Introduction

Employing domestic workers from a variety of less developed countries in Asia has, in recent years, become widespread practice among middle-class Malaysian households. This normalization of domestic employment reflects both the unwillingness of the state to take on some of the social reproductive burdens needed to support increases in women's labour force participation, as well as the symbolic value that employment of a domestic worker plays in cultural perceptions of middle-class status. Indonesian women, in particular, have tended to dominate paid domestic work. This dependency of the Malaysian middle classes on low-paid Indonesian domestic workers was, however, thrown into flux in June 2009 when Indonesia placed an embargo on formalized flows of domestic workers into Malaysia. The actions of the Indonesian government were a reaction to ongoing cases of abuse against Indonesian migrants and, specifically, the death of an Indonesian domestic worker at the hands of her employer. Subsequently, the Indonesian government sought to engage in bargaining strategies with Malaysia in order to leverage better working conditions for its citizens. As negotiations with Indonesia appeared to falter, alternative sources of cheap domestic work were sought out. In particular, private recruitment brokers in Cambodia sought to bring in large numbers of women to be employed as domestic workers in Malaysia. Prior to the Indonesian ban on domestic workers, the trend of Cambodian women migrating to Malaysia for work was only just beginning to be registered (the more established pattern of female migration was from Cambodia to Thailand). The withdrawal of Indonesian domestic labour resulted in marked increases in the number of Cambodian women arriving in Malaysia (Kuppusamy 2012). However, a series of high-profile media reports of abuse and exploitation both in Malaysia by employers and in Cambodia by recruitment agencies called into question the regulatory measures supposedly in place to protect workers (Holliday 2012). In October 2011 a complete ban on the sending of Cambodian women as domestic workers to Malaysia was announced (LICADHO 2011).

We explore the contours of these disputes between Malaysia, Indonesia and Cambodia. On face value, the disputes can be seen as manifestations of regulatory failures: failures to manage migration flows appropriately; failures to protect workers from abuses; and failures to agree basic terms and conditions of domestic worker employment.

Introduction

On 26 March 2010, I was in the audience for the Fourth International Halal Food Conference held at the Sheraton Hotel in Brussels, Belgium. From around the world, Islamic organizations, halal certifiers and companies had come to attend this conference held by the Islamic Food Council of Europe, one of the world's major halal certification bodies. A Malaysian woman in the Q&A session wants to know why and how it could happen that halal pork turned up in the Supermarket NTUC FairPrice Co-operative in Singapore when everybody knows that pork cannot possibly be halal. Fierce competition exists between Malaysia and Singapore, not least in the struggle for world leadership in global halal production, trade and regulation. The representative from the Majlis Ugama Islam Singapura (MUIS) – the Islamic Religious Council of Singapore – that acts as Singapore's state halal certification body agrees that pork can never be halal and that it would compromise Shariah principles (Islamic law) if it were labelled as such. She explains that the incident arose because of a rumour in an email that halal pork was on sale in Singapore.

MUIS inspectors did not find any halal pork when investigating, and the MUIS representative calls this a ‘sabotage’ incident. The subsequent police investigation could not place the responsibility. This incident was big in the media, and the picture of ‘halal pork’ allegedly sold by the supermarket showed a packet of FairPrice's Pasar brand pork bearing a green ‘halal’ sticker. A FairPrice spokesman said that the incident was regarded as ‘a deliberate and wilful act of mischief’ (Straits Times, 25 November 2007). MUIS carried out its own checks at eight FairPrice outlets and found that none of the specified items bore the MUIS logo. A MUIS spokesman said, ‘We treat the case of the MUIS halal certification mark on the packaging containing pork very seriously as the halal mark has been abused.’ He added that under the Administration of Muslim Law Act (AMLA) that governs Islam and halal in Singapore, an abuser of the MUIS halal certification mark is liable to a fine not exceeding S$ 10,000 or to a jail term not exceeding twelve months, or both. This means the perpetrator is culpable even if the mark is a sticker, a fake or was digitally added (Straits Times, 25 November 2007).

The present contribution deals with the effect of ASEAN external relations within the ASEAN legal regime and the legal orders of ASEAN Member States. On the face of it, such effects could be expected to be the same as those of international law generally. But we find that ASEAN external agreements are likely to have stronger internal effects within Member States than other international law instruments. Furthermore, they contribute to ASEAN integration and may boost the role of the ASEAN Secretariat.

