ASEAN’s legal personality - Klipping Jakarta Post

Hikmahanto Juwana and Sari Aziz, Jakarta | Thu, 08/26/2010 9:55 AM | Opinion

On Nov. 20, 2007, the Association of Southeast Asian Nations (ASEAN) member states adopted the ASEAN Charter. Currently, all 10 ASEAN member states have ratified the Charter.
One of the features of the Charter is the recognition of ASEAN’s legal personality. The legal personality of ASEAN is provided for under Article 3 of the Charter, which states that, “ASEAN, as an intergovernmental organization, is hereby conferred legal personality”. This article will discuss the significance of ASEAN having a legal personality.
A legal personality is endowed on an entity to make it a subject of law. With legal personality, a subject of law will have duties and obligations. In addition, it grants the subject legal capacity and the powers to act.
Most legal textbooks will define a legal subject as a natural person and an artificial person. However, this may be misleading, as the two are persons recognized under private law, not other branches of law.
In fact, depending on which areas of law, persons recognized by law are varied.
Under international law, a subject of law consists of states and non-state entities. The non-state entities include international organizations, the Holy See, the International Committee for the Red Cross, and belligerents and individuals committing international crimes.
An international organization, as a subject of international law, has a legal personality. The legal personality is derived from its constitution. The constitution of an international organization is in the form of a treaty agreed by states establishing such an organization.
The constitution will provide a provision conferring the organization with legal status. There are two terms frequently used, namely, legal or juridical personality, and legal capacity.
It should be noted that the two terms can be used interchangeably after the International Court of Justice rendered its advisory opinion in the renowned case dubbed the Reparation for Injuries Suffered in the Service of the United Nations.
The United Nations Charter, under Article 104, uses the term legal capacity, whereas the International Labor Organization (ILO) uses the term juridical personality under its Article 39.
However, the World Trade Organization uses both terms, legal personality and legal capacity, under its Article 8, Paragraph (1).
In discussing ASEAN’s legal personality, distinction has to be made before the Charter was adopted (pre-Charter) and after its adoption (post-Charter).
In the pre-Charter era, since its formation in 1967, ASEAN did not have a constitution. In addition, there were no documents that contained specific provisions on ASEAN as an institution, nor the Secretariat, having a legal personality.
For such reason, it may be questioned whether the founders of ASEAN have, from the beginning, conceived ASEAN to be an international organization or, as suggested by its name, only an “Association of States”.
Legally, there are distinctions between an international organization and an association of states. The Asia Pacific Economic Cooperation (APEC), for example, is not an international organization. This is also true with respect to the Non-Aligned Movement (NAM).
Scholars had been debating whether ASEAN qualified as a proper international organization or only an association of states lacking legal personality.
Nevertheless, ASEAN state members in the pre-Charter era recognized and treated ASEAN politically as an entity having legal personality and legal capacity.
If examined closely, the legal personality and capacity of ASEAN in that era was not endowed on ASEAN, but was endowed on the ASEAN Secretariat.
This can be seen from the 1979 Privileges and Immunities Agreement between the government of Indonesia and ASEAN. The title of the agreement clearly states that privileges and immunities are rendered to the ASEAN Secretariat.
Furthermore, Article 2, Paragraph (2) made reference to the Secretariat having legal capacity, and not ASEAN.
This provision is different from, as an example, the ILO constitution. Under Article 39, reference is made to the ILO, not the Secretariat of the ILO, maintaining the legal capacity.
In the pre-Charter era, it may be argued the legal status of ASEAN was similar to APEC or NAM. These groupings, even though they are not international organizations, however, maintain the Secretariat.
In the post-Charter era, ASEAN becomes an international organization that is endowed with its members’ legal personality.
As an entity with legal personality, ASEAN is vested with rights and obligations under international law and domestic law.
The legal personality means that ASEAN has the legal capacity to enter into international agreements with other international organizations and states. In this context, ASEAN is acting in its public capacity (jure imperii).
However, it should be noted that ASEAN may not enter into certain international agreements on behalf of the member states of ASEAN. ASEAN does not act as a federal or central government among its members.
Another characteristic of ASEAN’s legal capacity is that it may enter into a private contract with domestic law’s private entities. In this context, ASEAN is treated as a private entity and as acting in its private capacity (jure gestionis).
Thus, it may acquire and dispose of assets and institute proceeding within the domestic jurisdiction under its own name. As a private law entity, it has to relinquish or waive its immunity.
In the post-Charter era, the Secretariat becomes one of the organs within ASEAN and does not maintain a legal personality of its own. The Secretariat, headed by the secretary-general, may represent ASEAN in its day-to-day interactions with third parties.
In the post-Charter era, the international community should regard ASEAN, not the Secretariat, as subject to international law and states’ domestic law.
As such, Indonesia, as the host government for ASEAN’s headquarters, must enter into various new agreements to reflect the post-Charter legal status of ASEAN, including amending the host and privileges and immunities agreements.
The agreements should be concluded between the government of Indonesia and ASEAN, and not with the Secretariat.
As to other member states of ASEAN, each member state should recognize and accord ASEAN with legal status under its domestic laws. In the pre-Charter era, it is not clear whether the ASEAN Secretariat had a legal personality under member states’ domestic laws.
It should be noted that in 2009, member states signed the Agreement on the Privileges and Immunities of ASEAN. Once the agreement enters into force, member states will have to recognize ASEAN as a legal entity in their domestic legal systems.
Unless protected by the laws on immunity, in cases where ASEAN, in its private law capacity, breaches domestic law, ASEAN can be held liable under the relevant domestic laws.
As to the non-member states of ASEAN, they are free to acknowledge or disregard the legal personality of ASEAN in their domestic laws.
There is progress being made for ASEAN to be recognized as an international organization having legal personality by non-member states. Currently, 39 non-member states of ASEAN have sent representative missions. These states should treat ASEAN as having legal personality under their domestic legal systems.


