The ASEAN Charter: A Commentary by Walter Woon (review)

Walter Woon’s The ASEAN Charter: A Commentary is a welcome addition to the growing body of literature on the ASEAN Charter, which came into force in 2008 and formally bestowed legal personality on the organization. As a lawyer, an academic and also a participant in the drafting process, Woon is able to discuss the Charter with confidence and authority. In the preface, he declares that “this is not a law book” (p. ix) to prevent readers from expecting a run-of-the-mill legal commentary book. Indeed, “It is impossible to write a legal text”, he states, “when there is so little law involved” (p. ix), indicating that ASEAN may not be the fully rule-based organization it aims to be. Instead he explains, provision by provision, how each article was drafted using ASEAN’s diplomatic practices. Material from his previous work, Towards a Rules-Based Community: An ASEAN Legal Service, is also rehashed, resulting in some similarities.

The first part of the book is dedicated to an overview of ASEAN, namely its short history, the development leading to the drafting of the ASEAN Charter and the process of drafting the document itself. Readers will benefit most from his insights in the commentary section, where the author proceeds to elaborate the background of each provision, including the key persons involved and the documents that serve as the basis for the various provisions. Notably, readers can also glean the major differences between what was previously suggested by the Eminent Persons Group — the group of experts tasked to come up with the recommendations for the ASEAN Charter — and what was actually included in the final document by the High Level Task Force, the national delegates responsible for drafting the Charter.

The author compares some of the articles in the ASEAN Charter with those contained in the United Nations Charter, pointing out along the way some examples of the “odd phraseology” (p. 40). It seems that some of the terms which appear in the final version of the ASEAN Charter are not up to his lawyerly standard, the result, in his opinion, of “non-English-speaking non-lawyers” who “insist on drafting legal documents by committee” (p. 40). The drafting of the Charter was by and large a compromisation among ASEAN delegates representing their national interests, hence some muddled parts in the actual document.

Where the provisions themselves are brief, such as the ones stating that separate ASEAN agreements will be needed to describe what the Charter already codifies, Woon also provides readers with updates of those agreements or documents designed to realize those provisions after the Charter came into force. In this way, readers can easily keep track of relevant documents to discern how much ASEAN has achieved in practice compared to what the Charter actually promised. Key terms in ASEAN diplomacy that have more or less been taken for granted are clarified and explained through ASEAN’s day-to-day practices. For example, consensus means that “no member state feels strongly enough about a matter to block it; it does not mean that everyone agrees” (p. 157). The author sheds further light on the debates surrounding ASEAN’s preferred decision-making process during the drafting of the Charter, thus allowing readers to get a sense of what happened behind closed doors when the ASEAN foreign ministers met.

An overview of how ASEAN has been dealing with certain issues, such as the settlement of disputes, is also discussed at the beginning of each chapter in the Charter, providing a useful background for readers along with some of the finer legal points. For example, Woon explains that the chapter on the settlement of disputes only concerns interstate disputes. Therefore, disputes arising between ASEAN organs are not covered by the dispute settlements mechanism set out in the Charter and instead are addressed at ASEAN summits (p. 165).

When discussing negotiations that were less than harmonious, Woon refrains from identifying particular people or even countries the representatives came from. The omission...