Moving forward: different institutional models for ASEAN's external trade agreements

Abstract

Introduction In Chapter 2, we explored the substantive content of ASEAN external agreements, particularly in respect of regulatory cooperation. This chapter turns to the institutional aspects of ASEAN's external trade agreements, and explores the different models which ASEAN might use to conclude such agreements. It highlights existing and possible prospective trends in ASEAN's ‘external relations law’ and the institutional provisions of ASEAN's external trade agreements. Thus far, ASEAN member states have concluded their external trade agreements as plurilateral member state agreements. ASEAN, a separate international legal person, is not a party even where ASEAN's Secretariat has been conferred responsibilities in some of the agreements. The question is how these obligations that the parties to the agreement have sought to impose upon ASEAN can be enforced. Should ASEAN be a party to ASEAN's external trade agreements, whether a sole party or a party together with its member states? The other question is whether ASEAN external trade agreements, which appear to be used as a tool to enhance ASEAN regional integration, are appropriately structured to achieve this end. There are two aspects to this question. First, the use of the ASEAN minus X formula, which may need to be moderated, perhaps even supplemented or replaced by other alternative approaches to conclusion of agreements, in order for the application of the formula not to be counterproductive. Secondly, how the rights and obligations in the agreement should be structured. Should rights and obligations set out in ASEAN's external trade agreements be limited to apply only between the ASEAN member states and the dialogue partner(s), or should they be extended to apply between the ASEAN member states (and, where relevant, ASEAN) as well? Should ASEAN member states (and, where relevant, ASEAN) collectively enter into external trade agreements, rather than be separate and individual parties to such agreements? Notwithstanding the current approach of member states concluding ASEAN external trade agreements on a plurilateral basis, other models of conclusion have been used for ASEAN external agreements dealing with other economic matters and for external agreements of other international organisations that are free trade areas or customs unions.