I. CONSTITUTIONALIZATION AND CONTROL

The launching of the ASEAN Charter was described as a “paradigm shift towards a deliberate constitutionalization”.Footnote ⁴ It was seen as a part of a global trend in recent years that swept states and built international organizations.Footnote ⁵ Indeed, ASEAN's own legal rebirth comes in the wake of the constitutionalization of the World Trade Organization [WTO] and the European Union [EU].Footnote ⁶ ASEAN was born at the moment when international law broke into text.

In the domestic context, a constitution is the supreme document against which all other legal texts within the legal system must be measured.Footnote ⁷ It is also the fundamental text that “narrates the polity into existence”.Footnote ⁸ It is the text that both confers powers on the government and limits the exercise of those same powers.Footnote ⁹ Borrowing from these notions, the word “constitutionalization” refers to the creation of an international organization through a constituent treaty that establishes “organs possessing legal powers” and allocates powers between the organization and the Member States, including their rights and duties.Footnote ¹⁰ Thus, constituent treaties, which are essentially multilateral treaties, are structured and read like constitutions. For instance, the UN Charter, according to Oscar Schachter, “is surely not to be construed as a lease of land or insurance policy, it is a constitutional instrument whose broad phrases were designed to meet changing circumstances for an undefined future”.Footnote ¹¹ No wonder that it has been argued that the UN Charter and the US Constitution exhibit similarities.Footnote ¹² Both “provide institutional mechanisms to accomplish goals identified only as ‘majestic generalities’”.Footnote ¹³ They are both “premised on democratic principles”.Footnote ¹⁴ They also structure institutions through a “separation of powers”.Footnote ¹⁵

Nonetheless, there is a critical difference between a constituent treaty and a constitution. Unlike the latter, the former does not establish a “world government” or a “government”.Footnote ¹⁶ A constituent instrument creates an international organization, not a state. In fact, states create through the charter a legal creature that they recognize to have a personality to act and to deal with them without assuming the full powers of states.Footnote ¹⁷ A new subject of international law, whose rights and duties are less than those that states possess, is therefore born and sees the light of day.Footnote ¹⁸ For this almost magical power, the constituent treaty has been described as a treaty of “a particular type”.Footnote ¹⁹

While a government or state is not intended to be established by a constituent treaty, one may still wonder why a constitution-like document must give life to an international organization. Thus, one may ask, why is constitutionalization important in the structuring of an international organization?

The blunt answer to this question would be one word: control. According to Jan Klabbers, constitutionalism in the context of international organizations has been considered as “a comprehensive package” of control.Footnote ²⁰ The very notion of a constitution goes to the idea of “placing limits on the activities of the international organizations” and “subjecting those organizations to proper standards of behavior”.Footnote ²¹ Constitutionalization is just the most recent tool in the hands of states to control this so-called “Frankenstein” once it is animated by the powers of a constituent treaty. This new tool comes after the doctrines of express powers, of functionalism, and of the ultra vires had been formulated and exhausted in establishing control.Footnote ²² As a later formulation, constitutionalism has adopted the above-mentioned doctrines, combining them into and offering them as a “comprehensive package”.Footnote ²³ Moreover, this sense of control does not suggest the type of control that democratic centralism offers. Constitutionalism is a kind of control that does not appear blatantly nor restrictive in form. For this reason, constitutional limitation of powers is clothed with legitimacy. As Klabbers pointed out, constitutionalism has an “element of legitimacy”Footnote ²⁴ and relies on the presumption that “a constitutional regime is a legitimate regime”.Footnote ²⁵

Despite the comprehensiveness of constitutional controls, Klabbers saw control through constitutionalization as a double-edged sword. While constitutions may bind international organizations, these documents may also enlarge their powers.Footnote ²⁶ Thus, he has used the metaphor of Frankenstein to capture this dialectic between the Member States and the international organization which they helped to create.Footnote ²⁷ Like Shelley's famous literary character, international organizations often become powerful actors in their own right and, in some circumstances, end up commanding and humbling the Member States, their own creators. It is as if one hears the international organization telling their Member States: “You are my creator, but I am your master; obey!”Footnote ²⁸

The present work, however, provides an instance when constitutionalization gives Member States even more power to control the international organization. Instead of becoming Frankenstein, the latter ends up a fettered wayang kulit in Indonesian drama, a puppet character without its own animus and free volition, moving on the stage of international politics according to the whims of some puppet master.Footnote ²⁹

II. THE FETTERS OF THE ASEAN CHARTER

The constitutionalization of ASEAN allowed its Member States to take advantage of a complete package of control while gaining political legitimacy.Footnote ³⁰ The text of the Charter reveals this structure of power within the organization, particularly in the provisions that concern the ASEAN Summit and the ASEAN Secretary-General.

