I. International juridical forms as a mode of objectification

This section discusses Michel Foucault's theory of the subject, the role of juridical forms in the formation of the subject, and recent work on the application of Foucault's thought to international law. I shall then extend Foucault's notion of mode of objectification to international agreements, declarations, notes, and other legal discourses which I shall propose to call “international juridical forms”.

Foucault belonged to a generation of French thinkers who problematized the idea of the subject. Lacan, Althusser, Barthes, Derrida, and Foucault are just some of the so-called post-structuralists who wrestled with the question of the subject. The question of the subject, according to Jonathan Culler, is “What am ‘I’?”.Footnote ¹⁴ Formulated on the linguistic system, the “subject” refers to the agent of the verb within a sentence that is also subjected to the linguistic structures and signification of the system.Footnote ¹⁵ The term encapsulates the paradox of being an active agent and being subjected or determined at the same time.Footnote ¹⁶ Like identity, subjectivity marks a positioning and identification. But the notion of the subject, according to Catherine Belsey, is more precise. First, as a grammatical term, it emphasizes structures and signification. Second, it allows ambiguity since the subject is both active and subjected. Third, it accommodates difference and contradictions.Footnote ¹⁷

Foucault has described his work as a “history of the different modes by which … human beings are made subjects” [une histoire des differents modes de subjectivation de l'etre humain].Footnote ¹⁸ Indeed, he has shown how the prison system disciplines inmates, transforming them into docile subjects, who learn “to work by themselves in submission to the values of their society”.Footnote ¹⁹ While Foucault has expressed a desire to move beyond law and sovereignty in the construction of the subject, he nevertheless took seriously the important role of juridical forms in the process of objectification. As he argued, “[a]mong the social practices whose historical analyses enables one to locate the emergence of new forms of subjectivity, it seemed to me that the most important ones are juridical practices”.Footnote ²⁰ Thus, Foucault could not but be sensitive to the changes in juridical form that defined crimes and the criminal.Footnote ²¹ Law, for Foucault, was therefore part of the “dividing practices” that objectified the subject, that is, dividing the subject inside himself or from others.Footnote ²² Thus, the mad is separated from the sane, the sick from the healthy, the criminal from the good boys.Footnote ²³ Law, with its form, its content, its inquiries and examinations, was a mode of “objectification that transform[s] human beings into subjects” [modes de objectivation qui transforment les etres humains en sujet].Footnote ²⁴

However, there is a strand in Foucault's thought that veers away from law which he identified with sovereign power. He saw the need to move beyond the juridical and negative function.Footnote ²⁵ Foucault underscored the emergence of “governmentality” in the history of Europe by differentiating it from acts of sovereignty. He saw governmentality as an “ensemble formed by the institutions, procedures, analyses, and reflections, the calculations and tactics that allow the exercise of this … power” that has its principal target the population.Footnote ²⁶ Population is not simply a totality of people but “an object of modern bodies of medical, economic, and sociological knowledge”.Footnote ²⁷ Through this ensemble of institutions, the human being, objectified as a datum of population, is transformed into a subject.

This division between governmentality and sovereignty, however, was never a watertight compartment. Foucault offered the triangle of sovereignty-discipline-governmentality:

This statement underscores the important role of the juridical in the objectification of subjects as it confirms a complementarity between the juridical and governmentalities. No wonder international legal scholars have recently considered Foucault's thought as a useful tool in the study of international law. While recognizing Foucault's overwhelming focus on the intra-state realm, they have also identified ways to utilize Foucault in international legal scholarship.Footnote ²⁹ First, one may learn from Foucault the ways he approached the problem of law. In particular, he showed how the genealogical or archaeological method can reveal the hidden inventions of imperialism through counter-histories.Footnote ³⁰ Second, one may unravel how both sovereign power and governmentality are simultaneously exercised by international organizations.Footnote ³¹ This international organization practice corroborates the idea that objectification need not be limited to understanding the intra-state realm. By applying Foucault's thought to the analysis of the international and the intergovernmental a reformulation of it might be productively developed. From this viewpoint, Foucault's emphasis on juridical forms such as penal laws may be extended to treaties, notes, declarations, and other international legal discourses. Together they constitute what I call “international juridical forms” that construct a discursive formation and inaugurate social practices at the international or intergovernmental level.Footnote ³² Using Foucault's method of genealogical and archeological readings, one may be able to show the inventions of juridical forms at the height of colonialism. Moreover, by refocusing on the international dimension, one may be able to show and scrutinize the relations between sovereign acts and subject formation, an interpretive strategy that is similar to Giorgio Agamben's realignment of biopolitics with sovereignty.Footnote ³³ Finally, Legg's thesis that international organization exercises both sovereign powers and governmentality, as shown in the League of Nations’ fight against trafficking,Footnote ³⁴ logically provides support for the proposition that a regional organization plays an important role in the reproduction of international juridical forms that objectify the Southeast Asian subject in the ASEAN era.

