Thailand Law Journal 2010 Spring Issue 1 Volume 13

Role of ALA in the Current Legal Issues under the ASEAN Charter

By Dr. Pornchai Danvivathana^**

I. Introduction

When the Association of Southeast Asian Nations (ASEAN) was established at Bangkok on August 8, 1967, very few would hardly imagine that ASEAN would be “no longer just an association of neighboring counties”.¹ At that time, the original Member countries, namely, Indonesia, Malaysia, the Philippines, Singapore and Thailand, were overwhelmed with political and security issues. Now that the ASEAN Charter came into force,² maintenance of peace, security and stability becomes the very first purpose of ASEAN.³

However, the purposes of ASEAN are translated to be people – oriented as it aims, inter alia, to “strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms …”⁴ To further translate this principle or concept into action, ASEAN undertakes to consider engaging with entities listed in Annex 2 to the Charter.⁵ This Annex 2 contains the list of entities associated with ASEAN, one of which is the ASEAN Law Association (ALA) which is included as one of the accredited civil society organizations. In fact, respect for justice and the rule of law has
become one of the guiding principle of all ASEAN Member countries since its establishment in 1967,⁶ and later reaffirmed under the Kuala Lumpur Declaration on the Establishment of the ASEAN Charter, 2005.

Since ASEAN is conferred legal personality⁷ and comprises three ASEAN Community Councils,⁸ as well as its Secretariat,⁹it has to function as a rules – based organization. Still, there remain legal issues to be resolved under the ASEAN Charter. To
ensure that pacific settlement of dispute will be resorted, Chapters VII and VIII provide for modes of dispute settlement among ASEAN Member countries. In addition, ASEAN will continue entering into negotiations and conclusion of agreements. It means that there will be more agreements and international legal instruments to be concluded by ASEAN with other subjects of international law. Thus, there is a need for international lawyers to be more engaged in the discussions until the entry into fore of agreements, including the implementation thereof. However, fragmentation of international law, where there are several judicial fora to hear cases, with or without different perspectives, coupled with the growing increase of specific areas of international law, has called for ASEAN to rise to such challenges.

This paper illustrate roles of international lawyers at various stages of activities and functions of ASEAN. It touches upon the feasibility of establishment of ASEAN court. In fact, it may be one of the visions ASEAN has to set as ASEAN is moving toward a peoples-oriented approach. This paper suggests that ASEAN proceeds gradually towards this aim, if and only if it is the common aim of ASEAN.

II. Need for International Lawyers and Ways forward
First of all, as mentioned above, ASEAN has concluded a number of treaties or international agreements with many countries and international organizations. Moreover, ASEAN has issued many legal and political instruments in the form of joint declarations, joint statements, concords, etc.

Secondly, should ASEAN move forward on a rules-based approach, while promoting and strengthening the roles of the Secretary –General, ASEAN needs active participation of international lawyers.

Thirdly, upon the conclusion of many free trade agreements ASEAN has concluded with its partners, ASEAN will be pretty much involved with trade issues and cases. The ASEAN Secretariat is tasked with the duty to provide assistance to the dispute settlement mechanisms stimulated in such free trade agreements. This being the case, ASEAN member countries have to be associated with specific areas of international law, namely, international trade law, international investment law, international environmental law, and international arbitration. Such responsibility cannot be delivered without the competence of the ASEAN Secretariat. It purports that the Secretariat may consider setting up a treaty law division in order to serve and facilitate work of ASEAN as a whole.