Types of external agreements

Abstract

When speaking of the internal effects of ASEAN external agreements, it is important to identify and distinguish the range of such agreements. It is certainly not uncommon for legal instruments associated with ASEAN or for commentators to speak of ASEAN agreements in an undifferentiated manner, lumping together under this heading not only clearly different kinds of external agreements, but also agreements between ASEAN Member States alone. As a first qualification, it is evident from the subject and ambition of our inquiry that we are only concerned with external agreements – instruments whose parties include at least one party in addition to some ASEAN states or ASEAN as an international organisation. But even then, we encounter within the umbrella category of ‘external agreements’ instruments that differ widely with regard to their legal nature and what concerns the parties involved. There are, in particular, two different bases that would qualify for a typology of external agreements, in order to add further clarity. The first would entail revisiting the spectrum of hard and soft obligations, in terms of the bindingness of these norms, their specificity and any mechanisms of enforcement or compliance. With regard to their legal nature, ASEAN external practices create instruments ranging on a scale from laudatory and hortatory declarations with no apparent ambition to create legal obligations, on the one hand, and agreements to create clear treaty commitments, on the other hand. When it comes to hard commitments, most of ASEAN external relations do indeed take the form of agreements between ASEAN Member States and one or more third parties. Other instruments, which involve ASEAN as an international organisation and which leave out any direct involvement of the Member States tend to impose weaker obligations. On that basis, speaking about the internal effects of ASEAN external relations, we would need to distinguish between instruments such as the Agreement between the Governments of the Member Countries of the Association of Southeast Asian Nations and the Government of the Russian Federation on Economic and Development Cooperation , which is an international treaty signed and ratified by its eleven state parties, from instruments like the Memorandum of Understanding between the Association of Southeast Asian Nations (ASEAN) and the United Nations (UN) on ASEAN–UN Cooperation , signed by the respective Secretary-Generals of these organisations at that time, Ong Keng Yong and Ban Ki Moon.