Friday, February 6, 2015

The ASEAN Matrix of Legal Instruments Helps Formalize ASEAN Law

ASEAN has taken a good first step towards the formalization of its agreements and legal commitments.  The Legal Services and Agreements Division (LSAD) of the ASEAN Secretariat has compiled a matrix of “ASEAN Legal Instruments” on the ASEAN website at this link.    The listing is searchable and downloadable, and strengthens both the rule of law and the role of law in ASEAN.

First, the matrix should settle the issue of what agreements are considered to be “ASEAN law.”  The LSAD stated that it chose the agreements for the listing based on its review of their status in international law and in ASEAN:

The Matrix covers "legal instruments", which, within this context, is ASEAN legal instruments concluded among and between ASEAN Member States. There are various understandings and interpretations of what is considered international legal instruments. As such, the Matrix only focuses on legal instruments by which the consent to be bound is expressed through either signature of the authorized representatives of Member States or the signature is subject to ratification and/or acceptance in accordance with the internal procedures of respective Member States.

Thus, the matrix covers both (1) agreements that are binding under international law through ratification or domestic approval of the ASEAN member states as well as (2) documents that have been signed by the authorized representatives of ASEAN member states and thus can be considered to be binding within ASEAN.    This is important because it formalizes the concept of a legal instrument which is not necessarily binding under international law but is binding within ASEAN, e.g., “ASEAN law.”  

However, it would be interesting to understand how the LSAD determined that a signature from an ASEAN government official constituted sufficient authority.  A signature by a national leader would probably be sufficient, as would that of a minister, but would a signature by a bureaucrat be sufficient?  Just as important would be the contexts in which the signature was made; maybe a bureaucrat’s signature would be sufficient in one context but not another.  Would the intent of the national leaders be important, as the ASEAN Charter states that the national leaders at the ASEAN Summit are the ultimate authority in ASEAN and how their authority was exercised (or not exercised)?  How did LSAD assess this, if at all?  Were the ASEAN member states consulted during this process? It would seem that this process took place under Article 51 of the ASEAN Charter, which authorizes interpretation of the Charter upon request by an ASEAN member state. If so, the LSAD should confirm this.

Second, the matrix defines what agreements are not considered in force.  The matrix itself notes where agreements have been superseded or terminated, which in some contexts was an unsettled issue (such as I described regarding the life and death of the ASEAN Industrial Cooperation Scheme).  Also, the LSAD states that “aspirational documents” are not legal instruments:

The Matrix does not include Statements and Declarations, which are issued or adopted by ASEAN Member States that appear to reflect their aspirations and/or political will.

Therefore, besides assessing whether the ASEAN member states agreed to be bound in an agreement, the LSAD also made a qualitative assessment of the agreement, e.g., did the agreement cover substantive obligations or did it merely set forth aspirational goals?   The AEC blueprints clearly fall within the latter category, as they are not listed in the matrix.   But how did the LSAD make this assessment in more marginal cases?  Again, did the LSAD consult with the ASEAN member states on this?

Third, the matrix classifies legal instruments as falling within one of the three pillars of ASEAN, e.g., Political-Security, Economic or Socio-Cultural.  This is important because classification affects which types of dispute resolution, if any, apply to the instrument.  The Enhanced Dispute Settlement Mechanism (EDSM) applies to economic instruments but does not apply to other instruments.

All in all, this is a positive step for ASEAN that requires more detailed analysis in a law article or book, particularly on the issues described above.  Such analysis should ideally cover other issues that remain unresolved:
  • What should be done in the case of a conflict of instruments?
  • What is the hierarchy of instruments?
  • What is the status of supporting documents related to the negotiation, conclusion and implementation of these instruments?  If they have any value, will they be published? If so, where?
  • When will the matrix be updated?  Will the ASEAN Secretariat indicate when and where updates have been made?
  • Is the matrix definitive?
  • What is the mechanism for amending/updating the matrix?
  • What is the value of the matrix in domestic law?
These issues are non-exhaustive, and in some cases, understandable given that the LSAD is attempting to create an aquis of law for ASEAN, a difficult task of first impression.  This set of instruments will be important both for ASEAN members to understand their commitments, as well as for prospective members (e.g., Timor Leste) to comprehend what ASEAN membership entails.

Of course, an instrument’s value as “ASEAN law” depends on whether the commitments made thereunder can be enforced.  In this context, the perception of enforceability is just as important as actual enforceability.  Without either, the AEC instruments will lack credibility with investors, consumers, producers and citizens in ASEAN, hampering the development of the AEC.  This is why this blog continues to support augmenting the ASEAN institutions and improving the EDSM dispute resolution process.  Those are needed additional steps in the development of  “ASEAN law.”