The ASEAN Charter creates and crowns the ASEAN Summit, which comprises “the Heads of State or Government of the Member States”,Footnote ³¹ as “the supreme policy-making body of ASEAN”.Footnote ³² This central organ has been conferred the power “to address emergency situations affecting ASEAN by taking appropriate actions”.Footnote ³³ It can command the relevant Ministers in each of the Councils to hold ad hoc inter-Ministerial meetings and address the most significant issues concerning the international organization.Footnote ³⁴ Most importantly, it has the power to discuss, determine policy, and “take decisions on key issues pertaining to the realisation of the objectives of ASEAN” and on “all important matters of interest to Member States”.Footnote ³⁵ These enumerated executive powers of the ASEAN Summit are coupled with other powers which are judicial and legislative in nature. Thus, this central organ is also authorized to assume the position of judge and “decide on matters referred to it under Chapters VII and VIII”,Footnote ³⁶ which govern disputes based on the breach and interpretation of the Charter. Like a legislature, the ASEAN Summit likewise holds the power to “authorize the establishment and the dissolution of Sectoral Ministerial Bodies and other ASEAN institutions”.Footnote ³⁷ These powers are broad and vast. One commentator rightly noted that these provisions show that the ASEAN Summit “acts as the executive, legislative, and quasi-judicial epicenter” within the international organization.Footnote ³⁸ She adds that “constitutional controls, at least as understood in contemporary domestic constitutional system's theories of separation of powers and checks and balances, are markedly lacking in the Charter-based ASEAN”.Footnote ³⁹

In this context, one may argue that constitutionalization has actually institutionalized state control over the organization. While constitutions suggest limitations of powers and checks and balances, the ASEAN Charter's power structure has established an even more powerful organ controlled by the Member States. This organ of states’ power is strengthened by the constitutionalization of a decision-making process based on “consultation and consensus”.Footnote ⁴⁰ This mode of decision-making, in practice, “gives every member state a veto”.Footnote ⁴¹ Indeed, with all the executive, legislative, and quasi-judicial powers being consolidated in a central organ, state power within the organization is capped securely with the effective veto.

From this Olympian position, the Member States of ASEAN pull the strings of the administrative officers of the organization. Thus, the ASEAN Summit also appoints “the Secretary-General of ASEAN”, who “will serve with the confidence and at pleasure of the Heads of State or Government upon the recommendation of the ASEAN Foreign Ministers Meeting”.Footnote ⁴² The operative words are “with confidence” and “at pleasure”. These words underscore the superiority of the holder of power. They emphasize a very unequal relationship. Without explicitly stating it, they mean that the ASEAN Summit has the power to dismiss the Secretary-General.Footnote ⁴³

Under the Charter, the Secretary-General heads the ASEAN SecretariatFootnote ⁴⁴ and is the “Chief Administrative Officer of ASEAN”.Footnote ⁴⁵ He is also tasked to “facilitate and monitor progress in the implementation of ASEAN agreements and decisions, and submit an annual report on the work of ASEAN to the ASEAN Summit”.Footnote ⁴⁶ He is empowered to “participate in meetings of the ASEAN Summit, the ASEAN Community Councils, the ASEAN Coordinating Council, and ASEAN Ministerial Bodies”.Footnote ⁴⁷ He also represents ASEAN on the stage of world politics as he is authorized to “present the views of ASEAN and participate in meetings with external parties in accordance with approved policy guidelines and mandate given to the Secretary-General”.Footnote ⁴⁸ Parties to a dispute may also request the ASEAN Secretary-General to provide good offices, conciliation, or mediation.Footnote ⁴⁹ In relation to dispute settlement, the ASEAN Secretary-General is given the power to “monitor the compliance with the findings, recommendations or decisions resulting from an ASEAN dispute settlement mechanism, and submit a report to the ASEAN Summit”.Footnote ⁵⁰ This enumeration of powers does not, of course, exhaust the list of roles that the Office of the ASEAN Secretary-General is supposed to play. Other instruments have also assigned him several duties and these may only grow as regional integration moves up to higher levels.Footnote ⁵¹

Despite his critical responsibilities, the ASEAN Secretary-General is at the mercy of the heads of state who have the power to appoint and dismiss him, since he serves only with the confidence and at the pleasure of the latter. This contrasts with Article 97 of the United Nations Charter.Footnote ⁵² The appointment of the UN Secretary-General is made by the General Assembly upon the recommendation of the Security Council. There is nothing in this provision, however, that suggests the UN Secretary-General is working at the pleasure of the Member States. The UN practice allows him to finish his term and then replace him with a new one.Footnote ⁵³ More importantly, the UN Secretary-General does not have only administrative powers; he also has political and executive functions.Footnote ⁵⁴ Thus, while both Secretaries are Chief Administrative Officers, the ASEAN Secretary-General has fewer powers and his position is less secure.

Consequently, the Secretary-General of ASEAN is in a weaker position than the Secretary-General of the UN. The former cannot act in a way that would displease any head of state of ASEAN. He cannot lead the organization to a position that would antagonize any of the Member States. Moreover, since the ASEAN Secretary-General comes from a Member State's diplomatic service and has limited tenure in ASEAN, his independence may be reduced, if not compromised, by his prospects of a post-ASEAN career.Footnote ⁵⁵ Thus, while he has the rank of a minister and serves as ASEAN's designated frontman in the external world, the ASEAN Secretary-General works almost like a dignified clerk of the ASEAN Summit.Footnote ⁵⁶ As Woon rightly notes: “There has been a reluctance to let the Secretary-General have an independent role.”Footnote ⁵⁷ Insider accounts point to a conscious effort during the drafting of the Charter to limit the powers of the office as recommended by the Eminent Persons Group [EPG]. One diplomat has pointed out that “the EPG viewed this office as having wide decision-making and representative powers … Such competences were not encoded in the final Charter”.Footnote ⁵⁸ For all these reasons, the ASEAN Secretary-General ends up becoming more of a secretary and less of a general.Footnote ⁵⁹

This lack of independent action on the part of the ASEAN Secretary-General has great ramifications on the public perception of ASEAN as an independent actor in international politics. It raises questions about ASEAN's independent legal personality. As the “public face”Footnote ⁶⁰ of ASEAN, the Secretary-General embodies the international organization in the political world. Wherever he goes, ASEAN goes with him. Whenever he speaks in public, ASEAN speaks. He is the primary representative of ASEAN.

