ASEAN and the Frankenstein dilemma: Will ASEAN become a monster?

What is Frankenstein's Dilemma?

Frankenstein's dilemma is a metaphor taken from classical literary works by Mary Shelley in 1818. The plot of Frankenstein began when his mother died when he was 17 years old (Shelley, 2010). The death of his mother caused deep grief in Frankenstein and, to kill his sorrow, Frankenstein starts to study seriously in a college. He was interested in natural sciences, especially chemistry, after meeting Professor. M. Waldman (Shelley, 2010).

He then buried himself in a laboratory to conduct experiments to create living things. The reasoning behind his experiment is trying to cheat death. He assumed that the creature he made could not die like his mother. Frankenstein finally succeeded in creating a living creature after trying several times to combine various materials from dead bodies.

Frankenstein's assumption was wrong. The creature turned out to be a monster beyond his control. The beast starts to kill people and then hunts Frankenstein. He also begs Frankenstein to create another creature, in the form of a woman, to accompany him. Frankenstein rejected the request by saying that the creator could not be governed by his creation. However, the creature replies, “You are my creator, but I am your master; obey!” (Shelley, 2010).

The metaphor from Frankenstein is then taken to discuss developments in IOs. Guzman called it the Frankenstein dilemma when he explained the similar situation between the novel and the story of international institutional law. IOs that emerged as subjects of autonomous entities then created trade-offs carried out by the State as a creator. Between giving authority to organizations to fulfil their objectives with state control over the risk that international organizations did not turn into monsters (Guzman, 2013). In other words, when a group of states wants to establish IOs, they are aware of how much power or authority they wish to share with IOs. As much as the power State gives to IOs, it makes IOs more independent, and vice versa.

ASEAN as an international legal person

Theoretically, two legal doctrines can be concluded from the International Court of Justice [ICJ] opinion on the ‘Reparation for Injuries’ case, namely Will Theory and Objective theory, to examine IOs as a subject of international law (Chesterman, 2018).

‘Will theory’ is the most widely accepted Court opinion. If the member states of an IOs want to give their creation personality, then that is what it will receive. This theory strengthens the freely based consent of states (Chesterman, 2018). Furthermore, this theory is explicitly represented in IOs constituent instruments.

Second, ‘Objective theory’. IOs status as a legal personality cannot be deduced only from the will of the member states but also from possessing specific attributes (Chesterman, 2018). Even though it is not clearly stated in the constituent instrument that IOs have legal personalities, they are practically given the authority to carry out legal acts as subject to international law. This doctrine is known as implied power which means that when states assign a specific role to an IO, states automatically admit to giving the power to the institutions (Guzman and Landsidle, 2008).

Among various theories on international legal personality, Ian Brownlie has developed a three-part test to identify an entity that has possessed a legal character. The three attributes that must be included are:

From the myriads theory of international legal personality, this article will employ ‘Will theory’ and the Brownlie test to examine the ASEAN personality. It is crucial to verify ASEAN's character since the status of IOs will be affected by the institution's independence.

By employing the Brownlie test, each attribute will be used to analyze ASEAN legal standing as an international legal person. ASEAN was deemed had fulfilled all features even before the ASEAN charter was formed in 2007. Since it was formed in 1967, ASEAN has intended to be a permanent organization, as seen in the preamble of the Bangkok Declaration, 1967 (ASEAN, 1967), which states the need to strengthen the bond of regional solidarity and cooperation. Before 1976, ASEAN only had a joint organ that functioned on behalf of its members. Later, after the agreement on the establishment of the ASEAN Secretariat was signed on February 24th, 1976, an autonomous organ separate from member states was fulfilled. The agreement indicates that ASEAN, as an international legal person, has the capacity to make an agreement or legal action with other legal persons, in this case with Indonesia as one of the ASEAN members. In other words, ASEAN exhibits its independence.

Differentiation between the IOs' and member states' interests has also been seen in the Bangkok Declaration, particularly the aims and purposes part. In this section, ASEAN has seven objectives to pursue: economic, social, peace, and security (ASEAN, 1967). ASEAN objectives explicitly indicate a distinction between member states and ASEAN interests. Finally, ASEAN has also fulfilled the element of power related to carrying out legal acts autonomously. In 1979, through its general secretary, ASEAN made an international agreement with Indonesia related to the immunity and privileges of the ASEAN Secretariat in Jakarta (ASEAN, 1979). Article II of the agreement stipulates that ASEAN can conclude contracts and legal proceedings. It demonstrates a legal person's rights under international law.

