ASEAN and its existence

One of the more interesting reads I had in the past few days was a paper that dwelt with the question on whether ASEAN actually exists. This is not as banal as it sounds. One of the popular myths that still prevail is that the GATT (or the General Agreement on Tariffs and Trade) was an organization. It wasn’t and it’s not. The World Trade Organization is indeed that. As provided by the Marrakesh Agreement Establishing the WTO, the “WTO shall have legal personality, and shall be accorded by each of its Members such legal capacity as may be necessary for the exercise of its functions.”
In short, the WTO is an organization, with a personality separate and distinct from its members, while the GATT is not. The latter is a mere treaty and the give-away to this is that the so-called “members” of the GATT were never referred to as such but rather as “contracting parties”.
As far as the ASEAN is concerned, the doubts as to its existence as a legal entity are certainly there. The paper (to be presented in final form at the Asian Law Institute conference in Singapore 22-23 May 2008, with final publication anticipated in the Singapore Yearbook of International Law), by Simon Chesterman of the New York University School of Law Singapore Programme, quotes our very own Rodolfo Severino, former Secretary-General of ASEAN, as saying that ASEAN “is not and was not meant to be a supranational entity acting independently of its members.” He is again later quoted confirming this in more direct terms when he declares that ASEAN lacks “juridical personality or legal standing under international law.”

Indeed, the position that “ASEAN was intended to be a kind of social community, rather than a legal community” is bolstered by the fact that the ASEAN Charter, adopted in 2007 although not yet in effect, has a provision stating that “ASEAN, as an intergovernmental organisation, is hereby conferred legal personality.”

What is the importance of determining whether the ASEAN does have legal personality? To be blunt: a lot. The treaty making powers of an international organization, it’s capacity to own property, to sue or be sued, to have diplomatic representation, along with all the general and implied powers of any international organization, as well as recognition to it and it’s legal status under municipal law, all stem from the fact of an international organization’s possession of international legal personality. The question regarding an international organization’s status under municipal law is actually a complex and contentious issue within international law circles. Our own Supreme Court has touched on the matter on various occasions, most notably in the case of the World Health Organization vs. Aquino (48 SCRA 242) and Holy See vs. Rosario (238 SCRA 524), although the direct issue on those cases was the availability of the right to diplomatic immunity.

ASEAN was “founded” on 8 August 1967 with the signing of the ASEAN Declaration. Those with a bent towards mysticism will note that for some reason the number “5” figures widely for ASEAN. The Declaration has 5 preambular paragraphs and 5 operative paragraphs, with 5 original parties to it: Philippines, Indonesia, Malaysia, Singapore, and Thailand. Former President Fidel V. Ramos’ father, then Foreign Affairs Secretary Narciso Ramos, represented the Philippines in that Declaration. On the other hand, the ASEAN Secretariat was established only in 1976 and is based in Indonesia. Just to give you a sense of how small the WTO Secretariat is (and debunking the myth that it is a super organization dictating to the world’s economy), the ASEAN Secretariat has around 200 personnel while the WTO Secretariat has around only 600. ASEAN has 10 members, the WTO has 152.

In any event, Professor Chesterman does concede, for a host of international law principles and jurisprudential reasons, that the ASEAN has legal existence and I leave it to his paper to explain itself as it does so obviously more competently than my 800 word column. Nevertheless, I also do agree with the point raised by Professor Chesterman that more important to the question as to whether the ASEAN does exist is whether ASEAN actually matters.

I, narrowing the discussion to Philippine interests’, would also like to point out that while calls for an ASEAN charter and acceleration to achieve an ASEAN community could all be good, we do have to ponder one essential fact: what may be good for ASEAN may not necessarily be good for the Philippines. Note that the three countries most enthusiastic for greater integration (i.e., Malaysia, Thailand, and Singapore) have one thing in common: strong economies that keep getting stronger. The Philippines is not in that league, yet. In the end, by allowing ourselves to join in the ASEAN integration hoopla we may, in the end, be just used in preparing a feast that only others could enjoy.