IMPLEMENTATION OF ASEAN INTERNATIONAL LEGAL PERSONALITY IN THE FORMATION OF INTERNATIONAL TREATIES

IMPLEMENTATION OF ASEAN INTERNATIONAL LEGAL

PERSONALITY IN THE FORMATION OF INTERNATIONAL

TREATIES

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Introduction

In 1967, fifty-three years ago, representatives of the five Southeast Asian nations of

United States, Malaysia, Singapore, the Philippines, and Thailand gathered in Bangkok and

signed a declaration that gave birth to a new regional association, called the Association of

Southeast Asian Nations (ASEAN). The declaration expressed the common desire of the

founding nations to live in peace with one another, resolve disputes peacefully, and

collaborate to achieve common goals.

However, historically, ASEAN was not born under circumstances conducive to an

international organization.1 At the time, the region was conflict-ridden2 and in its early days

of consolidation as a regional organization, ASEAN went through a period of conflict within

the countries of the region that threatened the security and stability of the region. The

Vietnam War in Indochina was referred to as the world's only 'hot war', at a time when the

world was in a competitive mood in the struggle for influence between the Capitalist bloc and

the Communist bloc, also called the 'cold war'.3 There were also insurgencies in some parts of

United States as well as some ASEAN member states, plus territorial disputes and diplomatic

problems between ASEAN member states.

Although unlike other regional organizations that were formed based on a common

history and background,4 each member country strives to realize the goals of ASEAN. But

after dealing with a number of problems starting from the Asian financial crisis in 1997, it

was realized that ASEAN's old principles could not be used to face new challenges at that

time. The ten ASEAN member states wanted the organization to become a rules-based

organization from the previous one that only used the Bangkok Declaration as legitimacy.

After intense negotiations, the ASEAN Charter was adopted at the 13th ASEAN Conference

in Singapore in 2007, which based on international treaty procedures came into force on

December 15, 2008.5 Through the ASEAN Charter, ASEAN was given international legal

personality.6 ASEAN is transformed into an organization with the ability to act independently.

ASEAN was given the power to form treaties,7 and its organizational structure and

implementation mechanisms were strengthened. Although ASEAN has since its inception

ASEAN is quite actively involved in cooperative relations both internally (ASEAN members)

and externally with other countries and/or international organizations, with the ASEAN

Charter, the legal basis for such cooperative relations is reinforced. The problem that arises

after the establishment of the ASEAN Charter is that member states still act collectively as

ASEAN members and do not give up the full right to ASEAN to act independently. This will

certainly have an impact on the accountability of rights and obligations arising from the

cooperation. When member states act collectively, cooperation agreements are signed by

representatives of ASEAN member states, and not by ASEAN itself. This means that it is the

member states that directly enjoy the rights and assume the obligations of the agreement, not

ASEAN as an independent international legal personality. As an international organization

with an international legal personality, it is appropriate for ASEAN to act independently in

order to conduct international relations, including in making international agreements.

Research Methods

This paper examines ASEAN's status as an international legal entity and the

implementation of its legal personality, one of which is in the form of international treaty

making. To what extent is ASEAN's capacity to act independently and what are the legal

consequences when ASEAN enters into relations both internally and externally through

international agreements? This research is conducted in a normative juridical manner by

analyzing sources of international law, particularly international treaties relevant to ASEAN's

activities.

Discussion

ASEAN as an International Organization: An Overview

At the beginning of the history of international law, states were considered the main

subjects of international law and other entities were not given the personality of international

law.8 However, the world has transformed into a 'global village'9 as cross-border activities

increase, so that solutions are needed to overcome the problems that arise from these

activities. Connectedness makes countries increasingly need each other so that the formation

of international organizations becomes a necessity. There is a paradox that in order to perform

their functions and maintain their independence, countries must cooperate due to the effects of

globalization. This cooperation is then facilitated by the formation of international

organizations. However, this does not mean that state sovereignty is sidelined.10 The state

remains as the main actor in international relations, where it is the state that forms the

organization. The birth of international organizations is one of the characteristics of modern

society that is formed according to needs.

The term international organization refers to an association of states formed and based

on an international treaty that contains common goals, is equipped with specific organs to

carry out certain functions within the organization, and its formation is based on international

law.12 The constituent then becomes the legal part of the international organization.13 With

these constituents, states can give international law personality explicitly, namely the capacity

to act as legal subjects14 separate from the states that form it. Personality can also be seen in

the powers granted and the functions of the organization when there is no explicit clause

granting international personality.15 In the Reparations case, the International Court of Justice

stated that by having international personality, it does not mean that the organization is

equated with a state, but with such personality the organization is seen as a legitimate legal

subject with its rights and obligations.16 What rights and obligations are granted will be in

accordance with the attribution of powers and the purpose for which the organization was

formed and functions.