It is in this context that I posit the idea of international juridical forms as a mode of objectification, a mode of transforming human beings into subjects. In the history of international relations, the treaty form, for instance, has defined human beings, that is, objectified them. Specifically, human beings have been objectified as “natives”, “peoples”, etc. As objects of international agreements, human beings have been deprived of rights as well as conferred rights, a process that constituted them into legal subjects. Indeed, bilateral and multilateral treaties and declarations have played an important part in the triangle of sovereignty-discipline-governmentality that Foucault identified. From this international juridical form sprang forth domestic laws, regulations, and policies that adopted the “dividing” practices outlined by states and international organizations. This mode of objectification is even more preponderant in the era of international organizations understandably because international governance in the post-World War II period has been anchored on international organizations.Footnote ³⁵ As argued by Legg, international organizations may not only exercise power through conventions (sovereignty) but also through “inquiries, statistics, descriptions” (new forms of power).Footnote ³⁶ In actual practice, sovereign acts and governmentalities are not “mutually exclusive” and can be exercised simultaneously.Footnote ³⁷ Intergovernmental practice “blends legal and normative techniques.”Footnote ³⁸ This insight is certainly applicable to the United Nations, the European Union, and other regional organizations where non-legal documents such as “resolutions” and “recommendations” are issued to persuade actors to act according to certain norms.Footnote ³⁹ In this case, the international organization becomes the site of the production of more treaties and what we might call “intergovernmentalities” such as declarations, resolutions, and regulatory practices that contribute to the constitution of subjectivities.Footnote ⁴⁰

Before I proceed to the application of the analytical concepts developed in this section, allow me to further clarify my own formulations’ consistency with and deviations from Foucault's usage of terms. The word “objectification” is a loaded philosophical term that denotes the treatment of a human being as a thing.Footnote ⁴¹ In Foucault's works, it is used to describe the process of transforming human beings into subjects. Foucault, however, interchangeably used “objectification” [objectivation] and “subjectification” [subjectivation] to refer to the same process. To avoid confusion, I shall use “objectification” to refer to the process of transforming human beings into subjects, a usage that connotes not only a reduction of autonomy or denial of subjectivity, but also, in some cases, the conferment of rights.Footnote ⁴² The word “subjectification”, on the other hand, shall mainly refer to a mode of objectification whereby one turns oneself into a subject.Footnote ⁴³ It connotes a conscious act of becoming an actor. The sense of being dominated or subjected by an external power is thus excluded and should instead form part of the concept of objectification. In addition to these minor deviations from Foucault's terminology, objectification shall be construed as an effect of international juridical forms in contrast to Foucault's emphasis on domestic legal practices. While the proposition of international juridical forms as a mode of objectification may not be congruent with Foucault's view of power as local in view of his objective to go beyond a juridical model of power, this paper's thesis certainly remains part of the Foucauldian project which aims to interrogate the “historical construction of a subject through a discourse”.Footnote ⁴⁴ Moreover, the paper's form of historicizing that focuses on “subjects that have traditionally been positioned as ‘others of international law’”Footnote ⁴⁵ is aligned with Foucault's interpretive interest in marginal subjects. In sum, this application of Foucault's thought to international law's “others” may yet reveal the colonial and post-colonial objectification in Southeast Asia and contribute to a greater understanding of the history of international law in the region.

II. Natives and colonies

Governmentalities of the nineteenth century, according to Foucault, invented new subjects such as the “criminal” and the “homosexual”.Footnote ⁴⁷ In this section, I shall add to such a distinguished line of disciplined bodies the international legal subject of “native”, a new subject invented by international agreements, subjugated by sovereign violence, and disciplined by colonial juridical practice.

The word “native” is not an ordinary word in the history of colonialism. It formed part of the vocabulary of classic nineteenth-century imperial culture.Footnote ⁴⁸ In colonial Southeast Asia, “native” was a legal category that officially subordinated the peoples of the territories.Footnote ⁴⁹ The Dutch version of the concept was “inlandsche bevolking” or “native population”.Footnote ⁵⁰ The French had their “indigène”.Footnote ⁵¹ The Spanish word “indigena” or, more notoriously, “indio” differentiated the local inhabitants of the Philippine archipelago from the Chinese, the Mestizos (mixed races), and Peninsulares.Footnote ⁵² This legal objectification in the colonial laws of Southeast Asia was a mode of differentiation. Dutch law, for instance, reserved “maritime districts” to the “Native population proper”.Footnote ⁵³ Moreover, Article 11 of the Spanish Penal Code of 1887, a code which was specially tailored for the Philippines, authorized judges to consider the race of the accused (indigena, mestizo, chino) and the victim in the application of mitigating and aggravating circumstances.Footnote ⁵⁴ The Spanish promulgation of the penal code was both a universalization of the idea of crime and an individualization of the criminal as judges and lawyers were given the leeway to apply certain “mitigating” and “aggravating” circumstances to specific criminals.Footnote ⁵⁵ The Philippine case reveals the connections that Foucault identified as the triangle of sovereignty-discipline-governmentality. The sovereign provides the universal command (penal code) that defined the crime, while the agents in the lower courts (the institutions) individualize the population in each criminal case. Thus, the “native” was categorized and constructed through juridical practices.

