ASEAN legal personality and its implications

Since 2008 the ASEAN Charter has provided the legal and institutional framework for Southeast Asian regionalism and includes specific provisions on external relations. However, ASEAN external relations did not start with the Charter, and the difference the Charter makes, both legally and in practice, is one of the issues we need to address. The Charter also needs to be viewed together with the other main agreements currently in force (which could be called the ASEAN acquis) in order to assess the scope and the objectives of ASEAN external relations. The founding document of ASEAN, the Bangkok Declaration of, does not mention ASEAN external relations in the sense of granting any treaty-making power. Although the Declaration of ASEAN Concord does mention trade co-operation, including ‘joint efforts to improve access to markets outside ASEAN’ (para B.3.iv), and the Treaty of Amity and Co-operation in Southeast Asia of refers to the desire to encourage ‘close and beneficial co-operation with other States as well as international and regional organisations outside the region’ (Article 6), it is not until the 1992 Framework Agreement on Enhancing ASEAN Economic Co-operation that we find an explicit external objective. This agreement, as part of what is referred to as an outward-looking attitude to economic co-operation in order to contribute to global trade liberalisation (Article(1)), makes an explicit reference to the external economic relations of ASEAN and highlights the need for ASEAN members ‘to establish and/or strengthen co-operation with other countries, as well as regional and international organisations and arrangements’ (Article 5).

The ASEAN Charter was adopted on 20 November by the ten current ASEAN members, and entered into force on 2008 December. It establishes an explicit external mandate for ASEAN and an institutional framework for conducting external relations, including the grant of legal personality.