For my parents, Seah Say Keow and Quek Soh Choo Acknowledgements I owe the completion of this doctoral project to my family’s assistance. My parents, in particular, gave unstinting support. Their courage, imagination, and constant tending contributed to my growth as a man. My sister is a pillar. I am very grateful and humbled. It is entirely proper to put on record that my family is pivotal in facilitating my completion of this arduous journey. Professors Alex Mills and Douglas Guilfoyle bear mention too. As my doctoral supervisors, both were exemplary. Alex came into my project at the final stage, but his expertise in private and public international law has enriched my research. Alex firmly steered me towards the finishing line, a kind gesture which I appreciated. As for Douglas, I valued his careful and constructive comments of my research, a duty which he continued to discharge long after he left UCL. The professionalism of Alex and Douglas directly shapes how I approach the teaching and supervision of my own students today. Finally, I must acknowledge Professor Colin Warbrick CMG. In the last century, he patiently taught me law as a young undergraduate at Durham. Those were halcyon days. When our paths crossed again many years later, in this century, Colin readily supported my doctoral application. As I settle into another life, far away from the United Kingdom, I am struck by the serendipity of meeting gifted educators during my time in this country. In this lifetime, I am lucky to be accorded this privilege because it is undeniably the most rewarding part of my doctoral journey. The ASEAN Character of Non-Intervention: A Study of the Relationship between General and Regional International Law Daniel Chin Aun Seah A thesis submitted for the degree of Doctor of Philosophy, UCL UCL Faculty of Laws (2018) 1 I, Daniel Chin Aun Seah, confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. 2 Abstract How has the practice of the Association of Southeast Asian Nations (ASEAN) created a distinctive regional law of non-intervention, and how has general international law influenced the content of that regional law? Answering this question is the aim of this study. The core proposition is that a distinctive regional law of non-intervention is made by ASEAN, which is made possible by general international law, but this influence of general international law can also constrain the scope of regional law. This core proposition is advanced as follows. First, the study demonstrates how an international organisation (such as ASEAN) can make regional law based on the general rules of international law, particularly in relation to an international organisation’s separate legal personality. Second, it examines regional law-making, with particular reference to non-intervention’s content, which is facilitated by United Nation’s organs: non-intervention’s content is variable because it requires making choices, which are made by reference to the general rules of international law. Third, the core proposition is supported by a case study that analyses how ASEAN (organs) used the general rules of international law (especially in relation to separate legal personality) to create a distinctive regional law of non-intervention, during the long Kampuchean conflict (1978-1990). Fourth, the core proposition is advanced through another case study of ASEAN practice regarding Myanmar: it highlights diminutions in non-intervention’s content, in Articles 2 and 10 of the Treaty of Amity and Cooperation (1976) when evaluated against emerging rules general international law, such as the International Law Commission’s work on protecting persons during disasters. Fifth, in conclusion, this study explains the implications of its core proposition. Prospectively, regional law would still be distinctively made by ASEAN, but on a narrower basis. This is because of geopolitical changes within Southeast Asia, between the United States and China. Consequently, it is foreseeable that some ASEAN member States might not identify themselves as belonging to Southeast Asia anymore. 3 Impact Statement Background This thesis provides an analytical framework to identify and assess the content of regional international law, which is properly made by ASEAN as a separate legal person at international law. This goal of evaluating the laws that ASEAN can create to advance its regional integration is of general significance as a case-study in international law-making. It is important more specifically as the ASEAN project enters a potentially long period of contestation and uncertainty brought about by emerging rival models of regional cooperation led by China. National and International Impact Some of the findings in this thesis have created impact in Southeast Asia, East Asia, and the European Union as follows: • Contributed to the National University of Singapore’s Centre for International Law marquee project on ASEAN Integration through Law project. My research on the ASEAN Charter has been used in three monographs produced under the auspices of this project which studied treaty law-making, compliance, and the conduct of external relations by ASEAN. • Contributed to the European Union’s Frame project, a large-scale, collaborative project which examined the effects of its policies in its relations with other international organisations. My research on the nature of the Treaty of Amity & Cooperation in Southeast Asia (TAC) was used in this project’s findings on the engagement of the European Union with ASEAN. • Engaged knowledge production in other areas of law. My research on the TAC was used by Bing Bing Jia (China) in the context of studying Article 281, UNCLOS, and Maartje de Visser (Singapore) to examine comparative constitutional approaches by the judiciaries in Southeast Asia. 4 Acronyms and Abbreviations ........................................................................ 9 Chapter One ................................................................................................. 12 A STUDY OF NON-INTERVENTION WITH ASEAN CHARACTER .............. 12 I. Introduction ................................................................................................ 12 1) A Contribution to the Field ..................................................................... 12 2) The Scope of Non-Intervention at General International Law ................. 13 3) Meaning of Non-Intervention and Method of this Study .......................... 16 II. The IR Literature’s Emphasis on Non-Intervention as an Aspect of the “ASEAN Way” ............................................................................................................. 23 III. Constructivism: An Intellectual Response to Realism............................... 25 1) Michael Leifer, a Reluctant Realist ......................................................... 25 2) Amitav Acharya ..................................................................................... 26 3) Jürgen Haacke ...................................................................................... 29 IV. Recent IR Literature Cannot Escape Constructivism ............................... 31 1) Christopher Roberts............................................................................... 31 2) Lee Jones .............................................................................................. 34 1) Purpose ................................................................................................. 36 2) The IR Literature Uses Secondary Sources to Draw Political Conclusions on Non-Intervention ...................................................................................... 37 VI. Distortive Influence on International Legal Scholarship: ASEAN Practice or Practice by ASEAN States? .......................................................................... 42 1) Purpose ................................................................................................. 42 2) Assimilating Non-Intervention’s Content in an “ASEAN Context” ........... 42 3) Distorting Legal Conclusion: Making Comments & Non-Intervention ..... 45 VII. Structure of Chapters ............................................................................. 47 Chapter Two ................................................................................................. 51 HOW INTERNATIONAL ORGANISATIONS MAKE GENERAL INTERNATIONAL LAW AND REGIONAL LAW ............................................ 51 I. Purpose ..................................................................................................... 51 II. Article 38 as a Statement of the Law ......................................................... 54 1) Treaties ................................................................................................. 54 2) Custom .................................................................................................. 56 III. How International Organisations Make General International Law ........... 58 1) A Venue to Advance Treaties & Custom with Soft Law .......................... 58 2) What is an International Organisation? .................................................. 63 3) The ICJ Case Law on an International Organisation’s Objective Legal Personality at General International Law. ..................................................... 65 5 4) Separate Actions and International Responsibility as Corollaries of Separate Legal Personality