This intra-state objectification had a basis in sovereign treaties. The same word permeates nineteenth-century international agreements among Western states. The Anglo-Dutch Treaty of 1824 and the notes attached to it, for example, contain many references to “native power” and “natives”. This agreement had a great impact on the history of the region. By concluding a modus vivendi, the two European colonialists, who had just nationalized or moved towards the nationalization of the holdings of their company-states,Footnote ⁵⁶ gave each other a free hand in the subjugation of the areas that fell into their designated sphere of influence. Consequently, the colonialists were able to lay the ground for the construction of the modern nations of Malaysia, Singapore, and Indonesia.Footnote ⁵⁷ More importantly, the treaty and its notes are peppered with the word “natives”, which supported the idea of objectification at the international level or at the sovereign level. Indeed, taken together, the Treaty of 1824, its notes, and other colonial bilateral treaties such as the Treaty of Paris of 1898, constitute an international juridical form that objectified the “native”, transforming him into an international legal subject who became an object of sovereign violence.

Article III of the Anglo-Dutch Treaty states that the parties “engage, that no Treaty hereafter made by either, with any Native Power in the Eastern Seas, shall contain any Article tending to … exclude the Trade of the other Party from the Ports of such Native Power”.Footnote ⁵⁸ Article IV obliges the parties to:

In Articles IX and X of the Anglo-Dutch Treaty, the parties exchange their interests in Sumatra and Malacca and promise not to “conclude any Treaty with any Native Prince, Chief, or State”Footnote ⁶⁰ in the territories they have “ceded”.Footnote ⁶¹ Finally, they oblige themselves not to transfer the territories covered by the agreement to “any other Power”.Footnote ⁶²

The British Note to the Treaty also mentions that “treaties were made with Native Chiefs, by which their situation was much improved”.Footnote ⁶³ It notes that forced cultivation of pepper was abolished; rice cultivation encouraged; ownership of the property recognized in the Chiefs; management taken over by Native Officers—measures that redounded to the benefit of all “Native Inhabitants”.Footnote ⁶⁴ The same language and view appear in the English version of the Dutch Note which made mention of “the removal of the vexations which often result from the immediate contact of the Native population and the subordinate authorities of a Foreign Government”.Footnote ⁶⁵ The Dutch Note assures the British party that the individuals in the ceded territories could “cherish the hope that the new Government will respect their acquired rights”.Footnote ⁶⁶ It concludes that the signatories wish that the agents of the two parties “may ever shew themselves sensible of the duties which Two Friendly Nations … have to fulfill, both with reference to each other, and also towards the Natives whom the course of events or Treaties have placed under their influence”.Footnote ⁶⁷

A close reading of the treaty brings to light the world of nineteenth-century international relations in Southeast Asia. It is a world where the mandala and tributary international relations systems of Asia intersect with the expanding international relations system of European states.Footnote ⁶⁸ More specifically, the Anglo-Dutch Treaty is an agreement to divide mainland Southeast Asia and the archipelago in the Eastern Seas between two European states. This document reveals that each party sees in the other the mirror image of itself with its usual adherence to the treaty form and language, and the statement of full powers of their respective sovereigns’ agents, including the use of “the Name of the Most Holy and Undivided Trinity”. Recognizing the other as a friendly Christian power, each party, then, assumes that the other has an “equal disposition to carry into effect, with sincerity and good faith, the Stipulations of the Treaty”. In other words, each party did not see the other party as a cultural Other as suggested by the way they treated Asian powers.Footnote ⁶⁹

The 1824 Treaty and the Notes were clearly objectifying the powers in the region through a division between the two friendly Christian nations and the “Native”. The treaty reveals and objectifies an absent (third) persona, the absent Other. This is none other than the “Native Power” or the “Native Chief, Prince, or State”—the polities that dotted the mainland and archipelagoes of the region under the mandala system. The legal category of a “Native Power” refers to an indigenous leader or “State” that had treaty relations with the other party. The Dutch Note, for instance, recognizes the Kingdom of Acheen, with whom the British had earlier concluded a treaty, not only as a power, but also as a state.Footnote ⁷⁰ This acknowledgement does not, however, confer the same status on the Native Power and European powers. The use of the adjective “native” implies the existence of a binary distinction between a “Native Power” and the European power that included the parties themselves. It may be surmised that the underlying reason for the othering of the Native Power is its perceived inferiority vis-à-vis the European power. As George Canning, the signatory of the Treaty and British Note, would express it in another context: “civilized Nations are … entitled to claim (rights and duties) from each other”, implying the existence of “uncivilized nations” that are without those rights.Footnote ⁷¹

Thus, the implied distinction would have a ramification in the future identity of the indigenous powers. I would like to suggest that the later binary between “civilized” and “uncivilized” states had its genealogical origin in this earlier distinction between “Native Power” and European power. The invention of the “standard of civilization” as an instrument of international lawFootnote ⁷² would later clarify the difference between the Native Power and the European power. Native powers may be considered independent states but they can neither completely comply nor claim the rights and duties of European powers under international law. As T. Lawrence notoriously put it:

