Monday, October 20, 2008


For purposes of legal research of the visitors of this blog, may I summarize the salient provisions of the Charter of the Association of the Southeast Asian Nations (ASEAN) which may be directly or indirectly relevant to the Justice System and the Legal Profession in the ASEAN Region.

ASEAN is composed of Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam.

The purposes of the ASEAN are as follows:

1. To maintain and enhance peace, security and stability and further strengthen peace-oriented values in the region; ;

2. To enhance regional resilience by promoting greater political, security, economic and socio-cultural cooperation; ;

3. To preserve Southeast Asia as a Nuclear Weapon-Free Zone and free of all other weapons of mass destruction; ;

4. To ensure that the peoples and Member States of ASEAN live in peace with the world at large in a just, democratic and harmonious environment;

5. To create a single market and production base which is stable, prosperous, highly competitive and economically integrated with effective facilitation for trade and investment in which there is free flow of goods, services and investment; facilitated movement of business persons, professionals, talents and labor; and freer flow of capital;

6. To alleviate poverty and narrow the development gap within ASEAN through mutual assistance and cooperation;

7. To strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN;

8. To respond effectively, in accordance with the principle of comprehensive security, to all forms of threats, transnational crimes and transboundary challenges;

9. To promote sustainable development so as to ensure the protection of the region’s environment, the sustainability of its natural resources, the preservation of its cultural heritage and the high quality of life of its peoples;

10. To develop human resources through closer cooperation in education and life-long learning, and in science and technology, for the empowerment of the peoples of ASEAN and for the strengthening of the ASEAN Community;

11. To enhance the well-being and livelihood of the peoples of ASEAN by providing them with equitable access to opportunities for human development, social welfare and justice;

12. To strengthen cooperation in building a safe, secure and drug-free environment for the peoples of ASEAN;

13. To promote a people-oriented ASEAN in which all sectors of society are encouraged to participate in, and benefit from, the process of ASEAN integration and community building;

14. To promote an ASEAN identity through the fostering of greater awareness of the diverse culture and heritage of the region; and

15. To maintain the centrality and proactive role of ASEAN as the primary driving force in its relations and cooperation with its external partners in a regional architecture that is open, transparent and inclusive.

The basic principles that guide ASEAN are as follows:

1. respect for the independence, sovereignty, equality, territorial integrity and national identity of all ASEAN Member States;

2. shared commitment and collective responsibility in enhancing regional peace, security and prosperity;

3. renunciation of aggression and of the threat or use of force or other actions in any manner inconsistent with international law;

4. reliance on peaceful settlement of disputes;

5. non-interference in the internal affairs of ASEAN Member States;

6. respect for the right of every Member State to lead its national existence free from external interference, subversion and coercion;

7. enhanced consultations on matters seriously affecting the common interest of ASEAN;

8. adherence to the rule of law, good governance, the principles of democracy and constitutional government;

9. respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice;

10. upholding the United Nations Charter and international law, including international humanitarian law, subscribed to by ASEAN Member States;

11. abstention from participation in any policy or activity, including the use of its territory, pursued by any ASEAN Member State or non-ASEAN State or any non-State actor, which threatens the sovereignty, territorial integrity or political and economic stability of ASEAN Member States;

13. respect for the different cultures, languages and religions of the peoples of ASEAN, while emphasizing their common values in the spirit of unity in diversity;

14. the centrality of ASEAN in external political, economic, social and cultural relations while remaining actively engaged, outward-looking, inclusive and non-discriminatory; and

15. adherence to multilateral trade rules and ASEAN’s rules-based regimes for effective implementation of economic commitments and progressive reduction towards elimination of all barriers to regional economic integration, in a market-driven economy.

