EC-ASEAN Cooperation Agreement versus Europe (EAs), Stabilisation and Association (SAAs) and Partnership and Cooperation Agreements (PCAs).
By Alfred E. Kellermann
What are the main differences in nature and legal character between the above mentioned agreements? After the presentation of a summary of the objectives, contents and institutional framework of these agreements, we will focus on some specific topics like approximation of laws and legal effect. We will limit our comments in this paper just to a comparison of the agreements and investigate if it would be necessary and useful if the text of the EC-ASEAN Cooperation Agreement should be adapted. (1)
EC-ASEAN Cooperation Agreement and implementation
The relations between the EC and ASEAN are based on a Cooperation Agreement of March 7, 1980 between the EC (Commission and Council) and originally five member-countries of ASEAN (Indonesia, Malaysia, Philippines, Singapore and Thailand). The agreement was later updated and extended to Brunei (1984), Vietnam (1995), Lao People’s Democratic Republic and Burma/ Myanmar (1997) and Cambodia (1999).
Although the Agreement is a cooperation rather than a trade agreement, it provides for most-favoured-nation (MFN) treatment in accordance with the WTO.
The Cooperation Agreement holds only 9 articles:
- Art.1 Most-favoured-nation treatment; Art.2 Commercial cooperation Art.3 Economic cooperation; Art.4 Development cooperation
- Art.5 Joint Cooperation Committee; Art.6 Other Agreements
- Art.7 Territorial application; Art.8 Duration; Art.9 Authentic languages.
‘ Former General Secretary and Head of EU Section, T.M.C. Asser instituut , the Hague, the Netherlands
In the Cooperation Agreement the institutional framework is rather poor (only one article) regulated. Art.5 holds:
(1)” A Joint Cooperation Committee shall be set up to promote and keep under review the various cooperation activities envisaged between the Parties in the framework of the Agreement. The Committee will normally meet once a year. Special meetings of the Committee shall be held at the request of either Party.
(2) The Joint Cooperation Committee shall adopt its own rules of procedure and programme of work.” ·
In practice approximately every 18 months, meetings of the Joint Cooperation Committee (JCC) are held to discuss on-going and future actions.
There is no ASEAN Parliament as yet, although there exists the ASEAN Inter Parliamentary Organization (AIPO). However, the AIPO is not integrated into the ASEAN institutional framework (2).
However economic integration is becoming more and more an objective of ASEAN. The Framework Agreement on Enhancing EconomicCooperation was adopted at the Fourth ASEAN Summit in Singapore in 1992, which included the launching of a scheme toward an ASEAN Free Trade Area or AFTA. The objective of AFTA is to increase the ASEAN’s region’s competitive advantage as a single production unit by the elimination of tariff and non-tariff barriers among the member countries.
The Fifth ASEAN Summit held in Bangkok in 1995 adopted the Agenda for Greater Economic Integration, which included the acceleration of the timetable for the realization of AFTA from the original 15 years timeframe to a 10- year timeframe.
The objective of tariff reduction does not require further agreements and is self executing. Under AFTA there are no quantitative restrictions; other non-tariff barriers are to be reduced to nothing over 5 years; no foreign exchange restrictions etc.
There are, therefore, here signs according to Harding (3) of a more rigorous and legalistic approach emerging in the area of ASEAN economic law.
However, outside the framework of the Cooperation Agreement (“the ASEAN way of cooperation”) many activities by the ASEAN-EU Ministerial meetings have been developed in the field of foreign policy and economic cooperation. The following activities and communications for example:
The EU has been a longstanding Dialogue Partner of ASEAN. The political dialogue entails regular meetings of Ministers of Foreign Affairs(AEMM) of ASEAN and EC countries with participation of representatives of the European Commission. The EU also participate in the Post Ministerial Conferences which take place immediately after ASEAN’ s annual ministerial meetings and in the ASEAN Regional Forum· (ARP), which was created in 1994 – the only security forum in Asia. The EU is full member of the ARF. The EU and ASEAN share an overriding common goal, a commitment to regional peace and security. The ministers of both regional organizations have met in the framework of the political dialogue since 1978 every second year and since 1995 it has been agreed that EU-ASEAN senior officials would meet between ministerial meetings.