Hikmahanto Juwana is a professor of International Law at the University of Indonesia. Sari Aziz is a research associate at the Centre for International Law (CIL at the National University of Singapore (NUS).

The shows of South Korea, Japan and Indonesia
Kornelius Purba, Jakarta | Thu, 11/04/2010 9:59 AM | Opinion A | A | A |

Next week South Korean President Lee Myung-bak and Japanese Prime Minister Naoto Kan separately will host two crucial multilateral summits. For President Lee this is a magnificent opportunity to demonstrate the achievements of the world’s 15th largest economy, while for PM Kan this is a good chance to lift a “demoralized” nation whose economy and global influence have been overpowered by China.
On Nov. 11-12 President Lee will preside over the summit of the world’s 20 largest economies (G20) in Seoul and over the following two days (Nov. 13-14) it will be the turn of PM Kan to chair the Asia-Pacific Economic Cooperation (APEC) meeting in Yokohama. The president is luckier than the prime minister because all members of G8 are also members of the G20, which means in terms of content, the Seoul meeting is much more attractive for the world media than Yokohama. APEC reached its glorious peak in the 1990s when Indonesia hosted the second summit in 1994.
The Seoul event is also an occasion to “tease” leaders of North Korea as the country continues to face economic hardships. For Kan, his top priority includes his bilateral meeting with Chinese President Hu Jintao in which he will aim to cool down tensions after a recent clash over a territorial dispute. A meeting with Russian President Dmitry Medvedev to discuss territorial disputes is also on the top list for domestic political consumption.
The G20 comprises Argentina, Australia, Brazil, Canada, China, France, Germany, India, Indonesia, Italy, Japan, Mexico, Russia, Saudi Arabia, South Africa, Korea, Turkey, United Kingdom, the US and the European Union. The group represents about 90 percent of the world’s GDP.
APEC includes all the ASEAN members (except Myanmar, Cambodia and Laos), the US, Australia, China, Japan, South Korea, New Zealand, Mexico, Chile, Peru, Papua New Guinea, Taiwan, Russia, Hong Kong and Canada.
President Lee recently expressed his nation’s pride at hosting the summit. “Korea is a country with first-hand experience in economic development that propeled a country out of poverty all within the living memory of a substantial fraction of its population. Korea has also experienced the devastating impact of a financial crisis and understands the efforts necessary to secure a robust economy. However Korea’s experience cannot always be translated directly into off-the-shelf solutions for other countries.”
According to President Lee, in Seoul the G20 leaders will make decisions on how to implement financial sector reform to strengthen bank capital and liquidity standards and to address systematically important financial institutions and resolution issues.
“The new rules will build a more resilient financial system that serves the needs of the world’s economies, reduces moral hazards, limits the build-up of systemic risk and supports stable economic growth,” the president said as quoted by Korean media.
Meanwhile on the APEC meeting, PM Kan remarked, “Japan would like to continue to contribute to the Asia-Pacific and global economy’s recovery and development by addressing issues in three areas in an integrated manner to revive the Japanese economy: “economic growth”, “sound fiscal policy” and “social security reform”.
As Indonesia will host the APEC meeting in 2013 and one day will get have its turn to chair the bi-annual G20 meeting, we need to set clear and achievable goals starting now. It is natural that President Susilo Bambang Yudhoyono will require Foreign Minister Marty Natalegawa to ensure that he will host the G20 summit before ending his second presidential term in September 2014. He wants to leave a long-standing legacy for the nation.
Hopefully when Indonesia has its turn to chair the two groups, our situation will be closer to South Korea’s current condition where the economy is booming and not Japan’s. No one is expecting the worse, where our leaders will use the all available means just to accumulate their political power at the cost of millions of Indonesians.
On Wednesday, The Jakarta Post quoted Columbia University’s Prof. Xavier Sala-i-Martin as saying that the G20 has no relevance in improving the welfare of the people of its member states. “You may think the way to resolve issues is through the G20. But at the end of the day, nothing binding happens. The policies that will help Indonesia come from Indonesia. Indonesia is on its own,” the professor told a Jakarta economic forum.
The professor is completely right because both APEC and the G20 are non-binding multilateral forums.
The co-founder of the Global Competitiveness Report also pointed out that Indonesia should prioritize boosting its per capita income.
But we also need to remember that the G20 represents major political and economic capital in the international community. Many Indonesians do not realize or do not see the significance of our membership in the club. One of the reasons is probably because many Indonesians do not see the direct and concrete impacts of the G20 in their daily lives. For many it is just a waste of money and energy.
When President Yudhoyono shakes hands with President Lee in Seoul on Nov. 11, we hope he can say, “When Indonesia hosts the next G20 summit, my country’s situation will be much more prosperous than South Korea’s”.
And to PM Kan, the President may say, “We will never be as big as Japan, but we will have better relations with our neighbors”.
Anyway, Yudhoyono may have great hope but the two hosts have very concrete achievements.


The writer is a staff writer at The Jakarta Post.