According to the EPG on the ASEAN Charter, the ultimate end point is the creation of an ASEAN Union. What form this is to take was not spelled out, and indeed there has been no official mention of this subsequent to the presentation of the Report of the Eminent Persons' Group. The aim of creating an ASEAN Community remains alive, however. The target date is 2015, as decided at the Twelfth ASEAN Summit in Cebu in January 2007. Whether it is a Union or Community to be formed, clearly much more has to be done to foster the rules-based culture that closer integration requires. There are two essential elements: first, there has to be an effective mechanism for settling disagreements among the member states that goes beyond mere political patching; secondly, there must be a formal system for promulgating, interpreting and enforcing the rules that are necessary for the creation of a cohesive ASEAN Community. Logically, the creation of rules should come first; but in the ASEAN context there are quite enough rules, the principal problem being enforcement. ASEAN lacks a culture of keeping to the grandiose plans of action, blueprints and roadmaps that each Summit creates. This must change if the ambition to create an ASEAN Community based on the rule of law is to succeed.

To appreciate the need for a proper legal service, it is necessary to examine the current reality as far as rule-makingand dispute settlement are concerned. Much of what follows is based on the experience of one of the authors and discussion with diplomats and officials involved in ASEAN activities.

The current reality

2.1.1 The making of rules

A rules-based organisation must have some means for making rules. The current method depends largely, if not exclusively, on the member states themselves. The rules that bind ASEAN member states are to be found in the many treaties, agreements, memoranda of understanding and protocols that are produced after the ASEAN Summits and sectoral meetings in the course of a year.

This monograph is published within the context of a wideranging research project entitled, Integration Through Law: The Role of Law and the Rule of Law in ASEAN Integration (ITL), undertaken by the Centre for International Law at the National University of Singapore and directed by J. H. H. Weiler, Michael Ewing-Chow and Tan Hsien-Li.

The Preamble to the ASEAN Charter concludes with a single decision: “We, the Peoples of the Member States of the Association of Southeast Asian Nations … [h]ereby decide to establish, through this Charter, the legal and institutional framework for ASEAN.” For the first time in its history of over four decades, the Legal and the Institutional were brought to the forefront of ASEAN discourse.

The gravitas of the medium, a Charter: the substantive ambition of its content, the creation of three interlocking Communities, and the turn to law and institutions as instruments for realization provide ample justification for this wide-ranging project, to which this monograph is one contribution, examining ASEAN in a comparative context.

That same substantive and, indeed, political ambition means that any single study, illuminating as it may be, will cover but a fraction of the phenomena. Our modus operandi in this project was to create teams of researchers from Asia and elsewhere who would contribute individual monographs within an overall framework which we had designed. The project framework, involving several thematic clusters within each monograph, is thus determined by the framework and the place of each monograph within it.

As regards the specific content, however, the authors were free, indeed encouraged, to define their own understanding of the problem and their own methodology and reach their own conclusions. The thematic structure of the entire project may be found at the end of this Preface.

The project as a whole, and each monograph within it, display several methodological sensibilities.

First, law, in our view, can only be understood and evaluated when situated in its political and economic context.

Note: this list is not meant to be exhaustive.

