Monday, April 29, 2013

Wrap-up of the 22nd ASEAN Summit

Last week the ASEAN Summit and its associated preparatory meetings took place in Brunei.  Here are a few developments related to the ASEAN Economic Community (AEC):

Of course, the biggest development of the ASEAN Summit in Brunei was the lack of controversy regarding the South China Sea/West Philippine Sea issue. This represents a success for Brunei’s “no-drama” approach to the ASEAN Chair role, an approach welcomed after last year’s term with Cambodia as ASEAN Chair.

Tuesday, April 23, 2013

EU Permanently Lifts Burma Sanctions

The EU yesterday agreed to permanently lift economic sanctions on Myanmar.  An arms embargo remains in place, but the  move means that last year’s temporary suspension of sanctions  has become permanent. Meanwhile the US continues the relatively slow process of unwinding and streamlining its own Burma sanctions.  

Thursday, April 11, 2013

RCEP v. TPP: The Real Choices Facing ASEAN Members

NB: A version of this post appeared in the April 22, 2013, Jakarta Globe.

With the start of ASEAN’s Regional Comprehensive Economic Partnership (RCEP) talks expected next month, observers have raised repeated concerns about whether the RCEP represents a challenge to the Trans Pacific Partnership (TPP) free trade talks that have been ongoing since 2008.  Some are concerned that Asian countries will have to choose between the two sets of talks, a mutually exclusive choice between a China-centric trade agreement in the RCEP and a U.S.-centric trade agreement in the TPP.  Others posit that countries can make that choice based on tactical concerns and progress in negotiations.  For example, a recent Jakarta Post article claims that Indonesia, currently in the RCEP talks, can join the TPP if RCEP talks do not progress as quickly

Are the RCEP and TPP really competing for members and agenda items?  The two potential agreements do have some broad similarities.  The TPP encompasses 11 countries (with Japan and Thailand looking to join the talks soon) with a total GDP of US$ 20 trillion, but notably without the participation of China. The RCEP encompasses 16 countries with a total GDP of US$ 17 trillion, but notably without the participation of the United States.  Brunei, Malaysia, Vietnam, Australia, New Zealand, Singapore (and soon Thailand and Japan) are participating in both the TPP and RCEP.

Yet most of the concerns regarding competing and incompatible FTAs are based on fundamental misunderstandings of both the breadth and depth of the two sets of talks.  The RCEP is really a means for ASEAN and its bilateral trading partners to harmonize the existing ASEAN FTAs with Australia-New Zealand, China, India, Japan and Korea.  The substantive scope of these FTAs vary widely; most of these FTAs cover goods, services and investments, but some don’t.  The ASEAN-India FTA notably only covers trade in goods, with a services chapter having taken years to negotiate and investment not covered at all.  The specific rules contained in these agreements also vary significantly, such as the rules of origin which determine which goods qualify for preferential tariff rates.

Furthermore, just as the RCEP provides an opportunity for ASEAN to harmonize its terms of trade with its trading partners, the RCEP also provides an opportunity for ASEAN’s trading partners to harmonize its terms of trade with the ASEAN members.  The various ASEAN FTAs are actually framework agreements for bilateral FTAs; for example, the ASEAN-China FTA is actually a Brunei-China FTA, a  Cambodia-China FTA, and so forth.  Yet although the terms of such agreements may be consistent with the main framework agreement, their implementation by individual ASEAN members may not be consistent.  Just as vexing is that implementation may be inconsistent not only with the ASEAN bilateral FTAs, but with the intra-ASEAN agreements themselves, such as the ASEAN Trade in Goods Agreement (ATIGA).

Thus the RCEP is focused more on harmonization of existing rules and their application within the various ASEAN FTAs.  This is much less ambitious than the TPP’s agenda, which covers may items not covered by the RCEP, such as intellectual property rights, environmental protection, labor, financial services, technical barriers and other regulatory issues.  Yet given the inconsistencies that currently exist in the various ASEAN FTAs, even this harmonization of existing obligations is no less important.  In fact, the external influence provided by the ASEAN trading partners may even supply the discipline and rigor needed for ASEAN to implement the ASEAN Economic Community by end 2015.

The RCEP is primarily focused on measures imposed at the national borders and how to harmonize those measures.  The TPP, on the other hand, is a much more ambitious negotiation in terms of scope because it covers a wide variety of barriers to trade and investment which occur beyond national borders. The TPP also covers issues which ASEAN countries have not yet covered in their intra-ASEAN agreements, such as labor, environment and intellectual property.  Hence the TPP presents countries with a different set of issues than the RCEP does, meaning that the two negotiations are not conceptually incompatible. 

However, post-border issues are necessarily linked to border issues, but not necessarily vice versa.   What that means is that the issues involved in the RCEP are more critical for countries wishing to negotiate in the TPP.  In other words, if a country is not able to deal with the RCEP issues, it will not be able to deal with most of the TPP issues.    Hence Indonesia and other ASEAN members looking to participate in both RCEP and TPP need to prioritize RCEP issues.

Finally, the negotiating dynamics and timing of the TPP and RCEP also impact how ASEAN members approach the two sets of talks.  The TPP talks are supposed to be completed this year, but with the impending addition of Japan, no one seriously expects that to happen. The substantive and procedural issues related to Japan’s joining the TPP talks means a delay in TPP’s finalization until perhaps the end of the Obama administration in 2015-16.  RCEP, in contrast, is supposed to be completed by the end of 2015, which coincides with the initial AEC deadline.  Hence Indonesia can complete its RCEP negotiations, and if it deems itself ready to join the TPP, it still can, although the complication would be that the TPP talks would be in their closing stages and Indonesia would have to accept whatever consensus agreements had already been reached.

How ASEAN members approach RCEP and the TPP therefore do not depend on political-security decisions with regard to China and the United States.  More prosaically, the practicalities of trade negotiations mean that ASEAN members will have to give priority to their RCEP issues first before considering the TPP.  ASEAN members, such as Singapore, who have already done this will find it easier to “walk and chew gum at the same time,” to use an American aphorism.  Those that haven’t will need to follow another American aphorism of “learning to crawl before they can walk.”  Either way, the work necessary to square these circles has to begin now.

Friday, April 5, 2013

ASEAN's Cassis de Dijon?

I am still at the American Society of International Law meeting today, and on the sidelines I went to a University of Michigan Law School alumni breakfast.  It was my pleasure to see Ginny Stein, who is the widow of my Michigan law professor, Eric Stein.  For many years Professor Stein taught international law courses, including one of the first courses on European Union law.  Much of my own teaching and scholarship draws on what I learned in 1991 in his EU law course.

In honor of the Steins, I am reposting a previous post on the EU Cassis de Dijon case.  This is the foundational case in EU law, and the source of a good memory of the Steins. During the 1991 course, we spent an entire lecture on Cassis de Dijon, and I asked Professor Stein what cassis de Dijon was and why anyone would bother to bring a lawsuit about it.  So at the end of the course, Mrs. Stein brought in shot glasses of cassis de Dijon for everyone to try, based on my query (hint: it tastes like Ribena mixed with vodka). 

Unfortunately for my ASEAN law students, we don’t have any such cases because the Enhanced Dispute Settlement Mechanism (EDSM) protocol has never been invoked.  The closest case analog is the WTO case on Thailand-Cigarettes brought by the Philippines and we don’t allow smoking at NUS!  As for the real analogue, the ASEAN Industrial Cooperation (AICO) scheme, I don’t have enough money to give each student a car! 

Here's the link.