ASEAN Adopts International Negotiating Procedures

By Edmund Sim
Fri, Jan 27th, 2012

Last week’s ASEAN Coordinating Council meeting of foreign ministers in Cambodia adopted “The Rule of Procedures for Conclusion of International Agreements by ASEAN” (ROP).

As described by ASEAN Deputy Secretary General Bagas Hapsoro,

“The Rule prescribes the procedures for ASEAN as an inter-governmental organization to enter into agreement with countries, international, regional and sub-regional organizations and institutions in pursuing its external relations as provided for in Article 41.7 of the ASEAN Charter.”

As ASEAN has not yet published the ROP on its website, I provide a copy below.

I suspect that only international law aficionados will study the ROP in detail. Yet I think that the ROP does provide some interesting points of relevance to the study of the ASEAN institutions and the AEC.

First, the ROP does not apply to agreements which are negotiated by the ASEAN member states collectively and create obligations for individual member states, namely the various free trade agreements (FTAs). ASEAN FTAs are actually a collection of 10 bilateral FTAs which share common language and obligations, the product of collective negotiation by ASEAN member states, with the support of the ASEAN Secretariat.

Second, the ROP illustrates, once again, the determination by ASEAN member states not to create strong supranational institutions. Under the ROP, the ASEAN Sectoral Ministerial Bodies coordinate with the Committee of Permanent Representatives to ASEAN (CPR) on proposals to commence negotiation.

Final approval of the proposals is up to the ASEAN Foreign Ministers Meeting, or the CPR acting for the foreign ministers. The ASEAN foreign ministers directly or indirectly through the CPR appoint the ASEAN representatives to the negotiation. The ROP requires the ASEAN representatives to maintain close consultations with the CPR and ASEAN Sectoral Ministerial Bodies. Finally, the ASEAN foreign ministers by themselves or through the CPR will specify the manner of concluding the agreement and by whom.

The ROP thus anticipates a case-by-case authorization by the ASEAN foreign ministers (representing the ASEAN member states) for international agreements. Unlike what the EU does in trade matters, there is no standing delegation of authority by the member states to a central institution like the ASEAN Secretary General or the ASEAN Secretariat. Rather, the ROP allows for the designation of the ASEAN Secretary General to act on behalf of ASEAN in specifically authorized circumstances. The ROP also limits the role of the ASEAN Secretariat to that of assisting the designated ASEAN representatives. The primacy of the ASEAN foreign ministers in the process is firmly set by the ROP.

Now, this tension between national sovereignty and regional institutions is always present in entities such as ASEAN and the EU. The EU itself is still resolving such tension in other areas of the Community, such as in monetary affairs and foreign policy. So the factors that resulted in the ROP’s approach are not new.

In any event, perhaps this is all the “ASEAN” that the member states can accept at this time. But it still marks another step in the implementation of the ASEAN Charter, the further commitment to rule of law in ASEAN’s operations. For now, this should be celebrated.

Edmund Sim is a U.S. international trade lawyer at the Singapore office of Appleton Luff and adjunct associate professor of law at National University of Singapore. There, he teaches the first course developed on the law and policy of the ASEAN Economic Community (AEC). You can follow him via AEC Blog.