Chronology of the development of ASEAN

1967 Signing of the ASEAN Declaration in Bangkok on 8 August by the Foreign Ministers of Indonesia, Malaysia, the Philippines, Singapore and Thailand, marking the foundation of the association. This counts as the first ASEAN Ministerial Meeting (AMM). The AMM meets annually thereafter. Creation of the ASEAN Standing Committee (ASC) to prepare meetings of the AMM.

1971 ASEAN Senior Officials' Meeting (ASEAN SOM) established to discuss sensitive issues before submission to the ASEAN Ministerial Meeting (AMM). The SOM leader is the permanent secretary or equivalent.

1973 Foreign Ministers decide to establish an ASEAN Secretariat.

1975 End of the Vietnam War with the fall of South Vietnam. ASEAN Economic Ministers meet for the first time in Bali (the next meeting in Kuala Lumpur the following year adopted the name ASEAN Economic Ministers' Meeting). ASEAN Labour Ministers (ALMM) meet in Jakarta and thereafter biannually.

1976 First ASEAN Summit held in Bali. Issue of the Declaration of ASEAN Concord (Bali Concord).

Signing of the Treaty of Amity and Cooperation in Southeast Asia (TAC). Establishment of the ASEAN Secretariat in Jakarta.

1977 Second ASEAN Summit held in Kuala Lumpur. ASEAN Economic Ministers' Meeting (AEM) formalised.

Establishment of the Senior Economic Officials' Meeting(SEOM). The AEM meets annually thereafter. ASEAN Education Ministers (ASED) meet for the first time in Manila; meetings are held irregularly thereafter.

1978 Invasion of Cambodia by Vietnamese forces. Special meeting of ASEAN Foreign Ministers held in January 1979 to deplore the invasion. ASEAN diplomats thereafter work together to deny diplomatic recognition to the new regime in Cambodia.

1980 Establishment of the ASEAN Ministers of Health Meeting (AHMM), ASEAN Ministerial Meeting on Science and Technology (AMMST) and ASEAN Ministers on Energy Meeting (AMEM).

1981 ASEAN Ministerial Meeting on the Environment (AMME) held in Manila for the first time.

1986 ASEAN Law Ministers' Meeting (ALAWMM) established, to be held every thirty-six months thereafter with Senior Law Officials' Meetings (ASLOMs) in between.

1987 Brunei joins ASEAN. Third ASEAN Summit held in Manila.

1989 Conference of Ministers Responsible for Information (AMRI) inaugurated.

ASEAN is an organisation propelled by a mixture of idealism and hot air. From its inception as a confidence-building association in 1967 to the ambitious adoption in the 2011 Bali Concord III of an ASEAN common platform on global issues, there have been many idealistic statements and declarations. The great failing of ASEAN, repeatedly identified by successive Secretaries-General and the Eminent Persons' Group on the ASEAN Charter, has been the failure to follow up on the grand designs with concrete measures.

Idealism was the primary driver of the ASEAN Charter, which came into force in December 2008. Hitherto, ASEAN had functioned without a formal legal structure. There was in fact no treaty governing the structure and administration of the organisation. Business was done on an ad hoc basis. It was felt that after four decades some formal legal structure had to be given to the organisation if it was to be fit to meet the challenges of the twenty-first century.

The level of ambition is high. The declared goal is to create by 2015 an ASEAN Community comprising threepillars: the ASEAN Economic Community (AEC), the ASEAN Political-Security Community (APSC) and the ASEAN Socio-Cultural Community (ASCC). None of this will work unless there is an infrastructure of law. Indeed, in the ASEAN Charter and subsequent declarations by the leaders of the ASEAN member states, the rule of law is repeatedly emphasised, as is the desire to make ASEAN a rules-based organisation. Good governance and human rights are also underlined. All of this requires a firm legal basis, which ASEAN has hitherto lacked.

There is a dearth of material on the legal history of ASEAN and the ASEAN Charter. In order to understand the necessity for a proper legal service, it is essential to appreciate how ASEAN came into being and what its present shape is. This monograph is not meant to be a theoretical exposition of what a perfect ASEAN should be, much less is it a comparative study of other regional and international organisations.

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.