The European Parliament’s delegation for relations with the Member States of ASEAN, holds regular meetings with the ASEAN Inter-Parliamentary Organization (AIPO).
The ”New Dynamic” was launched at the EU-ASEAN Ministerial Meeting in Singapore in February 1997. The basic objective of the New Dynamic is to reach a new level of discussion in EU partnership with ASEAN, on a path to greater cooperation. The Joint Declaration promised a deeper political dialogue, cooperation in international fora and the importance of enhanced economic co operation. A work Programme for the implementation of the “New Dynamic” was adopted, focusing on promotion of business and trade ties between the two groups by negotiations and exchange of views.
The thirteenth ASEAN-EU Ministerial Meeting was held on 11 – 12 December 2000 in Vientiane und r the co-chairmanship of the Lao People’s Democratic Republic (Lao PDR) and France, acting as Presidency of the Council of the EU. The Kingdom of Cambodia, Lao PDR and the Union of Myanmar participated for the first time at the Ministerial Meeting. It was stressed again that the ASEAN-EU Ministerial Meeting has a key role to play in formulating policies and coordinating future directions of the cooperation between ASEAN and EU. The EU briefed ASEAN in this meetings on the important steps taken by the European Council in Nice regarding, inter alia, the European Security and Defense Policy, EU Enlargement and the Intergovernmental Conference.
ASEAN informed EU of developments within ASEAN, in particular, for example the implementation of the Ha Noi Plan (HPA), the purpose and procedure on constituting the ASEAN Troika and many political items like Burma/Myanmar (ILO), Indonesia (East Timor), the dialogue between North and South Korea.
The exchange of economic issues concerned inter alia the introduction of the EURO and the importance of accelerating the process of accession to the WTO for the Kingdom of Cambodia, Lao PDR and Vietnam. Further the reduction of nontariff barriers, so as to facilitate the trade flows between the two regions as well as the meeting of the ASEAN Economic Ministers and the EU Trade Commissioner, held on 6 October 2000 in Chiang Mai.
The European Commission adopted 4th September 2001 in Brussels a Communication setting out a new strategic framework for the EuropeanUnion’s relations with Asia in the coming decade.
“ASEAN, and the ASEAN Regional Forum, will continue to be the major focus of our political and security dialogue with South-East Asia, and it will be important for the EU to play a pro-active role in the ARP. More generally, our dialogue with ASEAN and its member countries should help identify areas whereas ASEAN and the EU can work together on global security questions, and on global challenges such as drugs and transnational crime. We should continue to give full support to conflict prevention efforts within the region (for example in the Indonesian and Philippine archipelagos and in Burma/Myanmar), and to civil society efforts to promote transparency, good governance and the rule law… “
The fall of the Berlin Wall in 1989 led to an increase in the relations between the Union and most of the CEEC’s, including the signing of association agreements, the so-called ”Europe Agreements”. These relations have been further deepened since the European Council meeting in Copenhagen in June 1993, which considered that those countries that had signed “Europe Agreements” with the EC could be eligible for membership. Ten central and East European countries have concluded association agreements with the Communities: on December 16,1991 Hungary, Poland and Czechoslovakia (Since 4 October 1993 with both the Czech and the Slovak Republic), on 1 February, 1993 Romania, on March 8, 1993 Bulgaria, on June 12, 1995 the Baltic States of Estonia, Latvia and Lithuania and on June 10, 1996 Slovenia.
The Europe agreements are considered as a preparatory stage for full membership of the European Union. They embody various liberalization measures, which are intended to lead after a maximum of 10 years to the creation of a free trade area in industrial products between the Community and the respective countries concerned. In view of their reciprocity the Europe Agreements exhibit substantive differences in comparison with the trade and cooperation agreements.
The incorporation of provisions relating to the liberalization of the movement of workers, establishment and the provision of services is completely novel. In particular, the chapter on “approximation of legislation” is worth mentioning. ”Approximation of laws” means that a third state adapts its national law to Community law rules which have no binding force in relation to that state and in the framing of which that state may have had no real participation. The associated partner has to make its legislation compatible with that of the Community and the Community has to provide technical assistance in this connection. In order to assist candidate countries, the Commission drew up a non-binding white paper on May 3, 1995 (White Paper – Preparation of the associated countries of Central and Eastern Europe far integration into the internal market of the Union).