The legal consequence of this cultural difference is that it is not enough to be “sovereign”, as any Native Power could be; one must also hurdle the test of being part of the “society” of “civilized nations”.Footnote ⁷⁴ Based on these tests, the European powers then arrogated upon themselves the power to determine who qualified through the invention of a recognition doctrine in international law.Footnote ⁷⁵

From this analysis, one may posit that the construction of the identity of the polities of the region was made under a number of dualities: Native Power/European Power; Uncivilized State/Civilized State; Inferior/Superior.Footnote ⁷⁶ The position of the native polity under these binary structures became precarious, where it could be recognized as a treaty-making legal actor without having all the rights of a European state in international law. This so-called “twilight zone”, as Anghie describes it, would be resolved only by the force of total colonization of the polity which extinguished its legal personality that had been grudgingly conferred for the purpose of legitimating European economic rights and acquisitions in the region.Footnote ⁷⁷ Indeed, this was the fate of all but one of the polities in the region such as the Konbaung Dynasty, the Aceh Kingdom, the Sulu Sultanate, and the Nguyen Dynasty, among others.Footnote ⁷⁸ The structure of the international relations between Native powers and the European powers followed the plotline of encounter, coercion/war, treaty of friendship/cession, war/coercion, and finally, colonization.Footnote ⁷⁹ It appears that the objectification of a power as “native” was a differentiation that made it less of a sovereign than Western states. And because it was less sovereign, it was an object to be assaulted and reduced to being a native population. Reduced to being a native population, it was now an object of colonization. Thus, the logical conclusion of the Native-European duality was the Manichean binary of the colonized and the colonizer.

If the Treaty of 1824 defined Native Power in opposition to European states, another quick gloss at the terms of the Treaty and Notes would show also the proliferation of the word “natives” in various forms—“native inhabitants”, “native population”, “natives”—to describe the indigenous population of the territories being exchanged. While there was no explicit agreement about the fate of these “natives”, there is an outright admission in the Dutch Note that the Treaty has placed these “natives” under their influence. Thus, the parties have a duty to fulfil certain obligations towards the “natives”.Footnote ⁸⁰ In other words, the “natives” constituted an unstated object of the treaty, unstated for the fact that they only followed the transfer of the territory. They were appendages of the lands.Footnote ⁸¹

Be that as it may, since the natives are not trees and rocks, they must be treated in a way that “improves” their situation. In short, they must be governed. In practice, the native subject must be freed from “forced cultivation” so he could be more productive; he must be allowed to cultivate rice so he could survive; and most importantly, he must be “managed” by his own “native officers” to avoid the unnecessary friction between the European master and the native. Thus, the 1824 Treaty and its Notes reveal the objectification process as the exercise of both sovereign powers and governmentality. As discourses, they objectify the native as an Other and as an appendage of the territory. Moreover, this appendage could be more productive if governed properly and allowed a certain amount of freedom—freedom from forced cultivation, freedom to cultivate rice, and freedom to be governed by his fellow native. Thus, the native is now a subject and is subjected.Footnote ⁸²

What if the native subject starts acting as if he were no longer a mere appendage of territory? To answer this question, one must turn to the Treaty of Peace Between the United States and Spain of 1898. If the Treaty of 1824 was a modus vivendi between two European powers on the verge of expanding their dominions, the Treaty of Paris was an indication of the arrival of a young imperial power who was sending an old decrepit power into retirement. If the Treaty of 1824 shaped the relationship between two “friendly” European nations, the Treaty of Paris shattered the imperial pretensions of Spain and constructed in their place the image of the US as a colonial power.

Article III of the Treaty of Paris states that “Spain cedes to the United States the archipelago known as the Philippine Islands” and delineates the territory through a technical description.Footnote ⁸³ In return, Spain would receive US$20,000,000 within three months after the exchange of ratifications. What happens to the people of the islands is mentioned in Article IX which states that “the civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress”.Footnote ⁸⁴ As it was in the Berlin Conference, the natives—the object of the treaty—would be relegated to the background, disallowed from taking an active role in the determination of their own fate.Footnote ⁸⁵

For the US, the problem in the case of the Philippine archipelago was that the “native inhabitants”, who had by then defeated the Spanish government, decided not to wait for the US Congress to decide their fate, declared themselves independent in June 1898, and proclaimed themselves as a “people” (Pueblo Filipino) in a Constitution.Footnote ⁸⁶ In response, the US, viewing the Filipinos through the eyes of empire, sent a most potent imperial force that burned down the strongholds of “insurgents” in the countryside, unleashing a death toll of no less than 250,000 “natives”, who had insolently rejected its benevolent intentions.Footnote ⁸⁷ Unrecognized by the “civilized nations” and outgunned by a benevolent power in a war of aggression, the Filipinos lost their identity as a free people and remained “native inhabitants”. Thus, the Treaty of Paris was finally enforced against its object.Footnote ⁸⁸ Pacta sunt servanda.