When stating that the UN has international personality even though it is not explicitly

stated in the Charter, the International Court of Justice provides four reasons that can be used

as a benchmark in determining whether an organization is a subject of international law17

which can be summed up into two points: whether the member states that form the

organization have established its functions and objectives and given it the competence to carry

out its functions and achieve these objectives; and whether the organization can act

independently and is given the capacity to act as a subject of international law for member

states, and entities outside the organization.

ASEAN, as an organization of countries in the Southeast Asian region, is clearly a

regional organization that does not open membership to countries that are not in the region.

Through the ASEAN Charter, the organization declares itself as an intergovernmental

organization,18 because ASEAN is coordinative and not a supranational organization. The

characteristics of intergovernmental organizations do emphasize the coordinative nature, that

is, decision-making is carried out by government representatives, and in certain matters the

governments of each member country cannot be declared bound when they do not want to,19

for example in circumstances where what is to be agreed is contrary to national interests.

Intergovernmental organizations emphasize equality, so the adoption of a decision requires

the consent of the states. This collaborative nature explains why, in certain areas of the

sensitive nature such as human rights, member states have not fully given ASEAN the power

of action.

Based on the theory of organization as a legal subject, international personality and its

classification, the existence of ASEAN can be studied in more depth. It is clear that ASEAN

is an association of countries with clear objectives and through the ASEAN Charter, organs

are formed which are run by representatives of member countries with their respective

functions. Even before the ASEAN Charter, ASEAN already had a Secretariat which was

established in 1976. Through ASEAN organs, decision-making is accelerated. The

responsibility of decision-making is left to the ASEAN leadership, including voting when

necessary, for issues that are not resolved because consensus is not reached at the lower

levels.23 The Committee of Permanent Representatives in Jakarta, United States, was

established to expedite the decision-making process on issues that require the agreement of

member states.

Although not completely, in certain fields it can be said that there is a separation of

competencies between ASEAN and its members. For example, in the economic field,

Framework Agreements for Enhancing ASEAN Economic Cooperation were adopted,24

related to trade liberalization, industrial cooperation and foreign direct investment.25 This is

where ASEAN's competence to regulate the economic cooperation of its members is evident.

Although it did not contain binding legal obligations, member states later included rules to

implement the Framework's mandate in the Charter.26 In 1995, the Treaty on the Southeast

Asia Nuclear Weapon- Free Zone was also adopted, which came into force on March 27,

1997 after seven countries deposited instruments of ratification and/or accession.

Chesterman criticizes that although international personality is explicitly granted

through the Charter, its implementation tends to be limited,28 as the signing of agreements in

external cooperation is not all done by ASEAN. However, ASEAN can at least enter into

agreements with other countries and entities, where the procedures are determined by the

ASEAN Coordinating Council after consultation with the Community Councils.29 External

cooperation has been undertaken by ASEAN even before the Charter was established.

Some forms of ASEAN cooperation with entities outside ASEAN, both countries and

other organizations, among others, in 2005 ASEAN made an agreement with the United

States Patent and Trademark Office on cooperation related to the rights of ASEAN

intellectual property.30 In 2006 ASEAN became an observer at the UN after being

unanimously accepted by the General Assembly,31 and the General Assembly adopted a

separate resolution on UN cooperation with ASEAN.32 In 2007, ASEAN and the UN

established an MoU signed by the Secretaries-General of ASEAN and the UN and adopted by

the General Assembly.33 In 2009, ASEAN continued the second phase of ASEAN-Australia

Development Cooperation Program (AADCP) cooperation,34 which had previously existed

since 1974 in the form of the ASEAN-Australia Economic Cooperation Program (AAECP)

and the first phase of AADCP. However, for sensitive matters, member states still sign MoUs

or agreements in their individual capacity as states, so ASEAN is not truly independent in

entering into agreements with other entities.

From the above, there are two conclusions from this overview of ASEAN as an

international organization. The first is that although international personality is only explicitly

granted in the ASEAN Charter, it does not mean that ASEAN did not have it before.