Just as in the case of other association agreements, each Europe Agreement creates an institutional structure, consisting of an association council,an association committee and an association parliamentary committee. Within their respective spheres of competence, the three institutions are responsible for seeing that the agreement is -implemented in a dynamic manner.
It was not until June 1993 that the European Council, meeting in Copenhagen envisaged the accession of the central and eastern European countriesand described the Europe Agreements as a preparation for membership. In December 1995 the Madrid European Council decided that the first stage of the accession negotiations would start six months after the conclusion of _the 1996 Intergovernmental Conference. The Commission was tomake the necessary proposal to this end. On July 15, 1997 the Commission published Agenda 2000 and its opinons on the accession applications of ten associated European countries in Central and Eastern Europe.
Stabilisation and Association Agreements (SAAs)
A rather new concept are the Stabilisation and Association Agreements (SAAs) between the Community and countries from South Eastern Europe (Bosnia and Herzegovina, Croatia, Federal Republic of Yugoslavia, Macedonia and Albania). They have as objective to draw the region closer to the full perspective of full integration into EU structures. This embodies a stronger EU commitment than the following Partnership and Cooperation Agreements (PCA), but not as strong as the Europe Agreements. The SAA with Croatia for example is the second such Agreement (after former Yugoslav Republic of Macedonia) to be concluded under the EU Stabilisation and· Association process, launched in May 1999. The Agreement has been signed in May 2001 and provides for a wide-ranging partnership and cover areas such as:
- political dialogue
- regional cooperation
- the creation of a free trade area with the Community after a transition period of six years
- provisions on freedom of establishment, supply of services, movement of -capital and liberalisation of road transit traffic
- a high level of approximation of Croatian legislation to the EC standards
- wide ranging cooperation in areas such as justice and home affairs
Partnership and Cooperation Agreements (PCAs)
The Partnership and Cooperation Agreements (PCAs) form the contractual framework of EU relations with the so-called “Newly Independent States” (NIS), which emerged from the disintegration of the Soviet Union in 1991, Baltic States excluded (Estonia, Latvia and Lithuania).
The Communities have decided to replace the 1989 trade and co-operation agreement concluded with the Soviet Union by partnership and co-operation agreements with a number of republics of the former Soviet Union. Such agreements have entered into effect December 1, 1997 with Russia, on 1 March 1998 with Ukraine, on July, 1 1998 with Moldova, Armenia, Azerbaijan Georgia, Kazakhstan, Kyrgyzstan, Uzbekistan. Partnership and co-operation agreements with Belarus (March 6, 1995) and Turkmenistan (May 25,1998) have been signed but have not yet entered into effect. With Tajikistan the PCA Agreement is not yet signed.
In contrast to the CEECs and the countries from South Eastern Europe (Bosnia and Herzegovina, Croatia, Federal Republic of Yugoslavia, Macedonia and Albania), the NIS were not recognized by the Union as official candidates for EU accession, at least for the time being.
On 3 and 4 June 1999, the European Council meeting in Cologne decided on a “Common Strategy of the EU on Russia’ Another Common Strategy(CS) was adopted for Ukraine in December 1999, by the European Council meeting in Helsinki.
The Common Strategies on Russia and Ukraine have been developed as an objective to strengthen the Partnership based on the respective Partnership and Cooperation Agreements. According to the wording of the Common Strategy, the PCA becomes an instrument that shall give legal effect to the Common Strategy.
The Institutional structure consists of a Cooperation Council and a Cooperation Committee. The Cooperation Council can only adopt recommendations for solving disputes and its role is therefore limited compared with the Association Council of the Europe Agreements, which do have binding effect. The Cooperation Committee is composed of representatives of the members of the Council of the EU and members of the Commission on the one hand and representatives of the Partner’s Government on the other. Finally, the dialogue also involves parliamentarians. The Parliamentary Cooperation Committee, consisting of members of the European Parliament on the one hand and members of the Partner’s national parliament.