Indeed, “(h)eads of international organization”, write two scholars, “personify their organization”.Footnote ⁶¹ From this perspective, it would follow that an ASEAN Secretary-General with relative autonomy can empower the organization to become “the primary driving force in regional arrangements”.Footnote ⁶² Relative autonomyFootnote ⁶³ can establish the Secretary-General's authority and legitimacy, which in turn will enable him to project the “centrality” of ASEAN in Asia's geopolitical architecture. With his “international standing”,Footnote ⁶⁴ the ASEAN Secretary-General may also play a pivotal role in dispute settlement as envisioned in Article 23(2) of the Charter.Footnote ⁶⁵ This role may become critical in the future if the trajectory of the UN Secretary-General's good offices function is to be considered a pattern.Footnote ⁶⁶ It goes without saying that the centrality of the Secretary-General in international politics would mirror the growing importance of the international organization itself.

Formal constitutional structures, however, presently block the rise of an autonomous Secretary-General. This is notwithstanding the fact that some scholars now believe in the evolution of international organizations [IOs] into more autonomous persons. For instance, a recent study reveals that “[IOs] seldom work the way the formal rules suggest” and that “established practice”, which includes the evolutionary “network of informal rules, traditions, expectations and norms”, determines and guides the daily life of international organizations.Footnote ⁶⁷ Thus, despite the obvious limitations, “leadership is possible” and there are still “opportunities to shape the course of actions, influence the agenda, direct the discussion, and alter the environment”.Footnote ⁶⁸ In the long run, interpretations of the formal charters evolve and “powers allocated” may inevitably be “changed by time”.Footnote ⁶⁹

While ASEAN may not be exempt from this trajectory (perhaps to the horror of the sovereign Member States), the short run cannot be ignored as the Keynesians kept reminding their neoclassical critics. An independent ASEAN headed by a Secretary-General armed with relative autonomy is urgently needed in a region threatened by genocide and crimes against humanity. Such is the international organization leadership needed to avert a refugee crisis and prevent other forms of humanitarian catastrophe from exploding. Otherwise, if the Secretary-General lacks independence from the Member States, then his fettered person would be symbolic of the international organization as wayang kulit. Each constitutes a mirror image of the other: a fettered Secretary-General for a fettered international organization.

III. EXTRA-CONSTITUTIONAL FETTERS

The fetters of ASEAN are not limited to the text of the Charter. Control extends to other documents extraneous to the ASEAN constitution. This section will analyze how these documents, particularly the Rules of Procedure for the Interpretation of the ASEAN Charter [ROP] and the Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights [TOR], extend the ASEAN Summit's control over the organization. These documents serve as extra-constitutional fetters of ASEAN. In this context, the word “extra-constitutional” should only mean outside the text of the Charter. It does not mean outside the constitutional structures imagined and constructed by the founding document. Indeed, the ROP and the TOR remain an integral, albeit intertextual, part of the ASEAN Charter. They are legal intertexts of the ASEAN constitution.

Human rights are referred to in the Preamble, Article 1(7), and Article 2(2)(i) of the ASEAN Charter. All these references underscore the importance, at least rhetorically, of the concept for the drafters of the Charter.Footnote ⁷⁰ Nonetheless, the prioritization of human rights in ASEAN is contradicted by the Charter's creation of an unnamed “human rights body”. As Woon describes it, this organ was like “Frankenstein's monster”—“a body without a name”.Footnote ⁷¹ It was only at the 2009 ASEAN Foreign Ministers’ Meeting that the organ was named “ASEAN Intergovernmental Commission on Human Rights”. As ordered by the Charter's Article 14(2), a High-Level Panel was convened to formulate Terms of Reference for the AICHR. Thus, an intertext to the Constitution was created in order to animate this organ of ASEAN.

An analysis of the TOR for the AICHR, however, would show that it merely reproduces the control already established in the Charter. The AICHR is but a clone of the ASEAN Summit. This can be shown by the membership. Membership is governed under Rules 5.1 and 5.2. The former provision states that “[t]he AICHR shall consist of the Member States of ASEAN”.Footnote ⁷² The latter states that “[e]ach ASEAN Member State shall appoint a Representative to the AICHR who shall be accountable to the appointing Government”.Footnote ⁷³ These two provisions clearly indicate that the AICHR is dominated by the ASEAN Summit. The Member States are also the members of the AICHR. The states are empowered to appoint a representative and these representatives sit on the Commission. As explicitly stated in the TOR, these representatives are accountable to the appointing authority, making them mere agents of the latter. It can be stated with certainty that the sitting representatives of the ASEAN human rights body are beholden to the Member States and that no independent action can be expected from them.Footnote ⁷⁴

The AICHR, therefore, is but an extension of the ASEAN Summit adorned with a human rights face. The existence of the AICHR allows ASEAN states to project themselves as states with a concern for human rights.Footnote ⁷⁵ Indeed, this organ provides more legitimacy to the organization as a global actor, while posing no real threat to the interests of the states since it is only “a consultative body”.Footnote ⁷⁶ This means that the AICHR cannot decisively act against any threat or actual violation of human rights by the Member States of ASEAN. Unlike the powerful European Court of Human Rights, ASEAN's human rights body has no power to receive and investigate a complaint/application, try a case, or enforce a judgment.Footnote ⁷⁷ No wonder its coming into being disappointed many in the human rights world.Footnote ⁷⁸