Based on the analysis above, one may conclude that the word “native” was without doubt a vocabulary of imperialism. The word permeated the treaty texts of the nineteenth century that constituted subjects and legalized imperial acquisitions. It distinguished the Western power from the Other/lesser powers, the native inhabitants from the subjects of the colonial sovereign. It was a signifier of difference with often fatal consequences. Based on this objectification practice, the sovereign violence of Western states did not often distinguish between a Native Power and a Native population. To be a “Native”, one is always threatened with domination and subjugation, if not total extermination.

III. Peoples and nation-states

This section shall discuss the process by which the “natives” were re-objectified under decolonization. Post-World War II multilateral treaties, declarations, and discourses redefined the natives as “people”, a subject that holds a right to self-determination under international law. This re-objectification legitimated nationalist movements in Southeast Asia and led to the nationalization of the subject, thereby qualifying the new actor with an “adjective”—such as the Indonesian people, the Vietnamese people, etc.

The whole era of decolonization was defined as “the historic shift from a world of colonial empires to a world of nation-states”.Footnote ⁹⁰ This transformation entailed a historic international legal re-objectification of the “natives”, the “indios”, the “Inlandsches”, and the “indigènes” as “peoples” with a “right to self-determination”. Under international law, decolonization meant having two rights—the right to the word “people” and the right to self-determination.

In Southeast Asia, the constitution of “We, the people” was first made by “natives” and “mestizos” of Las Islas Filipinas who identified themselves in the 1899 Malolos Constitution as “Nosotros, los Representantes del Pueblo Filipino”. Aside from using “pueblo” (people), they also appropriated the word “Filipino” to refer to the inhabitants of the islands whether indio, chino, or mestizo, in contrast to its original meaning of one born in the islands to Spanish parents.Footnote ⁹¹ Thus, “Pueblo Filipino” was clearly a new identity of unity and inclusivity which departed from the racial divisions outlined by Spanish colonialism. While the “nation” constituted by the 1899 Constitution would be aborted by US conquest, it is important to recall this early affirmation of a new subjectivity which was imagined and constructed on the ruins of Spanish colonialism. This was “Southeast Asia's first genuine nationalist revolution”Footnote ⁹² and the “model for anti-imperial nationalism”.Footnote ⁹³ This construction of a new legal subjectivity in the Philippines was transformative. But it was not meant to last. It was crushed by the sovereign violence of the US.

From 1899, it would take forty-six years and two imperialist wars before international juridical discourse could re-objectify the natives into “people”. The idea of self-determination being a right of peoples was concretized in the aftermath of World War I. Scholars often attribute the formulation of this concept to Soviet Union founder V.I. Lenin and US President Woodrow Wilson. Although standard texts on international law focus only on President Wilson, his concept actually limited self-determination to the nations under the Ottoman, Austro-Hungarian, and Czarist regimes.Footnote ⁹⁴ The principle was never applicable to the Philippine colony.Footnote ⁹⁵ Historically, it was Lenin who categorically argued that “the demand for the liberation of the colonies is nothing more than the ‘recognition of the right of nations to self-determination’”.Footnote ⁹⁶ From this thesis, the Soviet Union's support for national liberation in the colonies found an ideological foundation. This Soviet support, in turn, paved the way for the codification of the “self-determination of peoples” in international law through various post-World War II treaties, most importantly in Article 1(2) of the United Nations Charter, making it a foundational basis of international relations.Footnote ⁹⁷

This international legal objectification of “peoples” would now become unstoppable. A few years later, another international legal document—the Universal Declaration on Human Rights—would declare the rights of human beings and refer to “the peoples” of the Member States and the “peoples of territories under their jurisdiction”.Footnote ⁹⁸ The 1955 Bandung Communique of Third World leaders and representatives declared “support of the cause of freedom and independence for all [dependent] peoples”.Footnote ⁹⁹ Soviet leader Nikita Khrushchev then opened the debate on the granting of independence to colonial countries and this eventually led to the adoption of the 1960 “Declaration on the Granting of Independence to Colonial Countries and Peoples”.Footnote ¹⁰⁰ This declaration, which was signed by Indonesia, the Philippines, Thailand, Laos, and the Malayan Federation, called for “bringing to a speedy and unconditional end colonialism in all its forms and manifestations”.Footnote ¹⁰¹ In a few years, the UN Human Rights Conventions—the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights—would also codify “peoples” and “the right to self-determination”. Thus, as recently argued, the newly independent states pushed to redefine the right to self-determination by making it “a pre-requisite for the enjoyment of all other human rights”.Footnote ¹⁰² By the 1960s, the colonial subjection of “peoples” became totally bankrupt. The “peoples” would become international legal subjects being “the bearer, holder of some rights and duties granted directly under international law”.Footnote ¹⁰³ Hence, their subjugation became totally illegitimate.

