A student at this week’s Utrecht-Airlangga conference on
harmonizing legal principles in ASEAN asked me why some ASEAN agreements require
ratification by the ASEAN member states and some don’t. The obvious answer is
that domestic ratification by an ASEAN member state makes the agreement binding
under international law (although it is usually not directly applicable to that
ASEAN member’s domestic law, unless specified otherwise). From a structural point of view, however,
what is the legal hierarchy of norms in ASEAN, an important question for the
governance of the ASEAN Economic Community, and a major question at the National University of
Singapore Center for International Law’s ASEAN Integration Through Law project
(meeting later this August)?
At the top of the hierarchy would indeed be
ratified agreements such as the ASEAN Charter, ASEAN Trade in Goods Agreement
and ASEAN Comprehensive Investment Agreement.
As ratified agreements, they are binding under international law, with relevant
avenues for dispute resolution should an ASEAN member state not comply with
their terms. In other words, these
agreements are sufficiently vital to ASEAN that the member states want them to
be legally binding on a continuing basis and not easily subject to later
revision or revocation (see below).
ASEAN members have other agreements that may or
may not be ratified under their domestic procedures. Ostensibly an agreement
signed by the prime ministers of Malaysia or Singapore, which follow a Westminster
parliamentary system, could be conceivably be viewed as international
agreements. However, that would not be
the case for the Philippines, where the issue of Senate ratification arises
almost every time the Philippine president signs an international
agreement. Thus, one could not view such
unratified but signed agreements as binding under international law.
However, I do think that such agreements still have binding force as ASEAN commitments. Article 7.2(a) of the ASEAN Charter states that the ASEAN Summit of national leaders is “the supreme policy-making body of ASEAN.” Hence decisions and agreements made at the ASEAN Summit represent the final word on ASEAN matters – that is, until the ASEAN Summit decides otherwise at a later meeting. That would mean that unratified but signed agreements are binding as ASEAN commitments but are subject to later amendment or revision. This is not different from what happens in all forms of government, where the state makes policy decisions which can, and often are, later revised or amended. In either case, unratified but signed ASEAN agreements can be invoked by other ASEAN member states.
There are even more agreements and declarations
made at the ASEAN Coordinating Council, the ASEAN Economic Community Council,
and the various ASEAN ministerial bodies. What is the relative legal value of
those agreements? Well, there seems to
be a sentiment within ASEAN (including with some in the ASEAN Secretariat) that
such agreements, if signed off at the ministerial level or otherwise backed by
the authority of the ASEAN national leaders, would also be viewed as having
some legal force. In other words, if the political leadership of an ASEAN
member state has directly authorized its minister to make a commitment to the
other ASEAN member states, then that commitment has legal value in determining
rights and obligations within ASEAN. That
commitment may not have as much weight as one signed off by the national
leaders, and it may be subject to later revision, but it still has some weight. This organic approach is consistent both with
the structure of the ASEAN Charter and political realities within the region:
all lines of authority go back to the national leadership of ASEAN.
Finally, there are agreements and commitments
made by non-political officials such as the Senior Economic Officials Meeting
or at the various committee levels of ASEAN.
Based on the foregoing, these agreements and commitments should be
viewed as the lowest rung of the legal hierarchy, as they do not have such
explicit endorsement by the ASEAN national leadership. They are useful for
understanding how the ASEAN member states are administering and implementing
their AEC commitments, but they should not be viewed as establishing binding
obligations on ASEAN member states. Nevertheless,
as they are useful for investors to understand the administration of the AEC,
it would be beneficial for ASEAN to make these agreements and commitments
publicly available, as is the case for documentation coming out of the ASEAN
Summit, Councils and ministerial bodies.
The foregoing hierarchy of legal norms is
admittedly not as clear-cut as would be the case in more mature systems like
that of the EU or the US. But it is
still early days for the more formalized rule-based system introduced by the
ASEAN Charter, so we should give ASEAN time to flesh these and other legal
issues (such as how domestic courts and institutions in ASEAN member states
should apply these agreements and commitments).
Ultimately, the AEC needs a transparent and comprehensible legal system
in order to attract investment into the region.