This disappointment would turn into despair years later as the Rohingya crisis and the Philippine's drug war unfolded. The AICHR could not even raise a finger to avert the genocidal attacks against this hapless people in Myanmar.Footnote ⁷⁹ The subsequent exodus of this minority into nearby states would only underscore the failure and helplessness of the ASEAN Charter's human rights body. As one critic put it: “The establishment of the ASEAN AICHR in 2009 has not led to any improvements in the ASEAN response towards the Rohingya issue … it has never intervened in nor reported on any concrete national or regional human rights issue.”Footnote ⁸⁰ The AICHR's conspicuous silence on the Philippine's drug war under the presidency of Rodrigo Roa Duterte is just as shameful. In the course of two years, the death toll of suspected drug users, addicts, and traffickers, not to mention the innocents, reached more than 7,000.Footnote ⁸¹ This figure easily tops the number of left-wing activists assassinated by the Philippine military during the presidency of Gloria Macapagal-Arroyo. It will be recalled that, a few days after the signing of the ASEAN Charter in Singapore in November 2007, the then United Nations Rapporteur Philip Alston announced that “[a] significant number of the hundreds of the extrajudicial executions of leftist activists in the Philippines that have taken place over the past six years are the result of the deliberate targeting by the military”.Footnote ⁸² The recent killings that literally littered the streets of the capital and other major cities in the Philippines make the previous bloodshed look tame. Indeed, this human rights tragedy has been described as a new method of “governing through killing”.Footnote ⁸³

Sadly, these two human rights tragedies in Myanmar and the Philippines did not deserve any place in the activities of AICHR. The AICHR Annual Report 2017, which covers July 2016 to June 2017, is silent on these issues.Footnote ⁸⁴ It lists so many activities that are totally unrelated to the urgency of the humanitarian catastrophes in the two countries, as if genocide and crimes against humanity are simply light felonies.Footnote ⁸⁵ Just surfing and reading the materials on its website may suggest that the AICHR seems to be living in a different world. The ASEAN human rights organ seems to exist oblivious of the large-scale human rights violations surrounding it.

This failure of the AICHR is deeply rooted in the Terms of Reference that created it. The organ, as already stated, is but a clone of the ASEAN Summit, with mere consultative power. The TOR also contains some principles which can be considered adverse to human rights.Footnote ⁸⁶ First, the TOR aims to “promote human rights within the regional context, bearing in mind national and regional particularities”.Footnote ⁸⁷ This statement subtly negates the universality of human rights. The TOR qualifies the universal application of human rights to the particular state as if genocide in the Balkans can only be anti-insurgency in Burma. Second, Rule 2.1 enumerates not human rights principles but the raison d'etat of the Member States. Thus, it upholds and propagates the principles of non-interference and of state sovereignty as if they were in themselves human rights concepts. The drafters took it for granted that these raison d'etat are now limited by international human rights law.Footnote ⁸⁸ Contemporary international law has made “the treatment of an individual by a State … a matter of international concern”.Footnote ⁸⁹ It is now commonly held that “states are no longer ‘sovereign’ in the sense of entitled to act at liberty on their own territory and with respect to their own nationals”.Footnote ⁹⁰ For this reason, some scholars have viewed the ASEAN Way as incompatible with universal human rights because the enforcement of the latter requires interference in domestic affairs.Footnote ⁹¹

Nevertheless, through state representatives, a limited mandate, and the practice of the ASEAN Way of non-interference, the TOR made sure that the ASEAN human rights organ would do no harm to any Member State as it violates the human rights of its own citizens. As one organization pointed out: “Any protection power that [AICHR] may have is severely circumscribed by its TOR.”Footnote ⁹² The fetters that bind this constitutional organ, an organ that could have had relative independence, have been extended from the constitutional text to its intertext, thereby limiting its power to work independently.

Another example of what this paper calls “extra-constitutional fetters” is the Rules of Procedure for the Interpretation of the ASEAN Charter. The ROP is supposed to be the implementing rule of Article 51 which governs the interpretation of the ASEAN Constitution. Article 51 states that “upon the request of any Member State, the interpretation of the Charter shall be undertaken by the ASEAN Secretariat in accordance with the rules of procedure determined by the ASEAN Coordinating Council”.Footnote ⁹³ This provision confers on the ASEAN Secretariat [ASEC] the power to interpret. The reason for this conferment is that the ASEC serves as the “institutional memory” of the organization.Footnote ⁹⁴ The ASEC, which provides secretarial work and undertakes monitoring work for ASEAN, is expected to remember how the Charter has been understood through the years.Footnote ⁹⁵ Moreover, it employs some people who work for a longer period than the ASEAN Secretary-General and his deputies. The ASEC thus employs permanent international civil servants who would enable it to play the role of interpreter.

Political reality, however, reveals that there has been an apparent attempt to limit the power of the Secretariat through its purse. While the Secretariat now plays a greater role than before, it still receives very limited financial support from the Member States.Footnote ⁹⁶ This lack of support has caused a large turnover among its employees, thereby depriving the body of experienced international civil servants.Footnote ⁹⁷ More critical to its role as interpreter, the Secretariat is said to have a lack of legal experts who are vital in the creation of an institutional memory of the international organization.Footnote ⁹⁸

But more than the financial tightrope that the ASEC is currently confronted with, nothing beats the fetters tied to the ASEC by the ROP.