The Common Strategy can be implemented by a Council Joint Action (JA) and Action Plan (AP). The EU Action Plan on Common Action for the Russian Federation on combating organized crime adopted by the Council is taken in fulfillment of the EU Common Strategy on Russia for example touches upon all three pillars of the Union and therefore needs a high level of co-ordination. This Action Plan introduces a new development in the EU-Russia relations by establishing a specific framework for cooperation concerning the Common Foreign and Security Policy (second pillar), Police and Judicial Cooperation (third pillar) and money laundering (first Pillar).
Approximation of Laws
One of the great differences between the EC-ASEAN Cooperation agreement on the one hand and the Europe Agreements, PCAs and SAAs on the other hand is the small number of articles in the EC- ASEAN Agreement. The EU-ASEAN Cooperation Agreement is a poor legal text and has only 9 articles, which do not refer to approximation of laws. The PCA with Russia for example has 112 articles (in Article 55 Approximation of Laws), and many annexes and the Europe Agreement with Macedonia has 128 articles (in Article 68 Approximation of Laws). In the following I will deal with the importance of approximation of laws to establish a single market and the eventual legal effect for not complying with these obligations.
As we consider that the PCA with Russia could be a model for economic cooperation and for future relations between ASEAN, ASEAN Member States and EU and EU Member States, we will focus our attention in the following on the implementation of the PCA with Russia and investigate what ASEAN can learn from this model of cooperation. As the Europe Agreements are considered as a preparatory stage for full membership these agreements are not the best example for an eventual new model of cooperation between EC and ASEAN. The Stabilisation and Association Agreements (SAAs) will not be compared as they are a rather new concept and there has been not yet been developed implementation practice. Finally, Russia has a modern constitution, entered into force 25 December,1993, which model could be used as an example for many ASEAN countries in the field of the relationship of international law with national law.
The impact of European law on Russia is in large part influenced by the obligations of the Partnership and Cooperation Agreement (PCA) whichwas signed on 24 June 1994 in Corfu. The PCA entered into force on 1 December 1997 after having been ratified by the European Union Member States Parliaments, the European Parliament and the Parliament of the Russian Federation. It sets out the general principles and detailed provisions, which will govern their future relationship.
It is acknowledged that economic links will be strengthened if legislation were to be made compatible. Russia has undertaken to bring its legislationcloser in line with that of the European Union.
In Article 55, Par 1 .and 2 of the above-mentioned Partnership and Cooperation Agreement of 24 June 1994 (PCA) with Russia you find nearly the same definition ofapproximation of laws as in the Europe Agreements. However, the words “existing and future” legislation are missing. It holds:
- “The Parties recognize that an important condition for strengthening the economic links between Russia and the Community is the approximation of legislation. Russia shall endeavour to ensure that its legislation will be gradual/y made compatible with that of the Community.
2)The approximation of laws shall extend to the following areas in particular: company law, banking law, company accounts and taxes, protection of workers at the workplace, financial services, rules on competition, public procurement, protection of health and life of humans, animals and plants, the environment, consumer protection, indirect taxation, customs law, technical rules and standards, nuclear laws and regulations, transport. “
The provisions on approximation of laws of the Partnership and Cooperation Agreement with Russia are derived from the drafting of the provisions for approximation of laws in the above-mentioned ten Europe Agreements. Express provision is made in the Europe Agreements for the CEECconcerned to engage in voluntary harmonization. It is thus envisaged that these countries will shape the legal foundations for their new economic systems on the Community model.
According to Article 68 of the Europe Agreement with Poland, which is typical of the Europe Agreements, the Parties recognize that the major precondition for Poland’s economic integration into the Community is the approximation of its existing and future legislation to that of the Community. Accordingly, Poland shall use its best endeavours to ensure that its future legislation is compatible with Community legislation.
The fields covered include: customs law, company law, banking law, company accounts and taxes, intellectual property, protection of workers at the workplace; financial services, rules on competition, protection of health and life of humans, animals and plants, consumer protection, indirect taxation, technical rules and standards, transport and the environment.
