Introduction

This chapter addresses a question of fundamental importance to ASEAN external relations: which entities are the parties to the agreements and other instruments concluded or issued in the name of ASEAN? As practice to date shows, there is by no means one straightforward answer to this. According to its Charter, ASEAN has been accorded legal personality (Article 3) as well as an explicit international treaty-making power (Article 41(7)). However, the procedures for exercising the latter, for the elaboration of which the Charter mandates ‘the ASEAN Coordinating Council in consultation with the ASEAN Community Councils’ (Article 41(7)), remained wanting until recently (Chapter 2 above). Nonetheless, there are instances in which ASEAN, on its own behalf as an international organisation, has concluded international agreements even before the Charter entered into force. Furthermore, it was pointed out that the Charter exhibits rather grand ambitions for ASEAN in its relations with the region and the world at large (see Chapter 2 above). But as this chapter shows, this means in no way that ASEAN, as an international legal person, acts as the protagonist in the expanding practice of external relations. There is little apparent consistency in how ASEAN presents itself to its partners (Appendix 3 below).

Hence, in order to better understand ASEAN as an international actor, deeper scrutiny of this issue becomes imperative with a view to revealing certain patterns of action by ASEAN and its members, but also to highlighting certain characteristics of its external action, i.e. recurring cases of confusion as to which entity its external partners are actually dealing with. This chapter will elaborate on this in the following order: to start, the existing practice is systematised into different modes which ASEAN employs to conclude international instruments with its partners, which distinguish between the use of ASEAN as a collective label by its member states and the acts of ASEAN as an international legal person.

The previous chapters examined ASEAN's cohesion in international forums, mainly the United Nations (UN) and the World Trade Organization (WTO). We came to the conclusion that in all three major phases of negotiation (Chapter 4) and with regard to five major negotiation strategies, ASEAN's cohesiveness (Chapter 5) is quite in line with what we predicted at the end of Chapter 3 after studying the world views of foreign policy elites, how these cognitive dispositions shaped the grouping's repository of cooperation norms and how the latter reflected on the grouping's organizational structure. ASEAN's collective behavior in international forums is ambiguous and does not reveal stable long-term trends towards greater cohesiveness. It more resembles a caucus than a quasi-bloc, especially in tangible areas of negotiation such as norms and rules of the international order, trade and climate change, and in the application of crucial negotiation strategies such as the quest for leadership positions, coalition-building and, to a lesser extent, forum shopping.

Yet we are aware that these findings rest thus far on a rather broad and eclectic analysis. The subsequent two in-depth case studies have the function of examining the preliminary evidence derived from Chapter 5. We chose, as outlined in the methodology, two cases that are characterized by considerable variation in outcome. In the first case, the material distribution of values is up for negotiation, in the second case, a normative or ideational issue.

Case 1 ASEAN and GATT/WTO negotiations on agricultural and tropical products

Background: agriculture in the global trade regime

Although it is difficult to determine exactly when agriculture became an agenda for trade negotiation, trade in agricultural products was already part of the discussions at the time of the establishment of the General Agreement on Tariffs and Trade (GATT) in 1947. Despite an increased recognition of the problems related to agricultural products from developing countries in the 1950s, little progress had been made in reforming agricultural trade.

For most of its history, ASEAN reflected the wariness shown by many Asian states towards international organisations with binding obligations. In the past decade, however, ASEAN has undergone a transformation from a periodic meeting of ministers to setting ambitious goals of becoming an ASEAN Community by 2015. ASEAN has positioned itself at the centre of Asian regionalism through hub and spoke arrangements with China, India, Korea and Japan and is arguably the most important Asian international organisation in the history of the continent.

An important tension in this transformation is the question of whether the ‘ASEAN Way’ – defined by consultation and consensus, rather than enforceable obligations – is consistent with the establishment of a community governed by law. The National University of Singapore's Integration Through Law (ITL) project takes seriously the ASEAN claim to desire compliance with the various obligations that are the foundation of these new communities.

An important part of any compliance regime is the knowledge of what steps towards compliance have in fact been taken. Such knowledge presumes the collection of data on compliance, either for self-assessment or evaluative purposes.

The collection of those data is referred to here as ‘monitoring’. The term embraces any institution, process, or practice (including informal practices) that gathers or shares information about whether or to what extent an ASEAN obligation has been complied with, in the sense of substantive compliance, or implemented, in the sense of formal compliance.

A survey of ASEAN agreements, however, reveals other apparent purposes for monitoring. In addition to assessing substantive and formal compliance (described here as compliance sensu stricto and implementation respectively), monitoring may provide an authoritative interpretation of the content of an obligation or the framework for taking on future obligations. A fourth purpose of monitoring may be the facilitation of long-term implementation through such measures as confidence-building and technology transfers.