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Asean's Constitutionalization of International Law: Challenges to Evolution Under the New ASEAN Charter

46 Pages Posted: 22 Nov 2010  

Diane Alferez Desierto

Yale Law School; Peking University School of Transnational Law

Date Written: April 30, 2010


This Article discusses the normative trajectory of international obligations assumed by Southeast Asian countries (particularly the Organizational Purposes that mandate compliance with international treaties, human rights, and democratic freedoms), and the inevitable emergence of a body of discrete "ASEAN law" arising from the combined legislative functions of the ASEAN Summit and the ASEAN Political, Economic and Social Communities. I discuss several immediate and short-term challenges from the increased constitutionalization of international obligations, such as: 1) the problem of incorporation (or lack of direct effect) and the remaining dependence of some Southeast Asian states on their respective constitutional mechanisms to transform international obligations into binding constitutional or statutory obligations; 2) the problem of hybridity and normative transplantation, which I illustrate in the interpretive issues regarding the final text of the ASEAN Comprehensive Investment Agreement which draws some provisions from GATT 1994 and parallel language similar to the US and German Model BITs; and 3) the problem of diffuse or insufficient judicial oversight within ASEAN, seen through lingering dependence on national court implementation despite the regional effort at standardization of legal norms on specific areas of trade, security and human rights. I conclude that leaving these problems unaddressed could impede Southeast Asia's vast potential to contribute to the project of constitutionalization of international law.

Keywords: ASEAN Charter, Treaty Incorporation, Treaty Compliance, Treaty Interpretation, Constitutionalization

Suggested Citation

Desierto, Diane Alferez, Asean's Constitutionalization of International Law: Challenges to Evolution Under the New ASEAN Charter (April 30, 2010). Columbia Journal of Transnational Law, Forthcoming. Available at SSRN:

Diane Alferez Desierto (Contact Author)

Yale Law School ( email )

New Haven, CT 06520-8215
United States

Peking University School of Transnational Law ( email )

University Town,
Xili, Nanshan District
Shenzhen, Guangdong 518055

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