The nature, extent and impact of the approximation process have in the last five years extensively been developed. At the beginning of the enlargement process the Commission could not realize the full impact of the strains which will be put on the associated countries (long term overburdening of the administration, an ever increasing demand for expertise and training).
From the other side, the understanding of EC’s legal framework in the associated countries was less than adequate.
The 1995 White Paper (‘Preparation of the Associated Countries of Central and Eastern Europe for Integration into the Internal Market of the Union”) can be considered as a further elaboration of the relevant Europe Agreements articles.
The European Commission is regularly screening the approximation processes in Regular Reports. According for example its Regular Report on Latvia on Progress towards Accession of 13 October 1999:
“Latvia has made important progress in aligning further its legislation to the internal market acquis. In particular, as regards sector-specific legislation for the free movement of goods, free movement of services, competition and state aids. Competition and state aids authorities have become operational and function well. Steady progress has been made also in taxation, energy and rail transport. Important improvements can be noted in environment, in particular on environmental impact assessment and _air quality. In the field of ·justice and home affairs, there have been positive developments, notably as regards visas and asylum. Significant work remains to be done on intellectual and industrial property protection, in particular on the enforcement side, on data protection and company law. Substantial efforts need to be made in telecommunications, agriculture, and fisheries and regional policy etc.
Latvia has continued to address the Accession Partnership short-term priorities in a satisfactory manner demonstrating good progress in aligning its legislation to the acquis and setting up the structures required to implement it in most areas. However, the delays in implementing general public administration reform have weakened its capacity in this respect. The implementation and enforcement capacity priority should be addressed in a more systematic manner, with an emphasis on telecommunications, agriculture, customs and tax administration, maritime safety and financial control.”
If ASEAN intends to achieve economic integration and to establish one single market, approximation of laws is urgently required. National laws are still an obstacle for market access and the free movement of goods, capital, services and persons in ASEAN.
Therefore, it is necessary to include in the ASEAN Free Trade Agreement (AFTA) a Chapter with articles on Approximation of Laws. This would be an incentive for further economic integration in ASEAN. Approximation of laws for the ASEAN countries would however be voluntarily, and not obligatory. For the EU-candidate countries it is obligatory following the obligations in the Europe Agreements. However not complying by EU-candidate countries with this obligation had as a sanction no-EU Membership. Not complying with the principle of approximation of laws, has as a consequence for ASEAN countries no market access. In ASEAN context the question arises to which laws, approximation is necessary. Laws of other ASEAN countries, EU laws, USA laws etc ?
I would suggest to modern laws, which are to be found as well in Europe as well as in the USA.
Possible Legal Effect: Improving legal protection for investors
Another aspect is the eventual legal effect of the Europe Agreements (EAs), Stabilisation and Association Agreements (SAAs) and Partnership and Cooperation Agreements (PCAs) in the national legal order of the participating countries. This effect is however dependent on the interpretation of the respective national constitutions.
In this paper I will focus on the possible legal effect of the PCA in the Russian Federation legal order, as we have selected this Agreement as a possible model and example for strengthening future EC-ASEAN Cooperation. An analysis of the Russian Constitution of 1993 is a condition to determine the implications and legal effect of the PCA into the Russian national legal order. European law doctrine is giving the answer on the eventual legal effect of the PCA within the EU legal order.
The new 1993 Constitution (approved by a popular referendum on December 12, 1993, entered into force on December 25, 1993) confirms the trend in Russian practice of giving a prominent place to international legal standards in the domestic legal setting. It contains a special clause on the relationship between international law and the Russian legal system. Article 15(4) provides:
“The generally recognized principles and norms of international law and the international treaties of the Russian Federation shall constitute part of its legal system. If an international treaty of the Russian Federation establishes other rules than those stipulated by the law, the rules of the international treaty shall apply.” Some features of this extremely important constitutional norm are.
- Art 15(4) states that all international law is part of the Russian domestic legal system. Thus both treaty law and the “generally recognized principles and norms of international law”.
- Article 15(4) embraces not only the principles and norms that are binding on Russia at this moment, but also principles and norms that Russia might accept in future treaties.
