Last
week’s ASEAN Coordinating Council meeting of foreign ministers in Cambodia
adopted “The Rule of Procedures for Conclusion of
International Agreements by ASEAN” (ROP).
As described by ASEAN Deputy
Secretary General Bagas Hapsoro, “The Rule prescribes the procedures for
ASEAN as an inter-governmental organization to enter into agreement with
countries, international, regional and sub-regional organizations and
institutions in pursuing its external relations as provided for in Article 41.7
of the ASEAN Charter.” As
ASEAN has not yet published the ROP on its website, I provide a copy
below.
I suspect that only international law aficionados will study the ROP in detail. Yet I think that the ROP does provide some interesting points of relevance to the study of the ASEAN institutions and the AEC.
First, the ROP does not apply to agreements which are negotiated by the ASEAN member states collectively and create obligations for individual member states, namely the various free trade agreements (FTAs). ASEAN FTAs are actually a collection of 10 bilateral FTAs which share common language and obligations, the product of collective negotiation by ASEAN member states, with the support of the ASEAN Secretariat.
I suspect that only international law aficionados will study the ROP in detail. Yet I think that the ROP does provide some interesting points of relevance to the study of the ASEAN institutions and the AEC.
First, the ROP does not apply to agreements which are negotiated by the ASEAN member states collectively and create obligations for individual member states, namely the various free trade agreements (FTAs). ASEAN FTAs are actually a collection of 10 bilateral FTAs which share common language and obligations, the product of collective negotiation by ASEAN member states, with the support of the ASEAN Secretariat.
Second, the ROP illustrates, once again, the
determination by ASEAN member states not to create strong supranational
institutions. Under the ROP, the ASEAN Sectoral
Ministerial Bodies coordinate with the Committee of Permanent Representatives
to ASEAN (CPR) on proposals to commence negotiation. Final
approval of the proposals is up to the ASEAN Foreign Ministers Meeting, or the
CPR acting for the foreign ministers. The ASEAN foreign ministers directly or
indirectly through the CPR appoint the ASEAN representatives to the
negotiation. The ROP requires the ASEAN
representatives to maintain close consultations with the CPR and ASEAN Sectoral
Ministerial Bodies. Finally, the ASEAN
foreign ministers by themselves or through the CPR will specify the manner of
concluding the agreement and by whom.
The ROP thus anticipates a case-by-case
authorization by the ASEAN foreign ministers (representing the ASEAN member
states) for international agreements. Unlike
what the EU does in trade matters, there is no standing delegation of authority
by the member states to a central institution like the ASEAN Secretary General
or the ASEAN Secretariat. Rather, the
ROP allows for the designation of the ASEAN Secretary General to act on behalf
of ASEAN in specifically authorized circumstances. The ROP also limits the role of the ASEAN
Secretariat to that of assisting the designated ASEAN representatives. The primacy of the ASEAN foreign ministers in
the process is firmly set by the ROP.
Now, this tension between national sovereignty
and regional institutions is always present in entities such as ASEAN and the
EU. The EU itself is still resolving
such tension in other areas of the Community, such as in monetary affairs and
foreign policy. So the factors that resulted in the ROP’s approach are not new.
In any event, perhaps this is all the “ASEAN”
that the member states can accept at this time.
But it still marks another step in the implementation of the ASEAN
Charter, the further commitment to rule of law in ASEAN’s operations. For
now, this should be celebrated.
Rules of Procedure
for Conclusion of
International Agreements by ASEAN
Rule 1 Scope of Application
1. These Rules specify the procedure for the
conclusion of international
agreements by ASEAN as an intergovernmental
organisation in the conduct of
external relations as provided in Article
41(7) of the ASEAN Charter.
2. These
Rules shall not apply to the conclusion of international
agreements concluded by all ASEAN Member States collectively and which create obligations
upon individual ASEAN Member States.
Rule 2 Definition
For the purpose of these
Rules, “international agreement by ASEAN”
(hereinafter referred to as “international agreement”) means
any written agreement, regardless of its particular
designation, governed by international law which creates rights and obligations for ASEAN as a distinct entity from its Member
States.
Rule 3 Authorisation of the Commencement of Negotiation
and Appointment of Representative(s)
The proposal to commence a
negotiation of an international
agreement shall be coordinated with the Committee of Permanent Representatives to ASEAN by the
relevant ASEAN Sectoral Ministerial Bodies at the senior officials level. The ASEAN Foreign Ministers Meeting, on its own or through the Committee of Permanent
Representatives to ASEAN, shall decide on the proposal and shall appoint the appropriate representative(s) to commence the negotiation on behalf of ASEAN.
