Emerging Voices: Implied Conferrals as Consequences of ASEAN’s International Legal Personality

[Daniel Seah is a PhD candidate at the Faculty of Laws, University College London.]

Has the Association of Southeast Asian Nations (ASEAN) finally had its own post-ontological moment?  No longer are we condemned to participate in the banality of questioning ASEAN’s legal existence as an international organization (IO). After all, since 2008, its international legal personality was expressly conferred in Article 3 of the ASEAN Charter, a constituent treaty.  Now is the time to ask a more useful question: what are the legal consequences that flow from ASEAN exercising its international legal personality? Nowhere is an answer to this question more clearly thrown into relief than in the conferral of competences by member States upon ASEAN, which is the focus of this post.

IOs are not created equal; there is a great variety in their functions and objectives. Establishing the objective international legal personalities in these IOs is the easy bit. More difficult are the issues that bear on how the legal personality has been exercised by an IO; and what legal consequences arise for the IO and its member States, as separate legal persons. Because an IO at international law is a legal person, it (or its bodies) can act on behalf of member States although some of these acts are not expressly conferred in the constituent treaty – I call these “implied conferrals”. The word “conferral” is not a legal term of art. It had been variously defined as “capacities” (CF Amerasinghe) to indicate the consequences of international legal personality; “international delegations” (Curtis Bradley & Judith Kelley) to explain a range of legal (and non-legal) decision-making exercised by IOs; or “competences” on which the European Union (EU) is authorised to act in particular areas such as the common commercial policy.

In this post, I instance the early practice of the ASEAN Intergovernmental Commission on Human Rights (AICHR) as an example of implied conferrals.  The AICHR was established in 2009 as a “consultative” body (Article 3, AICHR Terms of Reference) with the objective of promoting human rights and fundamental freedoms. For example, it is authorised to:

• Provide advisory services and technical assistance on human rights matters to ASEAN bodies upon request (Article 10.1.(iv), AICHR Guidelines).
• Undertake needs assessment of member States to build their capacity for effective implementation of international human rights instruments (4.4, AICHR Five-Year Workplan).
• Develop common approaches and positions on human rights matters of interest to ASEAN (4.11, AICHR Terms of Reference).

These monitoring and advisory activities constitute a grant of competence by member States onto an ASEAN body (i.e., AICHR) to act in a particular area – thus a conferral, with legal consequences for ASEAN and its member States at international law. Activities by the AICHR are “implied” conferrals because they are not expressly provided for, nor (and this is important) expressly prohibited, by member States in the Charter. Put differently, implied conferrals indicate the existence of other competences in addition to those expressly granted to and already exercised by the AICHR because it is necessary (Reparation case, 1949) or essential (Effect of Awards case, 1969) for the Commission to discharge its functions and objectives.

What member States have been careful to emphasise, though, is the non-binding character of ASEAN’s regional approach to human rights protection. Here, there are similarities in ASEAN’s softly-softly approach to the International Labour Organization’s (ILO) early practice. In order to encourage ratification of relevant treaties by member States, the ILO Office adopted procedural innovations not in the ILO constituent treaty (see Laurence Helfer’s article). One example was the arrogation to the ILO Office of the competence to publish information on compliance with unratified treaties or non-binding recommendations, on the basis of rendering technical assistance to ILO member States (Helfer, p 198). When the ILO treaty was again amended after 1945, consent to these innovatory procedures by member States was reflected in their acceptance of a legal obligation to: (i) explain their compliance with unratified treaties; and (ii) disclose whether they had implemented ILO’s recommendations (Helfer, p 199).

Likewise the ASEAN Human Rights Declaration, prepared by the AICHR, and adopted by member States in November 2012 was intended to provide a non-binding, cooperative framework for human rights protection in Southeast Asia. It is not clear whether the renaming of the AICHR’s Rules of Procedure as “Guidelines” reflect similar concerns. Instructively the word “intergovernmental” in “AICHR” underscored that this Commission was formed by agreement between sovereign States. Even so, it only means that intergovernmental acts don’t create directly enforceable individual rights nor are they directly effective in member States’ domestic laws. Legal consequences can still – and do – arise from the AICHR’s actions on the international plane, as did the ILO Office’s conduct, which are subject to the methods and procedures of international law.

To external eyes, this Declaration appeared to fall below an assessable, international legal standard of human rights. But look at its substance. Some of the rights are jus cogens (torture, Article 14); whereas others affirm extant legal obligations owed by member States to international human rights treaties (Article 40). Compared to other regional initiatives such as the Inter-American or African Commissions on Human Rights, which contain individual rights of petition or quasi-judicial functions, it is possible to dismiss the AICHR as an ersatz body. Possible, certainly; but not valid. Previously even those advisory competences of the AICHR on human rights protection were firmly within a member State’s internal affairs. Any discussion of an ASEAN member’s human rights situation as regional “advice” would have been inconceivable, still less human rights protection within a cooperative framework, which today has been confided to the AICHR. Equally plainly, it is also the reality of this Declaration that yields the prospect of an ASEAN Convention on Human Rights (4.2.3, AICHR Five-year Work Plan).

My point is this. Through implied conferrals member States are in effect empowering ASEAN to act on their behalf as a legal person on the international plane, slowly but irresistibly. Because ASEAN is already exercising its legal personality, the form (non-binding) of the AICHR’s actions is not really the point. In practice, it is not just dispositive law (treaty text) that matters. We are also looking for evidence of law in the conduct of ASEAN bodies, with consent as legal obligations by member States. Finding this evidence in ASEAN practice is probably more imperative in the absence of an “ASEAN Court of Justice” to interpret the Charter’s purposes of integration.

To conclude: I began by suggesting that ASEAN’s post-ontological moment offered possibilities to move beyond existential inquiries. For sure, from an academic point of view, there are meaningful investigations yet to be done on the nature and extent of implied conferrals by member States onto ASEAN bodies. From the perspective of future practice, these investigations might provide the vernacular for member States to recognise – and accept – the emerging normative framework of ASEAN, of which they are now inexorably parts of a whole.  Perhaps, we are already in the presence of a tentative start to the laws of ASEAN integration.