This book is part of a larger project entitled “Integration through Law.” As the project title suggests, the organizers believe that accelerated legalization, contractualization and, perhaps, even constitutionalization are among the key drivers of regional integration. Greater legalization creates a more rules-based type of regional cooperation with binding obligations for the members and is associated with the expectation that it makes cooperation more enduring, predictable and effective. With precisely these objectives in mind, the leaders of the Association of Southeast Asian Nations (ASEAN) passed the ASEAN Charter, a quasi-constitutional landmark document, in late 2008. In their view, legalization is a requisite not only for a deeper-integrated regional grouping, but, in particular, also a more cohesive one as well. In a globalized world, in which the lives of Southeast Asians are increasingly affected by decisions made far beyond their region in arcane bodies of international organizations, regional cohesion is not only direly needed to settle complex regional cross-border problems but also to develop the “voice opportunity” (Grieco 1996) essential for negotiating successfully in global forums. In other words, cohesion has not only an intra-regional dimension but also an extra-regional one.

This extra-regional dimension of cohesion is the main theme of this book. Regional organizations have proliferated since the early 1990s, mainly in the Global South. With this new wave of regionalism, there are no longer “regions without regionalism” (Palmer 1991). Since then, in an increasingly vertically and horizontally differentiated emerging system of global governance, regional organizations have more and more been becoming actors in their own right (Röland 2010). On first sight, this may appear surprising given the fact that all newly formed regional organizations are intergovernmentalist in nature. Yet the increasing actorness of regional organizations has been well documented in the field of interregionalism studies (Hänggi, Roloff and Röland 2006; Doidge 2011; Wunderlich 2012). And with increasing actorness regional organizations also adopt collective actor roles in global forums, mainly to strengthen the bargaining power of smaller countries in particular.

Introduction

This chapter considers the third-country view ‘looking in’ on ASEAN and its member states as potential preferential trading partners. It identifies some of the subject areas treated in current preferential trade agreements (PTAs) and asks, what can we expect potential demandeurs for trade arrangements with ASEAN member states to be requesting in any prospective agreement?

The approach here is to take up some identified subject areas in order to draw comparisons between them across a number of selected trade agreements. The subjects examined have a mix of characteristics across a range of legality, as some tend to be more legally enforceable (binding), while others express a soft law approach. Another axis examined concerns the character of the subjects: some are traditional ‘border’ types of issues (e.g., customs, anti-dumping and safeguarding measures), while others are more ‘behind the border’ and concern domestic regulatory policies. Treatment of product standards or competition policy would be examples of the latter. In comparing the subjects treated by different trade agreements, some patterns emerge that reflect the predominant models facing ASEAN and its member states in their future trade negotiations. Having identified these patterns, we consider their implications for ASEAN's own institutional framework as it attempts to either satisfy the demands of the subjects or to deal with them in the capacity of ASEAN's preferred approaches. This could raise points of deficiency in the existing ASEAN institutional approach to external agreements. However, it may also identify some elements unique to the ASEAN style from its own integration experience that it can highlight and bring to future negotiations.

Much of this chapter focuses on subject areas in the realm of domestic regulation, ‘behind the border’ rules that function as non-tariff barriers in PTAs. In such agreements, these subject areas are often treated by cooperative approaches – in contrast to more legally binding approaches – in order to facilitate either the removal of identified barriers or the gradual alignment of the differing regulatory systems of the trade agreement signatories.

ASEAN remains a work in progress. The bold steps taken to create the ASEAN Community by 2015 are a radical departure from the early beginnings of ASEAN as a periodic meeting of foreign ministers. Achieving the goals that have been set presumes, first, that achieving those goals is in fact the intention. Past experience supports such cynicism, with estimates that only 30 per cent of past ASEAN obligations have ever been implemented.

Since the adoption of the Charter, however, there appears to have been a significant increase in the acceptance of binding obligations. As Chapter 1 showed, the evolution – a term chosen carefully as it suggests experimentation and natural selection rather than intelligent design – of monitoring mechanisms in the various areas of ASEAN moved in fits and starts. Predictably, far more was done in the economic sphere but there were notable exceptions to the general wariness of opening up political questions to external scrutiny, with respect to shared problems such as haze and clear threats such as nuclear weapons.

Chapter 2 then developed a lens through which to view this greater willingness to accept monitoring over time, which was accompanied by a willingness for such monitoring to focus on compliance and implementation, rather than simply to coordinate interpretation of an obligation, facilitate compliance or be a largely symbolic gesture. Again, predictably, this trend was clearest with respect to the Economic Community.

Assuming these trends continue, more attention may be paid to designing monitoring mechanisms to encourage substantive compliance. To this end, Chapter 3 sought to clarify some of the options available. These include the identity of monitors and their methodology, the timing of monitoring and the powers available to ensure that it takes place, as well as issues of transparency.