International law's objectification of “the people” is, of course, not unproblematic. The concept has always been a slippery term and nailing it with a definition is considered out of the question. Alexander Orakhelashvili acknowledges the problem of defining “the people”. What is certain, he argues, is that the word refers to a “collective”.Footnote ¹⁰⁴ It signifies “common subjective attachment to the idea of becoming an independent State, or relatively objective criteria of a common territory, ethnicity, language, or culture”.Footnote ¹⁰⁵ Nonetheless, he warns that “none of these can transparently distinguish entities entitled to self-determination from those that do not”.Footnote ¹⁰⁶ Thus, Orakhelashvili asserts that there is “no pressing need to define” a people.Footnote ¹⁰⁷ Instead, he states that one should focus on whether the relevant population and territory they inhabit are under the domination of a foreign power because the test of their being a people is based on their ability to demonstrate that they are in fact subjugated.Footnote ¹⁰⁸ For Orakhelashvili, the right is not an inherent right but a right conferred to the people so that they may “express the will” to take hold of their common fate as a nation. In other words, they become a people when they begin to express the will to determine their own future independent of the will of the imperialist powers who are ethnically distinct and territorially separate from them.Footnote ¹⁰⁹ From this viewpoint, re-objectification of the natives meant that they must collectively act and resist. In one sense, international juridical forms allow them to subjectify themselves.Footnote ¹¹⁰ International law thus encourages and legitimizes the transformation of a nonentity into a “privileged actor”.Footnote ¹¹¹ The former “native inhabitants” now act as a single body to express and exercise a right becoming no longer the mere object of treaties, but a subject conferred with personality and rights under international law.Footnote ¹¹² Henceforth, the people become an international legal subject in the fullest sense of the term.Footnote ¹¹³ In this process, they organize, they unite, they act as one subject to exercise a right now recognized in international law. In the cases of Indonesia and Vietnam, they peppered their declarations of independence with descriptions of the inhabitants of the colonies as “peoples”.Footnote ¹¹⁴ And most importantly, these “peoples” defeated the colonizers in the battlefield. This subjectification resulted in the formation of new states which reconfigured international relations in the postwar period.Footnote ¹¹⁵

It must be further noted that the “people” as subject is not only characterized by freedom. Just like the subject in the sentence, it could acquire another layer of identity and be qualified by an adjective, a nationality. Thus, the international legal re-objectification of the native as a people in the region not only resulted in the formation of states, but it also unleashed a kaleidoscope of evolving national identities. The words “native”, “inlandsche”, “indigène”, and “indio”, which colonial legal documents had conceptualized, homogenized the peoples living in the mainland and archipelagoes of the region. It flattened and suppressed identities in order to justify and maintain bondage. Indeed, the paradox of imperialism, as Said would note, was that it facilitated the mixture of cultures and identities while making people believe that they were only and exclusively “white” or “black” or, in the case of Southeast Asia, “native”.Footnote ¹¹⁶ With decolonization, the people began constructing their identities according to the balance of power within each of the national polities. This choice of a national identity, the adjective, was one of the most concrete exercises of a people's right to self-determination. No wonder the post-colonial period has seen the rise of a variety of nationalities, each having a distinctive character. Official national identities in the region became a tapestry of ethnic, religious, and ideological visions.Footnote ¹¹⁷ The subject has finally found its own adjective.Footnote ¹¹⁸

IV. Trans-national subjects and international organization

In this section, I outline the formation of new subjects in the post-colonial period, specifically under regionalization. I argue that ASEAN, an international organization whose object is to build a trans-national community, is also constructing new trans-national subjects. This new objectification is a post-colonial and interstate project of pan-regional subject formation that runs parallel to regional integration and constructs new trans-national subjects that have privileged access to the new regional market.

The new states in Southeast Asia that emerged in the post- World War II decolonization process have proven generally resilient in contrast to their counterparts in Africa.Footnote ¹²⁰ Their geopolitical bodies, drawn by colonial treaties, have survived political upheavals and the formation of a pan-regional identity or subjectivity would largely depend on the ideas of these States.Footnote ¹²¹ Thus, the ASEAN trans-national subject would primarily be an interstate construct through international agreements that promote regional construction in Southeast Asia, the most important of which is the ASEAN Charter.

The term “Southeast Asia” is sometimes used as if it were out there existing in the objective world. Nothing could be more illusory. An ideational concept, “Southeast Asia”, like all regions, is a social construct.Footnote ¹²² Nonetheless, its artificiality is more obvious than other regional constructs. Unlike Africa, Southeast Asia looks scattered on the map and not bound by a pan-regional identity like pan-Africanism.Footnote ¹²³ Unlike Latin America, it is not sewn by a common thread of culture and language. Unlike Europe, it does not have deep intellectual roots as a regional idea.Footnote ¹²⁴ Thus, Southeast Asia is a region that nakedly parades its constructed-ness.

