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Problems Concerning the International Law-Making Practice of ASEAN: A Reply to Chen Zhida

Published online by Cambridge University Press:  22 May 2015

Daniel SEAH
Daniel SEAH*
Affiliation:
University College London, United Kingdomdaniel.seah.11@ucl.ac.uk
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Abstract

The separate legal personality of ASEAN, an international organization, is a matter of some significance. ASEAN is capable of separate action and can carry rights and obligations on the international plane, as a distinct entity from its Member States. In this Journal, Chen Zhida advances the proposition that ASEAN is entitled to conclude treaties on behalf of its Member States, a practice which, it is argued, should be valid at international law. This paper responds by drawing attention to the difficulties with this argument on technical and conceptual grounds. For technical reasons, it is important to make a meaningful distinction in the ASEAN practice of concluding instruments such as Memoranda of Understandings, which can be distinguished from treaties. At a conceptual level, the treaty practice of ASEAN as a separate legal person must be based on what was consented to by Member States in the ASEAN Charter, a constituent instrument.

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Asian Journal of International Law , Volume 6 , Issue 2 , July 2016, pp. 265 - 293
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Copyright © Asian Journal of International Law 2015 

One primary function of an academic lawyer is to identify in our scholarship the “white spaces”Footnote 1 of international law. White spaces are opportunities for academic lawyers to adopt longitudinal perspectives on the discipline and practice of international law.Footnote 2 Accordingly, we can study the eclecticism and complexities of the modern international law-making process.Footnote 3 In our teaching and production of knowledge through scholarship, we should reflect on the values of international law,Footnote 4 as a foil to the sharp pragmatism of practitioners who operate in the “real” world.Footnote 5 Sometimes these impulses in academia are useful to international legal practice, once we distil the practical elements by subtracting the abstract or theoretical.Footnote 6

It is against this context that we must welcome the contribution by Chen Zhida to this Journal on the problematic treaty-making practice of the Association of Southeast Asian Nations (ASEAN).Footnote 7 His concerns are practical and academic. It is practical because ASEAN is indisputably an international legal person with separate legal personality.Footnote 8 If it were capable of concluding treaties, then ASEAN as an entity would carry rights and obligationsFootnote 9 that are opposable to its Member States and other subjects of international law.

This contribution is relevant to academic lawyers for two reasons. First, to speak of an ASEAN “treaty practice” is to recognize, in normative terms,Footnote 10 some degree of ASEAN's “actorness” as an international organization concerning law-making on the international plane. Obviously, there are diplomatic practices with an indigenous (i.e. ASEAN) characteristic in the maintenance of regional order in Southeast Asia. One might concede that, in this respect, the recourse to law is inimical to an “ASEAN Way”Footnote 11 or an autochthonous habit of decision-making, which, it is claimed, involves lengthy dialogue and ritualistic consultation.Footnote 12 But through ASEAN, the maintenance of international and regional order in Southeast AsiaFootnote 13 can also be accomplished with words—undoubtedly a task for international lawyers.Footnote 14 So while there may be an ASEAN Way to manage—or resolve—differences at sea, on land, in the air, or space, this (ASEAN) way can still be explained by and assimilated into the rules and principles of international law.Footnote 15

Second, Chen proposed ways to mitigate the apparent muddle of ASEAN's “treaty” practice, especially with a provocative argument that the treaty obligations of ASEAN (owed to another contracting party) are supported by agency at international law.Footnote 16 Here, though, it seems to me that he pressed a point too hard. Although international law is no longer just about states, it is still something to do with states.Footnote 17 The Lotus presumption still obtains.Footnote 18 Only states and not international organizations have full competences at international law.Footnote 19 This is true in relation to the laws of treaties, a consensualist regime, to which Chen's paper is devoted. In evaluating the competence of ASEAN to conclude treaties Footnote 20 (I use this word advisedly) as a separate legal person with other subjects of international law, we must examine the ASEAN Charter,Footnote 21 the whole Charter, and nothing but the Charter.Footnote 22

Article 41(7) of the Charter provides that ASEAN “may conclude agreements”, not international agreements or treaties. The many ASEAN instrumentsFootnote 23 that Chen used in support of his propositionsFootnote 24 are not treaties as understood under the Vienna Convention on the Law of Treaties (Vienna Convention).Footnote 25 However, to persist in studying only the treaty practice of ASEAN is to foreclose the white spaces accorded to an academic lawyer. It is arguable that those ASEAN instruments under review constitute evidence of international law-making by ASEAN as a subject of international law. The term “international law-making” is used in this paper to express a broader and normative understanding of the law-making process by ASEAN: this includes but is also wider than the formalist approach of determining “law” as promulgated in treaty form, or through express affirmation as state practice in a soft law instrument.

On this account, international law-making by ASEAN is interactional.Footnote 26 Different instruments can interlock to confirm the content or constitute evidence of the rules and principles of international law.Footnote 27 In short, the treaty practice of ASEAN is part of an international law-making process. But treaties are not exhaustive of this process; nor are they necessarily or always its most conclusive part.

Chen's key proposition is that ASEAN can and should be entitled to act for and on behalf of its Member States when concluding agreements.Footnote 28 For brevity, I call this the “on behalf of” formulation throughout this paper. What the formulation means is not always clear. It acknowledgesFootnote 29 but does not seem properly seized of the consequences concerning an international organization's separate legal personality. As a result, the arguments advanced to support the “on behalf of” formulation raise difficulties on technical and conceptual grounds.

A central tenet of this paper, therefore, is to emphasize the value of an international organization's separate legal personality. This affects our understanding of legal obligations and related matters of enforcement, which attach to the instruments that are concluded by an international organization. Once the legal personality of an international organization is established, whether in the constituent instrument or through the manifest intention of the Member States, its separate and distinct character from Member States is of some importance. To be clear: what this international organization can do—or cannot do—with its separate legal personality is another matter. That is for international law to draw appropriate conclusions over time.

This paper has three parts. Section I recapitulates the thesis by Chen and provides a non-exhaustive list of ways that the “on behalf of” formulation has been expressed. Section II argues that, for technical reasons, the “on behalf of” formulation is not generally a significant issue. Much of the practice as reviewed by Chen concerned Memoranda of Understanding (MOUs) that were concluded before the Charter's entry into force. These instruments may or may not be treaties, which are governed by international law. Section III examines the arguments related to agency at international lawFootnote 30 and Draft Article 36 bis Footnote 31 of the Vienna Convention on the Law of Treaties between States or International Organizations or between International Organization (1986 Convention).Footnote 32 At the conceptual level, there are difficulties in linking these arguments to the “on behalf of” formulation, because ASEAN could and had acted in its own right, as a separate legal person, after the Charter's entry into force.Footnote 33

I. THE “ON BEHALF OF” FORMULATION: THE CORE ARGUMENTS AND WAYS THAT IT WAS EXPRESSED

The “on behalf of” formulation was articulated at an early stage of Chen's paper. After noting the express conferral by Member States of legal personality onto ASEAN and its competence to “conclude treaties”Footnote 34 (a related issue to which I will return), Chen cited Article 5(2) in the Charter as evidence of a “hard” obligation on ASEAN Member States to take, in this respect, all necessary measures to comply with the obligations of membership.Footnote 35 He went on:

It [i.e. Article 5(2)] would not entitle the other party that is concluding a treaty with ASEAN to enforce the treaty obligations directly against the Member States, even if ASEAN purports to conclude the treaty on behalf of its Member States. Indeed, an examination of the ASEAN treaties would reveal that ASEAN has, on various occasions, concluded treaties on behalf of its Member States.Footnote 36

One pertinent question that arises is whether:

such treaty-making practice can and should be valid under international law, even if the Member States have consented for ASEAN to conclude these treaties on their behalf.Footnote 37

The position to be defended is that:

under international law, ASEAN can and should be entitled to conclude treaties on behalf of its Member States.Footnote 38

The “on behalf of” formulation was expressed in the following ways:Footnote 39

  1. 1. To justify treaties concluded by ASEAN on behalf of its Member States by relying on the concept of agency at international lawFootnote 40 (i.e. it is in the agency context that this formulation acquired its most clearly defined meaning).Footnote 41

  2. 2. That the practice of ASEAN concluding treaties on behalf of its Member States probably reflects the “collective representation” of its Member StatesFootnote 42 (i.e. Member States used ASEAN, which probably lacked separate legal personality, as a co-operative framework to serve their particular needs).

  3. 3. That it is “interesting” that the ASEAN Secretary-General had concluded treaties on behalf of its Member States, despite lacking the competence to do so under the CharterFootnote 43 (i.e. although the practice under review concerned MOUs and not treaties).

  4. 4. When treaties are concluded “in the name of ASEAN or the governments of the Member States of ASEAN”,Footnote 44 it “follows that the preambles of most of the treaties … would not state the treaty was concluded on behalf of the Member States”Footnote 45 (i.e. Chen seemed to argue that ASEAN had effectively concluded these instruments on behalf of its Member States).Footnote 46

  5. 5. Based on practice, ASEAN had concluded treaties on behalf of its Member States with the “express authorization” of the latter,Footnote 47 despite lacking an express provision to this effect in the CharterFootnote 48 (i.e. the key issue to Chen seemed to be whether “treaties” concluded in this way are valid and what the obligations and rights of ASEAN and its Member States are).Footnote 49

  6. 6. There are “compelling reasons” why international organizations should be entitled to conclude treaties on behalf of their Member States, namely: (i) it strengthens the recognition by other subjects of international law of an international organization's “actorness”; (ii) it improves the bargaining power of Member States; (iii) it is efficient, convenient, and allows “the other party to the treaty to … directly enforce the treaty obligations against the Member States”.Footnote 50

  7. 7. That the interchangeable use of “ASEAN” in the preambles of ASEAN instruments made it “difficult to ascertain in each case if ASEAN was simply concluding the treaty on behalf of its Member States or on its own behalf as well”.Footnote 51

  8. 8. That once we accept ASEAN may conclude treaties on behalf of its Member States, it follows that the Member States would be the proper parties to the treaties.Footnote 52

These eight examples illustrate the distinct—though at times related—meanings which are associated with the “on behalf of” formulation. To the extent that the analysis raised issues concerning ASEAN's legal personality, it was characterized in examples (3)–(7) as acting “on its own behalf” or “on behalf of” ASEAN Member States, or perhaps both. If an international organization has legal personality, it has capacity for separate action at international law.Footnote 53 When an international organization concludes an instrument with another subject of international law, it can act in its own right as a party.Footnote 54 Both are utterly formal but crucial points.

Equally significant in terms of determining what rights and obligations an international organization carries, as a separate legal person, is the constituent instrument, rules of organization,Footnote 55 and obviously the content of that instrument, to which the international organization is a party. For good measure, the other contracting party can demand that Member States and the international organization both conclude the same instrument as two separate legal persons (and thus as two separate parties), by filling “gaps” in the competences of that international organization.Footnote 56

These qualifications form some of the concerns in, but also expose problems with, the “on behalf of” formulation. Today, it might be less helpful to characterize an act by an international organization as one that is conducted “on its own behalf” or “on behalf of” its Member States.Footnote 57 This is because, at times, these terms are vague as a matter of law. It is not always clear whether the terms are intended as a political observation or a statement of law.Footnote 58 For example, the European Commission noted that the European Union (EU), despite its separate legal personality, sometimes lacked legal standing to exercise its competences on the international plane because certain treaties or organizations allowed only states to become a party.Footnote 59 The Commission said that, in these situations, the EU may have to use the “vehicle of acting through its member States” but, notably, it added that EU Member States “do not act on their own behalf but on behalf and in the interest of the European Union”.Footnote 60

Another way of expressing the Commission's position, in legal terms, is to replace the words “vehicle”, “interest”, and “behalf” with the general duty of co-operation under Article 4(3) of the Treaty of the European Union (TEU), a constituent instrument, which binds all EU Member States. Where the EU lacks legal standing, therefore, its Member States are legally obliged to implement all tasks consequent to the TEU and Treaty on the Functioning of the European Union (TFEU).Footnote 61 Under EU law, a duty of co-operation has two elements. First, it calls for loyalty from Member States to refrain from unilateral acts which are deleterious to the international actions of the EU.Footnote 62 Second, it requires co-operation from Member States to ensure unity in the international representation of the EU on the international plane.Footnote 63 In the area of a common European foreign policy,Footnote 64 a specific duty of co-operation even exists in Article 24(3) TEU, enjoining its Member States to develop political solidarity, and whose actions shall not impair EU effectiveness as a “cohesive force in international relations”.

In this respect, it is worth stressing that international law is a coherent system and not an inchoate mass of rules.Footnote 65 The basic construct of legal personality belongs to and is a part of this coherent legal system.Footnote 66 Within this international legal framework, rules can be generated as a consequence of personality (i.e. a general duty of co-operation), applied and even adjudicated upon.Footnote 67 We should be assiduous in distinguishing the separate acts of an international organization (when it exercises its legal personality) as distinct from its Member States. Perhaps one exception lies in the context of an agency relationship between an international organization (as agent) and its Member States (as principal)—exactly the proposition which was advanced by Chen.Footnote 68

The “on behalf of” formulation as discussed above appears to raise complex issues, but they are not necessarily or inevitably so. Of particular importance in this regard is the legal status of the instrument that an international organization had concluded. Are these instruments governed by international law (i.e. treaties), or are these instruments which are expressly not subject to international law (i.e. MOUs)? Even if an international organization had concluded a treaty as a party, are the obligations therein sufficiently determinate, and intended to be enforceable? Otherwise do we really need to use the “on behalf of” formulation to enforce obligations, by making Member States “proper parties” to an instrument,Footnote 69 when it was that international organization (not the Member States) which had concluded it as the party?Footnote 70

Depending on whether the instrument in question is a treaty or MOU, questions concerning the obligations that bind either an international organization or its Member States can become less—or more—significant.

II. DISTINGUISHING TREATIES FROM MOUs

It is misleading to conflate treaties with MOUs. This is not the place to enter the debate on whether MOUs are treaties,Footnote 71 although some characteristics of MOUs as an instrument of ready course by states (and international organizations) bear emphasis here. Generally, MOUs are instruments that are devised to avoid legal obligations.Footnote 72 Three of the MOUsFootnote 73 that Chen had instancedFootnote 74 in his first category of ASEAN practiceFootnote 75 cannot be treaties because they contained understandings (not agreements), which are expressly not binding under international law.Footnote 76

The fourth instrument in this first category is a “co-operation agreement” between the Secretariats of ASEAN and the International Labour Organization.Footnote 77 Of course, its form as an “agreement” (not MOU) is not in itself conclusive of an instrument's legal status under international law. This agreement aims to facilitate collaboration between both Secretariats of common interest that includes “exchange of information” of common concern,Footnote 78 “representation” at specified meetings,Footnote 79 and “research studies” on matters of mutual interest.Footnote 80 Its provisions do not “interfere in any way with the independent decision-making autonomy of each organization with regard to its conduct of affairs, financing or operations”.Footnote 81 In short, its content is of an “administrative nature”Footnote 82 with scant basis in the language to enforce legal obligations.

As for the two MOUs on agricultural co-operation in his second category,Footnote 83 these instruments were concluded by the ASEAN Secretariat “acting for and on behalf of the Member States of ASEAN”.Footnote 84 According to Chen, these instruments seem problematic because:

The language [i.e. in the MOUs] seems to indicate that the ASEAN Member States are, in fact, the parties to the treaty, albeit the obligations are performed through the ASEAN Secretariat.Footnote 85

In fact, the language of both MOUs scrupulously avoided treaty language. These are not treaties. There are “participants” not “parties” in both MOUs who reached “understandings” not “agreements” in certain areas of agricultural co-operation.Footnote 86 Now it is true that some MOUs are, in reality, treaties.Footnote 87 If so, it is that instrument's content that we must examine in its entirety, and not its form or preamble: for example, the substance of obligations; evidence of dispute settlement mechanisms; or registration under Article 102 of the UN Charter.Footnote 88

Both MOUs on agricultural co-operation are technical instruments regarding co-operation in agriculture and forestry.Footnote 89 Under both MOUs, China would, for instance, offer technical assistance through the training of specialists from ASEAN “Member Countries”.Footnote 90 Both participants would “jointly identify cooperation in other fields of mutual interest such as advanced technology in agriculture, forestry, post-harvest technology and food security”.Footnote 91 These are vague, indeterminate provisions and not a firm basis for international legal obligations to arise or be enforced. Even treaties can contain “soft” obligations because they lack a “potentially normative”Footnote 92 character to be enforceable by the parties. The United States, for example, interpreted Article 4(1) and (2) of the 1992 Framework Convention on Climate Change (i.e. a treaty) to mean: “there is nothing in any of the language which constitutes a commitment to any specific level of emissions at any time.”Footnote 93

Returning to the two MOUs on agricultural co-operation: because the participants did not intend both instruments to be (and become) legally binding, there is a concomitant preference for inconclusive language as to the separateness of the legal persons (if at all material) who had concluded the instruments. To this extent, for example, observe that the ASEAN Secretary-General was duly authorized to conclude the understandings by the “respective governments” of ASEAN Member States.Footnote 94 Though the ASEAN Secretary-GeneralFootnote 95 was “acting for and on behalf of”Footnote 96 the Member States, it was not inevitable at international law that as an undersigned he was “duly authorized by the respective governments of ASEAN member States”.Footnote 97 After all, the ASEAN Secretary-General was representing all ASEAN Member States and not the government of each independent sovereign state in Southeast Asia which is also an ASEAN Member State. In terms of the separateness of ASEAN as a legal person, it is plausible in the alternative to express it simply as: “the Secretary-General is duly authorized to conclude the understandings.”

Whether the inconclusive language reflects deliberation or otherwise,Footnote 98 these ambiguities are possibly tolerable since the instruments are not treaties, and are therefore insulated from the principles and rules of treaty interpretation.Footnote 99 Note also the loose drafting of the preambles in both MOUs, although their content concerning agricultural co-operation is substantively similar.Footnote 100 Whereas the 2002 MOU referred to the participants as “Member States”, the 2007 MOU used the words “Member Countries” instead.Footnote 101 Furthermore, if disputes concerning both MOUs occur, whether they touch on international or municipal laws, then settlement is reached through diplomacy without recourse to international tribunals.Footnote 102 As a matter of international law, the matter of enforcing obligations directly against ASEAN Member States does not arise.

Our attention is also drawn to a third (and final) category of instruments.Footnote 103 Its preambles, a model of studied equivocation, typically begin this way:Footnote 104

The Governments of the Member Countries of the Association of Southeast Asian Nations (ASEAN) and the Government of the People's Republic of China, hereinafter singly referred to as “Party” and collectively referred to as the “Parties”.Footnote 105

On the basis of these preambles, Chen concluded that because the instruments in this third category were concluded in the “name of ASEAN”Footnote 106 or the governments of ASEAN Member States, it “follows [sic] that the preambles of most of the treaties in this category would not state that the treaty was concluded on behalf of the Member States”.Footnote 107 This view appeared to suggest that the instruments were effectively concluded by ASEAN “on behalf of” its Member States (whatever this means).

In this respect, though, there are small signs of clarity in the international law-making practice of ASEAN. Consider the examples as instanced by Chen concerning two MOUs with similar content on non-traditional security co-operation of 2004 and 2009, respectively.Footnote 108 The preamble of 2004 said:

The Governments of the Member Countries of the Association of Southeast Asian Nations (ASEAN) and the Government of the People's Republic of China, (hereinafter referred to as the Parties).

Now contrast this with the preamble of 2009, which simply said:

The Association of Southeast Asian Nations (ASEAN) and the Government of the People's Republic of China, (hereinafter referred to as the Parties).

Thus it would appear that the MOU of 2009 was concluded by ASEAN as a party in its own right, a separate legal person. As a party to this MOU,Footnote 109 it is peculiar to regard ASEAN as concluding an instrument “on behalf of” its Member States. It is a nice speculation whether the MOU of 2004 and, indeed, all the MOUs surveyed by Chen in his third category, which embraced the preambles of studied equivocation, were effectively concluded by ASEAN as a separate legal person. All we can say is that because these instruments are not intended to be legally binding at international law, so the question of ASEAN (or its organs) acting separately as a legal person on the international plane is immaterial.

Two indications suggest that the instruments in this category are not intended to be legally binding. First, all of them referred to “Member Countries” not “Member States”. The word “state” (not “country”) has meaning at international law. States, not countries, are entities which have satisfied the minimum criteria of statehood (i.e. international legal status of being a state) and, accordingly, are subjects of international law with full competences on the international plane.Footnote 110 So presumably the words “Member Countries” in these instruments were used, instead of “Member States”,Footnote 111 to emphasize their non-treaty status.

Second, the MOUs in this category also contain vague languageFootnote 112 and lack sufficient details to be binding at international law. Consider, for example, the MOU on cultural co-operation of 2005. The participants (not parties) to this MOU reached an understanding (not agreement) to “step up cooperation in the areas of cultural enterprise and creative industries through product development, promotion of the culture market, exchange of information and networking among experts”.Footnote 113 This understanding is at once general (networking and exchange of information) yet potentially comprehensive (product development through creative industries). It would require more diplomatic work, perhaps resulting in another instrument, to give substance to the potentially comprehensive aspects of the MOU on cultural co-operation. In its particular form of 2005, the MOU was only a device to establish a co-operative framework.

This point is evident in the area of law enforcement, under the MOUs on non-traditional security of 2004 and 2009.Footnote 114 The parties to both MOUs shall: “promote cooperation in accordance with their national laws in such fields as … apprehension and repatriation of criminal fugitives and return of crime proceeds; and encourage each other to enter into bilateral arrangements therein.”Footnote 115 Needless to say, the settlement of disputes resulting from these MOUs is resolved through diplomacy, not international law.Footnote 116

One underlying reason for the “on behalf of” formulation is to enable direct enforcement of treaty obligations against Member States, when it is the international organization (not its Member States) which had concluded the treaty with another contracting party.Footnote 117 Why not enforce the obligations directly against the international organization? This is because every international organization varies in competences and funding. It might be the case that Member States are in a practical—and better—position to comply with or implement the obligations.

If the obligations are breached, a Member State can stand as the defendant—subject to the appropriate jurisdiction of a national court or international tribunal—and provide adequate financial compensation.Footnote 118 These practical concerns prompted Chen to tackle the perceived vice of an international organization's relative weaknessesFootnote 119 by establishing Member States as the “proper parties”Footnote 120 to a treaty, of which the international organization is the party de jure. His arguments, however, did not distinguish treaties from MOUs. It is an omission that carries some qualitative implications. Once a distinction is made, although we might not fully overcome the uncertainties of ASEAN's international law-making practice,Footnote 121 at least they become more manageable.

Enforcement of a legal obligation can include at least two distinct but related meanings.Footnote 122 The one is that a legal obligation is owed by an international organization with separate legal personality, as a party to a treaty with another contracting party: the international organization intends to comply voluntarilyFootnote 123 by implementing this obligation. Enforcement in this sense is not necessarily sanction-oriented, through judicial settlement, but also a facilitative and justificatory process.Footnote 124

The other concerns the breach of an obligation, as a primary rule of international law, which gives rise to the international responsibility of a stateFootnote 125 or an international organizationFootnote 126 for an internationally wrongful act. Enforcement in this other sense implicates the secondary rules of international law,Footnote 127 which determine the consequences of failing to comply with obligations established by the primary rule.Footnote 128 International responsibility of states and international organizationsFootnote 129 arises for internationally wrongful acts, which include both actions and omissions.Footnote 130 For states, their international responsibility includes standard bilateral situations of responsibility.Footnote 131 But potentially it can be broader as obligations erga omnes to protect certain basic rights and fulfil essential obligations, which are consequently owed to the international community.Footnote 132

This distinction in the meaning of enforcement partly explains the treaty practice of ASEAN. When Member States of ASEAN intend obligations in treaties to be owed by them individually as parties with respect to another contracting party, they do try to be clear. Consider this preamble of a recent free trade agreement (FTA):

The Governments of Brunei Darussalam, the Kingdom of Cambodia (Cambodia), the Republic of Indonesia (Indonesia), the Lao People's Democratic Republic (Lao PDR), the Union of Myanmar (Myanmar), the Republic of the Philippines (Philippines), the Republic of Singapore (Singapore), the Kingdom of Thailand (Thailand), and the Socialist Republic of Viet Nam (Viet Nam), collectively, the Member States of the Association of Southeast Asian Nations, and Australia and New Zealand. Footnote 133

Compare it with an older, more prolix preamble of an agreement on trade in goods between China and ASEAN (2004 Treaty):

The Governments of the People's Republic of China (“China”), and Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People's Democratic Republic (“Lao PDR”), the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand, and the Socialist Republic of Viet Nam, Member States of the Association of Southeast Asian Nations (collectively, Footnote 134“ASEAN” Footnote 135or “ASEAN Member States”, or individually “ASEAN Member State”. Footnote 136

Obviously, these are treaties and are governed by international law. More materially for our purposes, the ASEAN Member States had concluded these treaties as individual parties. In the case of the AANZFTA,Footnote 137 ten FTAs were effectively concluded by ten ASEAN Member States (i.e. as ten parties, respectively) with Australia and New Zealand but (and this is important) within the co-ordinative framework of ASEAN.Footnote 138

The words “collectively”Footnote 139 and “ASEAN”Footnote 140 at the tail end of the 2004 Treaty's preamble are possibly a convenient abbreviation but, nonetheless, indicative of the parties in their individual status as independent sovereign states. Where appropriate and expedient throughout the treaty's text, individual parties are referred to as: (i) “ASEAN”; or (ii) “ASEAN member States”; or (iii) “ASEAN member State”.Footnote 141 Confusing though it might be, the word “ASEAN”Footnote 142 in this treaty is not intended to suggest that ASEAN had concluded the 2004 Treaty as a separate legal person.

There is some basis for this claim in the Chinese text of the 2004 Treaty.Footnote 143 The equivalent of the word “collectively”Footnote 144 in the Chinese preamble is “”. “” is concordant with the word “collectively”. But the additional characters “” loosely mean “simplify” or (more appropriately in this preamble) “abbreviated”, a nuance whose meaning is not captured in the English word “collectively”.

Now contrast this practice with the dropping of “ASEAN”Footnote 145 in this collective senseFootnote 146 from the preamble of the AANZFTAFootnote 147—a more accurate reflection of the respective parties’ identity to this treaty. It is a practice worth embracing in future FTAs or cognate treaties.Footnote 148 The AANZFTA also contained ten separate signatures by representatives of the governments from each ASEAN Member State, an indication that ASEAN was not a party to this FTA as a separate legal person. Because the FTAs’ preambles have not been uniformly drafted,Footnote 149 a proper evaluation of the rights and obligations which are owed by ASEAN Member States must be based on the treaties’ content and not solely on their preambles.

That ASEAN as a legal person is not a party to these FTAs is a claim which also finds support in the 2011 Rules of Procedure for the Conclusion of International Agreements by ASEAN (2011 Rules).Footnote 150 These rules allow ASEAN to conclude treatiesFootnote 151 as a separate legal person that is distinct from its Member States.Footnote 152 But its scope of application significantly excludes:

the conclusion of international agreements concluded by all ASEAN Member States collectively and which create obligations upon individual ASEAN Member States.Footnote 153

This technique, which excludes ASEAN as a party, reflects the development gap between ASEAN Member States and, therefore, the differentiated obligations of individual parties at international law.Footnote 154 So, for example, certain parties (Singapore and Indonesia) to the 2004 Treaty are able to reduce their tariff rates within a shorter timeframe than other parties can (Cambodia, Lao PDR, and Myanmar).Footnote 155 The “individuality” of these primary obligations is also important from the standpoint of determining international responsibility for an internationally wrongful act,Footnote 156 with respect to each individual Member State as a party.Footnote 157

Nonetheless, although ASEAN is not a party to these FTAs, these instruments were concluded within the co-ordinative framework of ASEAN. In other words, ASEAN organs are (expected to be) involved, which may—or may not—result in internationally wrongful acts and thus engage the international responsibility of ASEAN as an international organization. For instance, the ASEAN economic ministersFootnote 158 perform a co-ordinative and supervisory role within the FTA Joint Committee of the AANZFTA.Footnote 159

It is premature to attempt a firm conclusion on whether the draft articlesFootnote 160 would exert practical consequences on the FTAs.Footnote 161 The conduct, for example, of an organ or agent of an international organization in the performance of its functions is considered an act of that international organization, which can become an internationally wrongful act.Footnote 162 In other words, the conduct of ASEAN organs (or agents of ASEANFootnote 163) in the performance of their functions includes acts and omissions—both are potentially attributable to ASEAN.Footnote 164

The International Law Commission (ILC) seemed to evince a relaxed definition of organs and agents, relying as conclusive on their functions and not official status in terms of conduct within that international organization.Footnote 165 In its current state, ASEAN's treaty practice is not free of prospective difficulties.Footnote 166 When the UN General Assembly took note of the ILC's draft articles concerning the international responsibility of international organizations, the word “draft” was omitted in its resolution.Footnote 167 This is an approach which began in 2000.Footnote 168 The words “draft articles” were used to suggest that the ILC's work was non-binding, not final, and subject to negotiations by states to conclude a treaty at a diplomatic conference.Footnote 169

The General Assembly's approach since 2000, however, suggests that states are inclined to endorse the ILC's consensus on the draft articles concerning the international responsibility of international organizations.Footnote 170 The legal status of the draft articles now belongs to the broader process of international law-making: its evaluation is left to governments or tribunals.Footnote 171 While the draft articles only represent the progressive development of international law,Footnote 172 it seems prudent that ASEAN Member States create special rules concerning the conduct of ASEAN organs and agents,Footnote 173 by taking advantage of the draft articles’ residual character as secondary rules of international law.Footnote 174 The special rules would need to be of a higher specificity to avoid being displaced by the draft articles, which are subject to the canons of treaty interpretation contained in the Vienna Convention.Footnote 175

To conclude this section, two final observations are in point. First, the brief survey of ASEAN's treaty practice above argued that the treaty obligations, which are owed by ASEAN Member States (when they intend to do so) as individual parties to another contracting party, are much clearer and their problems less significant than Chen had concluded.

Second, in terms of identifying academic white spaces, MOUs belong to the broader process of international law-making within ASEAN. International law instruments—whether treaties, MOUs, or even draft articles—can interlock over time to present evidence of existing law or be formative of opinio juris or state practice that generates new law.Footnote 176 Take, for example, the MOUs on transport and phytosanitory co-operation of 2004 and 2007, respectively.Footnote 177 The MOU on transport (2004) “reaffirmed” the framework agreement on comprehensive economic co-operation (i.e. a treaty) between ASEAN and China (2002),Footnote 178 by stressing that this MOU “complemented” activities at other ASEAN-China fora.Footnote 179 In the area of transport facilitation, the MOU aimed to “strengthen cooperation” by developing a network of rail, water, and air services “to meet the future development demands of the ASEAN-China free trade area”.Footnote 180

On the other hand, the MOU on phytosanitory co-operation (2007) recognized its relevance towards the effective and successful implementation of the various FTAs between ASEAN and China.Footnote 181 The parties reached an understanding (not agreement) that their co-operation would comportFootnote 182 with the principles of the Agreement on the Application of Sanitary and Phytosanitary Measures of the World Health Organization (i.e. a treaty).Footnote 183 Therefore, ASEAN Member States may as independent sovereign states individually conclude related instruments on phytosanitory co-operation with China, if they were so inclined.Footnote 184

Thus the interlocking of treaties with soft law instruments in MOUs can contribute to an international law-making process within (and by) ASEAN, as broadly defined.Footnote 185 How these instruments interlock to produce evidence of international law-making within ASEAN is too large an exercise for now. To be clear, I am not arguing that the interlocking of these instruments is qualitatively the same as international law-making through treaties, to which the parties consent.Footnote 186 It is not. Rather, a broader (and normative) perspective is being urged here. International law is not “law” simply because of its promulgation in treaty form.Footnote 187

The legitimacy of the international law-making process that produced this law and its reciprocity by the actors who enforce the law—whether in treaty or soft form—also matter in an interactional sense.Footnote 188 To this extent, we might even differentiate enforcing compliance through traditional mechanisms of dispute settlement from conformance through verification. In the climate change context, for example, it is not possible to make restitution for global warming. Thus the focus has shifted in favour of prevention with a softer system of target and timetable mitigation commitments.Footnote 189 Whether international law-making in this broader sense by ASEAN is more effective or more efficient in shaping state behaviour provides the white spaces for academic lawyers to evaluate from a longitudinal perspective the deeper issues which arise from Chen's paper—i.e. the obligations and rights between ASEAN Member States and in relation to other contracting parties.

III. CONCEPTUAL PROBLEMS WITH THE “ON BEHALF OF” FORMULATION

A hypothesis might call attention to the conceptual difficulties with the “on behalf of” formulation in general and particular propositions on agencyFootnote 190 and (Draft) Article 36 bis of the 1986 Convention.Footnote 191 Imagine the following are provisions in the constituent instrument of an international organization, which I shall call ESANA:

Article Y (Conduct of External Relations)

  1. (a) ESANA is hereby conferred separate legal personality.

  2. (b) ESANA may conclude agreements with states and international organizations.

  3. (c) For the purposes of Article Y, relevant provisions in this constituent instrument and rules of the organizationFootnote 192 shall apply.

Now a few scenarios can plausibly arise from the general wording in Article Y(b), which can include but are not limited to the following:

  1. 1. ESANA has exclusive competence in particular areasFootnote 193 to conclude treaties as a party with another subject of international law. ESANA Member States: (i) are not parties to these treaties; (ii) cannot enter into a separate treaty in their individual capacities as independent sovereign states with this other subject of international law; and (iii) are under a duty of co-operation pursuant to Article Y(c).Footnote 194

  2. 2. ESANA has shared competence in particular areasFootnote 195 to conclude treaties as a party with another subject of international law. Once ESANA concludes such a treaty, Member States can in parallel conclude the same treaty: (i) as a separate party in their individual capacities as independent sovereign states with the same contracting party; and (ii) the obligations and rights of ESANA and ESANA Member States that arise from both treaties are consented to during negotiations or agreed on an ad hoc basis, subject to Article Y(c).Footnote 196

  3. 3. ESANA can conclude treaties as a party with another subject of international law in any areas not falling under its exclusive or shared competence. Once ESANA concludes such a treaty, Member States cannot conclude the same treaty in their individual capacities as independent sovereign states as a party with the same contracting party.Footnote 197 The duty of co-operation under Article Y(c) applies.

  4. 4. ESANA can conclude treaties as a party with another subject of international law in any areas on an ad hoc basis. When ESANA concludes such a treaty, Member States: (i) are not parties to this treaty; and (ii) do not intend to conclude this treaty as separate parties in their individual capacities as independent sovereign states with the same contracting party, although they can do so. The duty of co-operation under Article Y(c) applies. (This scenario is a possibility under ASEAN's 2011 Rules.Footnote 198)

  5. 5. ESANA can conclude instruments (such as MOUs or declarations) as a party with another subject of international law in any areas on an ad hoc basis. ESANA Member States: (i) are not parties to these instruments; and (ii) do not intend to conclude such instruments as separate parties in their individual capacities as independent sovereign states with the same contracting party, although they can do so. The duty of co-operation under Article Y(c) applies.Footnote 199 (This scenario reflected the pre-Charter practice concerning ASEAN MOUs, which is now assimilated in treaty form under Article 41(7) of the Charter.)

Scenarios (1)–(3) are approximates to the treaty-making competences of the EU.Footnote 200 Given the institutional sophistication of the EU,Footnote 201 it is unrealistic to expect their treaty-making competences to be widely followed by other international organizations, still less ASEAN.Footnote 202 In contrast, scenarios (4)–(5) illustrate elements of international law-making based on ASEAN practice and as a prospect under the Charter. When an international organization (such as ESANA) concludes a treaty under these scenarios, a range of possibilities is also instanced to illustrate how its Member States can also become a party to the same treaty, to which they (i.e. Member States) owe that contracting party obligations and rights. Exactly how and to what extent these obligations by the international organization and Member States are to be complied with or implemented will depend on other factors: the constituent instrument or its rules of organization, for example. The permutations are various.

Accordingly, no claim is made here that these scenarios exhaust the possibilities of an international organization's competence (or that of ASEAN) to conclude instruments, as a separate legal person. But at least there are grounds to be hesitant about the appropriateness of the “on behalf of” formulation as a conceptual characterization of the international law-making relations between two separate legal persons, i.e. an international organization and its Member States, with respect to another subject of international law. As expressed in its various guises,Footnote 203 the “on behalf of” formulation conceals rather than illuminates the qualitative aspects of an international organization's competence to conclude instruments as a subject of international law.

One reiterates—an evaluation of ASEAN's international law-making competence (which includes but is not limited to treaties) must begin with the Charter and then be appraised in its entirety. Article 41(7) of the Charter tells us only that ASEAN, a legal person, may conclude “agreements” with other subjects of international law. But conclusion of instruments also involves issues of competence related to capacity—such as negotiating mandates and representation of ASEAN. In short, we need to know which ASEAN organs are competent to conclude the instruments as representatives of ASEAN on the international plane. Unlike states, ASEAN, an international organization, is not a full subject of international law. We cannot assume, as we can with organs of state, that specific ASEAN organs are competent, for instance, to negotiate or to sign a particular instrument under the Charter. This is why the 2011 Rules are important.Footnote 204 In addition to Article 41(7), we now know that ASEAN is competent to conclude treaties as a party with another subject of international law, which creates obligations and rights for ASEAN as a distinct entity from ASEAN Member States.Footnote 205

The 2011 Rules even provide details concerning the competences of particular ASEAN organs to address specific aspects of concluding a treaty. There is space to instance only one aspect—the ASEAN common (negotiating) position.Footnote 206 Under the 2011 Rules, Member States are obliged to co-ordinate and develop an ASEAN common position, which serves as a basis for its representativeFootnote 207 to negotiate with another subject of international law.Footnote 208 The ASEAN organs that are competent to act in this respect are the Committee of Permanent Representatives,Footnote 209 ASEAN Sectoral Bodies,Footnote 210 and, if necessary, ASEAN Ministerial Meetings.Footnote 211 The competence of these organs is co-ordinative, not exclusive,Footnote 212 leaving intact the competence of Member States to negotiate and conclude the same instrument as a separate party,Footnote 213 if they are so inclined.Footnote 214

Thus the importance of the 2011 Rules is twofold. First, it represents clear evidence of an agreement of all ASEAN Member States regarding the interpretation of the Charter, especially Article 41(7). This is effectively a subsequent agreementFootnote 215 to an interpretation of the international law-making competence of ASEAN under its Charter. Second, the 2011 Rules, which are publicly accessible, are a modest but unequivocal effort redolent of an “ASEAN Way”Footnote 216 to validate the “actorness” of ASEAN in concluding particular types of treaties.Footnote 217 For these general reasons, two other particular difficulties with the “on behalf of” formulation are also manifest at the conceptual level, to which I turn.

A. Agency

Chen said:

In order to justify the treaties concluded by ASEAN on behalf of its Member States, it would be necessary to rely on the concept of agency under international law. Hence the use of the phrase “acting for and on behalf of the member states of ASEAN” may have significance of indicating that ASEAN is acting as an agent for its Member States in concluding the particular treaty in question.Footnote 218

This is a doubtful proposition. For sure, agency is a distinct and valid concept at international law.Footnote 219 But the scenarios, instanced above, support the presumption against an agency relationship between an international organization (i.e. agent) for Member States (i.e. principal). In the case of ASEAN, the obvious reason is that Member States expressly did not consent in the Charter to establish an agency relationship, either generally within the Charter or specifically to the conclusion of instruments. It is quite immaterial that one of the conditions of agency at international law, the separate legal personalities of both agent and principal, is satisfied.Footnote 220

Ten independent and sovereign states of Southeast Asia constituted ASEAN and agreed to each provision of the Charter. They own this treaty.Footnote 221 Because it is their treaty—and not that of anyone else—every Member State of ASEAN is bound by all the provisions in the Charter.Footnote 222 We cannot impute an agency relationship to ASEAN Member States when no such intention is expressed in the Charter. But we can refrain from implying agency (though this is possible more generally at international law)Footnote 223 for two reasons.

First, an agency relationship requires some form of controlFootnote 224 by Member States—the principal—over ASEAN organs. Control is important because the international organization in question—acting as the agent—can enter into and change legal relations with other subjects of international law, on behalf of the principal.Footnote 225 Compelling proof reflecting some form of control is thus required, in lieu of express consent to agency.Footnote 226 Even if one were prepared to consider as a proposition the prospect of a “separate treaty”Footnote 227 between ASEAN Member States to establish an express agency relationship, there are obstacles in the Charter.Footnote 228 One explicit indication of a presumption against agency is found in Article 11(9) of the Charter, which says this of control over an ASEAN organ:

Each ASEAN Member State undertakes to respect the exclusively ASEAN character of the responsibilities of the Secretary-General and the staff, and not seek to influence them in the discharge of their responsibilities.Footnote 229

Second, no judicial oversight exists in the Charter.Footnote 230 There is no “ASEAN Court of Justice”Footnote 231 to interpret its constituent instrument in “constitutional” terms.Footnote 232 By “constitutional”, I mean Member States neither intend nor permit any ASEAN organ to apply the principle of effectiveness in treaty interpretation.Footnote 233 ASEAN organs are not entitled to imply into the Charter language functions and obligations, such as agency in treaty-making, which are necessary for the effective achievement of ASEAN's perceived purposes. This lack of consent by Member States for a “constitutional” interpretation of the Charter's provisions is highly pertinent when we examine the constituent instrument in its entirety.

B. Draft Article 36 bis

As a draft, Article 36 bis of the 1986 ConventionFootnote 234 represented a valiant—but unsuccessful—effort by the ILC to develop a rule that Member States of an international organization would automatically be bound by obligations in a treaty, which are owed by an international organization as a party.Footnote 235 To this extent, Chen was in search of a “default rule” in the 1986 Convention.Footnote 236 This probably meant a rule of general application for all international organizations (including ASEAN) concerning the “on behalf of” formulation, despite their being governed by the principle of speciality.Footnote 237

It is difficult to explain the “on behalf of” formulation with Draft Article 36 bis.Footnote 238 This draft article was controversial and difficult, and therefore rejected because it was unacceptable in that form to states.Footnote 239 It is not controversial because it is part of a final text, as are (for example) the draft articles on the international responsibility of international organizations of 2011.Footnote 240 At least there is a text in the draft articles of 2011 to advance or disavow the merits of establishing general rules of a residual character,Footnote 241 in the nature of progressive development of international law. Not so for Draft Article 36 bis. It is not even in the text of the 1986 Convention. Normally, then, it should be adequate to end our discussion here, perhaps signing off with appropriate references to the historical development of Draft Article 36 bis.Footnote 242

However, it seems proper to address some of the analysis by Chen, which is of considerable density.Footnote 243 I confine myself to three observations. First, the ILC did not quite embrace the language of the “on behalf of” formulation. Throughout its consideration of this matter, i.e. the situations in which Member States might be automatically bound by treaty obligations owed by the international organization as party with another contracting party, its language was tentative, even before the emergence of Draft Article 36 bis in 1977.Footnote 244 Naturally, we were referred to (an eventually deleted) Draft Article 60(2) of 1964 in the Vienna Convention, which said:

Similarly, when an international organization, duly authorized by its constituent instrument or by its established rules, concludes a treaty with a non-member State in the name both of the organization and of its Member States, the rights and obligations provided for in the treaty may be invoked by or against each Member State.Footnote 245

Second, Sir Humphrey Waldock succeeded as Special Rapporteur in forging agreement on the text of the Vienna Convention (1969), whereas his predecessors did not, because he had the insight to drop some proposed articles and focus strictly on what could be achieved by consent at a diplomatic conference.Footnote 246 This is not to dismiss the substance of Draft Article 60(2).Footnote 247 Rather, when the ILC picked up the substance of this matter early in its consideration of the 1986 Convention, it did not quite characterize the matter in terms of an “on behalf of” formulation. In 1972, the ILC did say:

a subject of international law may enter into a commitment on behalf and in the name of a person.Footnote 248

The next year, it framed the same matter in a questionnaire to states and international organizations without using the words “on behalf of”:

Are there any actual cases in which the position of the States members of an organization in connexion with an agreement concluded by the organization—an agreement to which those States are not parties stricto sensu—has been questioned? In other words, do you know of any cases where an agreement concluded by an organization has had certain consequences for the member States of the organization which are not parties stricto sensu to the agreement?Footnote 249

Third, by 1982, Article 36 bis had emerged in a final draft form after several modifications by the ILC.Footnote 250 While acknowledging difficulties, the Special Rapporteur was at pains to stress that the original intention of developing this draft article was unchanged.Footnote 251 It sought to establish in Article 36 bis legal certainty for contracting parties with international organizations by creating some flexibility in ascertaining consent by Member States, for which they are bound to the treaty obligations of the international organization.Footnote 252 In a careful sentence at variance with the “on behalf of” formulation, the ILC said that Article 36 bis sought to:

take into consideration the situation of State members of an international organization which, although the third parties vis-à-vis treaties concluded by the organization, can in certain cases find themselves in a very special situation …Footnote 253

IV. CONCLUSION

This paper has advanced as its central tenet a formal—but crucial—point about the legal consequences that arise when an international organization (such as ASEAN) exercises its separate legal personality on the international plane. In the area of concluding instruments at international law, ASEAN is capable of carrying certain rights and obligations as a distinct entity from its Member States. A range of possibilities exist for ASEAN Member States to become a party of the same instrument, to which they (i.e. Member States) owe the other contracting party obligations and rights. Exactly how and to what extent these obligations by ASEAN and Member States are to be complied with or implemented will depend on various factors, but particularly the Charter. For these reasons, Chen's argument that ASEAN is entitled to conclude treaties on behalf of its Member States, a practice which it was suggested should be valid at international law, is problematic on technical and conceptual grounds.

Be that as it may, Chen's enquiry was conducted within the “white spaces” of acknowledging some form of ASEAN “actorness” on the international plane. This important effort in making sense of ASEAN practice in concluding certain instruments (and the obligations and rights that arise) creates opportunities for others to embrace a longitudinal perspective on the international law-making practice of ASEAN. The “centrality” of ASEAN, as a “primary driving force” in fostering co-operation within Southeast Asia,Footnote 254 partly acquires substance through acceptance of its international “actorness” by other subjects of international law. This is why the international law-making process within ASEAN, as broadly and normatively defined, can play a contributory and affirmative role in promoting such external perceptions of its centrality in this region.

Footnotes

*

PhD candidate, UCL Faculty of Laws.

1. This term is widely used in the context of business model innovation; see JOHNSON, Mark W., Seizing the White Space (Business Model Innovation for Growth and Renewal) (Boston, MA: Harvard Business Press, 2010).

2. For a recent example, see ROBERTS, Anthea, “Clash of Paradigms, Actors and Analogies Shaping the Investment Treaty System” (2013) 107 American Journal of International Law 45. Roberts explores how an investment treaty can be interpreted by different legal actors through different paradigms (international law, public law, international commercial arbitration, for instance), which can result in conflicting outcomes on controversial issues because each paradigm carries different assumptions.

3. See BOYLE, Alan and CHINKIN, Christine, The Making of International Law (Oxford: Oxford University Press, 2007), especially at 98–160 and 172.

4. See JOHNS, Fleur, SKOUTERIS, Thomas, and WERNER, Wouter, “Editor's Introduction: India and International Law in the Periphery Series” (2010) 23 Leiden Journal of International Law 1; STAHN, Carsten and BRABANDERE, Eric DE, “The Future of International Legal Scholarship: Some Thoughts on ‘Practice’, ‘Growth’, and ‘Dissemination’ ” (2014) 27 Leiden Journal of International Law 1 at 5.

5. See CRAVEN, Matthew, “What Happened to Unequal Treaties? The Continuities of Informal Empire” in Matthew CRAVEN and Malgosia FITZMAURICE, eds., Interrogating the Treaty (Essays in the Contemporary Law of Treaties) (The Netherlands: Wolf Legal Publishers, 2005), 43. Compare the rejoinder to Craven by Anthony AUST, “Unequal Treaties: a Response” in Craven and Fitzmaurice, ibid., at 81–5.

6. See NOLTE, Georg, “Introduction” in Georg NOLTE, ed., Treaties and Subsequent Practice (Oxford: Oxford University Press, 2013), at 6. But see Sir Michael Wood's remarks on the value of “learned articles” in International Law Commission, “Provisional Summary Record of the 3139th Meeting”, UN Doc.A/CN 4/SR 3139 (2012) at 13.

7. Zhida, CHEN, “ASEAN and its Problematic Treaty-Making Practice: Can International Organizations Conclude Treaties ‘On Behalf of’ Their Member States?” (2014) 4 Asian Journal of International Law 391.

8. The ASEAN Charter, art. 3, January 2008, online: ASEAN Charter <http://www.asean.org/archive/publications/ASEAN-Charter.pdf>.

9. Vienna Convention on the Law of Treaties Between States or International Organizations or Between International Organization, UN Doc. A/CONF.129/15 (1986), art. 2(1)(g): a state or international organization which has consented to be bound by the treaty and for which the treaty is in force.

10. In this paper, “normative” means all norms (including but not limited to rules, principles, and guidelines) which are based on shared understandings that shape state behaviour and can be assessed by reference to legality. See BRUNEE, Jutta and TOOPE, Stephen, Legitimacy and Legality in International Law (An Interactional Account) (Cambridge: Cambridge University Press, 2010), especially at 350–2.

11. On its origins and relevance, generally see ACHARYA, Amitav, Constructing a Security Community in Southeast Asia: ASEAN and the Problem of Regional Order (Oxford: Routledge, 2009), especially chapter 2.

12. See KATSUMATA, Hiro, “Reconstruction of Diplomatic Norms in Southeast Asia: The Case for Strict Adherence to the ‘ASEAN Way’ ” (2003) 25 Contemporary Southeast Asia 104 at 107.

13. This was one of the aims which established ASEAN. See second declaration of the 1967 Bangkok Declaration, (1983) 1331 U.N.T.S. 235, which states: “to promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries of the region and adherence to the principles of the United Nations Charter.”

14. Generally see CRAWFORD, James, “International Law as Discipline and Profession” (2012) 106 Proceedings of the Annual Meeting (American Society of International Law) 471 at 472.

15. For this view as a general proposition, see Crawford, ibid.

16. Chen, , supra note 7 at 413.

17. See WARBRICK, Colin, “States and Recognition in International Law” in Malcolm EVANS, ed., International Law, 2nd ed. (Oxford: Oxford University Press, 2006), 217 at 218.

18. That states alone create the law and retain freedom of action unless there is a positive law restriction: S.S. “Lotus” (France v. Turkey), [1927] P.C.I.J. Series A, No 10 at 18.

19. Legality of Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, [1996] I.C.J. Rep. 78 at 25.

20. As defined in Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980) [Vienna Convention], art. 2(1)(a): an “international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” Throughout this paper, I use the word “treaty” to include international agreements.

21. Unless otherwise indicated, the word “Charter” throughout this paper refers to the ASEAN Charter.

22. Inspired by CRAWFORD, James, “A Consensualist Interpretation of Article 31(3) of the Vienna Convention on the Law of Treaties” in George NOLTE, ed., Treaties and Subsequent Practice (Oxford: Oxford University Press, 2013), at 29.

23. In this paper, the term “instrument” is used in a generic sense to refer to both treaties (which are governed by international law) and non-binding instruments including but not limited to Memoranda of Understanding.

24. See detailed discussion in Section II below.

25. Vienna Convention, supra note 20. The Vienna Convention reflects customary international law; see especially Gabčíkovo Nagymaros Project (Hungary/Slovakia), Judgment, [1997] I.C.J. Rep. 7.

26. For an interactional account of how international legal obligations are generated and maintained, see Brunee and Toope, supra note 10.

27. For an elegant account of this approach in general, see Boyle and Chinkin, supra note 3 at 160–2.

28. Chen, supra note 7 at 393 and 419.

29. Ibid., at 393 and 401.

30. Ibid., at 413–19.

31. Ibid., at 401–13.

32. 21 March 1986, UN Doc. A/CONF.129/15, 25 I.L.M. 543 (not in force) [1986 Convention].

33. That is, 15 December 2008.

34. Chen, supra note 7 at 392.

35. Ibid.

36. Ibid., at 392–3 (emphasis added).

37. Ibid. at 393 (emphasis added).

38. Ibid. (emphasis added).

39. This is non-exhaustive and in no particular order.

40. Chen, supra note 7 at 416 and 418.

41. See my discussion in Section III(a) below.

42. Chen, supra note 7 at 400–1.

43. Ibid., at 395 and 401.

44. Ibid., at 398 (emphasis added).

45. Ibid., at 398 (emphasis added).

46. Ibid., at 397–8.

47. Ibid., at 399–400.

48. Ibid., at 399.

49. Ibid., at 393 and 400.

50. Ibid., at 412–13 (emphasis added).

51. Ibid., at 418 (emphasis added).

52. Ibid. (emphasis added).

53. Generally see James CRAWFORD, “Holding International Organizations and their Member States to Account” (2007) Fifth Steinkraus-Cohen International Law Lecture, online: <http://www.unawestminster.org.uk/pdf/crawford_lecture.pdf>.

54. Also see the preambles of the 1986 Convention, supra note 32.

55. 1986 Convention, supra note 32, art. 2(1)(j).

56. This is the purpose of mixed agreements, which refer to the joint conclusion of a treaty by the EU and its Member States. Where the EU lacks exclusive competence in all areas of a treaty to which it is a party, Member States would conclude the same treaty in parallel as a party in their individual capacities as independent sovereign states—thus a “mixed” agreement. Generally see HILLION, Christophe and KOUTRAKOS, Panos, eds., Mixed Agreements Revisited (Oxford: Hart Publishing, 2010).

57. Compare Chen, supra note 7 at 416 and 418. Also see remarks made in 1973 by the Special Rapporteur Paul Reuter in Second Report on the Question of Treaties Concluded Between States and International Organizations or Between Two or More International Organizations, UN Doc. A/CN.4/271 (1973), I.L.C. Yearbook, Vol. II at 92, para. 103.

58. But see Chen, supra note 7 at 400.

59. See Responsibility of International Organizations (Comments and Observations Received from International Organizations), 14 February 2011, UN Doc. A/CN.4/637, at 37, para. 1.

60. Ibid. (emphasis added).

61. 30 March 2010, OJ 2010 C83/01.

62. Ruling 1/78 Re Convention on the Physical Protection of Nuclear Weapons, Facilities and Transports [1978] E.C.R. 2151.

63. Re Convention No 170 of the ILO, Opinion 2/91, [1993] E.C.R. I-1061, at paras. 36–8.

64. i.e. the Common and Foreign Security Policy (CFSP) under chapter 2 TEU.

65. See Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (Report of the Study Group of the International Law Commission), UN Doc. A/CN.4/L.682 (2006); CRAWFORD, James, Brownlie's Principles of Public International Law (Oxford: Oxford University Press, 2012) at xviii–xix. On recent challenges to the coherence of international law, see Joined Cases C-584/10 P, C-593/10 P and C-595/10 P European Commission and Others v. Yassin Abdullah Kadi, (18 July 2013) (Grand Chamber), para. 87; also see CARDWELL, Paul James, FRENCH, Duncan, and WHITE, Nigel, “Yassin Abdullah Kadi” (2009) 58 International and Comparative Law Quarterly 229.

66. Crawford, supra note 14 at 476.

67. Ibid.

68. See Section III(a) below.

69. Chen, supra note 7 at 401, 416, and 418.

70. These questions are addressed in Section III below.

71. See KLABBERS, Jan, The Concept of Treaty in International Law (The Hague: Kluwer Law International, 1996), and “Not Revisiting the Concept of Treaty” in Alexander ORAKHELASHVILI and Sarah WILLIAMS, eds., 40 Years of the Vienna Convention on the Law of Treaties (London: B.I.I.C.L., 2010) 29; cf. AUST, Anthony, Modern Treaty Law and Practice, 3rd ed. (Cambridge: Cambridge University Press, 2013) at 46–53.

72. Aust, ibid., at 47.

73. i.e. Memorandum of Understanding Between the ASEAN Secretariat and Secretariat of the United Nations Economic and Social Commission for Asia and the Pacific, 2 January 2002; Memorandum of Understanding Between the ASEAN Secretariat and Secretariat of the Shanghai Cooperation Organization, 21 April 2005; Memorandum of Understanding Between the Secretariat of the Association of Southeast Asian Nations and Secretariat General of the Cooperation Council for the Arab States of the Gulf, 30 June 2009.

74. I am conscious that Chen had instanced instruments for review, which serve as examples and are (probably) non-exhaustive. My approach in this section is to: (i) confine my analysis to his examples, wherever possible; and (ii) use my own examples to illustrate the wider implications of Chen's arguments, which result from his specific examples.

75. Chen, supra note 7 at 397, ftn 32.

76. See preambles of the 2002, 2005, and 2009 MOUs, supra note 73.

77. Chen, supra note 7 at 397, ftn 32: i.e. Cooperation Agreement Between the Association of Southeast Asian Nations (ASEAN) Secretariat and the International Labour Office, 20 March 2007.

78. Ibid., art. 3.

79. Ibid., arts. 1 and 4.

80. Ibid., art. 1.

81. Ibid., art. 7.

82. Ibid.

83. Chen, supra note 7 at 398, ftn 36: i.e. Memorandum of Understanding Between the Association of Southeast Asian Nations (ASEAN) Secretariat and the Ministry of Agriculture of the People's Republic of China on Agricultural Cooperation, 2 November 2002; Memorandum of Understanding Between the Association of Southeast Asian Nations (ASEAN) Secretariat and the Ministry of Agriculture of the People's Republic of China on Agricultural Cooperation, 14 January 2007.

84. See preambles of both MOUs, ibid. However, the 2007 MOU used the term “Member Countries” instead of “Member States”.

85. Chen, supra note 7 at 398.

86. See preambles of both MOUs, supra note 83.

87. For instance, the MOU between the UK and the US concerning the Transfer of Technical Data Relating to the JT-10D Jet Engine Collaboration Agreement to Third Countries (1976) 1068 U.N.T.S. 437.

88. Generally see Aust, supra note 71 at 29–34.

89. Supra note 83.

90. See art. II of both MOUs (under “Areas of Cooperation”), supra note 83.

91. Art. II(8) of both MOUs, supra note 83 (emphasis added).

92. North Sea Continental Shelf Cases, [1969] I.C.J. Rep. 3 at 71.

93. Letter by Clayton YEUTTER (policy adviser to President George H.W. Bush) to Representative John Dingell, Chair of the House Energy and Commerce Committee, quoted in Rose GUTFIELD, “How Bush Achieved Global Warming Pact with Modest Goals” (1992) Wall Street Journal at A1. Generally see Boyle and Chinkin, supra note 3 at 220–1.

94. See penultimate section at the end of both MOUs on agricultural co-operation, supra note 83.

95. See chapter IV (Organs), The ASEAN Charter, supra note 8, art. 11.

96. i.e. this appeared in the preamble, supra note 84.

97. Supra note 83 (emphasis added).

98. On the lack of care in drafting MOUs because it is not regarded as requiring the same close attention as drafting treaties, see Aust, supra note 71 at 45–6.

99. Especially under the general (and now customary) rule of interpretation under art. 31 of the Vienna Convention.

100. Supra note 83.

101. Ibid.

102. See arts. IX of both MOUs, supra note 83.

103. Chen cited six (possibly non-exhaustive) examples, supra note 7, ftn 37 at 398. They are: Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Transport Cooperation, 27 November 2004; Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Cultural Cooperation, 3 August 2005; Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the World Organization for Animal Health (OIE) on Technical Cooperation, 3 June 2008; Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Cooperation in the Field of Non-Traditional Security Issues, 10 January 2004; Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Cooperation in the Field of Non-Traditional Security Issues, 18 November 2009; Memorandum of Understanding Between the ASEAN and the Government of the People's Republic of China on Strengthening Sanitary and Phytosanitary Cooperation, 20 November 2007.

104. The exception in this third category is the MOU with the World Organization for Animal Health, 2008 (ibid.), whose preamble says: “the governments of the Member Countries of the association of Southeast Asian Nations (ASEAN), hereinafter referred to individually as ‘Member Country’ or collectively as ‘ASEAN’ duly represented by its Secretary General of the ASEAN Secretariat …” (emphasis added).

105. This is the preamble of the MOU on Phytosanitary Cooperation, 2007, supra note 103 (emphasis added).

106. Chen, supra note 7 at 398.

107. Ibid., at 398–9.

108. Supra note 103.

109. See reference to “Parties” in the preambles of both MOUs, supra note 103.

110. See the Montevideo Convention (Convention on the Rights and Duties of States), 26 December 1933, 165 L.N.T.S. 19 (entered into force 26 December 1934), art. 1, which is accepted as declaratory of customary international law.

111. Contrast the consistent reference to “Member States” in the free trade agreements, which I discuss below.

112. Contrast Chen's views on the MOU with the World Organization for Animal Health (2008): “One of the treaties even expressly provided for obligations of Member States which were separate and distinct from the obligations of the ASEAN Secretariat”, supra note 7.

113. Para. 2(4), supra note 103.

114. Supra note 103.

115. See art. 2(3)(b) of both MOUs, supra note 103 (emphasis added).

116. Art. 8 of both MOUs, supra note 103.

117. See Chen, supra note 7 at 392, 413, 416, 418, and especially 419.

118. See DENZA, Eileen, “Responsibility of the European Union in the Context of Investment” in Malcolm EVANS and Panos KOUTRAKOS, eds., The International Responsibility of the European Union (European and International Perspectives) (Oxford: Hart Publishing, 2013), at 215.

119. See Chen, supra note 7 at 407 and 419.

120. Ibid., at 401, 416, and 418.

121. See Chen's analysis of ASEAN's problematic practice, supra note 7 at 396–401.

122. For a discussion of enforcement as a multifaceted concept, see BRUNEE, Jutta, “Enforcement Mechanisms in International Law and International Environmental Law” (2005) 1 Environmental Law Network International Review at 1–13.

123. Ibid., at 3.

124. Ibid., at 9.

125. This was endorsed by the International Court of Justice on numerous occasions: for a recent example, see para. 47, Gabčíkovo Nagymaros Project (Hungary v. Slovakia) [1997] I.C.J. Rep. at 39. Now see International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts (2001), which was taken note of and the text reproduced in GA Resolution 56/83 (12 December 2001). I refer throughout to these articles as ARS [ARS].

126. Draft Articles on the Responsibility of International Organizations, with commentaries, UN Doc. A/66/10 (2011): I use the words “draft articles” throughout this paper, although the General Assembly dropped the word “draft” when they took note of the International Law Commission's work in its resolution, at para. 3.

127. For a criticism of the distinction between primary and secondary rules of international law, see CARON, David, “The ILC Articles of State Responsibility: The Paradoxical Relationship between Form and Authority” (2002) 96 American Journal of International Law 857 at 870–2.

128. Generally see PRONTO, Arnold and WOOD, Michael, The International Law Commission (1999–2009) (Volume IV: Treaties, Final Draft Articles, and other Materials) (Oxford: Oxford University Press, 2010) at 129.

129. The draft articles on the responsibility of international organizations are controversial and do not reflect customary international law. See Responsibility of International Organizations (Comments and Observations Received from International Organizations), supra note 59.

130. ARS (2011), supra note 125, art. 2; Draft Articles on Responsibility of International Organizations, supra note 126, art. 4.

131. Pronto and Wood, supra note 128 at 143.

132. Barcelona Traction Case, [1970] I.C.J. Rep. 3 at 32, para. 33; East Timor (Portugal v. Australia), Judgment, [1995] I.C.J. Rep. 90 at 102, para. 29.

133. Agreement Establishing the ASEAN-Australia New Zealand Free Trade Area, 27 February 2009 [AANZFTA] (emphasis added) (note: this treaty was signed after the Charter's entry into force).

134. For clarity and to facilitate the discussion below, I call this “Word 1”.

135. I call this “Word 2”.

136. Agreement on Trade in Goods of the Framework Agreement on Comprehensive Economic Cooperation Between The People's Republic of China and the Association of Southeast Asian Nations, 29 November 2004 (emphasis added).

137. AANZFTA, supra note 133.

138. I explain the implications of ASEAN acting in a co-ordinative sense below.

139. i.e. “Word 1”, supra note 134.

140. i.e. “Word 2”, supra note 135.

141. Supra note 136.

142. i.e. “Word 2”, supra note 135.

143. The 2004 treaty is concluded in English but a Chinese text is available for reference. Chinese and English texts are available online: <http://fta.mofcom.gov.cn/topic/chinaasean.shtml>.

144. i.e. “Word 1”, supra note 134.

145. i.e. “Word 2”, supra note 135.

146. In short, the AANZFTA did not adopt this sentence “collectively, ASEAN, or ASEAN Member States or individually ASEAN Member State”.

147. AANZFTA, supra note 133.

148. For instance, this practice was reprised in the preamble of the Agreement on Dispute Settlement Mechanism Under the Framework Agreement on Comprehensive Economic Cooperation Between the Association of Southeast Asian Nations and The Republic of India, 13 August 2009 [Dispute Settlement Treaty].

149. In contrast to the Dispute Settlement Treaty, ibid., the preambles of two other cognate treaties of 2009 between India and ASEAN used the older, prolix preamble of the 2004 Treaty between ASEAN and China (supra note 136): see Agreement on Trade in Goods Under the Framework Agreement on Comprehensive Economic Cooperation Between the Association of Southeast Asian Nations and The Republic of India, 24 October 2009; and Protocol to Amend the Framework Agreement on Comprehensive Economic Cooperation Between the Republic of India and the Association of Southeast Asian Nations, 13 August 2009.

150. Adopted by the ASEAN Coordinating Council (i.e. ASEAN foreign ministers) on 17 November 2011 [2011 Rules].

151. Under Rule 2 of the 2011 Rules, the term “international agreement by ASEAN” means: “any written agreement, regardless of its particular designation, governed by international law … .” In other words, this is a “treaty” as defined under art. 2(1)(a) of the Vienna Convention (supra note 25), a term which I continue to use here for consistency.

152. Rule 2, supra note 150.

153. Rule 1(2) (emphasis added).

154. As reflected in the “ASEAN Minus X” formula (a variable geometry approach): see Declaration on ASEAN Economic Community Blueprint (2007), especially paras. 21(ix), 22(a), and 72(v) at 11, 12, and 27. On the development gap of ASEAN Member States, generally see Sanchita BASU DAS, “Enhancing Regional and Sub-Regional Cooperation and Connectivity in ASEAN” (2013) Institute of Southeast Asian Studies Working Paper 3, online: ISEAS <http://www.iseas.edu.sg/documents/publication/iseas_working_paper_sanchita_basu_das.pdf>.

155. See Annex 1 of 2004 Treaty, supra note 136.

156. ARS, supra note 125, art. 1.

157. But ARS, supra note 125, art. 55, reflects the residual nature of the secondary rules of state responsibility by allowing states to create special rules, which would then not determine the extent and the conditions for the existence of an internationally wrongful act.

158. See chapter IV (Organs), The ASEAN Charter, supra note 8, art. 9.

159. AANZFTA, chapter 16, supra note 133, art. 1(6). Also see their role under the “institutional arrangements” provisions of the Framework Agreement on Comprehensive Economic Cooperation Between The People's Republic of China and the Association of Southeast Asian Nations, 4 November 2002, art. 16.

160. i.e. Draft Articles on International Responsibility of International Organizations (2011), supra note 126.

161. Although the MOUs on technical co-operation as discussed above are not likely to be affected by the draft articles: see commentary of draft articles, supra note 126 at para. 15 at 10–11.

162. Art. 6, Draft Articles on International Responsibility of International Organizations, supra note 126.

163. For clarity, this is a reference to an agent (i.e. a representative) of ASEAN. It is distinct from the agency argument by Chen, which argued that ASEAN is acting as an agent of its Member States in concluding agreements.

164. See commentary of draft articles, supra note 126, paras. 3–6 at 18.

165. Ibid.

166. But arts. 17–19 of the Charter accord broad immunities to ASEAN and it is, therefore, unlikely to be sued on many matters in the domestic courts of its Member States. Also see 2009 Agreement on the Privileges and Immunities of the Association of Southeast Asian Nations, 25 October 2009.

167. See supra note 126.

168. i.e. Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, UN Doc. A/Res/55/153 (2000), para. 2. See Jacob Katz COGAN, “The Decline of ‘Drafts’ ” (2014) International Organizations Law Review 1 at 2.

169. Cogan, ibid. at 1–2.

170. See Boyle and Chinkin, supra note 3 at 182–3.

171. Generally see Cogan, supra note 168 at 3; Boyle and Chinkin, supra note 3 at 183.

172. Commentary of draft articles, supra note 126, para. 5 at 3.

173. i.e. either in the Charter (which is more difficult because of amendment rules under art. 48), or expressly as an instrument to which all ASEAN Member States agree.

174. i.e. art. 64 on lex specialis, supra note 126.

175. On lex specialis, see Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, supra note 65, paras. 111–22.

176. Boyle and Chinkin, supra note 3 at 212.

177. Supra note 103.

178. i.e. Framework Agreement on Comprehensive Economic Cooperation Between the People's Republic of China and the Association of Southeast Asian Nations, 4 November 2002.

179. See preamble paragraphs of this MOU on transport, supra note 103.

180. MOU on transport, supra note 103, art. II(2).

181. See preamble of the MOU on phytosanitary co-operation, supra note 103. For examples of these treaties, see the Framework Agreement on Comprehensive Economic Agreement, supra note 178; 2004 Treaty, supra note 136; and Agreement on Investment of the Framework Agreement on Comprehensive Economic Agreement Between the People's Republic of China and Association of Southeast Asian Nations, 15 August 2009.

182. For example, see arts. I and II(2)(d) of the MOU on Phytosanitary Cooperation, supra note 103.

183. 1867 U.N.T.S. 493 (entered into force 1 January 1995).

184. MOU on Phytosanitary Cooperation, supra note 103, art. II(3).

185. See Section I above.

186. On this point, see Boyle and Chinkin, supra note 3 at 212.

187. In the different context of municipal law, see the thesis on a “criteria of legality”, Lon L FULLER, The Morality of Law (New Haven: Yale University Press, 1969). For an interpretation of Fuller's thesis in the international legal context, see Brunee and Toope, supra note 10, especially chapter 1.

188. See Brunee and Toope, supra note 10. For a range of views on considerations of legitimacy in international law, see (2004) 98 American Society of International Law Proceedings 261–73.

189. For example, see the Copenhagen Accord, UN Doc. FCCC/CP/2009/L.9 (2009). Generally see REDGWELL, Catherine, “The Wrong Trousers: State Responsibility and International Environmental Law” in Malcolm EVANS and Panos KOUTRAKOS, eds., The International Responsibility of the European Union (European and International Perspectives) (Oxford: Hart Publishing, 2013), at 257.

190. See Chen, supra note 7, at 413–19.

191. Ibid., at 401–13.

192. i.e. consistent with the meaning as defined in art. 2(1)(j) of the 1986 Convention, supra note 32, and art. 2(b), Draft Articles on the Responsibility of International Organizations, with commentaries, supra note 126.

193. To simplify the analysis in this hypothesis, we assume that these competences are broadly based on, can arise, and can be addressed under art. Y(c).

194. Under the hypothesis, this means a general duty of co-operation in the form of a specific or general measure by ESANA Member States to ensure compliance with the obligations, which arise from the treaty in question.

195. Pursuant to art. Y(c), supra note 193.

196. i.e. ESANA and ESANA Member States concluded this treaty as separate and individual parties with another contracting party: if ESANA contains a total of three Member States, for example, then there are five parties to this treaty (i.e. ESANA, three ESANA Member States, and the contracting party).

197. Pursuant to art. Y(c), supra note 193.

198. Supra note 150.

199. In this regard, see the broad duty of co-operation in art. 5(2) of the ASEAN Charter: Member States shall take “all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of this Charter and to comply with all obligations of membership” (emphasis added). The duty of co-operation is also implied in more general provisions in arts. 1(15), 2(2)(m), and 2(2)(n) of the Charter, which contain aims and purposes of maintaining ASEAN's proactive role in co-operation with external partners.

200. See Title I (Categories and areas of Union competence) of Treaty on the Functioning of the European Union, supra note 61. For example, once the EU exercises its exclusive competence on the customs union (art. 3(a) TFEU), then only the EU (not EU Member States) may legislate and adopt legally binding acts. In the area of shared competence in, for example, transport (art. 4(2)(g)), EU Member States can only exercise their separate competence on transport matters if the EU has not (or ceases to) exercised its competence (art. 2(2) TFEU). Generally see Piet EECKHOUT, EU External Relations Law, 2nd ed. (Oxford: Oxford University Press, 2012).

201. The EU has insisted that it is different from “traditional international organizations” because its “internal order … is separate from international law” and accordingly the relationship between the EU and its Member States is governed by EU law, a “distinct source of law”. See comments of the European Commission to the International Law Commission, Responsibility of International Organizations (Comments and Observations Received from International Organizations), 106, paras. 20–1, supra note 59.

202. The EU has “important law-based foreign relations powers that have a tendency to develop over time”; see para. 1 at 7, supra note 59. Its competences on the Common Foreign and Security Foreign Policy are set out in Title V TEU and Part Five TFEU, supra note 61.

203. See the eight examples in Section I above.

204. The rules are an outcome of art. 41(7) of the Charter, which provides: the procedures for concluding such agreements shall be prescribed by the ASEAN Coordinating Council in consultation with the ASEAN Community Councils.

205. 2011 Rules, see Rule 2, supra note 150.

206. Ibid., Rule 4.

207. Ibid.

208. Ibid.

209. Ibid., Rule 3.

210. Charter, art. 10.

211. 2011 Rules, see Rule 4(2), supra note 150.

212. For instance, at the proposal stage of a putative treaty, relevant domestic procedures in each ASEAN Member States may have to be fulfilled in tandem with the 2011 Rules, which are co-ordinated by the Committee of Permanent Representatives, who will inform their respective national authorities. For an account of Thailand's internal treaty process in this regard, see Benjamin SUKANJANAJTEE, “Promoting ASEAN Economic Community Through Greater Participation and Transparency in Treaty Making Procedures: Thailand's Internal Process and ASEAN Rules of Procedure”, online: ASEANLaw <http://www.aseanlawassociation.org/11GAdocs/workshop4-thai.pdf>.

213. i.e. in their individual capacities as independent sovereign states.

214. 2011 Rules, see Rules 3–5, supra note 150.

215. Art. 31(2), Vienna Convention, supra note 20. The International Law Commission has stated in its ongoing work on “Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties” that the “weight” of a subsequent agreement as a means of interpretation depends (among others) on its “clarity”, “specificity”, and whether (or how) it is repeated: see Draft Conclusion 8 in Report of the International Law Commission on the Work of its Sixty-Sixth Session, UN GAOR, 69th Sess., Supp. No. 10, UN Doc. A/69/10 (2014) at 177–200, para. 75.

216. i.e. its consultative aspects; see Katsumata, supra note 12.

217. In terms of an organ's (relative) degree of involvement during a treaty's negotiation, contrast the 2011 Rules with the European Parliament's competence that includes a legal right to be kept informed during the negotiation process when the EU concluded a treaty with Mauritius in 2011, concerning conditions of suspected pirates after transfer. This is because the EU is founded on “democratic principles” and therefore its decision-making process on external relations must bear scrutiny by the European population through Parliament as its representative intermediary: see paras. 79 and 81, Case C-658/11 European Parliament v. Council (24 June 2014).

218. Chen, supra note 7 at 418.

219. Generally see SAROOSHI, Dan, International Organization and Their Exercise of Sovereign Powers (Oxford: Oxford University Press, 2007), especially chapter 4.

220. On the separate legal personalities as a condition, see Sarooshi, ibid., at 35, and Chen, supra note 7 at 414.

221. On this point more generally, see Crawford, supra note 22 at 31.

222. Ibid.

223. See Sarooshi, supra note 219 at 46–9.

224. I use the term “some form of control” here in a generic sense to indicate the necessity of establishing a principal's control over the agent beyond the usual decision-making processes within that international organization. The terms “effective control” and “direction and control” have more specific and narrower meanings (thus avoided in the agency context here) under the international responsibility of states and international organizations. See generally Sarooshi, supra note 219 at 38–41.

225. The “on behalf of” formulation by Chen is clearest in this sense: see Example (1), supra note 41.

226. Sarooshi, supra note 219 at 46 and 49.

227. See Chen, supra note 7 at 414.

228. See Chen's analysis, supra note 7 at 413–16.

229. Also see Charter, art. 11.

230. The general principle is to resolve all disputes in a timely manner through dialogue, consultation, and negotiation (Charter, art. 22(1)). Other dispute-settlement mechanisms are acknowledged under Chapter VIII of the Charter, but these avenues are not intended to harmonize ASEAN laws in a “constitutional” way, as I will explain shortly.

231. Under Charter, art. 51(1), the ASEAN Secretariat is allowed to interpret the Charter at the request of any Member State. But the 2012 Rules of Procedure for the Interpretation of the ASEAN Charter, 2 April 2012, has made it clear that, under Rule 2(1), the ASEAN Secretariat's interpretation “shall be non-binding”, and more importantly, “non-authoritative”.

232. Generally see DESIERTO, Diane A., “ASEAN's Constitutionalization of International Law: Challenges to Evolution Under the New ASEAN Charter” (2010–2011) 49 Columbia Journal of Transnational Law 268.

233. On the principle of effectiveness, generally see GARDINER, Richard, Treaty Interpretation (Oxford: Oxford University Press, 2010) at 60.

234. 1986 Convention, supra note 32.

235. Generally see FOOTER, Mary E., “International Organizations and Treaties: Ratification and (Non) Implementation of the Other Vienna Convention on the Law of Treaties” in Alexander ORAKHELASHVILI and Sarah WILLIAMS, eds., 40 Years of the Vienna Convention on the Law of Treaties (London: British Institute of International and Comparative Law, 2010), 183 at 193–4.

236. Chen, supra note 7.

237. Legality of Use by a State of Nuclear Weapons in Armed Conflict, supra note 19, para. 25.

238. See Chen, supra note 7 at 411–13.

239. See (1982) I.L.C. Yearbook, Vol. II(II), at 43.

240. Supra note 126.

241. Some provisions have been criticized for being unrealistic because of an international organization's limited mandate from its Member States: for example, see the draft articles on coercion (art. 16) and countermeasures (art. 22), supra note 126. For criticisms by Sir Michael WOOD and Maria VICIEN-MILBURN, see “Legal Responsibility of International Organizations in International Law” (10 February 2011), online: Chathamhouse <http://www.chathamhouse.org/sites/files/chathamhouse/field/field_document/il100211summary.pdf>. For general comments by the Special Rapporteur Giorgio Gaja in response to criticisms, see Eighth Report on Responsibility of International Organizations, UN Doc. A/CN.4/640 (2011).

242. Generally see BRÖLMANN, Catherine, The Institutional Veil in Public International Law: International Organizations & the Law of Treaties (Oxford/Portland, OR: Hart Publishers, 2007); “The 1986 Vienna Convention on the Law of Treaties: The History of Draft Article 36 bis” in KLABBERS, Jan and LEFEBER, René, eds., Essays on the Law of Treaties: A Collection of Essays in Honour of Bert Vierdag (The Hague/Boston, MA: Martinus Nijhoff Publishers, 1998), at 127–34.

243. See Chen, supra note 7 at 401–3 and 416–19.

244. (1977) I.L.C. Yearbook, Vol. II(I), at 125–7.

245. See Chen, supra note 7 at 404–5 (emphasis added). On Draft Article 60(2), see (1964) Year Book of the International Law Commission Vol. II, at 16–17.

246. See Crawford, supra note 22 at 30.

247. Its substance is reflected in the preamble and art. 74(3) (i.e. savings provision) of the 1986 Convention, supra note 32.

248. (1972) Year Book of the International Law Commission Vol. II, para. 43 at 183 (emphasis added).

249. (1973) Year Book of the International Law Commission Vol. II, Question 7 at 93 (original emphasis). Compare the Commission's language with the “on behalf of” formulation in Examples (4)–(5), supra notes 44–49.

250. (1982) Year Book of the International Law Commission Vol. II, para. 10 at 46.

251. Ibid.

252. Ibid. at 44–6.

253. Ibid, para. 10 at 46 (emphasis in original).

254. See arts. 1(15), 2(m), and 41(3) of the Charter.

* PhD candidate, UCL Faculty of Laws.