Article 51 does not state any qualification on this power to interpret. Rule 2(1) of the ROP, however, so qualifies the provision as to make it superfluous: “The interpretation of the ASEAN Charter by the ASEAN Secretariat shall be non-binding and non-authoritative in nature and shall not be considered as representing the view of any Member State or of ASEAN as an intergovernmental organisation.”Footnote ⁹⁹

The ASEC interpretation is therefore made non-binding, non-authoritative, and not representative of the organization. With these three qualifications, practically nothing remains of the power to interpret which the Charter has conferred on the ASEC. What power or authority was extended by the Charter, the ROP essentially took away. It can interpret, but it has no force. It can interpret, but the interpretation carries no weight. It can interpret, but it is not representative. The ROP practically transformed an organ tasked by the Charter to interpret into a non-entity. The parties might as well ask the next bystander for an interpretation of the Charter. It would be as good as the ASEC interpretation. Walter Woon himself did not mince words when he wrote: “Basically, what the ROP has done is to rob ASEC of any real role in interpretation of the Charter, contrary to what has been provided. This is a stark example of procedure frustrating the intent of the Charter and of red tape strangling what should have been an expeditious process.”Footnote ¹⁰⁰ Thus, the ROP as an intertext of the Charter constitutionalized red tape and cloaked the constitutional hijack.

It is quite clear that the ROP was designed not so much to implement as to negate the provision on the ASEC's power to interpret. Like an afterthought, the ROP was formulated to nullify that power itself. It seemed to the state representatives who had worked on the ROP that Article 51 is fraught with dangers that could threaten the interests of the Member States. The authority to interpret is a potent power that could transform this wayang kulit into a Frankenstein that the states thought of suppressing early on. Thus, through an intertext, the Charter's grant of power to the ASEC was modified to the point of nullity. The ROP was essentially a constitutional amendment masquerading as an implementing rule.

Indeed, it is quite funny to read the next provision of the ROP which pertains to the rules of interpretation, rules that echo the Vienna Convention on the Law of Treaties [VCLT]. Rule 2(2) states that “the ASEAN Secretariat shall interpret the ASEAN Charter in good faith in accordance with the ordinary meaning to be given to the terms of the ASEAN Charter in their context and in the light of its object and purpose”.Footnote ¹⁰¹ The principles of good faith, ordinary meaning, and context, as well as the object and purpose of the terms and provisions of the treaty are a direct copy of the “general rule” of treaty interpretation embodied in Article 31 of the VCLT.Footnote ¹⁰²

In this context, it may be worth analyzing the ROP as a form of interpretation of Article 51 of the ASEAN Charter. Since the ROP echoes Article 31 of the VCLT in Rule (2), it can be argued that the drafters of the rules were quite aware of the general rule of treaty interpretation, which is not only a treaty obligation, but also an obligation arising from customary international law.Footnote ¹⁰³ This awareness makes the application of Article 31 to the ROP appropriate.

Article 31 of the VCLT states that a treaty shall be interpreted in “good faith”. The words “good faith” here refer to how the task of interpretation must be carried out.Footnote ¹⁰⁴ This means that good faith must be the basis of any interpretation, whether literal, contextual, or purposive. Good faith is not merely an absence of bad faith, but reasonableness in the construction of the text.Footnote ¹⁰⁵ When good faith is combined with the search for the object and purpose of the treaty, this produces an interpretation of the text that gives effectivity to the treaty's purposes.Footnote ¹⁰⁶ Indeed, this is how Article 31 has embodied the rule of effectivity as part of the General Rule of treaty interpretation.Footnote ¹⁰⁷ In this sense, the two embodiments of the principle—the “effet utile” and “effectiveness”—are included in Article 31(1).Footnote ¹⁰⁸ The first principle ensures that no provision is left out in the process of interpretation.Footnote ¹⁰⁹ The second principle commands that the treaty be made effective through an interpretation that allows it to achieve its purpose.Footnote ¹¹⁰

Set against this rule of interpreting a text in good faith and in the light of its object and purpose, the ROP fails to give Article 51 of the ASEAN Charter effectivity. Certainly, there is no good faith in an interpretation that adds words to negate the conferred power, in this case, the power to interpret. The words “non-binding”, “non-authoritative”, and “shall not be considered as representing the view” are nowhere to be found in Article 51. They are, therefore, additional words intended to deprive Article 51 of its effectivity. The purpose of Article 51 of the ASEAN Charter was to entrust interpretation to a neutral unit that has the institutional memory of the organization.Footnote ¹¹¹ By adding these words, which go beyond “procedural matters”,Footnote ¹¹² the ROP made Article 51 superfluous and ineffective. Such an interpretation in the form of an implementing rule is arguably made contra legem, if not in bad faith.