ASEAN's practice as an international organization has been in place since before the Charter

came into being. The ASEAN Charter is an affirmation in a legal instrument that ASEAN is

an international organization with personality.36 Secondly, that while ASEAN's status as an

international organization cannot be denied, its existence tends to be questioned as there is

still a division between the type of agreements signed by states and those signed by the

ASEAN Secretary-General in terms of cooperative relations with other entities outside

ASEAN.

Regardless, the ASEAN Charter is a significant achievement of ASEAN. In addition

to formally making ASEAN an international person, as the bearer of rights and obligations,

ASEAN also became an organization with legal instruments so that its actions are based on

rules that have been agreed upon by its own member states, where previously ASEAN was

intended only as a social community and not a legal community.37 On the other hand, member

states are committed to complying with the norms and rules in the Charter in the international

sphere and are obliged to establish national regulations so that these norms and rules can be

applied in the country national territory of each member state.38 With the ASEAN Charter, a

culture of compliance is developed through organs that coordinate how ASEAN decisions and

agreements are implemented.39 The ASEAN National Secretariat in each country's Ministry of

Foreign Affairs is tasked with coordination while the Secretary-General is tasked with

reporting to the ASEAN leadership on the compliance and incompliance of member states

with its decisions and agreements.

ASEAN in Practice: An Analysis of ASEAN Cooperation and its Legal Consequences

In general, there are several rights possessed by international organizations in their

activities in the international sphere, one of which is the right to make international

agreements with countries that are not members of the organization to the extent of the

objectives and functions of the organization,40 as well as with other organizations. The same

is the case with ASEAN, where in addition to being a cooperation organization between

member countries or between ASEAN and member countries, ASEAN can also cooperate

with parties outside ASEAN.41 Such cooperation can be carried out by ASEAN in accordance

with Article 41(7) of the Charter. By not Not with standing the importance of MoUs, MoUs

will not be included as examples of international agreements. In this paper, the words treaty

and agreement are used interchangeably but mean treaty in international law.

Within the ASEAN framework itself, ASEAN has sufficiently proven its existence by

establishing agreements in the political-security, economic, and socio-cultural fields either

between member states, or between the ASEAN Secretariat and member state governments.

These agreements include:

 Agreement between the Government of the Republic of United States and the

Association of Southeast Asian Nations (ASEAN) on Hosting and Granting Privileges

and Immunities to the ASEAN Secretariat,43 regulates the granting of legal capacity to

the ASEAN Secretariat in accordance with United States law, regulation of privileges

and immunities of the Secretary-General, Deputy Secretary-General and Secretariat

staff in the performance of their duties and functions, protection of the building and its

contents, and others.

 Treaty on Mutual Legal Assistance in Criminal Matters,44 has entered into force for all

member states because the conditions for ratification have been met. With this treaty,

member states are facilitated in cooperating in providing assistance in resolving

criminal matters.

 The ASEAN Convention Against Trafficking in Persons, Especially Women and

Children,45 aims to prevent and address the problem of trafficking in persons,

especially women and children, ensure that perpetrators of such crimes are prosecuted

by countries with jurisdiction, provide victim protection including repatriation

arrangements, and regulate areas of cooperation between member states including

cross-border cooperation, law enforcement cooperation, and extradition.

 The ASEAN Convention on Counter Terrorism,46 provides a framework for regional

cooperation to counter, prevent, and suppress terrorism as well as cooperation between

law enforcement, for example in the form of information exchange and cross-border

cooperation. The crimes referred to in this treaty are also linked to crimes in other

international treaties.

 ASEAN Agreement on Customs,47 which adopts international standards to protect

global supply chain systems and contains a framework for cooperation in customs

regulation strategies to promote and protect the ASEAN Economic Community

(AEC).

 ASEAN Multilateral Agreement on the Full Liberalization of Passenger Air Services,48

which regulates the liberalization and integration of aviation services of ASEAN

countries as part of the implementation of AEC, one of which is the designation and

authorization of airlines where there are no restrictions on airlines that will carry out

international flights as long as they comply with the aviation security and safety

provisions in this Agreement and other relevant agreements.

 ASEAN Petroleum Security Agreement,49 with the aim to strengthen both national and

multinational efforts (ASEAN regional cooperation framework) in terms of security of

petroleum supply, as well as measures to minimize the occurrence of emergencies

related to petroleum security.

 ASEAN Agreement on Transboundary Haze Pollution,50 as a form of implementation

of the ASEAN Co-operation Plan on Transboundary Pollution which is adopted in

1995, contains principles of public international law including the sovereignty and

responsibility of states in exploiting their resources so as not to harm other countries in

terms of transboundary haze pollution.