- Article 15(4) does not distinguish between self-executing (or directly applicable) and non-self-executing (or not directly applicable) international principles and
norms. Individuals may therefore invoke all kinds of norms of international law, as part of the legal system before any national administrative agency, court or tribunal.
- Article 15(4) establishes a higher normative status for treaty rules than for contrary domestic laws. Consequently, legal regulations in force within Russia shall not apply if their application would be incompatible with treaty provisions. National tribunals must give precedence to treaty norms over domestic law, be it antecedent, or posterior, federal or republican/ provincial. Article 15(4) does not however, confer such status on the “generally recognized principles”. Nor does it place international treaties above the federal Constitution itself.
Two examples of provisions in the PCA with Russia which may produce legal effects.
According to the PCA with Russia, companies based in the Member States of the EU will be allowed to set up subsidiaries in Russia on terms which are no less favourable than that accorded to Russian companies. The same treatment will be granted to Russian companies setting up subsidiaries in the EU.
In the PCA there are so called “negative” obligations for Russia after a transitional period of five years as from the entry into force of the PCA.
For example, Article 52 Par. 5:
“The Parties shall not introduce any new, restrictions on the movement of capital and current payments connected therewith between residents of the Community and Russia and shall not make the existing arrangements more restrictive.”
In order to understand the impact of the legal protection of EU and Russian companies we must distinguish between two legal orders.
- the legal effect in the Russian legal order, for which the Russian Constitution must give an answer.
- the legal effect in the European Community’s legal order, for which the European Union Treaty and doctrine will give an answer.
Ad 1. According to the above-mentioned Articles of the new Russian Constitution, any Russian company or company from a EU Member State, established in Russia, may sue the Russian Government in case that the Government does not comply with a negative obligation as mentioned for example under Article 52, Par 5 of the PCA.
Ad 2. According to the European Court of Justice, international agreements may in certain circumstances be directly effective: the provision must be clear and ambiguous, unconditional and its operation must not be dependent on further action being taken. Provisions containing negative obligations meet these requirements. Any company (EU or Russian) established within the EU may sue the Commission or EU Council before the national court or in some cases before the European Court of Justice for not complying with a negative obligation of Article 52, Par 5 PCA if for example the Commission or Council will introduce new restrictions on the free movement of capital.
In the Constitution of the Kingdom of Thailand, published in the Government Gazette, Vol.114 on 11th October 1997, we did not discover specific provisions concerning the relationship of international law and national law. In order to improve legal protection of national / foreign companies in Thailand, in case of non-compliance by Thai Government with the international obligations, adaptation of Thai constitution or constitutionalpractice may perhaps be necessary. If for example the Thai government would not accelerate according to the timetable of the AFTA Agreement, the reduction of and elimination of tariffs and non-tariff barriers, the question would arise if a Company in Thailand would have the possibility to sue the Thai government for not complying with an international agreement (=AFTA).
Final Remarks on the impact of the rule of law
There are many differences in nature and legal character between the EC-ASEAN Agreement on the one hand and Europe Agreements (EAs), Stabilisation and Association Agreements (SAAs) and Partnership and Cooperation Agreements (PCAs) on the other hand. One of the most important differences concerns the different objectives. The Europe Agreements and the Stabilisation and Association Agreements have as their final goal accession to the European Union. This is not the case with the EC-ASEAN Cooperation Agreement, nor with the Partnership and Cooperation Agreements.
Already the conclusion of the Agreement is different. The EU Member States do not participate fully in the conclusion of the EC-ASEAN Agreement, but the Agreement is concluded by the Council of the EU and the European Commission with the ASEAN Member countries only. In the conclusion of the other agreements (EAs, SAAs, PCAs) however, there is a full participation by the EU Member States and their national parliaments. These are, so-called “mixed agreements”. An agreement can be regarded as mixed if the EC and one or more of the Member States are parties to it.
We miss further a strong institutional framework in the EC-ASEAN Cooperation Agreement. The institutional framework of EC-ASEAN lies mainly outside the Agreement. This is due to the so-called “ASEAN way” of cooperation, which is not based on legal obligations. The “ASEAN way” of approaching the problem is fundamentally different from the EU notion as ASEAN tries to avoid legal commitments and the Agreement lacks a Treaty basis.
