Regional Organisations — SAARC, ASEAN, EU, AU

Alongside the universal organisation created at San Francisco, a dense network of regional bodies has grown up since 1945. Some of them — the European Union most conspicuously — are deeply integrationist and supranational; others — the Association of Southeast Asian Nations and the South Asian Association for Regional Cooperation — proceed by consensus and respect for sovereign equality. Their place in the constitutional scheme of the post-1945 order is set by Chapter VIII of the United Nations Charter, which formally recognises regional arrangements and agencies and prescribes the conditions on which they may act in the maintenance of international peace and security. The four bodies that demand close attention from the Indian judicial-services candidate are the South Asian Association for Regional Cooperation (SAARC), the Association of Southeast Asian Nations (ASEAN), the European Union (EU) and the African Union (AU). The hub for the wider material is the International Law for Judiciary notes; the universal-organisation framework against which regional bodies operate is set in the chapter on international organisations — UN system.

The chapter that follows opens with the Charter framework, sets out the four headline organisations in turn, and closes with the Indian dimension — the constitutional and treaty-practice issues that arise when India enters into agreements through these bodies.

The Chapter VIII framework — Articles 52, 53 and 54

Article 52(1) of the Charter provides that nothing in the Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations. Article 52(2) and (3) make pacific settlement of local disputes through regional mechanisms the preferred route before the Council is involved. Article 53 prescribes that the Council, where appropriate, shall utilise such regional arrangements or agencies for enforcement action under its authority and crucially that no enforcement action shall be taken under regional arrangements or by regional agencies without the authorisation of the Council. Article 54 obliges regional bodies to keep the Council fully informed of activities undertaken or in contemplation for the maintenance of international peace and security.

Four issues recur in the practice of Chapter VIII. First, when is regional action "appropriate" — a notion that has been read flexibly in line with the broadening definition of what constitutes a threat to international peace and security. Second, the consistency of regional action with UN Purposes and Principles, against the priority that Article 103 assigns to Charter obligations over conflicting obligations under any other international agreement. Third, the boundary between enforcement action under Article 53 (which requires Council authorisation) and other regional action (which does not). Fourth, the question whether prior approval of the Council is required before a regional body acts — a question that recent practice in West Africa, the Balkans and Haiti has answered with a measure of pragmatism. The interaction between Chapter VIII and the inherent right of collective self-defence under Article 51 — which itself does not require Council authorisation — adds a fifth dimension. The deeper analysis of the Council's enforcement architecture is in the chapter on the UN system; the broader rules on the use of force are taken up in the chapter on international humanitarian law.

South Asian Association for Regional Cooperation (SAARC)

SAARC was established by the Charter signed at Dhaka on 8 December 1985 by Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan and Sri Lanka. Afghanistan joined as the eighth member at the 14th SAARC Summit held at New Delhi in 2007. The Charter sets out the Objectives in Article I — to promote the welfare of the peoples of South Asia and to improve their quality of life; to accelerate economic growth, social progress and cultural development in the region; and to strengthen collective self-reliance among the countries of South Asia. The principles in Article II are equally important: respect for the principles of sovereign equality, territorial integrity, political independence, non-interference in the internal affairs of other States and mutual benefit; and the proposition that decisions at all levels shall be taken on the basis of unanimity. Bilateral and contentious issues are excluded from the deliberations of the Association under Article X(2) — the principle that has, on one view, kept SAARC functional and, on another, has emptied it of operational content given the prevalence of bilateral disputes between member States.

The principal organs are the Summit (the meeting of Heads of State or Government, ordinarily once a year), the Council of Ministers (foreign ministers, ordinarily twice a year), the Standing Committee (foreign secretaries) and the Programming Committee. The Secretariat is at Kathmandu and is headed by a Secretary-General. SAARC has spawned several specialised arrangements: the South Asian Free Trade Area (SAFTA) under the Agreement signed at Islamabad in 2004, the SAARC Convention on Suppression of Terrorism (1987) and its 2004 Protocol, the SAARC Convention on Mutual Assistance in Criminal Matters (2008), the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002) and the South Asian Association for Regional Cooperation Development Fund. The Convention on Suppression of Terrorism is given effect in India by the SAARC Convention (Suppression of Terrorism) Act, 1993, which alters Indian extradition law to give effect to the obligation to extradite or prosecute offenders covered by the Convention — an enabling statute of the kind contemplated by Article 253 of the Constitution and considered in the chapter on the Indian Extradition Act, 1962. SAARC Summits have been irregular for some years; the 19th Summit scheduled at Islamabad in 2016 was indefinitely postponed after India and several other members withdrew in the wake of the Uri attack.