Rule 4 ASEAN Common Position
1. ASEAN Member
States shall coordinate and develop an ASEAN common position pursuant to Article 41(4)
of the ASEAN Charter.
2. Such ASEAN common position shall be formulated by the relevant ASEAN Sectoral Ministerial Bodies at the senior officials level in coordination
with the Committee of Permanent Representatives
to ASEAN. In the formulation of an ASEAN common position, the ASEAN Foreign Ministers Meeting may be consulted
if and when necessary.
3. The representative(s) as referred
to in Rule 3 shall
adhere to an ASEAN common position which serves as a basis for negotiation.
Rule 5 Obligation of information and consultation
1. The representative(s) shall
ensure that the relevant ASEAN Sectoral Ministerial Bodies at the senior officials level and the Committee of Permanent Representatives to ASEAN are
consulted and kept informed of the
progress of negotiation.
2. The relevant ASEAN Sectoral Ministerial Bodies at the senior officials
level or the Committee
of Permanent Representatives to ASEAN may, at any time, request to be consulted or informed of the
progress of negotiation from the
representative(s).
3. The relevant ASEAN Sectoral Ministerial Bodies at the senior officials level in
coordination with the Committee of Permanent
Representatives to ASEAN may, at any time, give further instruction to the representative(s).
4. The representative(s) may seek further instruction from the relevant ASEAN Sectoral Ministerial Bodies at the senior officials level.
Rule 6 Initialling of the Draft Text of the International Agreement
When negotiation is completed, the representative(s) may initial the draft text of the
international agreement solely for ascertaining the form and content of the
negotiated text of such agreement. For the purpose
of this Rule, the initialled draft text shall not be deemed as the
final text and shall be subject to endorsement pursuant to Rule 7.
Rule 7 Endorsement of the Draft Text of the International Agreement
1. The representative(s) shall submit the draft text of
the international agreement
to the relevant ASEAN Sectoral Ministerial Bodies at the senior officials level
for endorsement. Such endorsement shall be made in consultation with the Committee of Permanent Representatives to ASEAN.
2. The Committee of Permanent Representatives
to ASEAN shall submit the endorsed text
to the ASEAN Foreign Ministers Meeting for its
consideration pursuant to Rule 8. This
paragraph shall not apply where the ASEAN Foreign Ministers Meeting acts through the Committee of Permanent Representatives to ASEAN
pursuant to Rule 8, paragraph
4.
Rule 8 Signature and Act of Formal Confirmation
1. The consent of ASEAN to be bound by an international agreement shall be expressed by signature or an act of formal confirmation.
2. The consent of ASEAN to be bound may be expressed by signature of the person appointed pursuant to paragraph
5 of this Rule when:
a. the international agreement provides
that signature shall have that effect;
or
b. the intention of ASEAN to give that effect to the signature appears from the
full powers issued pursuant to Rule 9, or was expressed during the negotiation.
3. The consent of ASEAN to be bound may be expressed by an act of formal confirmation when:
a. the
international agreement provides for
such consent to be expressed by an
act of formal confirmation;
b. the intention of ASEAN to sign the international agreement subject
to an act of formal
confirmation appears from the full powers issued pursuant to Rule 9, or was expressed during the negotiation; or
c. the person appointed pursuant to paragraph 5 of this Rule has signed the international agreement subject to an
act of formal confirmation.
4. The ASEAN Foreign Ministers Meeting, on its own or through the Committee of Permanent Representatives to ASEAN, may decide on the signing of, and/or an act of formal confirmation of an international agreement.
5. The ASEAN Foreign Ministers
Meeting, on its own or through the Committee of Permanent Representatives to ASEAN, may appoint the
Secretary-General of ASEAN or any other person to sign the international agreement on behalf of ASEAN.
6. Where a decision on formal confirmation has been taken pursuant to
paragraph 4 of this Rule, the instrument of formal confirmation shall be issued
by the Secretary-General of ASEAN.
Rule 9 Full Powers
Where full powers is required, the Secretary-General
of ASEAN shall, upon instruction of
the ASEAN Foreign Ministers
Meeting on its own or through the Committee of Permanent Representatives to ASEAN,
issue full powers for negotiating and/or signing an international
agreement.
Rule 10 Procedure for Amendment, Suspension and Termination
The procedure set forth in these Rules shall apply, mutatis mutandis,
to the amendment, suspension
and termination of international
agreements to which ASEAN is a party.
Rule 11 Role of the ASEAN Secretariat
The ASEAN
Secretariat shall assist the representative(s) and relevant ASEAN organs throughout the process of conclusion of international agreements.