Our argument is based on an analysis of the obligations of membership in ASEAN and on the principle of ASEAN centrality. Whether compliance with external agreements forms part of the obligations of membership is certainly open to question. We submit that it does, at least with regard to those external agreements that can be read as ‘joint ASEAN agreements’. Furthermore, we draw attention to the role that the ASEAN Secretariat itself may play in developing an answer in that direction. The principle of ASEAN centrality is emphasized in a number of key instruments, including the ASEAN Charter. It is likely to contribute to the stronger impact that ASEAN legal instruments may have on the practice of members’ institutions when compared to instruments of international law generally.

In order to frame the discussion on internal effects, the contribution distinguishes three types of ASEAN external agreements: (i) external agreements of ASEAN as an IO, (ii) plurilateral agreements between state parties that resemble any other international treaty, and (iii) joint ASEAN agreements between state parties, which however credits the fact that state parties on one side of the agreement together form ASEAN.

1. i. For the time being, external agreements of the first type – concluded by ASEAN as an IO alone – do not bind Member States. Such bindingness could only arise from a provision to that effect in the Charter. Agreements of this type may however strengthen the monitoring, facilitating and compliance functions of the Secretariat with respect to the treaty obligations of Member States. Within the context of this first type of agreements, we also discuss the responsibility of ASEAN and the concurrent and subsidiary responsibility of its members. In particular, we submit that members may be indirectly liable for wrongful acts of ASEAN as an IO.

When speaking of the internal effects of ASEAN external agreements, it is important to identify and distinguish the range of such agreements. It is certainly not uncommon for legal instruments associated with ASEAN or for commentators to speak of ASEAN agreements in an undifferentiated manner, lumping together under this heading not only clearly different kinds of external agreements, but also agreements between ASEAN Member States alone. As a first qualification, it is evident from the subject and ambition of our inquiry that we are only concerned with external agreements – instruments whose parties include at least one party in addition to some ASEAN states or ASEAN as an international organisation. But even then, we encounter within the umbrella category of ‘external agreements’ instruments that differ widely with regard to their legal nature and what concerns the parties involved. There are, in particular, two different bases that would qualify for a typology of external agreements, in order to add further clarity.

The first would entail revisiting the spectrum of hard and soft obligations, in terms of the bindingness of these norms, their specificity and any mechanisms of enforcement or compliance. With regard to their legal nature, ASEAN external practices create instruments ranging on a scale from laudatory and hortatory declarations with no apparent ambition to create legal obligations, on the one hand, and agreements to create clear treaty commitments, on the other hand. When it comes to hard commitments, most of ASEAN external relations do indeed take the form of agreements between ASEAN Member States and one or more third parties. Other instruments, which involve ASEAN as an international organisation and which leave out any direct involvement of the Member States tend to impose weaker obligations.

On that basis, speaking about the internal effects of ASEAN external relations, we would need to distinguish between instruments such as the 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, which is an international treaty signed and ratified by its eleven state parties, from instruments like the Memorandum of Understanding between the Association of Southeast Asian Nations (ASEAN) and the United Nations (UN) on ASEAN–UN Cooperation, signed by the respective Secretary-Generals of these organisations at that time, Ong Keng Yong and Ban Ki Moon.

As all ASEAN states are parties to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), it is a useful case study on how ASEAN states implement their international legal obligations within the domestic legal framework. Since it dates back to 1979, there is also more practice to draw on for a study of its internal effects, even if it entered into force at different stages for ASEAN Member States.

It thus offers a repository of insight in a matter that is otherwise difficult to grasp. We do not yet have sufficiently evolved case-studies on the internal effects of ASEAN plurilateral agreements. By proxy, we thus study the implementation of CEDAW. A caveat pertains to the fact that the potentially intrusive and transformative reach of CEDAW has been truncated by reservations. For example, contrary to Article 16 CEDAW, countries like Malaysia and Indonesia by dint of Muslim religious law permit polygamous marriages subject to certain conditions such as court permission.

Overall, the international obligations of CEDAW may be implemented in a variety of ways, such as through the form of hortatory aspirational guidelines (a form of domestic soft law), as part of a general programme or policy administered by general or dedicated agencies, or as justiciable rights within individualized adjudicative or quasi-judicial processes. As the Malaysian Court of Appeal noted in AirAsia Berhad v Rafizah Shima Binti Mohamad Aris, ‘[e]ach State decides how best to achieve its implementation. The CEDAW Committee has no enforcement authority; it can only make recommendations highlighting areas where more progress is needed in a particular country.’