Association of Southeast Asian Nations (ASEAN)

ASEAN was created by the Bangkok Declaration of 8 August 1967, signed by Indonesia, Malaysia, the Philippines, Singapore and Thailand. Brunei joined in 1984, Vietnam in 1995, Laos and Myanmar in 1997 and Cambodia in 1999, taking the membership to ten. The Declaration set economic, political and cultural objectives, but the institutional architecture remained loose. The 1976 Bali Summit produced three foundational instruments: the Treaty of Amity and Co-operation in Southeast Asia (TAC), which reaffirmed the parties' commitment to peace and dealt with the peaceful settlement of disputes; the Declaration of ASEAN Concord, calling for increased political and economic co-ordination; and the Agreement of Establishment of the Permanent Secretariat, which co-ordinates the national secretariats. The 1987 Protocol amending the TAC opened it to accession by States outside Southeast Asia.

The institutional turning point was the ASEAN Charter, adopted on 20 November 2007 and entered into force on 15 December 2008. The Charter conferred legal personality on ASEAN, codified its principles, identified its organs and set the framework for the three Communities envisaged by ASEAN Concord II of 2003 — the Political-Security Community, the Economic Community and the Socio-Cultural Community. The principal organs under the Charter are the ASEAN Summit, the ASEAN Co-ordinating Council, the three Community Councils, the ASEAN Sectoral Ministerial Bodies, the Secretary-General and the ASEAN Secretariat at Jakarta, the Committee of Permanent Representatives, the National Secretariats, the ASEAN Human Rights Body (which produced the ASEAN Human Rights Declaration of 2012) and the ASEAN Foundation. The 2015 ASEAN Convention Against Trafficking in Persons, Especially Women and Children, deepened the regional treaty practice on transnational crime. India is not a member of ASEAN but is one of its dialogue partners and a party to the ASEAN Free Trade Agreement, signed at Bangkok in August 2009 and operational from 1 January 2010.

The European Union — supranational regionalism

The European Union is the most institutionally developed of the regional organisations. It originates in three interlocking communities of the 1950s — the European Coal and Steel Community of 1951, the European Atomic Energy Community of 1957 and the European Economic Community of 1957. Successive treaties — the Single European Act 1986, the Maastricht Treaty 1992, the Amsterdam Treaty 1997, the Nice Treaty 2001 and the Lisbon Treaty signed on 13 December 2007 and in force from 1 December 2009 — restructured the framework. The instruments now in force are the Treaty on European Union (TEU), the Treaty on the Functioning of the European Union (TFEU), the Treaty Establishing the European Atomic Energy Community and the Charter of Fundamental Rights of the European Union (which acquired binding force with the Lisbon Treaty). The membership stood at twenty-eight before the United Kingdom withdrew on 31 January 2020 (the so-called Brexit) and is now twenty-seven.

The Union has institutions that go beyond the inter-State co-operation typical of other regional bodies. The European Parliament — directly elected since 1979 — exercises legislative, budgetary and supervisory functions. The European Council, comprising Heads of State or Government, sets political direction and priorities. The Council of the European Union, comprising ministers from member States organised in ten configurations, is the principal legislative organ together with the Parliament. The European Commission, an independent supranational executive, has the exclusive right of legislative initiative on most matters. The Court of Justice of the European Union (CJEU) ensures the uniform interpretation of EU law and has developed the doctrines of direct effect (Van Gend en Loos, 1963) and supremacy of EU law over inconsistent national law (Costa v. ENEL, 1964) — doctrines that have transformed the relationship between the Union legal order and the legal orders of the member States. The Union also operates a single market with common external tariffs, customs union, free movement of capital and labour, and a currency, the euro, used by twenty member States. The European Central Bank conducts monetary policy for the eurozone. The institutional analogues for India in the wider treaty practice are taken up in the chapter on the law of treaties — formation, validity and termination.

African Union (AU)

The Organisation of African Unity (OAU) was established by the Charter signed at Addis Ababa on 25 May 1963. Its emphasis on the inviolability of the colonial-era boundaries (the Cairo Declaration of 1964) and on non-interference in the internal affairs of member States sat uneasily, by the late twentieth century, with the demands of human-rights protection and the response to the genocide in Rwanda in 1994. The OAU was replaced by the African Union, established by the Constitutive Act adopted at Lomé on 11 July 2000 and entered into force in 2001. The Union has fifty-five member States.