We considered that the text of the PCA with Russia could be an interesting example for the drafting of a text on the enlargement of future relations between ASEAN and EU. We therefore focused our attention to the provisions of the PCA with Russia and its implementation in the EU and national legal order of Russia. Provisions containing legal obligations as mentioned in the Articles of the PCA Agreement with Russia are necessary for legal protection of investors. These obligations could have for example as a legal consequence that companies may sue their government for not complying with provisions of the PCA Agreement as we have demonstrated. The same holds for the Europe Agreements (EAs) and Stabilisation and Association Agreements (SAAs) which do have even more legal obligations than the PCAs.
In order to remove obstacles to the free movement of goods, services, capital and persons between ASEAN Member countries and to establish a single market, approximation of laws would be necessary. In the Cooperation Agreement between the EC -ASEAN a reference to approximation of laws is however totally missing. The Agreement has only 9 articles. So far ASEAN has done without much legal formality: it is clearly based on cooperation rather than integration through law. Articles, which could produce legal effects and consequences are not included. ASEAN is only a regional intergovernmental organization comprising ten countries in Southeast Asia, which promotes intergovernmental cooperation and facilitates economic, political, security, military, educational and sociocultural integration among its members and other countries in Asia. In this cooperation the rule of law has no priority like in the EU cooperation of policies.
In order to improve the free movement of persons, capital, goods and services between ASEAN States and the EU, the text of the ASEAN Free Trade Agreement (AFTA) has to be supplemented and enlarged with a chapter on “Approximation of Laws”.
However, the approximation of laws may be voluntary and need not to be obligatory.
Approximation of laws to Community or International Standards is necessary as well as for importers as for exporters. For example, regarding standards, mutual recognition, services and the removal of barriers to foreign investment.
The text of the ASEAN Free Trade Agreement (AFTA) could promote a more legalistic approach. If for example the Thai government would not comply with the obligations to reduce the tariffs according to the mentioned timetable, a Company could sue eventually the Thai Government. This is however dependent on the interpretation of the National Constitution of Thailand of 1997. If this Constitution includes provisions, which recognize direct effect and primacy of international law on national legislation, in that case the company could sue the Thai government and would have legal protection.
However, we did not discover in the text of this Thai Constitution a chapter or provisions concerning relationship of international law and national law.
Conclusion: Summing-up and Suggestions
Alfred E. Kellermann*
The key issue is not the rule of Law, but the role of the Law in further strengthening ASEAN economic cooperation towards a future possible “integration”.
So far ASEAN has done without too much legal formality: it is clearly based on cooperation rather than on integration through law. However, in practice EU and ASEAN are much more close since the rule of politics has often priority on the rule of law and legal formality as well as in the EU as well as in ASEAN.
”Legal coordination” is recognized as an important condition for strengthening economic links between and within ASEAN and EU countries.
Suggested is therefore the inclusion of a paragraph on “legal coordination” in the new text of the AFTA Agreement with a text, comparable with the definition of approximation of laws as drafted in the Europe Agreements. However, in such a text there should be no obligation to coordinate the national legislation. It should only be a voluntary coordination of laws. For not complying with the need of coordination or approximation of laws there will be not a legal but an economic sanction. These countries will miss opportunities of market access. Legal coordination or approximation of laws will have also as a consequence more legal cooperation, legal education and legal research.
In order to establish a Single ASEAN Market a program with a strict timetable and legal procedures to monitor its implementation is required. The timetable for the realization of AFTA, as adopted in 1995 in Bangkok is the starting point for a more legalistic approach.
Perhaps the European approach as developed in the Case 128/78 (more popularly known as the Cassis de Dijon judgment), and extensively mentioned in the White paper, Completing the Internal Market may be the most effective strategy for ASEAN: the principle of mutual recognition:
Goods lawfully produced and marketed in one Member State must be accepted in all other member States. In such cases the need to harmonize everything disappears. This would allow a maximum of competition between different regulatory systems within ASEAN.