Article 2 CEDAW lists the vehicles by which the obligations undertaken by state parties may be satisfied.

This section deals with the first kind of agreements that are concluded by ASEAN as an International Organisation and not by its Member States. It offers an introduction to the external relations powers of ASEAN, especially its Secretariat. It then argues that such agreements cannot bind Member States absent a provision to that effect in the Charter. As we will discuss in this chapter's final part, members can well bear concurrent and subsidiary responsibility and they can incur indirect liability for international wrongful acts of ASEAN. The external relations of ASEAN as an IO thus impact its internal relations with its members.

Introductory note on the Secretariat

The functions and role of the Secretariat and the ASEAN Secretary-General (ASG) are primarily managerial. The ASG is the Chief Administrative Officer of ASEAN and is appointed by the ASEAN Summit for a single non-renewable term of five years. According to Article 29 ASEAN Charter it falls onto the Secretariat to ensure and maintain ‘budgetary discipline’, ‘sound financial management policies’, and financial procedures consistent with international standards. Article 30 moreover charges the ASG with preparing the Secretariat's annual operating budget for the approval of the ASEAN Coordinating Council, upon recommendation of the committee of permanent representatives.

The ASG is to serve ‘as spokesman and representative of ASEAN on all matters’ in the absence of a contrary decision of the Chairman of the Standing Committee. The ASG is further to conduct consultations with contracting parties, the private sector, NGOs and other ASEAN constituencies, as well as coordinate dialogues with international and regional organisations and any dialogue country. The ASG also acts as the ‘channel of formal communications’ between ASEAN Committees, bodies and the Secretariat and other IOs and governments.

The distinct role of the ASEAN Secretary in relation to the Member States is reflected in several provisions relating to the obligations, which members owe to ASEAN as an IO. Some degree of institutional autonomy is sought by Article 30, which states that the ASEAN Member States should through ‘equal annual contributions’ remitted in a ‘timely manner’ provide the ASEAN Secretariat with ‘the necessary financial resources to perform its functions effectively’. However, funding is pegged at the lowest level by requiring equal funding, as opposed to funding based on the different wealth levels of each Member.

This contribution sets out the legal effects of ASEAN external agreements within ASEAN Member States, with regard to the relationship between ASEAN as an International Organisation and its members. In particular, it demonstrates how ASEAN practice in relation to its external relations is, on the whole, likely to contribute to an increased role for the ASEAN Secretariat.

In approaching the theme of internal effects of external agreements, we distinguish three types of agreements. First, agreements which ASEAN concludes as an International Organisation. Such agreements do not bind Member States and do not show internal effects within domestic legal orders. However, they might strengthen the monitoring and facilitating functions of the Secretariat in relation to Member States’ treaty obligations and thus have internal effects within the ASEAN legal order or, better expressed, as we will argue, its legal regime.

Agreements with non-ASEAN Member States usually take the form of international treaties between state parties, which is the second type of agreement. Such agreements may well be read in a rather uncontroversial manner to suggest plainly that they are plurilateral agreements indistinguishable from other international law agreements. There is nothing specific about them when it comes to internal effects or otherwise. We discuss their internal effects within Member States from the points of view of both international law and, in a comparative perspective, domestic constitutional law. Since knowledge about the constitutional practices of ASEAN Member States with regard to the internal effects of international law is uneven and in any event rather sparse, this part of the argument largely models different possibilities. As yet, we do not have sufficiently evolved case-studies on the internal effects of these plurilateral agreements. We draw on ASEAN Member States’ domestic practices to the extent that we could gather it. We note, and are aware, that our access and thus knowledge is distributed unevenly, with most references stemming from the Singapore context. In light of the need for further studies in this regard, for now, we further engage in a specific case study of the implementation of the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW). We do so for inspiration and by proxy, believing that this is illuminating and helpful for readers in imagining what impact ASEAN plurilateral legal relations might have.

On the face of it, most ASEAN external agreements present themselves as plurilateral agreements. The parties to such agreements are a minimum number, if not all, of ASEAN Member States and any number of third states. In the large majority of cases, the language of ASEAN external agreements is seemingly clear-cut and speaks, for example, of ‘[a]n agreement between ASEAN Member States and the Republic of Korea (ROK) on Forestry Cooperation’. At times, to meet any remaining doubt, some external agreements specify further. For example, Article 3 Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area (AANZFTA) provides that ‘[p]arties means the ASEAN Member States, Australia and New Zealand collectively; … [p]arty means an ASEAN Member State or Australia or New Zealand’. ASEAN as an IO is obviously not a party to the agreement.