One may, of course, argue that the ROP is not an interpretation of Article 51 per se, but an implementation of it. An interpretation is intended to clarify the text's meaning,Footnote ¹¹³ while the purpose of an implementing rule is to “implement” the scheme of the statute.Footnote ¹¹⁴ Nonetheless, both have an analogous relationship with the provisions of the Charter. Fidelity to the words and intent of the Charter is an important and shared element. Neither can deviate from the words of the Charter. More importantly, one cannot formulate an implementing rule or rule of procedure without interpreting the provision to be implemented. It has therefore been argued that “rule-making and enforcement activities” are “necessarily interpretations”.Footnote ¹¹⁵ “There is”, Kolb writes, “no way of escaping from interpretation when one deals with legal provisions.”Footnote ¹¹⁶ Thus, in formulating rules, one must interpret what is within and what is without the provisions to be implemented. Implementing rules cannot exceed the powers granted by the legislature. Those that go beyond or contradict such powers are as a rule held to be void.Footnote ¹¹⁷ The power granted is what is more often referred to as a substantive rule, which “prescribe[s] rights and obligations”.Footnote ¹¹⁸ On the other hand, a procedural rule refers to rules “governing the methods and mechanics of the legal and administrative process”.Footnote ¹¹⁹ It is a rule that “puts into practice” the substance of the law.Footnote ¹²⁰ The general rule is that procedure cannot and should not add substantive limitations on the provision of the Charter. A rule of procedure cannot limit the substantive law which it is supposed to implement. A procedural rule should not defeat the substantive law. This general principle of law is what is violated by the ROP. Such a violation is independent of any possible infirmity under the Charter, which Woon hints at. As Woon comments: “It is arguable that rule 2(1) goes far beyond procedural matters and impinges on substance. In so far as it is inconsistent with the rights and obligations of the member states … it may be ineffective because of Article 52 (2).”Footnote ¹²¹ This construction is, of course, just another reading of Articles 51 and 52(2) in relation to Rule 2(1). It must compete with the Member States’ interpretation of the constituent treaty.Footnote ¹²² For this reason, Woon's reading does not constitute the last word on the ASEAN treaty. It is, however, an interesting hermeneutic that saves Article 51 from the dustbin of superfluity.

In conclusion, this section has shown that extra-constitutional fetters have been added to the ASEAN Charter. They are essentially in the form of terms of reference and procedures that purport to give life to the constitutional organs as intended by the constituent treaty. These legal intertexts, however, reveal themselves to be an attempt to limit the possibilities opened by the ASEAN constitution. These intertexts close the openness of the constitutional text. Rather than give life, they often succeed in negating the raison d'etre of the organs that they are supposed to animate. The TOR of the AICHR certainly succeeded in disappointing the expectations of human rights advocates. It transformed ASEAN's human rights organ into an extension of the ASEAN Summit through the appointment of state agents. It limited the mandate of the organ and reduced it to a mere “consultative body”, if not a talking shop. No wonder the AICHR has been mute and blind to the role of the states in beginning and perpetuating gross human rights violations in the two countries discussed above. Finally, the ROP does to the ASEC what the TOR does to the AICHR. The ROP practically amended the Charter by substantively qualifying the constitutional grant of power to the ASEC. By making the ASEC interpretation non-binding, non-authoritative, and not representative of the international organization, the TOR not only nullified the ASEC's interpretative power, but also negated the intent of the ASEAN Charter. Whatever the validity of Rule 2(1), it certainly made Article 51 superfluous. It stole the effectivity of the ASEC's power to interpret. The rule was obviously formulated not so much to implement Article 51 as to make the latter provision practically useless to anyone seeking an interpretation of the Charter. That the Member States allowed this style of defeating the Charter only goes to show that control, not rules, is a primary consideration. Power, not law, is the ultimate objective.

IV. PRACTICAL FETTERS

This section analyzes the fetters around the legal personality of ASEAN, especially as it relates to its treaty-making powers. I call it “practical” because the limitations set up by the Member States do not have a textual basis. It is a matter of practice. I argue that this practical limitation on the power of ASEAN to enter into agreements with states raises questions about its independent legal personality despite its explicit conferment in the Charter.

The treaty-making capacity of an international organization is based on legal personality. The issue of legal capacity, according to Nigel White, is a question of the first order.Footnote ¹²³ Personality, unlike subjectivity, which is merely academic, is a “status conferred by the legal system”.Footnote ¹²⁴ Thus, when personality is given, the international organization becomes a subject of international law and gains a personality separate from the Member States.Footnote ¹²⁵ The international organization gains rights and duties, and these spring not only from its charter, but also from international law.Footnote ¹²⁶ One of these rights is treaty-making power; a power presumed to fulfil its functions and purposes.Footnote ¹²⁷

The ASEAN Charter explicitly confers both legal personality and treaty-making powers on the organization. Article 3 states that “ASEAN, as an inter-governmental organisation, is hereby conferred legal personality”.Footnote ¹²⁸ Article 41(7) provides that “ASEAN may conclude agreements with countries or sub-regional, regional and international organisations and institutions”.Footnote ¹²⁹As shown by the preceding articles, there is no doubt about ASEAN's personality and competence to enter into relations with other subjects of international law. What is rather unclear from the provision is whether it authorizes ASEAN to conclude treaties on behalf of the Member States. The Rules of Procedure for Conclusion of International Agreements by ASEAN [ROPCIA] is rather limited in scope to be of much help.Footnote ¹³⁰ They only cover those treaties “which create(s) rights and obligations for ASEAN as a distinct entity from its Member States”.Footnote ¹³¹ This limitation, however, does not exclude other legal bases of such power. What is excluded in the ROPCIA does not necessarily mean that it does not exist. Indeed, it has been argued that ASEAN can conclude treaties on behalf of the Member States under international law.Footnote ¹³² For Chen Zhida, the concept of agency as it is developed in international law may just provide the basis for an international organization to enter into treaties “on behalf” of its Member States.Footnote ¹³³