The over-all structure of ASEAN is made up of the ASEAN Summit (composed of the Heads of State or Government of the Member States), ASEAN Coordinating Council, the ASEAN Community Councils, and the ASEAN Sectoral Ministerial Bodies. It chief operating officer is the ASEAN Secretary-General who is appointed by the ASEAN Summit. The ASEAN Coordinating Council is composed of the ASEAN Foreign Ministers. The ASEAN Community Councils is composed of the ASEAN Political-Security Community Council, ASEAN Economic Community Council, and ASEAN Socio-Cultural Community Council. Each ASEAN Community Council shall have under its purview the relevant ASEAN Sectoral Ministerial Bodies. The ASEAN SECTORAL MINISTERIAL BODIES function in accordance with their respective established mandates. Each ASEAN Sectoral Ministerial Body may have under its purview the relevant senior officials and subsidiary bodies to undertake its functions as contained in Annex 1 of the Charter.

The Secretary-General of ASEAN shall be appointed by the ASEAN Summit for a non-renewable term of office of five years, selected from among nationals of the ASEAN Member States based on alphabetical rotation, with due consideration to integrity, capability and professional experience, and gender equality. He recommends the appointment and termination of the Deputy Secretaries-General to the ASEAN Coordinating Council for approval. The Secretary-General shall be the Chief Administrative Officer of ASEAN. He shall be assisted by four Deputy Secretaries-General with the rank and status of Deputy Ministers. The Deputy Secretaries-General shall be accountable to the Secretary-General in carrying out their functions. The four Deputy Secretaries-General shall be of different nationalities from the Secretary-General and shall come from four different ASEAN Member States.

Each ASEAN Member State shall appoint a Permanent Representative to ASEAN with the rank of Ambassador based in Jakarta. The Permanent Representatives collectively constitute a Committee of Permanent Representatives, which shall support the work of the ASEAN Community Councils and ASEAN Sectoral Ministerial Bodies, coordinate with ASEAN National Secretariats and other ASEAN Sectoral Ministerial Bodies, liaise with the Secretary-General of ASEAN and the ASEAN Secretariat on all subjects relevant to its work, and facilitate ASEAN cooperation with external partners.

Each ASEAN Member State shall establish an ASEAN National Secretariat.

In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body. This ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting. (Note: It will be noted that the said body is not conferred judicial or quasi-judicial and prosecutorial powers by the Charter, which is one of its weaknesses).

An ASEAN Foundation is created by the Charter, which shall support the Secretary-General of ASEAN and collaborate with the relevant ASEAN bodies to support ASEAN community building by promoting greater awareness of the ASEAN identity, people-to-people interaction, and close collaboration among the business sector, civil society, academia and other stakeholders in ASEAN. The ASEAN Foundation shall be accountable to the Secretary-General of ASEAN, who shall submit its report to the ASEAN Summit through the ASEAN Coordinating Council.

ASEAN shall enjoy in the territories of the Member States such immunities and privileges as are necessary for the fulfillment of its purposes.
The immunities and privileges shall be laid down in separate agreements between ASEAN and the host Member State.

The Secretary-General of ASEAN and staff of the ASEAN Secretariat participating in official ASEAN activities or representing ASEAN in the Member States shall enjoy such immunities and privileges as are necessary for the independent exercise of their functions. The immunities and privileges shall be laid down in a separate ASEAN agreement.

The Permanent Representatives of the Member States to ASEAN and officials of the Member States participating in official ASEAN activities or representing ASEAN in the Member States shall enjoy such immunities and privileges as are necessary for the exercise of their functions. The immunities and privileges of the Permanent Representatives and officials on ASEAN duties shall be governed by the 1961 Vienna Convention on Diplomatic Relations or in accordance with the national law of the ASEAN Member State concerned.

As has been its tradition, a basic principle of ASEAN decision-making process is the principle of consultation and consensus. Where consensus cannot be achieved, the ASEAN Summit may decide how a specific decision can be made.

In the case of a serious breach of the Charter or noncompliance, the matter shall be referred to the ASEAN Summit for decision. Member States shall endeavor to resolve peacefully all disputes in a timely manner through dialogue, consultation and negotiation. ASEAN shall maintain and establish dispute settlement mechanisms in all fields of ASEAN cooperation.