ASEAN has established many internal agreements but some have not yet entered into

force because member states have not ratified them. The agreements used as examples above

are some that have been ratified or acceded to by all member states, and their substance can

be analyzed in terms of international treaty law. The use of the terms Member State/States

and/or Party/Parties indicates that ASEAN agreements impose legal obligations on each

Member State as a party, thus demonstrating ASEAN's coordination competence. United

States itself already has rules that are used as guidelines in terms of mutual legal assistance in

criminal matters (MLA) in Law Number 1 of 2006 concerning Mutual Assistance in Criminal

Matters which are used as guidelines for making United States MLA agreements with other

countries, but in ASEAN there is already an MLA Agreement so that member countries can

use the Agreement.

However, many agreements and treaties have not yet entered into force because they

have not yet been fully acceded to by all member states, are still in non-binding forms such as

MoUs or declarations, or have not been discussed and instruments established at all. For

example, in the field of human rights, ASEAN already has the ASEAN Human Rights

Declaration (AHRD) but it has been criticized, one of which is because the use of '...in

accordance with national law' indicates human rights that are not in accordance with national

law protected only as they exist in national law,51 trigger inconsistencies between the human

rights in the AHRD and international human rights law. The AHRD is only a declaration, but

it can be seen as the foundation for future human rights instruments.

In principle, as a consequence of international personality, the rules made must be

enforceable and violations can be prosecuted.52 When looking at dispute settlement, according

to the ASEAN Charter, countries must resolve disputes amicably but prioritize negotiation

and consultation, and some agreements give the parties the flexibility to choose a forum in

resolving disputes, for example the dispute settlement arrangements in the MLA Agreement.

ASEAN itself has provided facilities in the form of dispute settlement protocols, namely the

Protocol to the ASEAN Charter on Dispute Settlement Mechanisms (DSM Protocol) outlines

ASEAN dispute settlement in the form of consultation, good services, mediation, conciliation,

and arbitration comprehensively, but has not been ratified by the Philippines and Singapore,53

while for economic agreements the ASEAN Protocol on Enhanced Dispute Settlement

Mechanism (Vientiane Protocol) is formed, namely the Panel and Appeal Body mechanism

like the World Trade Organization (WTO) system, and has been ratified by all member

countries. The weakness of ASEAN dispute settlement is the use of a relations-based system

to resolve disputes rather than a regime based on law.54 The Vientiane Protocol mechanism is

optional and has never been used by ASEAN member states and in practice member states

involved in trade disputes instead use the WTO system.

Furthermore, with regard to external cooperation, from a legal perspective at least, the

distinguishing characteristics of ASEAN's external relations are divided into two, namely

relations between ASEAN member states and third parties where the status of each member

state is an independent subject of international law and 'ASEAN' is only used to refer to each

member state collectively; and relations between ASEAN (either on behalf of ASEAN or on

behalf of the ASEAN Secretariat) as a separate subject of international law from its members

and third parties.55 There are some MoUs signed by the Secretary-General but the preamble

states that the MoU is made on behalf of ASEAN countries, for example the ASEAN-China

MoU on Cultural Cooperation, but the substance does not reflect an international treaty (for

example, the use of 'participant' instead of 'party') and does not impose legal obligations on

member states.

In practice, the first characteristic appears in economic agreements such as the

Framework Agreement on Comprehensive Economic Cooperation among the Governments of

the Member Countries of the Association of Southeast Asian Nations and the Republic of

Korea, Framework Agreement on Comprehensive Economic Cooperation between the

Republic of India and the Association of Southeast Asian Nations, and Agreement between the

Governments of the Member Countries of the Association of Southeast Asian Nations and the

Government of the Russian Federation on Economic and Development Cooperation. These

instruments are signed by the respective government representatives of the member states, and

'ASEAN' is used not to refer to ASEAN, but simply as an abbreviation to refer to all the

member states that signed the agreements collectively. The second characteristic appears in

diverse fields but mostly in the form of MoUs, including the ASEAN - China Memorandum of

Understanding on Cultural Cooperation, Memorandum of Understanding between the

Governments of the Member Countries of the Association of Southeast Asian Nations

(ASEAN) and the Government of the People's Republic of China on Cooperation in the Field

of Non-traditional Security Issues, Memorandum of Understanding between the Association

of Southeast Asian Nations (ASEAN) Secretariat and the Government of the People's Republic

of China on Agricultural Cooperation, Memorandum of Understanding between the

Governments of the Member Countries of the Association of Southeast Asian Nations