This debateFootnote ¹³⁴ on ASEAN's power to conclude treaties on behalf of its members is still far from being exhausted. It may be argued, for instance, that there must be a clear transfer of the competencies of the Member States to the international organization before the latter can bind the former through an international treaty. The Court of Justice of the European Union in an opinion on the Free Trade Agreement between the EU and the Republic of Singapore seems to support a theory of transfer of competency. The Court ruled that “when the European Union negotiates and concludes with a third State an agreement relating to a field in respect of which it has acquired exclusive competence, it takes the place of its Member States … the European Union can succeed the Member States in their international commitments when the Member States have transferred to it, by one of its founding Treaties, their competencies relating to these commitments.”Footnote ¹³⁵ Thus, the powers of exclusivity and pre-emption are conferred explicitly on the EU in Article 2(1) of the Treaty on the Functioning of the European Union [TFEU]. These powers apply, in turn, to the competencies in Article 3(1) of the TFEU, which was “an innovation of the Lisbon Treaty”.Footnote ¹³⁶ These articles clearly show that the Member States “transferred” their competencies to the international organization, thereby authorizing the latter to take their place in concluding treaties “relating to a field in respect of which it has acquired exclusive competence”. Nevertheless, the international organization's power to take the place of the Member States is limited. It does not extend to all competencies of the states. Hence, while the European Court affirmed the exclusive competence of the EU in many areas, it also ruled that the EU does not have the power of exclusivity in the sphere of non-direct investments and investor-state dispute settlement.

Of course, the Court's ruling is not binding on all international organizations and cannot settle the issue of ASEAN's treaty-making power. Moreover, if the European Court's theory of transfer of competence is applied to ASEAN, one will be forced to interpret the deafening silence of the ASEAN Charter. The meaning of this silence will remain contentious and there is no doubt that the debate will rage on. The more interesting question now is whether or not ASEAN is able to use its legal personality and treaty-making powers to their full extent.

Recent developments suggest that constitutionalization has not done much to the development of ASEAN's legal personality and its capacity to enter into treaties, much less treaties binding its Member States. Rule 1(2) of the ROPCIA, which can be considered as another extra-constitutional fetter, explicitly excludes its “application to the conclusion of international agreements concluded by all ASEAN Member States collectively and which create obligations upon individual ASEAN Member States”.Footnote ¹³⁷ Thus, the rule means that the Member States strictly limited the scope of Article 41(7) through a subsequent agreement to an interpretation of the treaty-making powers of ASEAN.Footnote ¹³⁸ For this reason, many policy-makers outside Southeast Asia do not take the international organization seriously.Footnote ¹³⁹ The existence of ASEAN has not done away with bilateral diplomacy since the former has not been allowed to bind the Member States.Footnote ¹⁴⁰ As a result, ASEAN has only produced “another layer of diplomacy”.Footnote ¹⁴¹

ASEAN's weak legal personality and limited treaty-making powers have been underscored by scholars of its external relations. A recent study, for instance, concludes that “the conferral of legal personality by the Charter upon ASEAN has not … heralded a more assertive ASEAN as an international legal actor”.Footnote ¹⁴² The study points out that ASEAN as an international organization plays only a supporting actor role to the superstars of regional politics in Southeast Asia: the Member States.

This study of ASEAN external agreements also reveals that most treaties are entered into not by ASEAN as an organization, but by the Member States collectively signing the agreements. The authors call this form of treaty-making “collectively ASEAN”.Footnote ¹⁴³ The words “collectively” and “ASEAN”, another scholar argues, indicate the Member States as parties in their “individual status”.Footnote ¹⁴⁴ Thus, this mode of external relations allows “the member states [to] appear as the actors by whom or on whose behalf ASEAN external instruments are concluded”.Footnote ¹⁴⁵ This primarily makes the Member States, not the organization, the parties of the treaties.Footnote ¹⁴⁶ This mode comes in three forms.Footnote ¹⁴⁷ The first is a treaty where the ASEAN states conclude the treaty individually. The second is a treaty where a Member State signs on behalf of the other members. The last one is a treaty where the ASEAN Secretary-General signs on behalf of the Member States. In all three variations, ASEAN is not a party to the agreements. ASEAN is reduced to being a label with its legal personality unused.Footnote ¹⁴⁸

The same practice of the Member States has been observed by Venzke and Thio. The “collectively ASEAN” mode is described by them as a form of “plurilateral agreements”.Footnote ¹⁴⁹ This kind of external agreement is predominant in ASEAN's external relations.Footnote ¹⁵⁰ The parties to these agreements are all the Member States of ASEAN, or at least a minimum of them and third states.Footnote ¹⁵¹ ASEAN, as an international organization, is legally not a party to these plurilateral agreements. It is, as Venzke and Thio wryly put it, “sidelined”.Footnote ¹⁵²

Some of these “collectively ASEAN” or plurilateral treaties include the following: 2009 Agreement on Establishing the ASEAN-Australia-New Zealand Free Trade Area; 2009 Memorandum of Understanding between ASEAN and the Government of the People's Republic of China on Cooperation in the Field on Non-Traditional Security; 2010 Agreement on Cultural Cooperation between the Governments of the Member States of ASEAN and the Government of the Russian Federation. The first of these agreements has its preamble enumerate the governments of the Member States followed by the words “collectively, the Member States of the Association of Southeast Asian Nations” and the two non-ASEAN parties.Footnote ¹⁵³ The Agreement is signed by seven individual Member States of ASEAN. This is a very clear example of the “collectively ASEAN” treaty practice which sidelines the ASEAN legal personality. The second example is somewhat ambiguous. While its preamble names ASEAN as a party, the same Memorandum explicitly mentions that the Secretary-General had been duly authorized by the Member States to sign it. Thus, scholars still consider it as belonging to the same category of plurilateral treaties, where ASEAN is not a party.Footnote ¹⁵⁴ The third agreement also begins by enumerating the governments of the Member States followed by the words “as Member States of the Association of Southeast Asian Nations”.Footnote ¹⁵⁵ Like the first agreement, it also enumerates the representatives of the individual Member States as signatories and excludes ASEAN as an independent legal person. The three agreements represent the dominant practice of the so-called “collectively ASEAN” law-making.Footnote ¹⁵⁶ In this mode of treaty practice, ASEAN remains in the background, a mere nomenclature.