The Constitutive Act lists the Union's objectives in Article 3 — the achievement of greater unity between African countries, the defence of sovereignty and territorial integrity, the promotion of peace, security, stability, human and peoples' rights in accordance with the African Charter on Human and Peoples' Rights, and the promotion of sustainable development. The principles in Article 4 include the respect of borders existing at the achievement of independence, the establishment of a common defence policy for the African continent, peaceful resolution of conflicts and the prohibition of the use of force or threat thereof among member States. Most significantly, Article 4(h) confers on the Union the right to intervene in a member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity. Article 4(j) recognises the right of member States to request intervention from the Union in order to restore peace and security. The Constitutive Act condemns and rejects unconstitutional changes of governments. The principal organs are the Assembly of Heads of State or Government (the supreme organ that sets the common policy of the Union), the Executive Council (foreign or other ministers), the Pan-African Parliament, the African Court of Justice and Human Rights, the Commission, the Permanent Representatives Committee and the Specialised Technical Committees. The African Court of Human and Peoples' Rights, established by the 1998 Protocol to the African Charter, is in the process of being integrated with the Court of Justice of the African Union.

Other regional organisations of significance

Beyond SAARC, ASEAN, the EU and the AU, several other regional organisations matter for examination purposes. The Organisation of American States (OAS) was established by the 1948 Pact of Bogotá and amended by successive Protocols (Buenos Aires 1967, Cartagena de Indias 1985, Washington 1992 and Managua 1993). It has thirty-five member States and operates a collective security system in which an attack on one is deemed an attack on all under the 1947 Inter-American Treaty of Reciprocal Assistance (the Rio Treaty). The Council of Europe was created in 1949 with forty-six member States after the Russian Federation's expulsion in 2022; its most important institutional product is the European Convention on Human Rights and the European Court of Human Rights at Strasbourg, the influence of which on the protection of human rights at the national level is examined in the chapter on international human rights law. The North Atlantic Treaty Organization (NATO), created in 1949, associates the United States and Canada with European powers in a collective defence arrangement under which an armed attack against any member in Europe or North America is considered an attack against all. The League of Arab States, created in 1944, has its headquarters at Cairo and operates through the Council of the League. The Commonwealth of Independent States, established by the Minsk Agreement of December 1991, links most of the former Soviet republics other than the Baltic States. BRICS — Brazil, Russia, India, China, South Africa — joined more recently by Iran, Egypt, Ethiopia and the United Arab Emirates from 2024, is a forum rather than a treaty-based organisation.

India and the regional architecture

India's regional engagement is deepest in South Asia through SAARC and increasingly through bilateral and minilateral arrangements such as BIMSTEC (the Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation, established at Bangkok in 1997) and the Indian Ocean Rim Association (IORA). India's status as a dialogue partner of ASEAN through the framework of the East Asia Summit and as a contracting party to the ASEAN-India Free Trade Agreement reflects its Look East — now Act East — policy. India is a founding member of BRICS and of the Shanghai Cooperation Organisation (SCO). The constitutional implications of these arrangements are taken up in the chapter on the Indian Constitution and international law: a regional treaty must be brought into the domestic legal order through legislation under Article 253 if it is to bind individuals; in the absence of such legislation, the obligations bind India only on the international plane and may be relied on in Indian courts as an aid to construction of constitutional and statutory provisions.

Three specific points of Indian practice are worth noting. First, the SAARC Convention on Suppression of Terrorism is given effect in India by the SAARC Convention (Suppression of Terrorism) Act, 1993, with subsequent amendments giving effect to the Additional Protocol of 2004. Second, the SAARC Convention on Mutual Assistance in Criminal Matters is given effect through the framework provisions of the Code of Criminal Procedure on letters rogatory and through bilateral mutual legal assistance treaties. Third, the regional human-rights regimes — the African and European systems and the inter-American system through the OAS — have been consulted by the Indian Supreme Court as comparative material in the construction of the Articles 14, 19 and 21 fundamental rights, particularly in the absence of an analogous regional regime for Asia. The cases applying this comparative approach include those mentioned in the chapter on the implementation of international treaties in Indian courts.

Regional organisations and dispute settlement

Many regional bodies provide their own dispute-settlement machinery. The Court of Justice of the European Union has compulsory jurisdiction over all member States in matters of EU law. The African Court of Human and Peoples' Rights has compulsory jurisdiction in respect of those States that have made declarations under the 1998 Protocol. The OAS operates the Inter-American Court of Human Rights. ASEAN's principal mechanism is the High Council established under the 1976 Treaty of Amity and Co-operation, although in practice the parties prefer informal consultation. SAARC has not established a permanent dispute-settlement organ; member States rely on bilateral channels. The general rules of dispute settlement at the universal level — including the role of the International Court of Justice — are taken up in the chapter on the settlement of international disputes and on landmark ICJ decisions.