However, there is still a problem with ASEAN treaty-making practices, mainly when ASEAN agrees with other legal persons. ASEAN rules on treaty-making power raise the question can ASEAN conclude treaties on behalf of its member states?. This issue is important because in several agreements, Secretary-General ASEAN conclude an agreement with third parties on behalf of member states. ASEAN legal instruments remain silent on this issue, even the ASEAN charter. However, theoretically, international law allowed IOs to act on behalf of their members, as stipulated in constituent instruments (Chen, 2014).

Based on the legal doctrine abovementioned, several authors agree with Simon Chesterman that ASEAN had possessed status as a subject of international law even before ASEAN Charter was established. Article 3 of the ASEAN Charter states that ASEAN's legal personality only affirms what already exists.

ASEAN constitution and delegation

The term ‘constitution’ refers to essential norms that regulate political institutions and define their competence, relations between the members and the community, lawmaking, conflict resolution, and law enforcement (Peters, 2009). Furthermore, a constitution has two possibilities meanings: substance (material) and institutional (organic). The latter explains the designation of organization and separation of powers; meanwhile, material aspects define essential legal principles for every one of the subjects belonging to the social community (Breau, 2008).

The similarity between the domestic legal system and international law is that both consider the constitution as a control device. The function of the constitution in domestic law is to put state objectives and structure, then give the division of power in each state organ so that there will be checks and balances between them. In the international law sense, the constitution becomes a control device because it consists of rules and principles that will guide international relations (Desierto, 2011).

When states established IOs, they commonly formed treaties. Such treaties are widely-known as constitutions or constituent instruments. The content of the IOs constitution varies but generally has both institutional frameworks, rules, and substantive prescriptions for the organization's activity. There are unique characteristics of IOs constitutions. It's because every IOs have a different type of constitution for example, ASEAN. Both the Bangkok declaration and the ASEAN charter are different in terms of the status of ASEAN as a legal person. The latter explicitly stipulated it, while the previous was silent on the issue. As the ICJ stated in the ‘Legality of the Use by a State of Nuclear Weapons in Armed Conflict’ advisory opinion (I.C.J., 1996), the IOs constitution is unique because it creates new subjects with certain autonomy to fulfil common goals that member states have relied on the institution (Blokker, 2016).

Even states are primary actors in international relations; they have limited resources to cope with the essential and challenging issues in the international community. To handle this problem, states need to share or delegate their authority to the new actor. In Bradley and Kelley (Guzman and Landsidle, 2008), international delegation is a grant of authority by two or more states to an international body to make decisions or take action. By this delegation, states consider having a risk to their sovereignty. IOs will have the authority to conduct on behalf of member states beyond their control. So that, when states make IO constitutions, they narrow the scope of authority delegated to the institutions. International delegation to IOs can be separated into delegations of legislative power, decision-making authority, and adjudicatory authority (Guzman and Landsidle, 2008).

In the IOs constituent instrument, member states usually decide what kind of authority that IOs can do. If member states consider giving legislative power, IOs can make rules that bind member states or third parties. In other cases, IOs have the ability to make a sole decision without the interference of member states. This act is purely a capacity that IOs have as a legal person to fulfil their objectives. When a dispute arises between member states or non-member states, sometimes IOs are given the power to settle disputes in a diplomatic or legal mode of settlement. Between these categories of international delegation into IOs, states are reluctant to provide the first category. It makes sense because it will compete with state sovereignty and authority as the primary actor in international relations. The standard type in which State likes to share its power is the IOs authority to adjudicate a dispute between states (Guzman and Landsidle, 2008).

In this research, the authors agree that the constituent instrument is a tool to distinguish between IOs and member states' interests. However, it also creates a control mechanism for IOs simultaneously. Guzman's categories will be adopted in the case of member states' delegation to the institution. The difference is that this feature will employ to analyze in the context of ASEAN, while previous research did not include ASEAN as a subject of study.

This paper will be divided into two parts based on time sequence to overlook the delegation process through constituent and legal instruments in the ASEAN. The first part is a pre-ASEAN charter, and the second is when the ASEAN charter exists. This partition is necessary to find if there is a differential allocation of power within ASEAN.

Pre-ASEAN Charter

The two crucial pre-legal instruments of the ASEAN Charter were the Bangkok Declaration, 1967 (ASEAN, 1967) and TAC 1976 (ASEAN, 1976b). Both are broad range topics cooperation instruments. While the Bangkok Declaration of 1967 set the foundation and objectives of ASEAN, TAC was the first legal instrument for ASEAN member states to fulfil its goal through cooperation in broad aspects, from economic to scientific, and handling disputes. These two instruments have standard norms that operate through member states' consultation and consensus, otherwise known as ‘the ASEAN way’ (Chesterman, 2018).