Political and security

1967 Bangkok Declaration

1971 Zone of Peace, Freedom and Neutrality Declaration

1976 Declaration of ASEAN Concord (Bali Concord)

1976 Treaty of Amity and Cooperation in Southeast Asia

1976 Agreement on the Establishment of the ASEAN Secretariat

1995 Treaty on the Southeast Asia Nuclear Weapon-Free Zone

2003 Declaration of ASEAN Concord II (Bali Concord II)

2004 Treaty on Mutual Legal Assistance in Criminal Matters

2005 ASEAN Agreement on Disaster Management and Emergency Response

2007 ASEAN Convention on Counter-Terrorism

2007 ASEAN Charter

2009 Agreement on the Privileges and Immunities of ASEAN

2009 ASEAN Petroleum Security Agreement

2011 Declaration on ASEAN Community in a Global Community of Nations (Bali Concord III)

2012 ASEAN Human Rights Declaration

Economic

1979 Agreement on the ASEAN Food Security Reserve

1992 Agreement on the Common Effective Preferential Tariff (CEPT) Scheme for the ASEAN Free Trade Area

1992 Framework Agreement on Enhancing ASEAN Economic Cooperation

1995 ASEAN Framework Agreement on Services

1997 ASEAN Agreement on Customs

1998 ASEAN Framework Agreement on Mutual Recognition Arrangements

1998 Framework Agreement on the ASEAN Investment Area

1998 Framework Agreement on Facilitation of Goods in Transit

2000 e-ASEAN Framework Agreement

2002 Framework Agreement on Comprehensive Economic Cooperation between ASEAN and China

2003 Framework Agreement on Comprehensive Economic Cooperation between India and ASEAN

2003 Framework Agreement for Comprehensive Economic Partnership between Japan and ASEAN

2004 ASEAN Framework Agreement for Integration of Priority Sectors

2004 Protocol on Enhanced Dispute Settlement Mechanism

2005 Agreement to Establish and Implement the ASEAN Single Window

2005 Agreement on the Harmonized ASEAN Electrical and Electronic Equipment Regulatory Regime

2005 Framework Agreement on Comprehensive Economic Cooperation among the Governments of Member Countries of ASEAN and the Republic of Korea

2009 ASEAN Framework Agreement on the Facilitation of Inter-State Transport

2009 ASEAN Multilateral Agreement on Air Services

2009 ASEAN Multilateral Agreement on the Full Liberalisation of Air Freight Services

2009 ASEAN Trade in Goods Agreement

ASEAN was conceived in 1967 as a confidence-building measure to foster trust among the five original members of the association. The organisation has gradually expanded to cover all the states of Southeast Asia (with the exception of Timor Leste) and now extends to cooperation in practically all areas of the economy, foreign policy and government. This development, however, has been piecemeal and lacking in strategic impetus. An oft-ventilated criticism of ASEAN is that it is good at producing declarations, agreements, road maps and other instruments but bad at implementing them. The avowed goal of ASEAN is to create a community by 2015, comprising three pillars: the ASEAN Economic Community (AEC), the ASEAN Political-Security Community (APSC) and the ASEAN Socio-Cultural Community (ASCC). The primary framework document for this purpose is the ASEAN Charter. It is clearly stated in the Charter, and repeatedly re-emphasised subsequently, that the ASEAN Community will be rules-based and underpinned by the rule of law.

ASEAN has no ambition to become a supranational organisation with shared sovereignty. It will remain an organisation of nation states. For this reason, it is misleading to consider entities such as the EU as models. This is not what ASEAN aims to be, despite the reference in the Charter to an ASEAN Union. That may come in time, but not in the foreseeable future. The present goal, and one that will absorb the energy of the member states, will be the creation of the ASEAN Community. This cannot happen unless there is a culture of respecting the rules and following up on the many grand visions set out in various ASEAN instruments. Developing this ‘rules-based’ culture is vital to the creation of the ASEAN Community. Without that commitment to fulfilling the many obligations undertaken by the member states and following the rules they have agreed to, the ASEAN Community will be nothing but a mirage.

The first two chapters of this monograph have set out the history and structure of ASEAN in order to enable the reader to understand the current reality. This is the essential context within which to consider the role of a putative ASEAN Legal Service. However, before proceeding to deal with ASEAN, it is instructive to look at how other international organisations have organised their legal services.

The European Union

Though ASEAN has sometimes been compared with the EU, it is clear that the ASEAN Legal Service cannot be directly based on the model of the legal services of the institutions of the EU.

3.1.1 The EU legal order

The EU has established a new legal order which differs widely from classic public international law. The institutions of the EU are part of a very sophisticated and integrated system of law.

As one of the authors of this book wrote in 1999: