Wednesday, April 3, 2013

How Ratification Affects the Enforceability of Intra-ASEAN Agreements

This week I am attending the annual meeting of the American Society of International Law in Washington, DC, where I am moderating a panel dealing with ASEAN and international law. We will of course deal with the usual issues regarding the South China Sea/West Philippine Sea, human rights and the like.  However, the topic set me to thinking about the status of intra-ASEAN agreements in international law. Namely, why do some ASEAN agreements require ratification as treaties enforceable under international law whereas other agreements do not?  And how does this affect their validity under international law?

The varying legal systems of the ASEAN member states necessitate the varying treatment of intra-ASEAN agreements.  Ostensibly an agreement signed by the prime ministers of Malaysia or Singapore, which follow a Westminster parliamentary system, could be conceivably be viewed as an international agreement.  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. The issue also comes up less frequently under Thai and Indonesian law. On the other hand, Cambodia determines whether an agreement must be subject to domestic ratification based on the nomenclature applied to the agreement. Ratification in ASEAN thus is determined on a lowest common denominator basis, with many agreements using specific nomenclature or tailored subject matters to avoid domestic ratification if possible.   One would not view unratified but signed agreements as binding under international law.

Nevertheless, such agreements still have binding force as ASEAN commitments, if not binding international legal 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 and should be allowed as the basis for invoking dispute resolution.

However, dispute resolution is where the major impact of ratification comes into play.  Ratified ASEAN agreements can be invoked as international law in non-ASEAN legal forums such as through the WTO Dispute Settlement Understanding (DSU), whereas unratified ASEAN agreements cannot.  Such unratified agreements could be invoked in ASEAN Enhanced Dispute Settlement Mechanism (EDSM).  That would be fine, but for the fact that the EDSM process has never been used.  Contrast that with the WTO DSU, which has been used several times by ASEAN members. 

All of this means that the current enforceability of many ASEAN agreements ultimately remains dependent on several factors driven by national law in ASEAN member states, including nomenclature.   If and when the EDSM ever gets modernized and becomes usable by ASEAN member states, perhaps that will change for the better.  Until then, the preference by ASEAN member states to use non-ASEAN legal mechanisms to enforce intra-ASEAN trade and investment obligations means that not all ASEAN agreements have the same level of enforceability.