(ASEAN) and the World Organization for Animal Health (OIE) on Technical Cooperation,

and Cooperation Agreement between the Association of Southeast Asian Nations (ASEAN)

Secretariat and the International Labor Office. These instruments were signed by the ASEAN

Secretary-General. This shows that in cooperation that is not only related to regional interests

but also the national interests of the country, the signing is not done by the ASEAN Secretary-

General but by the ASEAN Secretariat member state governments. For general cooperation as

well as the Secretariat's cooperation with other entities, it is signed by the Secretary-General.

The implementation of legal obligations can be interpreted in two senses,56 the first is

the legal obligations carried out by international organizations with legal personality as treaty

parties faced with other parties. When making a treaty, international organizations voluntarily

intend to comply with the obligations in it through the implementation of these obligations.

Secondly, there are violations of obligations that then give rise to international responsibility

of the state or international organization concerned. States or international organizations that

commit violations face legal consequences. That is why in the practice of drafting ASEAN

treaties, when states want the legal obligations in the treaty to be imposed on themselves, the

state becomes a party and the obligations are imposed individually. With such a separation,

the obligations in the agreement can be directly imposed on the states, on the grounds that in

practice states are more capable of implementing such obligations and providing financial

compensation when faced with claims of breach of obligations.57 In the agreement between

ASEAN and the Government of United States, the Secretary-General is acting on behalf of

the ASEAN Secretariat and the Government of United States is acting as an independent

entity, even though United States is a member state of ASEAN, so that the agreement does

not impose individual obligations. It imposes obligations on parties other than the ASEAN

Secretariat and United States. This is in accordance with the provisions of the 1969 Vienna

Convention which states that for a treaty to be binding on a state there must be an agreement

to bind.

With respect to organizational responsibility, the International Law Commission has

established Draft Articles on International Responsibility of International Organizations

which was initiated in 2002 and adopted in 2011.61 In Article 3, "Every internationally

wrongful act of an international organization entails the international responsibility of that

organization." The basis for imposing responsibility on an organization is its international

personality, and has been provided for in customary international law.62 The Draft stipulates

that the actions of an institution or agent of an international organization in carrying out the

functions of the organization are the actions of the organization itself, so that it can be held

liable in the event of a violation. It is because of the role of international organizations in

international relations that it is important to regulate liability in the event of violations of

international norms, and so that the international community can identify in what cases states

can be held individually liable, and in what cases liability can be imposed to international

organizations.

Agusman explained that international law does not recognize the practice of handing

over treaty-making capacity owned by the state to other international legal subjects where the

legal subjects will act for and on behalf of the state and declare the state's attachment to a

treaty, because this capacity is an integrated part of state sovereignty and is the domain of the

national power of the state concerned.64 United States itself has never ratified a treaty signed

by another state or organization.

Agusman relates it to Law Number 24 of 2000 concerning International Agreements

(UUPI), where in United States law, apart from the President and Minister of Foreign Affairs,

the signatory of an agreement gets a power of attorney from United States and is only given to

official government officials who represent the government United States. In the ROP, when

necessary the Secretary-General will authorize the Secretary-General to negotiate or sign an

agreement on the instructions of the Foreign Ministers of member states.66 However, when the

representatives of the member states authorize the Secretary-General of ASEAN to form a

particular agreement or give full power of attorney to another representative, this cannot be

equated to United States granting power of attorney to its official because constitutionally

power of attorney is not granted to representatives of international organizations.67 In UUPI,

the signatory represents the Government of the Republic of United States directly. In the

practice of international organizations, especially the UN, member states can also grant

general full powers to their permanent representatives in the organization to facilitate the

signing of agreements in the organization so that they do not need to be issued repeatedly, but

the granting of such powers depends on the arrangements in the constitution of the country

concerned and actions related to the formation of agreements are carried out based on specific

instructions from their government.68 This practice is not practiced within the ASEAN

framework. United States signing of internal ASEAN agreements is generally done by the

Minister of Foreign Affairs who does not require a power of attorney.

