, or whether ASEAN should look to other existing international tribunals for such disputes. This discourages ASEAN members from invoking the Protocol, and often they seek dispute resolution in other fora such as the WTO, e.g. the case of Customs and Fiscal Measures on Cigarettes between Thailand vs. Philippines,104 and the issue of Prohibition of Imports of Polyethylene and Polypropylene between Malaysia and Singapore.105 These aws are why the existing dispute resolution process is less involved. 33. Since the adoption of the ASEAN Charter in 2008, the Charter has provided some relief from this situation by mandating that unresolved disputes shall be referred to the ASEAN Summit for resolution by national leaders.106 The ASEAN Charter states that unresolved disputes shall be referred to the ASEAN leaders summit. This is an improvement over the legal limbo in which many intra-ASEAN disputes currently reside. This allows for the possibility of decisions based on a basis other than consensus, as the ASEAN Charter does allow the members to adopt decisions using a majority or supermajority rule.107 The author therefore suggests that the language in the Charter allows the ASEAN leaders the exibility to designate issues as not requiring absolute consensus. On the other hand, there are specic obligations on ASEAN Member States to take necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of the Charter and to comply with all obligations of membership, and to peacefully resolve and settle disputes pursuant to the ASEAN dispute settlement mechanisms, without prejudice to future recourse to dispute settlement mechanisms to which ASEAN Member States are parties.108 ASEAN members may seek mediation and good ofces consultations. If these efforts are ineffective, they may ask to establish a panel of independent arbitrators to review the dispute. 34. The ASEAN Secretary-General had listed dispute resolution as requiring necessary reform for proper administration in the future. Although the ASEAN Charter has improved ASEANs dispute resolution system in some ways, the Charter still repeats that existing dispute resolution
101 ASEAN Protocol on Dispute Settlement Mechanism, art. 1 (1996); also see ASEAN Protocol on Enhanced Dispute Settlement Mechanism, art. 1 (2004). 102 ASEAN Agreement for the Promotion and Protection of Investments, arts. 9, 10 and 11 (1987); also see ASEAN Protocol to Amend the 1987 Agreement for the Promotion and Protection of Investments (1996), which adopted the Dispute Settlement Mechanism as an alternative means of dispute resolution, http://www.aseansec.org/6465.htm (last visited 25 May 2010). 103 Sim, above n.77. 104 ThailandCustoms and Fiscal Measures on Cigarettes from the Philippines, WT/DS/371 (7 February 2008) (complaint raised by the Philippines). 105 Malaysia Prohibition of Imports of Polyethylene and Polypropylene, WT/DS/1 (10 January 1995) (complaint raised by Singapore). 106 ASEAN Charter, art. 26. 107 ASEAN Charter, art. 21(2). 108 ASEAN Charter, arts. 5(2), 23, 24, 25, 26, 27 and 28.

836 Chinese JIL (2010)

mechanisms will continue to be followed for the most part. The author believes that the subsequent agendas and negotiations after the adoption of the ASEAN Charter vindicate the contention that ASEAN integration is still based on vague declarations, as well as the fact that its dispute settlement mechanism is still founded in solutions based on conciliation, mediation and dependable ofces, rather than the use of legal mechanisms like in the EU model. Historically, inter-ASEAN disputes or arguments were resolved through diplomatic channels rather than legal processes; therefore, the political sensitivities among the ASEAN members effectively prevented the development of community law in ASEAN.109 The Charter therefore should have set up a dispute settlement mechanism, perhaps similar to the one provided for in the ASEAN Community or the ASEANChina Agreement on Dispute Settlement Mechanism of November 2004 to cover all ASEAN agreements rather than just the economic ones. The other important issue is whether the private sector can go to domestic courts or supranational tribunals at the regional level, as in the EU model. Regretfully, the ASEAN Charter did not address the issue of private claims, and proposals to give private parties the right to seek dispute resolution were rejected in the drafting stage. It also could have laid the groundwork for improved dispute resolution outside the ASEAN Charter by naming a standing panel of experts to serve on panels, establishing a code of conduct and procedure for cases and expanding the role of the private sector. However, ASEAN leaders failed to make those endeavours. Therefore, for lack of explicit legally binding provisions in most of its agreements, with no effective compliance mechanisms or credible dispute settlement systems, ASEAN often does not carry out measures already agreed on to integrate the regional economy or deal with transnational problems.

