The ASEAN Charter: A Commentary

ASEAN has been in existence for almost half a century, and has progressed via a system of consultation and non-confrontation, rather than by implementation of a highly legalist structure such as that which governs the European Union. This modus operandi was often referred to as ‘the ASEAN way’. However, since 2008, when the ASEAN Charter came into effect, ASEAN has inched towards a more legalist approach. For example, a Protocol on Enhanced Dispute Settlement Mechanism was added in 2010. In a real sense, this Charter is the organization’s constitution.

This book provides a thorough commentary on the Charter and, if we understand (as we should) the Charter as a major development in ASEAN’s history, it is a very timely book. In the intervening seven years several developments have made the Charter even more significant. It follows from the same author’s Towards a Rule-Based Community: An ASEAN Legal Service (2014), and Tommy Koh, Rosario Manalo and Walter Woon (eds), The Making of the ASEAN Charter (World Scientific Publishing, 2009).

Walter Woon is currently David Marshall Professor of Law at the National University of Singapore, the Dean of the Singapore Institute of Legal Education, and President of the Goethe Institute Singapore. He was formerly Attorney-General of Singapore, ambassador to the European Communities and several European countries, a member of the High-Level Task Force to draft the ASEAN Charter, and a nominated Member of Singapore’s Parliament. As such he is eminently qualified to provide us with this welcome commentary.

The commentary itself is embedded within a helpful historical and contextual narrative provided in the Introduction and continued in detail throughout the book, which also provides a timeline of ASEAN’s development and details of the process that led to the drafting of the Charter. Interestingly enough, this process began as early as 1974, when it was proposed by the then Philippines Foreign Minister. It took the multiple crises of 1997–8 (political change in Indonesia and Thailand; economic and environmental disaster across the region); and the adding of four new members (Cambodia, Vietnam, Laos, and Myanmar), coming in at a lower level of economic development than the existing six, to propel the idea of a Charter towards realization. It was, as the express intention of the ASEAN Leaders’ Declaration on the Establishment of the Charter in Kuala Lumpur in 2005 showed, to create a legal and institutional basis for ASEAN, codify ASEAN norms and values, and provide for the legal identity of ASEAN itself.

Naturally enough, given the prevalence in SE Asia since the 1990s of the Asian values debate on human rights, it was this topic which created the most difficulties, with member states expressing different preferences, the principal issue being whether there should be a human rights commission. The CLMV countries were against having a commission; Indonesia and Thailand wanted one; the other states took an intermediate position. This potential deal-breaker was finessed into an agreement to deal with the issue of human rights via a separately developed ‘mechanism’. In a move that proved interesting in light of further developments, a principle of rejecting unconstitutional and undemocratic changes of government was modified into a general support for constitutional and democratic government (Thailand experienced a military coup in 2006, and again in 2014; Myanmar experienced its ‘saffron revolution’ in 2007). The Charter finally came into effect in December 2008.

Apart from some useful appendices and the index, the balance of the book— more than 200 pages—sets out the text of each provision of the Charter in bold with a commentary by the author. The commentary provides information about the background of each portion of text, including its progenitors, comparative information, and extensive footnotes.

The author discusses the controversial issue of human rights at length. His discussion reveals strongly how the settling of this issue represents a compromise between the positive and negative views and explains a good deal about the half-hearted and almost symbolic nature of ASEAN’s embrace of human rights following the ASEAN...