Friday, April 6, 2012

Establishing a Hierarchy of Legal Norms for the AEC

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.