IV. Conclusion
35. Due to ASEANs political diversity and different economic conditions, national resilience and non-interference will continue to stymie deeper integration as ASEAN governments jealously guard their sovereignty. Given that ASEAN is made up of countries at very different levels of development, an ASEAN community is unlikely to be achieved by 2020.110 The ASEAN Charter is a good rst step towards achieving the united ASEAN Community envisaged by its leaders. It provides greater formal structure and organization to the grouping, which heretofore has operated mainly through informal consensus. Imposing a denite legal structure, instituting more formalized rules and roles and giving ASEAN an international legal personality may help transform ASEAN from an informal forum into a true international organization like the EU. Through the signing of the ASEAN Charter, ASEAN leaders are attempting to build an EUstyle bloc, but without the existence of either a strong supranational executive, like that of the European Commission, or a well-developed body of community law and dispute settlement, as in the EU. Without those mechanisms, ASEANs plan for an EU-style deeper integration seems impracticable. 36. In addition, the ASEAN members historically have been reluctant to encourage either, stemming from a fear of impinging on ASEANs long-held principles of non-interference and consensus. Failure to integrate ASEANs diverse situations means that the group will lose opportunities to regional competitors. This tension between the need to integrate and the reluctance to yield national sovereignty is therefore the main factor affecting the future implementation of the ASEAN Charter. Compared with the EUs developmental experiences, ASEANs endeavours towards deeper integration seem both slower and weaker. Not only ASEAN Member States diverse background, but their reluctance to surrender some levels of sovereignty make ASEANs goal for deeper integration a goal in name and form only. With ASEAN Member States competitive positions, most of them tend to depend much more on exporting to North America or Europe than to their neighbours. Regional integration has thus developed slowly.
109 Tan, above n.11. 110 Hew, above n.61.

Lin, ASEAN Charter 837

This article therefore argues that certain stepsincluding a supranational institution, a uniform legal system and a review mechanism for dispute resolutionare necessary to achieve a thriving EU-style bloc. The ASEAN Charter alone does not provide a sufcient framework. Simply signing a joint agreement or diplomatic compromise is an insufcient measure to achieve the goal of better and deeper integration. On the other hand, whether moving in the direction of deeper integration stands for a better future or more efcient system within regional membership remains a question. 37. Even after the ASEAN Charter, the ASEAN leaders still stress the principles of mutual respect and non-interference. It thus seems very unlikely that ASEAN leaders will surrender their national sovereignty and follow EU-style integration. However, despite the use of the EUs experiences to draft the ASEAN Charter, some scholars have argued that historical differences between the two regions constitute the major reason that ASEANs comparison with the EU is neither useful nor productive.111 They also argue that the promotion of the EU experience as model or paradigm is far from analytically helpful.112 Still, the author believes that even though the EUs developmental experiences may not t ASEANs demands in every respect, some key points such as legal personality under international law, regional identity as well as independent institutions and legislations are worth learning from. With internal competition, economic conicts and even outside challenges, a positive future of deeper integration for ASEAN is questionable. However, even though a deeper integration is necessary to face global challenges, scholars have pointed out that deeper integration does not mean better or more efcient integration.113 In addition, in forming a regional integration and not only a geographic situation, cultural heritage, common language and similar economic and security problems all play a crucial role.114 Considering ASEANs complicated situation, the author therefore suggests that at some point the ASEAN membership is going to have to take the leap of faith to cede the sovereignty to which it so steadfastly clings in order to achieve similar EU-style integration or it will miss the opportunity to be on the leading edge of twenty-rst century economic and political development and leadership.

111 Philomena Murray, Comparative Regional Integration in the EU and East Asia: Moving beyond Integration Snobbery, 47 International Politics (2010), 308 323. 112 Ibid. 113 Michael G. Plummer, The ASEAN Free-Trade Area: Backwards or Forwards, CAS Discussion Paper No. 5 (1996), 9 13. 114 Chun Hung Lin, Regionalism or Globalism? The Process of Telecommunication Cooperation within the OAS and NAFTA, 11 Currents International Trade Law Journal (2002), 3045.

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