Evaluating the Legal Basis of a Rule-Based Organisation of ASEAN
This article examines whether the structure of the 2008 ASEAN Charter is still well-suited and appropriate with the intergovernmental organisation of ASEAN. ASEAN has developed and turned into a rule-based organisation. The Charter as the legal basis of the Association is regarded as the constitution of ASEAN, and it has the constitutional character as if all ten ASEAN Member States (AMS) were united as one big country. The design and character of the Charter have placed it above the AMS’s constitutions. While ASEAN basically stands firmly to state’ sovereignty and non-interference principles which were and will remain the important ASEAN principles, ASEAN has developed into a people-oriented organisation which accommodates the participations of the ASEAN people into the Association. By analysing the normative ASEAN and international legal instruments that are gathered from the official ASEAN website and other publicly available sources, combined with the conceptual and statute approaches, this article found that ASEAN has become a legalised organisation. ASEAN surely cannot be equated with the European Union (EU), considering that the TFEU provides a hierarchical arrangement and the binding effect upon its member countries. The article argues that the Charter has a supremacy at regional level as a part of the indirect aspects of the community law of ASEAN.
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Introduction
The ASEAN Charter is a charter of Southeast Asia's regional level, binding all ten ASEAN Member States (AMS). As a Charter of an organisation, one can observe the ASEAN Charter from two functional relationships: internal relationships and external relationships. The fundamental principles of the ASEAN indicate the internal functional relationship of the ASEAN Charter in achieving the ASEAN goals. Meanwhile, the external functional relationship of the Charter is demonstrated in how ASEAN, as a regional organisation, has a legal personality separated from the Member States or what kind of power has been given to the ASEAN.[1](Pitsuwan, 2008)As a group of countries, the ASEAN began consolidating itself and moving towards being a rule-based international entity maintaining its role as the core of community development of the Southeast Asian region. Therefore, it requires an international legal instrument or a charter used as a constitution, thereby leading the ASEAN on a concrete path to an essential leadership role.[2](Pitsuwan, 2008)The ASEAN Charter is a constitution that is a document citing norms, affirmations of independence, rights and obligations, and legislative, executive and jurisdictive powers.[3](, 2007)Furthermore, following the formation of the ASEAN Charter as a ‘constitution’ for ASEAN, all existing mechanisms and regulations are formal and legally binding.[4](Koesrianti, 2011)
The ASEAN Charter as the constitution has included the phrase ‘ASEAN people’ as the subject of empowerment. The question of the subject is the core point of establishing institutions, such as state institutions and international organisations, and establishing a charter of the organisation can define the subject. For example, the Preamble of the Charter of the UN begins with the phrase “We, the people of the United Nations”. This signifies the legal character of the signatory subject who represents people.[5](Freistein, 2013)AMS heads of state, presidents or heads of government act on behalf of their citizens who have afforded them a representative mandate conducted on behalf of the people of their countries.
In reference to this context, this paper discusses the constitutionalisation that brought order to a fragmented legal domain of AMS, which is the inescapable need to accommodate the different values of political nations in the region. This paper proceeds with the following sections. The first section reviews the literature on the ASEAN Charter as Constitution and constitutionalism. The paper then describes the analytical framework used, along with the methodology of this paper. After examining the ASEAN order in the sovereign of the AMS, the paper assesses ASEAN principles as the international norms of the region. In the next section, the paper reviews the legal personality and intergovernmental competence of the ASEAN. Furthermore, it observes the ASEAN Charter’s position within the constitutions of the AMS in correlation with ASEAN regional constitutionalism through democratic principles. Last, it draws conclusions.
This paper is based on a normative juridical study that analyses the constitutionalism of ASEAN Charter as a legal document in establishing the 2025 ASEAN Community. In gathering data on ASEAN Charter and its related issues, this paper refers to official data provided by relevant ASEAN sources, such as the ASEAN website, and other official sources available to the public. This paper also provides cross-referencing with relevant previous studies or legal instruments and publicly available articles to further identify the nature of the ASEAN Charter. The paper uses a statutory approach that focuses on all legal products from authoritative lawmakers instead of the study of legislation in a narrow sense. In addition, this paper adopts conceptual and comparative approaches. Once identified, the paper categorises international constitutionalisation, and, in the last section, it draws conclusions.
Constitutionalism as Conceptual Legitimacy in the International Sphere
In its development, the application of constitutionalism falls in the scope of international law. In the formal sense, international law constitutes a system because it contains elements of lawmaking by sovereign states. Constitutionalism defines multilevel constitutionalism aiming to limit 'constitutional failures' at the national level.[6](Petersmann, n.d.)International constitutional democracy aims to protect the rights of citizens to the right of democratic self-determination with a consequence of reducing sovereignty over discrimination in goods, services and people while also increasing mutually beneficial cooperation among citizens of all Member States.[7](Petersmann, n.d.)In this context, the national constitution becomes a partial constitution when encountering the reality of broader multilevel governance. For example, competition law in international business, trade, finance, product standardisation, telecommunications, environmental protection, human rights protection and collective security through national networks and international authorities has developed new forms of multilevel constitutionalism at the regional and national levels.[8](Petersmann, n.d.)
In a broader context, a constitution not only refers the fundamental laws of a country and all agreed rules, but it also regulates the relationships of social groups in a broader scope. Therefore, constitutionalism is not limited to the scope of a country. In line with this statement, another point of view is that international constitutionalism corresponds to the functions, competencies and distribution of powers of various bodies in international organisations. In addition, constitutionalism also appears to attempt to establish supranational organs with executive authority independent of the unanimous consent of member states and equipped with a judiciary for resolving disputes under community law.[9](Friedmann, 1966)Unlike supranational European Union (EU) treaties, the ASEAN Charter adopts multilevel constitutionalism.
The ASEAN Charter as the Constitution
The ASEAN Charter contains fundamental principles of the Bangkok Declaration 1967 as the legitimate base in launching ASEAN and its subsequent agreements. It also
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