Barriers remain. The resources available to ASEAN continue to be a fraction of what any comparable regional organisation has at its disposal.

This study demonstrates the different methods by which the Association of Southeast Asian Nations (ASEAN) and its member states can conclude trade agreements with non-member states. It then considers the implications of these different forms for the substantive provisions that may likely be contained in future trade agreements and the mechanisms that may be used in them for resolving disputes among the signatories. These elements are covered through all of the aspects of the treaty process, from ‘treaty-making’ through ‘treaty-implementation’ and to ‘treaty-breaking’.

There are three general methods (or forms) that we know from the law and practice of ASEAN and other international organisations that appear to be open to ASEAN and its members. They are made possible by the powers granted to ASEAN by its member states by the various treaties that form the foundation of the organisation. These explicitly include the power to conclude international agreements, but without being very precise as to how the organisation should exercise this treaty-making power.

The first form is that an external agreement can be concluded by all or some of the member states of ASEAN on behalf of themselves, as individual states or as a collective embodiment ‘in the name of’ the organisation. The second form, and at the other end of this spectrum, is when ASEAN as an organisation is the only stated party on its side of an agreement. Thirdly, and somewhere in the middle of this spectrum, there is the possibility of what has been called in EU law, a ‘mixed agreement’, that is to say, that ASEAN and its member states together can conclude an agreement on the side of ASEAN. As we will see, the first and third methods have many variations.

In order to better understand the three methods of treaty-making as they might apply to ASEAN and its member states, we study both the founding instruments of ASEAN and their development over the years, and also delve into the practice of ASEAN and its member states in concluding international agreements.

ASEAN legal personality and its implications

Since 2008 the ASEAN Charter has provided the legal and institutional framework for Southeast Asian regionalism and includes specific provisions on external relations. However, ASEAN external relations did not start with the Charter, and the difference the Charter makes, both legally and in practice, is one of the issues we need to address. The Charter also needs to be viewed together with the other main agreements currently in force (which could be called the ASEAN acquis) in order to assess the scope and the objectives of ASEAN external relations. The founding document of ASEAN, the Bangkok Declaration of, does not mention ASEAN external relations in the sense of granting any treaty-making power. Although the Declaration of ASEAN Concord does mention trade co-operation, including ‘joint efforts to improve access to markets outside ASEAN’ (para B.3.iv), and the Treaty of Amity and Co-operation in Southeast Asia of refers to the desire to encourage ‘close and beneficial co-operation with other States as well as international and regional organisations outside the region’ (Article 6), it is not until the 1992 Framework Agreement on Enhancing ASEAN Economic Co-operation that we find an explicit external objective. This agreement, as part of what is referred to as an outward-looking attitude to economic co-operation in order to contribute to global trade liberalisation (Article(1)), makes an explicit reference to the external economic relations of ASEAN and highlights the need for ASEAN members ‘to establish and/or strengthen co-operation with other countries, as well as regional and international organisations and arrangements’ (Article 5).

The ASEAN Charter was adopted on 20 November by the ten current ASEAN members, and entered into force on 2008 December. It establishes an explicit external mandate for ASEAN and an institutional framework for conducting external relations, including the grant of legal personality.

ASEAN's economic diversity

ASEAN diversity has often been cited to explain difficulties in reaching consensus on the speed and depth of ASEAN economic integration. Table 2.1 below highlights the economic diversity as proxied by population size, GDP, per capita GDP and per capita GNIPPP, trade openness and FDI dependence as of 2012. Vast diffierences continue to exist notwithstanding decades of economic cooperation and integration. Singapore and Brunei have high per capita incomes that better many in the Organisation for Economic Cooperation and Development (OECD), while Cambodia, Laos and Myanmar are the least developed economies. Indonesia is ASEAN's largest economy, followed by Thailand and Malaysia, while, in comparison, Brunei, Cambodia, Laos and Myanmar are small economies. The diversities are reflected in the different production and export structures and commercial policies.

All ASEAN countries have become highly open trade economies, although there remains wide intercountry variation, with Singapore having the highest trade/GDP ratio and Myanmar and Indonesia the lowest. Generally smaller economies are more trade dependent than the very large ones. A high trade/GDP ratio may reflect competitiveness in the inter national market place, but also renders the economy highly vulnerable to business cycle fluctuations in international demand. There are also wide intercountry differences in investment regimes. The inward FDI stock is very unevenly spread among ASEAN countries, with Singapore the major recipient of inward FDI into manufacturing and services, while CLMV accounted for only a minor share of total ASEAN inward FDI stock.

Table 2.2 shows the wide diversity in competitiveness as proxied by rankings in the World Bank's 2014 ‘ease of doing business’ index. Generally, Singapore stands at the top while CLMV is at the other end of the competitiveness spectrum. The rankings of the specific components of the index give an indication of the specific areas in which individual countries need to improve on their competitiveness.