This “collectively ASEAN” kind of treaty comprises sixty-two percent of the external agreements of ASEAN.Footnote ¹⁵⁷ In contrast, the external instruments to which ASEAN as an international organization is a party only amount to twenty-seven percent.Footnote ¹⁵⁸ Many of the latter kind include agreements between ASEAN and other international organizations.Footnote ¹⁵⁹ These have little internal effect on the Member States.Footnote ¹⁶⁰ Most often they are non-binding instruments in the form of “declarations, plans of actions, and joint visions”.Footnote ¹⁶¹ This treaty practice has been inherited from the pre-Charter days when the Secretariat was allowed to enter into “non-sensitive agreements” on behalf of ASEAN.Footnote ¹⁶²

The numerical difference between the two kinds of treaties is significantly meaningful. The predominance of the so-called “collectively ASEAN” treaties only means that other parties are not yet confident in dealing with ASEAN as an international organization, not to mention the “weak enforcement mechanism” of ASEAN.Footnote ¹⁶³ Binding the Member States themselves would prove more beneficial to the non-ASEAN parties as the former, the real power, shall be bound under international law. Why go through the international organization if the real intent is to execute the treaty in the territories of the Member States? Thus, non-ASEAN states realize that it would be more practical to deal with the puppeteers directly rather than deal with the wayang kulit.

Given this evidence, one may question the extent of the independence of ASEAN's legal personality. Does the practice of “collectively ASEAN” create an international organization that has a limited legal personality? The data gathered by scholars on ASEAN external relations strongly suggest that ASEAN as an international organization has been limited in a double-edged fashion. It is relegated by the Member States to a secondary position, and third states prefer to deal with the Member States directly. ASEAN's legal personality is therefore restrained from within and from without. The Member States would like to maintain their leash on the organization, while the other actors are rather careful not to engage with ASEAN if they want the agreement to be enforced without glitches. While these do not change the conferment of legal personality under the ASEAN Charter, the practical reality shows that explicit conferment of legal personality does not in itself create an independent actor in international society. Practice is important in the moulding of a legal personality. As Jan Klabbers writes, “What if a number of states decide to create an international organization and endow it with international legal personality, yet no one is willing to enter into any engagements with it? Under such a scenario, personality would be an empty concept.”Footnote ¹⁶⁴ ASEAN may not be totally bereft of a legal personality as it is still entering into non-sensitive agreements and can bind itself in a treaty with other international organizations. Yet, it is clear that ASEAN's legal personality is not being utilized to the full extent and one can argue that it has been limited in practice.

It is at this point that one may review some of the images that have been used in legal scholarship to capture the complexities and the specificities of international organizations. One author has used the image of the “institutional veil” to describe the “layered legal creatures” created by states.Footnote ¹⁶⁵ This image particularly comes to the fore when questions of accountability are the issues to be resolved. This “veil” allows the Member States to hide behind it as the layered legal creature moves according to its own volition. Thus, one asks whether the international organization or the Member States should be held responsible for tortious acts; one asks who between the two subjects of international law is bound by the treaties entered into by the organization, which is, after all, controlled by the states. Taking their cue from this image, Cremona et al. offered the image of a “small handkerchief”, rather than a veil, to describe the limited use of ASEAN by its Member States.Footnote ¹⁶⁶ The Member States would rather take away the veil and present themselves as the real actors. Cremona et al. also suggest the image of a “label” which is “habitually attached” to the collective acts of the Member States.Footnote ¹⁶⁷ This “label” has no legal significance. Nevertheless, it has “symbolic importance” for the Member States in the construction of their ASEAN identity.Footnote ¹⁶⁸ To somewhat enrich the literature of metaphorical descriptions of international organizations, this paper has proposed the image of the fettered wayang kulit to capture the present condition of ASEAN. Like the puppet character, ASEAN has been bound by extra-constitutional and practical fetters and is only being presented when convenient for the Member States. It appears to the public only with the consent of the puppeteers who sometimes stay behind the screen. Hence, the organization cannot dance, as it were, without being moved by the fingers of the puppet masters. And when it twirls, the organization merely plays the part reserved for it in the script prepared by the Member States.

In sum, the external agreements and the treaty practice of ASEAN reveal that the real soul of ASEAN remains the individual states. These states retain control of ASEAN treaty practice and limit the latter's acts on the stage of international politics. Presently, the states remain the real puppeteers of the ASEAN show. They sign as parties in most treaties. They bind themselves to international law. They determine when ASEAN is needed or tolerated. ASEAN as an international organization plays second fiddle, as if it were the archetypal lackey. These practical limitations imposed upon the organization clip the full development of ASEAN's international legal personality.