Member States which are parties to a dispute may at any time agree to resort to good offices, conciliation or mediation in order to resolve the dispute within an agreed time limit. Parties to the dispute may request the Chairman of ASEAN or the Secretary-General of ASEAN, acting in an ex-officio capacity, to provide good offices, conciliation or mediation.

Disputes relating to specific ASEAN instruments shall be settled through the mechanisms and procedures provided for in such instruments. Disputes which do not concern the interpretation or application of any ASEAN instrument shall be resolved peacefully in accordance with the Treaty of Amity and Cooperation in Southeast Asia and its rules of procedure. Where not otherwise specifically provided, disputes which concern the interpretation or application of ASEAN economic agreements shall be settled in accordance with the ASEAN Protocol on Enhanced Dispute Settlement Mechanism. Where not otherwise specifically provided, appropriate dispute settlement mechanisms, including arbitration, shall be established for disputes which concern the interpretation or application of the Charter and other ASEAN instruments. When a dispute remains unresolved, after the application of the preceding provisions, the dispute shall be referred to the ASEAN Summit for decision.

Unless otherwise provided for in this Charter, Member States have the right of recourse to the modes of peaceful settlement contained in Article 33(1) of the Charter of the United Nations or any other international legal instruments to which the disputing Member States are parties.

The Chairmanship of ASEAN shall rotate annually, based on the alphabetical order of the English names of Member States. ASEAN shall have, in a calendar year, a single Chairmanship by which the Member State assuming the Chairmanship shall chair the ASEAN Summit and related summits, the ASEAN Coordinating Council, the three ASEAN Community Councils, where appropriate, the relevant ASEAN Sectoral Ministerial Bodies and senior officials, and the Committee of Permanent Representatives.

The eighth of August of each year shall be observed as ASEAN Day.

ASEAN shall develop friendly relations and mutually beneficial dialogue, cooperation and partnerships with countries and sub-regional, regional and international organizations and institutions. ASEAN shall be the primary driving force in regional arrangements that it initiates and maintain its centrality in regional cooperation and community building. In the conduct of external relations of ASEAN, Member States shall, on the basis of unity and solidarity, coordinate and endeavor to develop common positions and pursue joint actions. The strategic policy directions of ASEAN’s external relations shall be set by the ASEAN Summit upon the recommendation of the ASEAN Foreign Ministers Meeting.

The ASEAN Foreign Ministers Meeting shall ensure consistency and coherence in the conduct of ASEAN’s external relations. ASEAN may conclude agreements with countries or subregional, regional and international organizations and institutions. The procedures for concluding such agreements shall be prescribed by the ASEAN Coordinating Council in consultation with the ASEAN Community Councils.

ASEAN Committees in Third Countries may be established in non-ASEAN countries comprising heads of diplomatic missions of ASEAN Member States. Similar Committees may be established relating to international organizations. Such Committees shall promote ASEAN’s interests and identity in the host countries and international organizations. The ASEAN Foreign Ministers Meeting shall determine the rules of procedure of such Committees.

In conducting ASEAN’s external relations, the ASEAN Foreign Ministers Meeting may confer on an external party the formal status of Dialogue Partner, Sectoral Dialogue Partner, Development Partner, Special Observer, Guest, or other status that may be established henceforth. External parties may be invited to ASEAN meetings or cooperative activities without being conferred any formal status, in accordance with the rules of procedure.

ASEAN may seek an appropriate status with the United Nations system as well as with other sub-regional, regional, international organizations and institutions. The ASEAN Coordinating Council shall decide on the participation of ASEAN in other sub-regional, regional, international organizations and institutions.

Non-ASEAN Member States and relevant inter-governmental organizations may appoint and accredit Ambassadors to ASEAN. The ASEAN Foreign Ministers Meeting shall decide on such accreditation.