One of the reasons for this obvious artificiality is the region's post-coloniality. Southeast Asia is a post-colonial idea which is unable to mature under Western imperialism. Under the old order, imperial visions like the French “Indochine”, “British Malaya” and “British Burma”, the “Dutch Indies”, and America's “Philippine Islands” made the idea of a Southeast Asia anomalous. Historically, each of the imperialist states imposed its own imperial vision on these territories, demarcating them from the other colonies and tying them to far-flung metropolises.Footnote ¹²⁵ Even the early ASEAN was also divisive as it had the appearance of an anti-communist united front. The five states—Indonesia, the Philippines, Malaysia, Thailand, and Singapore—which signed the 1967 Declaration in Bangkok were unified by their fear of communism, unstated though it was in the text.Footnote ¹²⁶ No wonder the victorious Vietnamese and Lao communists looked disdainfully at the “neo-colonial” regimes behind ASEAN, depriving the organization of legitimacy by accusing it of being an imperialist-backed stooge.Footnote ¹²⁷ What made ASEAN different, of course, was its ability to move beyond anti-communism by accepting the Vietnamese and the Lao communist regimes into the organization in the post-Cold War era.Footnote ¹²⁸ As a consequence, with the acceptance of the applications for membership of Vietnam, Lao, Myanmar, and Cambodia, ASEAN expanded its membership to what is now geographically considered Southeast Asia. This made ASEAN a more genuine regional organization, allowing it to move towards constitutionalization and fast-track regional construction.

Thus, at the time of ASEAN's transformation into an international legal person in 2008 through a constituent treaty, the organization's membership reflected an enlarged, if not complete, geographical idea of Southeast Asia. The regional idea emanating from the states was therefore materialized in a treaty, which in turn constituted an international legal person symbolically and legally representing Southeast Asian states and peoples in world politics. This formation of an international organization was a big leap in “community building”.Footnote ¹²⁹

In the field of international relations, community is understood as the “sharing of same values and meanings”, having “direct and many sided-relationships”, and “exhibiting reciprocity” within a group of states and peoples.Footnote ¹³⁰ In the field of international law, this trans-national community is symbolically represented by international organizations. In recent years, the law of international organizations has shifted its focus from legal personality to community and has begun to consider international organizations as the legal embodiment of communities.Footnote ¹³¹ More importantly, this conceptualization of community has been expanded and is no longer limited to the states—the traditional subjects of international law. There is a growing belief among international lawyers that the international community is not limited to the community of states but includes the community of human beings.Footnote ¹³²

When an international organization is considered the legal embodiment of community, it does not necessarily mean that community is out there complete. On the contrary, the community may still be inchoate in the real world. For this reason, it is the international organization that is seen as an instrument in the creation of the very conditions for community to flourish. The international organization can, to borrow the word of Adler and Barnett, “engineer” the conditions conducive to the formation of collective identities.Footnote ¹³³ International organization is thus an instrument in the construction of community.

Certainly, ASEAN had this in mind when it codified and ratified “community building” as one of its “spécialités”. The ASEAN Charter's Preamble explicitly refers to an objective to “realise an ASEAN Community”.Footnote ¹³⁴ Chapter I, Article 1(13) encourages “all sectors of society … to participate in, and benefit from, the process of ASEAN integration and community building”.Footnote ¹³⁵ For this purpose, the international organization has created three major organs—the ASEAN Economic Community Council, the ASEAN Political-Security Community Council, and the ASEAN Socio-Cultural Community Council (see Chapter IV).

This project of community building certainly had its beginnings among the regional elite. There had been no radical and pan-regional movement in the region quite like the Pan-African Congress that inspired integration.Footnote ¹³⁶ Perhaps only communism in the past had a huge grassroots and intellectual support in the region. But communist internationalism propagated by Ho Chi Minh's “Indochinese” Communist Party eventually settled by dropping the word “Indochinese” for “Vietnamese”. Vietnam's invasion of Cambodia, which toppled the communist regime of Pol Pot, further emphasized the failure of the project. Ultimately, the intra-communist war in the region revealed communist internationalism as “illusions perdues”. In a novel titled Gera (War), Filipino communist guerrillas were excited by the possibilities of the victories of the communist parties in Vietnam, Cambodia, and Laos. But their hopes for communist solidarity were dashed by the subsequent war between Vietnam and Cambodia.Footnote ¹³⁷

Thus, an elitist form of bond filled the gap left by communist internationalism. In the case of ASEAN, multilateral institutions provided the new states in Southeast Asia a space for co-operation and from their experiences learned the value of intergovernmental unity.Footnote ¹³⁸ This bond that had developed among states from the same region within an international organization logically led to a sense of regional kinship, however limited such affinity was to the diplomatic elite. Celebratory accounts of ASEAN are quite revealing about the people behind it. Unlike international communism's roots in the solidarity of the unshod, ASEAN was forged by the solidarity of the golfers and jetsetters. One book describes this: “The close personal friendships he [Mahbubani] forged with leading ASEAN diplomats … lasted for many years … This store of capital would hold ASEAN together.”Footnote ¹³⁹ Another eminent person writes:

He adds, rather exuberantly: “It helped that Ramos, Ali Alatas, Musa, Jock Seng and I had also been long-time golf-buddies!”Footnote ¹⁴¹ Mahbubani and Sng finally unveil the secret in the construction of ASEAN identity: “Golf has been critical to ASEAN's success from the beginning.”Footnote ¹⁴²