The interaction with the UN — practice

The interplay between the Council and regional bodies has produced a body of practice that goes beyond the literal text of Chapter VIII. Three episodes are particularly instructive. First, in Liberia in the early 1990s, the Economic Community of West African States (ECOWAS) deployed a peacekeeping force ahead of explicit Council authorisation; the Council eventually endorsed the operation in resolution 788 of 1992 and resolution 866 of 1993, and in 2003 expressly placed an ECOWAS-led multinational force on a Chapter VII footing through resolution 1497. Second, the Council's relationship with NATO during the Bosnia conflict and during the Kosovo crisis of 1999 produced a debate about the legality of regional enforcement without prior Council authorisation that has not been authoritatively resolved. Third, the hybrid African Union–United Nations Mission in Darfur (UNAMID), authorised by Council resolution 1769 of 2007, prefigured a model in which regional personnel and expertise are combined with extra-regional logistical and financial support under a UN umbrella.

Conclusion

Regional organisations occupy the constitutional space between the universal organisation and the bilateral relations of States. They differ markedly in their depth of integration — the EU operates a supranational legal order, while SAARC remains a body of inter-State co-operation. The legal anchor in all cases is Chapter VIII of the Charter and the rule that regional action consistent with the Purposes and Principles of the UN is permitted, with enforcement reserved to the Council under Article 53. The four organisations highlighted in this chapter — SAARC, ASEAN, the EU and the AU — are the principal frames within which India and its neighbours conduct regional diplomacy and increasingly within which the Indian Supreme Court conducts its comparative reading of fundamental-rights jurisprudence. The deeper engagement with each is taken up in the cross-referenced chapters of these notes.

Frequently asked questions

What is the difference between Chapter VIII action and collective self-defence under Article 51?

Chapter VIII concerns regional arrangements for the maintenance of peace and security; enforcement action under Article 53 requires Council authorisation. Article 51 preserves the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations until the Council has taken measures necessary for the maintenance of international peace and security. Action taken under Article 51 does not require Council authorisation, although it must be reported to the Council. NATO and similar collective-defence arrangements draw their legal authority primarily from Article 51 rather than from Chapter VIII.

Why is decision-making in SAARC by unanimity, and what does that mean for bilateral disputes?

Article X(1) of the SAARC Charter provides that decisions at all levels in SAARC shall be taken on the basis of unanimity. Article X(2) excludes bilateral and contentious issues from the deliberations of the Association. The combination is a deliberate constitutional choice that protects member-State sovereignty and reflects the political reality that bilateral tensions between several SAARC members would otherwise stall the Association's work. The cost is that SAARC cannot become a forum for the management of those bilateral disputes; they must be addressed through bilateral diplomacy or through other regional and international mechanisms.

Is the European Union a federation, a confederation or something else?

The European Union is sui generis — neither a federal State nor a classical international organisation. It exercises supranational competences in defined areas under the Treaty on European Union and the Treaty on the Functioning of the European Union, with directly applicable law and a court (the CJEU) whose judgments bind member States. In other areas it operates by inter-governmental cooperation. The Court of Justice has held that EU law constitutes a new legal order of international law for whose benefit the States have limited their sovereign rights — the formula deployed in Van Gend en Loos (1963) — and that this law is supreme over inconsistent national law (Costa v. ENEL, 1964).

How is the African Union's Article 4(h) right of intervention different from collective self-defence?

Article 4(h) of the Constitutive Act of the African Union confers on the Union the right to intervene in a member State pursuant to a decision of the Assembly in respect of grave circumstances — war crimes, genocide and crimes against humanity. The right is exercised on the decision of the Assembly of the Union, not at the request of the affected State. It is therefore an institutional right of intervention against the will of the member State concerned, in contrast to collective self-defence, which is exercised at the request of an attacked State. Whether Article 4(h) intervention requires Council authorisation under Chapter VIII has not been authoritatively settled.

Is India a member of ASEAN?

No. ASEAN's ten member States are all in Southeast Asia: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam. India is one of ASEAN's dialogue partners and participates in the East Asia Summit and the ASEAN Regional Forum. India and ASEAN concluded a comprehensive economic relationship through the ASEAN-India Trade in Goods Agreement signed at Bangkok in August 2009 and operational from 1 January 2010, and a separate Trade in Services Agreement was concluded in 2014.

Does a regional body need Council authorisation before it can deploy a peacekeeping force?

It depends on the character of the operation. A traditional consent-based peacekeeping operation deployed by a regional body with the consent of the parties and using force only in self-defence does not require Council authorisation. Enforcement action — that is, action involving the use of force against the will of the affected State or its government — does require Council authorisation under Article 53. The boundary has been tested in the practice of ECOWAS in Liberia and Sierra Leone and of NATO in the Balkans; the Council has on occasion endorsed regional action after the event rather than authorising it in advance.