ASEAN Law Academy Advanced Programme

The Rule of Law and Law-Making in a Rules-Based ASEAN

Module contributor: Dr Tan Hsien-Li, Co-Director of ASEAN Law Academy

This module discusses what the rule of law means in the international legal order, what it could and should mean in the ASEAN legal order, and what good law‐making entails to support the progress of the Rules‐based ASEAN.

  • Brief discussion on the definitions and components of the Rule of Law and how ASEAN measures up
    • Chesterman’s analysis of the international rule of law
    • Fuller’s 8 principles on the rule of law (generally applied to domestic law):
      • the rules must be expressed in general terms;
      • the rules must be publicly promulgated;
      • the rules must be prospective in effect;
      • the rules must be expressed in understandable terms;
      • the rules must be consistent with one another;
      • the rules must not require conduct beyond the powers of the affected parties;
      • the rules must not be changed so frequently that the subject cannot rely on them; and
      • the rules must be administered in a manner consistent with their wording.
  • Issues in ASEAN Law and how it is made
    • Hard law, soft law, rules of an indeterminate nature, purely political documents
    • Nomenclature vs. text, language, and content
    • Sources and influences in ASEAN law‐making
    • Status of ASEAN instruments pre‐ and post‐ 2007 (Does the Charter codify everything?)
    • Constituent instruments and their corresponding action plans
    • Instrumental differentiation according to community/sectoral area. Why?
    • External agreements (to be studied in later seminar)
  • Improving law‐making in ASEAN
    • Best treaty‐making practices (Realistic targets, timelines, classification, post‐accession procedures, coming into effect, etc.)

Click here for the reading list and more information on the module.