Thailand Law Journal 2010 Spring Issue 1 Volume 13

Given the transitional period of being a full-fledged inter-governmental organization (IGO), the above-mentioned problems could be addressed in either way or both, as follows:
1) ASEAN may adopt the way the United Nations has adopted, which is the setting up of a legal committee (so-called “the Sixth Committee” established by the General Assembly) for the drafting of any legal instruments and making recommendations to the ASEAN Summit and other ASEAN bodies, as appropriate. The legal committee would be a forum for international lawyers of all ASEAN member countries to share views and to prepare texts of legal documents for the consideration and adoption by the respective ASEAN bodies. This committee may set up sub-committees or working groups, as necessary, to deal with any particular legal issues, for example, international trade and investment, international environment, or international sale of goods, etc. This approach would be described as part of a division of labor and expertise where the legal committee
would help ensure consistency of wording and rights and obligations, especially when it comes to compliance and interpretation of any legal instruments. All in all, it is the legal drafting technique that counts and plays an important role in addition to policy
consideration.

However, it is better to avoid the duplication of work. It is construed that any legal issues which are not taken up by or fallen within the domain or responsibility of, any ASEAN body should primarily be considered by the legal committee. Then, work of the legal committee would not interfere with that of any ASEAN body.

2) The establishment of the International Law Commission by the United Nations is another option which has proven successful and its work has been given a lot of credentials. The Commission, referred to as the “ILC”, comprises jurists of high legal
qualifications. It has codified customary international law and made a lot of contribution to the progressive development of international law. We note that there are a number of eminent international lawyers who are of ASEAN nationals. Therefore, the composition of qualified members to sit at the commission is not a problem.

At the same time, ASEAN should take into account ways and means to retain such qualified experts to work for ASEAN in a sustainable way. In that line of approach, an appropriate scale of remunerations must play an important role in securing the firm
commitment of outstanding experts to remain with ASEAN in the long term. Under the current circumstances where the financial crisis is global in nature now, ASEAN member countries should be mindful of the cost-effective approach and have concerted efforts in moving towards the centrality of ASEAN.

Either option can be adopted right away and without causing major financial implications to the ASEAN Secretariat or member countries since ASEAN is used to designate a drafting group or working group of legal experts to deal with legal issues
where the costs of which are borne by member countries. Nor would the formation of a legal commission composed of 10 jurists from all ASEAN member countries be a major problem for ASEAN.

III. Feasibility of Establishment of ASEAN Court of Justice
At this juncture, the Court of Justice of the European Communities could be an example ASEAN might want to compare before making a decision on the establishment of ASEAN court of justice. The Court of Justice of the European Communities, based in Luxambourg, is assigned to consider disputes between member states of the European Union; between the European Union and member states; between the institutions within the European Union; between individuals, or corporate bodies, and the European Union¹⁰.

It may deliver opinions on international agreements and give preliminary rulings on cases referred by national courts.¹¹ Such preliminary rulings are of significance to ensure uniform application of Community law by all member States ¹². The Court is composed of one judge from each member state. So, there are altogether 27 judges from all the national legal systems of the Communities.¹³

No doubt that there are difficulties in practice while there are also advantages. It appears that the Court of Justice of the European Communities allows itself to be involved in the national caseload for the development of Community law.¹⁴ It is then useful for the consistency of legal interpretation of Community law for national judges.¹⁵ Against this backdrop, it seems as if “the national judiciary has no intelligent role to play in Community law.”¹⁶ To put it in another way, the Court of Justice plays “a very broad interpretative monopoly.”¹⁷ Such disadvantages may be resolved if mismanagement of the relationship between the Court of Justice and the national courts of Member States is not properly addressed.¹⁸ It is observed that judges of the Court “realize that there power is ultimately contingent on the acquiescence of member states”.¹⁹

To illustrate, ASEAN needs to consider further whether ASEAN is determined to promulgate the so-called “ASEAN law”, as opposed to European Community (EC) law. If this is the case, ASEAN member countries have to come to terms that ASEAN would be a supranational organization as far as enactment of legislation is concerned. In any event, jurisdiction of ASEAN court of justice may differ from that of the Court of Justice. Then, the follow-up question to ASEAN is whether financial implications as a result of the establishment of the court is concerned. It gives rise to cross-border practice among ASEAN lawyers. In that case, ASEAN has to prepare appropriate ground work for lawyers to practice law in member countries. It would be illogical to have a court, but no legal counsels to represent their clients in litigations.

One of the problems ASEAN member countries may take up for consideration is the issue of sovereignty. We have to proceed with a clear mind and a common goal whether ASEAN court is feasible; and whether ASEAN court would be a supranational
body. More importantly, ASEAN should examine whether ASEAN is prepared to adopt the idea of ASEAN judicial body. Lessons learnt from the experience of the European Court of justice will be of great value to determine the appropriate roadmap for this purpose.