The 1967 ASEAN Bangkok Declaration was signed on August 8th in Bangkok, Thailand. It consists of narrow institutional machinery governed by the respective foreign ministers at the annual and special Meetings. Those foreign ministers' meetings were key for member states to fulfil ASEAN objectives and convened if required (ASEAN, 1967). Suppose the panel fails to be carried out. ASEAN will set up a semi-permanent administrative cycle of standing committees, ad hoc committees, and permanent committees of specialists to discuss specific issues within ASEAN. All of the committees, working alongside National Secretariats in the ASEAN Member States, which have a task to give services during foreign ministers' meetings (ASEAN, 1967).

In this first ASEAN constitution, member states explicitly wanted to create a new actor to fulfil ASEAN objectives. As a creature with a simple institutional framework, ASEAN was intentionally made to make cooperation in the region more effective and efficient. However, unlike the general constitution, the substances and institutional framework in the Bangkok Declaration were still modest. In terms of delegation, member states seem reluctant to delegate adjudicatory power but initially give decision-making and legislative authority in a limited manner.

The TAC was the first legal instrument in the sense of ‘hard law’ (Abbott and Snidal, 2000). ASEAN succeeded in regulating the framework of the closest intergovernmental cooperation on the broadest scale (ASEAN, 1976b). The cooperation in the TAC consists of economic, social, cultural, technical, scientific, administrative, and security issues in the Southeast Asian region. That cooperation is restricted by ASEAN's primary principles of mutual respect for independence, sovereignty, equality, territorial integrity, and national identity of all nations. Its existence is free from external interference, subversion or coercion, non-other means of interference in internal affairs, peaceful settlement, and practical cooperation (ASEAN, 1976b). These principles were part of ASEAN's unique characteristics, usually called ‘the ASEAN way’.

An essential aspect of the TAC is a provision of pacific settlement of disputes. When a dispute arises, it shall first settle through friendly negotiations at the ministerial level. Suppose negotiations fail and would like to progress within the ASEAN scheme. In that case, a party shall constitute the High Council, comprising of individuals at the ministerial level, to seek solutions (ASEAN, 1976b). In addition, the TAC also introduces another pacific means to settle a dispute through good offices, mediation, inquiry, conciliation, informal or ad hoc third party assistance of a fellow member state, or recourse to the modes of peaceful settlement of disputes under article 33 of the Charter of the United Nations (Charter, 1945; ASEAN, 1976b).

The first thing that should be noted is that the TAC was not the ASEAN constitution. Although it's made on institutional occasions, Bali Concord 1, the TAC was like other international agreements between states. Bali Concord 1 was the ASEAN important meeting to consolidate and enhance cooperation among member states (ASEAN 1976a).

It's important to discuss this factor because the TAC was the first legal instrument in terms of hard law for ASEAN. This treaty also shifts policy among ASEAN member states from loose-based intergovernmental organizations into more ‘legal-based’ institutions (Desierto, 2011). It is important to note that ASEAN member states also initiate to delegate some of their authority, particularly in adjudication.

Post-ASEAN charter

The establishment of the ASEAN Charter in 2007 is a mere crystallization of the legal mindset of ASEAN member states. As clearly stipulated in Article 3 of the ASEAN charter (ASEAN, 2017), ASEAN member states intended to reshape ASEAN as a separate legal entity. Like Bagulaya argues, the constitutionalization of ASEAN under the charter allowed its member states to take advantage of a complete package of control (Bagulaya, 2019), particularly as stipulated in article 7 and 11 of the ASEAN charter that concerns the ASEAN summit and the authority of the Secretary-General.

The ASEAN Charter provides the Heads of State or governments of the member states with a vital power to decide in summit meetings. All matters within ASEAN will be referred to this forum, where it failed to settle in a lower structure, to get a final decision and decided by consultation and consensus mechanism. Furthermore, they can make relevant decisions in case of an emergency. Summit meetings also can command the relevant Ministers of Inter-Ministerial discussions and address the most significant international organization issues if it required to be tackled. Most importantly, they can raise the problems of realization of ASEAN objectives and other matters related to the interest of member states (ASEAN, 2017).