The fact that in some instances the ASEAN Secretary-General also signs such agreements is immaterial if such agreements are read as traditional plurilateral agreements. On this reading, varieties of the formula that refers to ASEAN as a collectivity do not detract from the plainly plurilateral nature of the agreements. Where ASEAN is referred to as a collectivity, this may be understood to be an umbrella term or shorthand for the individual Member States. This means that it is the governments of the respective ASEAN Member States who conclude the agreement rather than ASEAN as an institutional entity. That they collectively form ASEAN is inconsequential with regard to the nature of the external instrument as a plurilateral agreement. Where the present type of external agreements is concerned, ASEAN as an IO is sidelined. At the most, it provides a forum for treaty making by its Member States, or it serves as a venue for coordination. As plurilateral agreements, the internal effects of ASEAN external agreements are equal to the effects within ASEAN Member States of any other international agreement.

The internal effects of ASEAN external agreements may of course differ in light of the nature of the agreement and in view of the specific obligations that such agreements create for Member States. Salient points to consider include whether agreements require that Member States bring their domestic legislation in conformity, whether the existence of contrary legislation itself triggers state responsibility, whether obligations set out in international agreements are sufficiently precise, or whether complainants can seek redress or relief from international dispute settlement mechanisms.

ASEAN's external agreements take many different shapes. They come under different headings and they involve both ASEAN as a distinct entity and its ten Member States as parties on one side of the external agreement. The practice continues to show uncertainties, and it remains in flux.

We have structured our exposition of the internal effects of external agreements along the lines of three different types of such agreements: those with ASEAN as an international organisation as the party to the agreement (Chapter 6) and those that have ASEAN Member States as parties, as plurilateral agreements (Chapter 5) or, in a different reading, as joint agreements (Chapter 6). We have explored the internal effects broadly, to include direct and indirect legal effects as well as effects on the workings of the relationship between ASEAN and its members and between the members themselves. External agreements, we submit, have a bearing on all these relationships.

The overall assessment of the internal effects of ASEAN external agreements, first of all, needs to connect to the type of agreement. If it has the international organisation ASEAN alone as a party, our inquiry shows rather clearly that such agreements do not bind Member States. If members are not themselves parties to the agreement, they could only become bound by ASEAN agreements due to a provision to that effect in the Charter or in a similar document. While such a provision is lacking and cannot be seen on an even distant horizon, this does not conclude the question of internal effects within the ASEAN legal regime. Notably, we drew attention to members’ concurrent and subsidiary responsibility and indirect liability for actions of ASEAN as an IO. Should ASEAN incur financial obligations, for instance, by having to pay damages for a wrongful act, there is a compelling argument that members are indirectly liable.

We set out the internal effects of those external agreements, which clearly have the members themselves as a party, on the basis that this is a matter of both international and domestic law. The backdrop of the assessment here is the insight that general international law, in contrast to European law, does not demand to be given direct effect. That is not to question that domestic law cannot justify any acts that are internationally wrongful.

While the ASEAN Secretary-General (ASG) has entered into agreements, especially Memoranda of Understanding (MOUs), either on behalf of ASEAN as an IO or, in exceptional cases, on behalf of the governments of ASEAN where so authorised, the ASG has so far made limited use of the potentially more encompassing competences in the conduct of external relations. It seems yet a distant practice that ASEAN as an IO would enter into international agreements, which would then create hard obligations for the Member States. The agreements that matter are concluded as plurilateral agreements (Chapter 5). But many of such, on the surface, plurilateral agreements, may also be considered slightly differently as joint ASEAN agreements. The parties to these agreements are still states, but the fact that the states on one side of the agreement, in one column of the signatures, together form ASEAN is not without effect. From a strictly formalist point of view, the difference between plurilateral and joint ASEAN agreements is indeed slim, almost non-existent. What we are proposing is a different reading. And the way in which they are read, we submit, does make a difference. What is more, a different reading of plurilateral agreements as joint ASEAN agreements is not only possible, but also warranted so as to credit the principle of ASEAN centrality.