This exclusionary and elitist form of “regionalisation”, or “the process through which regions emerge”Footnote ¹⁴³ continues with the ASEAN community. Along with this regionalization or community building, there runs a parallel objectification of the legal subject that would fit into this kind of trans-national community. Chapter 1, Article 1(5) of the ASEAN Charter states the objective to create a “single market and production base” where there is “a facilitated movement of business persons, professionals, talents and labour”. The ASEAN Economic Blueprint 2021 retains this objectification of “business persons” and “skilled labour”.Footnote ¹⁴⁴ Article 3 of the ASEAN Agreement on the Movement of Natural Persons (2012) further elaborates on the category of “business visitor”. Meanwhile, “professionals” are being categorized into various professions in “Mutual Recognition Agreements” that would increase the movement of medical doctors, dental practitioners, accountants, and other skilled labourers within the region.Footnote ¹⁴⁵

Thus, one witnesses the objectification of the “favoured” ASEAN subject in agreement after agreement, with each agreement becoming more elaborate and, to a certain extent, more individualized. Through these sovereign acts and governmentalities implemented by each government within their borders, including emerging regional intergovernmentalities (such as professional registers), a new ASEAN trans-national subject is slowly being formed.

One important characteristic of this new subject is its ontological connection with political economy. “Business person”, “professionals”, and “talent and skilled labour” are all connected with capital and labour. Under Chapter 1, Article 1(5), these are the legal subjects that move with the “free flow of goods” and “freer flow of capital” within the region. Together with the things (capital and goods), these legal subjects shall be given facilitated movement within ASEAN territory.

Another characteristic of the ASEAN subject is its being a trans-national subject. As constitutionalized in the ASEAN Charter, these subjects may move within the economic community, thereby becoming trans-national subjects. They are enabled to work and travel from one nation to another within the region. Nonetheless, they remain “national” subjects. Thus, I retain the hyphen to emphasize the continuing existence and predominance of the “national”.

By “trans-national” subject, I do not mean a subject of the European kind. I differentiate the ASEAN subject from the European transnational subject that has been objectified with one of the four freedoms—the free movement of persons.Footnote ¹⁴⁶ This European subject is objectified by a regional order that has been described as “a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals”.Footnote ¹⁴⁷ In contrast to European integration, ASEAN regionalization is still in the form of an intergovernmental organization that has not been empowered by an exclusive economic competency and remains primarily a vehicle for a quest for identity.Footnote ¹⁴⁸ As a consequence, the ASEAN subject is not yet transnational. It is not a subject with freedom of movement. It is, nonetheless, objectified by the juridical forms of treaties, organ visions, and immigration practices that facilitate their movement within the region. It is a trans-national subject because it is objectified by multilateral agreements and transnational discourses and practices within a regional community.Footnote ¹⁴⁹ In another sense, the trans-national subject of ASEAN may be described as a transitional subject. It is a bridge in between the national and the transnational subjects. Whether the trans-national subject would become a truly transnational subject with freedom of movement remains to be seen.

One may ask whether there is a difference between the ASEAN subject and the Southeast Asian migrant worker in non-ASEAN countries. While the category of business persons, professionals, talent, and labour could be replicated in a bilateral agreement with non-ASEAN States, the ASEAN trans-national subject is different in the sense that this is a subject within a regional situs. Moreover, it is a subject in situs that is objectified by the juridical discourse and practices of an international organization and its Member States. Finally, as a subject, it is objectified through a co-ordinated exercise of sovereignty and intergovernmentalities by various states/governments in the region.

Viewed from within the region, the ASEAN subject, that is tied to the economy and is distinctly trans-national, is different from the national subject of the Member States. It must be borne in mind that ASEAN objectification is limited to a few legal categories and therefore exclusionary. ASEAN objectification, for instance, does not consider unskilled labour. Hence, those who shall be categorized as unskilled would never have the access to the market available to the ASEAN subjects discussed above. Unskilled labour would remain a national subject without any benefit under the ASEAN regional order. How this division between the trans-national and national subjects would unravel in Southeast Asia in the coming years will be worth watching.

In sum, there is, in Southeast Asia, a new trans-national subject that is being moulded by international juridical discourses and practices. This new subject is wholly tied to the economy and has a trans-national character. This new subject is fettered by the purely economic nature of its objectification and its limited freedom to move within the regional community. This is therefore a subject that is in need of more rights. It is a subject that needs to be liberated from its economic ontology. If the ASEAN community is truly for the peoples of Southeast Asia, it must view its subjects not as economic factors of production. ASEAN must humanize its vision of the subject by conferring on it more freedoms and rights. With more rights, there could also be more community.Footnote ¹⁵⁰ Thus, one must begin to ask what should be important questions in any project of regional integration: What forms of new and liberating subjectivity can ASEAN integration produce? Can ASEAN produce a subject freer than free-flowing goods and capital?