Not only equipped with executive power, but the ASEAN summit also has judicial and legislative power. The judicial role played by the ASEAN summit can be used to settle disputes, but only those which are categorized as disputes that arise from the breach and interpretation of the charter. The legislative authority of the ASEAN summit can be seen in the provision to authorize the establishment and dissolution of Sectoral Ministerial Bodies and other ASEAN institutions (ASEAN, 2017).

Bagulaya (2019) noted that these ASEAN summit provisions act as the international organization's executive, legislative, and quasi-judicial centres. He adds that constitutional controls, in the sense of the separation of powers and checks and balances, are missing in the ASEAN Charter (Bagulaya, 2019).

ASEAN member states seem to have broadened delegation to ASEAN in the charter. It covers legislative, decision-making and adjudicative power. However, ASEAN still lacks to act independently as a legal entity because The Summit Meeting still has a crucial position to handle all issues within ASEAN.

ASEAN institutional design

The IOs constitution is a tool for member states to control the organization. The ASEAN Charter gave full authority to a summit meeting in the decision-making process based on ‘consultation and consensus’. This member state voice method brings complete control to states rather than the institution itself.

In the case of the appointment of the ASEAN secretary-general, the ASEAN Summit also appoints the individual in this role. The secretary-general of the ASEAN role is minimal, only meant to carry out official duties that mainly cover administrative tasks. While this role is presented as an ASEAN symbol in the international forum, the secretary-general should abide by policy guidelines already agreed by member states through summit or head of state/government decisions. Concerning dispute settlement, the ASEAN Secretary-General is given the power to “monitor compliance with findings, recommendations or decisions resulting from ASEAN dispute settlement mechanisms, and submit a report to the ASEAN Summit” (ASEAN, 2017).

The ASEAN Charter already accommodates an international delegation from member states to institutions. In addition, the authority to make laws, decisions, and adjudication is stipulated in the charter. The problem is that the powerful ASEAN summit hinders those authorities. Considering members of summit meetings are already heads of state or governments means that the given power to ASEAN is practically bounced back to member states. In other words, member states take back the authority after giving it to ASEAN through a constitution mechanism.

Has ASEAN become a monster?

The Bangkok Declaration and ASEAN Charter have determined the organization's scope. Suppose, at the beginning of the formation of organizational goals, more emphasis is placed on the regional security sector. In that case, the coverage is broadened by adopting the ASEAN community concept by expanding aspects to become social and political, economic, and social-cultural.

If we compare this to the Brownlie test (Brownlie, 1998), the Bangkok Declaration and ASEAN Charter clearly state that ASEAN has its own interests. This finding will strengthen ASEAN's position as an international legal personality.

Yet, expanding the scope makes the organization's concentration unfocused and has difficulties in working effectively. However, it seems that this is indeed what the member states want. Thus, state control over the organization will be more dominant. Compared to Guzman's opinion, which focuses on how institution design gets their decision, unanimity or voting will control the institution (Guzman and Landsidle, 2008; Guzman, 2013), ASEAN chooses the unanimity model, which gives power back to the member states.

If this is viewed from the side of the division of power, member states still hold control even though ASEAN has a legal personality of its own. Both pre-and post-ASEAN charter domination of member state power can be seen through the ASEAN Summit and how decisions are made by consultation and consensus methods (ASEAN, 2017). If a dispute occurs in case of breach or implementation, it will be taken to a head of state meeting to decide. Finally, the ASEAN Summit played the role of the executive, legislative, and quasi-judicial (Bagulaya, 2019). ASEAN can indeed agree with another international legal entity, but it is only for administrative purposes. Whereas discussion on the strategic issue, the secretary-general ASEAN on behalf of ASEAN as executive power, does not have authority to decide it. ASEAN seems only a facilitator for settling a dispute in the adjudicative process. When the party fails to resolve the conflicts, ASEAN member states have the dominant power to handle them through the ASEAN Summit forum. It further confirms that ASEAN has no autonomy in practice as a legal subject.

Concerning the capacity of the ASEAN general secretariat, ASEAN Charter also limited its function. Ideally, as a representative of an institution, the secretary-general brings the institution's objective that possibly differs from member states. Unfortunately, when the ASEAN secretary-general plays its role, it shall be according to the policy given and mandate made by member states (ASEAN, 2017; Bagulaya, 2019).

When looking at the ASEAN constituent instruments pre-ASEAN Charter and post, it seems that ASEAN is still under the control of the member states. Even in the ASEAN Charter, transfer of authority is explicitly stipulated, but the real power remains under ASEAN member states. Analogous to the Frankenstein metaphor, ASEAN does not turn into a monster.