In this chapter, we set out the argument that many of ASEAN's external relations, in critical fields such as economic relations, may well be understood as a form of joint ASEAN agreements. In particular, while rights and obligations rest with Member States, the role of the Secretariat is enhanced, and external agreements can show an internal effect in the relationship between ASEAN as a distinct entity and its Member States. What is more, we suggest that there is a strong argument in favour of harmonious interpretation by members, not only of the Charter and internal agreements, but of external agreements as well.

Specifically, by involving ASEAN in external agreements, Member States’ commitments in such agreements might be subject to monitoring and review within the framework of ASEAN in a way that can be (but need not be) connected to the enforcement mechanisms of the external agreement itself. These are internal effects of the ASEAN legal regime.

This monograph is published within the context of a wide-ranging research project entitled Integration Through Law: The Role of Law and the Rule of Law in ASEAN Integration (ITL), undertaken by the Centre for International Law at the National University of Singapore and directed by J. H. H. Weiler and Tan Hsien-Li.

The Preamble to the ASEAN Charter concludes with a single decision: “We, the Peoples of the Member States of the Association of Southeast Asian Nations … [h]ereby decide to establish, through this Charter, the legal and institutional framework for ASEAN.” For the first time in its history of over four decades, the Legal and the Institutional were brought to the forefront of ASEAN discourse.

The gravitas of the medium, a Charter: the substantive ambition of its content, the creation of three interlocking Communities, and the turn to law and institutions as instruments for realization provide ample justification for this wide-ranging project, to which this monograph is one contribution, examining ASEAN in a comparative context.

That same substantive and, indeed, political ambition means that any single study, illuminating as it may be, will cover but a fraction of the phenomena. Our modus operandi in this project was to create teams of researchers from Asia and elsewhere who would contribute individual monographs within an overall framework which we had designed. The project framework, involving several thematic clusters within each monograph, is thus determined by the framework and the place of each monograph within it.

As regards the specific content, however, the authors were free, indeed encouraged, to define their own understanding of the problem and their own methodology and reach their own conclusions. The thematic structure of the entire project may be found at the end of this Preface.

The project as a whole, and each monograph within it, display several methodological sensibilities.

First, law, in our view, can only be understood and evaluated when situated in its political and economic context. Thus, the first studies in the overall project design are intended to provide the political, economic, cultural and historical context against which one must understand ASEAN and are written by specialists in these respective disciplines. This context, to a greater or lesser degree, also informs the sensibility of each monograph.

Our enquiry is set against the broader theme of how political and legal cultures provide incentives and constraints on creating a legal regime within the ASEAN sub-regional context. Specific factors in this regard include the rich variety between its members in terms of political systems. Within the ten ASEAN states, the polities range from the authoritarian to the more democratic. They notably include socialist regimes (Vietnam, Laos), Westminster-influenced parliamentary democracies (Malaysia, Singapore), a Malay Muslim monarchy (Brunei), polities dominated by the military (Myanmar), and secular presidential-based systems (Indonesia, Philippines) where the influence of religion on public life is a significant factor. Given the diversity in terms of politics, ethnicity, culture, languages, colonial history and levels of development, it is not surprising that pragmatism and functionalism were the key unifying forces extant within ASEAN.

Key to the later turn to a more rules-based regime was the desire of ASEAN and its Member States for deeper regional integration, which was complicated by the persistence to a large degree of the ‘ASEAN Way’ or a non-legalistic, diplomatic approach towards managing international relations. In this section we thus sketch the trajectory ASEAN has embarked upon towards the goals of legal integration, and the institutions it has set up, before approaching the question of whether it is at all justified to speak of an ASEAN legal order or legal regime and what that might mean.

ASEAN Charter: continuity or rupture?

With the advent of the ASEAN Charter, which was adopted at the 13th ASEAN Summit in 2007 and entered into force in December 2008, the question arises as to whether a new form of governance has taken shape. Does it confirm, modify or supersede what has been described as the ‘ASEAN Way’? To some extent, the ASEAN Charter was designed to signal a shift from the ‘ASEAN Way’ in international affairs. All the same, it may be more accurate to view its contents as a confirmation of existing practice, or an evolutionary modification pursuant to deeper regional integration, particularly economic integration. The ‘ASEAN Way’ has been the time-honoured modus operandi governing the conduct of ASEAN members since the creation of the grouping on 8 August 1967. How do relational governance and a rule-oriented approach towards institutionalised co-operation inter-relate?