Thus, if we look at the practice of ASEAN international treaty formation, despite the

spirit of the 'ASEAN Way' which is very political and characterized by compromise,

consensus, does not really apply the principle of reciprocity, choosing which things are In

favor of each other's interests,69 the separation of capacities when forming treaties also

implies attribution of liability in the event of a breach. This is not to say that ASEAN itself is

completely immune from legal consequences, as the treaties are formed within the framework

of ASEAN coordinating as well as supervising, so if the elements of attribution are met,

ASEAN can also be held jointly liable with the member states that signed and ratified the

treaty.

ASEAN for the Future: Prospects for the Implementation of ASEAN Legal Personality

When compared to the European Union, which has been regarded as a supranational

organization, of course ASEAN is still not comparable considering ASEAN and the European

Union have different backgrounds. In practice, ASEAN is coordinative and its status is not

higher than its member states. However, despite its status as a supranational organization and

international personality, the European Commission as the executive body of the European

Union can only form treaties if it has been specifically granted competence by the Council of

the European Union based on the principle of conferral.70 Member states hold non-conferred

competences,71 so that EU competences are not exclusive.

Thus, regarding the implementation of ASEAN's international personality, it is not

strange that there is a separation between agreements signed by representatives of member

states and those signed by the Secretary-General when viewed from ASEAN's own position

as a coordinative regional organization (not supranational) and from the aspect of

accountability. Although the implementation of personality is not only through consent,

internal and external cooperation is a vital form of implementation for international

organizations, so the real crux of the matter is whether the implementation is effective or not.

In the ASEAN Charter, states have established fifteen ASEAN goals, giving legal personality

to ASEAN and facilitating cooperation in the form of powers to establish legal instruments.

With the ROP as a guide, member states also give ASEAN the capacity to realize the

objectives for which it was formed. Seah calls the ROP an important product produced by

ASEAN member states themselves in elaborating the concept of ASEAN's international law-

making competence in the Charter,73 and an attempt by member states to firmly state

ASEAN's position in forming agreements and assuming legal rights and obligations vis-a-vis

other entities.

To further enhance ASEAN's role, member states should strengthen ASEAN from

within. In internal relations, member states should properly implement the obligations in the

agreements they have ratified into their national legal systems, and ASEAN organs should

periodically ensure compliance. Furthermore, in terms of external relations, Article 41(4) of

the Charter provides that states that it is necessary to coordinate between member states based

on the spirit of unity and brotherhood to determine common positions and carry out joint

activities. This provision is further elaborated in Rule 4 of the ROP. The common position of

ASEAN member states will be used as the basis for negotiations with other subjects of

international law in forming an international agreement. The problem is that the different

agendas and national interests of each member state make it difficult to achieve a common

position so that the desired agreement is not formed, or even if it is formed, it is only a

political understanding and the arrangement is declarative only (does not provide legal

obligations).

Despite the author's view that the substance of MoUs generally does not contain legal

obligations, ASEAN's practice of drafting MoUs needs to be viewed as part of ASEAN's

treaty-making process. However, the author believes that by reducing the drafting of MoUs

and forming agreements, ASEAN is demonstrating its commitment to implement its

international legal personality more effectively. Therefore, an additional instrument needs to

be established in the ROP that contains a standard template for international agreements, and

the ASEAN Charter needs to be amended (or made in the form of an additional protocol) to

contain what matters fall within the scope of ASEAN's powers when making agreements.

There needs to be specific agreement by ASEAN Member States on the areas of competence

in which ASEAN can enter into agreements on behalf of ASEAN as an organization. The

determination of these areas should be based on the functions and objectives of ASEAN the

establishment of ASEAN. With the scope of competence, it is hoped that it will minimize the

friction of political interests because the supplement is made based on the agreement of the

member countries themselves and ensure a system of accountability. Member states can still

form agreements collectively in ASEAN coordination and signed by each government

representative.

Although the ROP has comprehensively outlined ASEAN's international agreement-

making procedures, what is vital for ASEAN's sustainability as an international organization

is the integration of ASEAN member states themselves, and without integration there is no

way ASEAN can actively engage in cooperation with other subjects of international law.

Learning from the European Union, Peter Gontha (former Ambassador Extraordinary and

Plenipotentiary of the Republic of United States to Poland) expressed his concern that the

unity of the European Union was faltering.74 In terms of process, ASEAN is not as fast as

other organizations and is often referred to as a diplomacy forum without the power of law,

but on the one hand it is an advantage if ASEAN can maintain the principle of coordination

and strengthen the culture of compliance through supervision. However, there needs to be a

clear regulation of what matters are authorized by ASEAN in terms of international treaty

making so that the implementation of ASEAN legal personality can be effectively carried out.