A Postscript to AFTA’s False Start: The Loss of Sovereignty Issue

Abstract

To remedy the inherent defects of the AFTA Agreement in both substantive and implementa tion aspects, this article proposes: (1) amend the Agreements provision on the unilateral and highly discretionary manner of identifying products to be excluded from AFTA's cover age, and (2) create an independent body that has the power to determine whether or not a member state has complied with its legal obligations in good faith (in accordance with the pacta sunt servanda principle). The ASEAN states' aversion to an independent adjudicatory body may be evaded by extricating the binding character of the said body's decision, which means that a state found to have violated its AFTA obligations may either comply with or disregard the decision. Certainly, for this reason, the enforcement mechanism will again depend on that which is political. Notwithstanding the aforementioned, the unfavourable attitude of ASEAN states towards supranational bodies remains a puzzle as a number of them, if not all, have entered into agreements where supranational bodies are provided for to adjudicate on the rights not only of states parties but of private individuals vis-k-vis ASEAN states.