[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.