Former communist ASEAN countries may learn from the experiences of former communist countries in Europe. For example, the protection of private property in a country that finds itself in the process of transition to democracy and market. Former General Secretary and Head of EU section , T.M.C. Asser Instituut, the Hague, the Netherlands economy may be necessary to guarantee that the reforms are irreversible. Adequate protection of property is also an incentive for grassroots economic initiative, which is the foundation of economic growth and prosperity. The European system of the protection of human rights includes the protection of property rights and the countries like Russia that recently joined the European Convention on Human Rights benefit from the experience gained in this respect by other European countries. Similar exchange of experience or setting common property standards within ASEAN may be advantageous for intra-ASEAN cooperation. It may also bring about the increase in foreign investments and in economic cooperation with third countries.
Another possible condition for acceleration of integration and strengthening cooperation may be enlargement of ASEAN by seeking closer ties with Japan and China, the two locomotive economies in the region. Like the EU candidate countries are approximating to the more developed economies of the EU Member States, the ASEAN countries might perhaps approximate their laws and accelerate their economies to China and Japan. However, this is a different situation. The ASEAN countries are not obliged to approximate their laws, to the laws of China and Japan, whereas the Central and Eastern European countries are obliged as a condition for Membership to approximate their laws to the EU. The possibility for mutual recognition should be made further subject to the acceptance of joined minimum standards, which could be an overriding principle in agreements between ASEAN and China and Japan.
Common Foreign and Security Policy (CFSP)
CFSP is to be qualified as a new policy field of the European Union, which as to its substance matter is closely connected to the activities of the European Community (First Pillar) and Justice Cooperation (Third Pillar).
CFSP clearly is not a Union competence, the Member States are primarily responsible.
As to decision making the general principle in the area of CFSP is unanimity. Nonetheless Article 23 of the Union Treaty provides for certain flexibility. For example, an abstention by a member of the Council shall not prevent the adoption of a decision. On the other hand, paragraph 2 of Article 23 provides for qualified majority voting as a principle for deciding about implementing measures. However, in practice these modalities for qualified majority voting are hardly used.
In the ASEAN Declaration (Bangkok Declaration) of 8 August 19.67, the five ASEAN Funding Fathers from Indonesia, Malaysia, the Philippines, Singapore and Thailand cited as their first objective the acceleration of economic growth, social progress and cultural development.
But it was obvious that ASEAN was founded for political and security reasons. Therefore, Security policy is not a new field for ASEAN.
Unlike the EU, ASEAN has set no political criteria to assess a prospective member’s political system. The ASEAN Declaration states that ”the Association is open for participation to all States in the Southeast Asian region subscribing to the… aims, principles and purposes (of ASEAN”).” One way for a prospective member to do so is to accede to the Treaty of Amity and Cooperation (TAC) in South East Asia. This Treaty laid down the legal framework for inter-States relations: “Non- interference in the internal affairs of one another” was written down in Article 2c as one of the fundamental principles. The Treaty provided for pacific settlement of disputes through regional processes, including the convening of a ministerial High Council, which could recommend appropriate measures for the prevention of a deterioration of the dispute or the situation. In the Declaration of ASEAN Concord, the common objectives and principles were laid down: “Member States, individually and collectively shall take active steps for the early establishment of the Zone of Peace, Freedom and Neutrality. “
In order to enable ASEAN to “address more effectively and cooperate more closely on issues affecting regional peace and stability, ASEAN leaders, at their 3d informal Summit on 28 November 1999 agreed on a new mechanism called the ASEAN Troika.
Police and judicial cooperation in criminal matters
It is probably in this area that the model offered by the EU is most interesting for other regional organizations, including ASEAN.
According to Article 29 Treaty on European Union (TEU): “The Union’s objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by combating racism and xenophobia ………”
Modern technological developments offer new and wide perspectives not only for organized crime but also for the development of the means for rapid information, exchange and direct contact between the law enforcement authorities of different States. Under the 1986 ASEAN Ministerial Understanding on the Organizational Arrangement for Cooperation in the Legal Field, legal cooperation activities in ASEAN shall initially comprise three aspects: (1) exchange of legal materials; (2) judicial cooperation; and (3) legal education and legal research.
Introduction of the concept of good governance
The European governance principles are generally based on the principles of the rule of Public law (European law especially), whereas the OECD Corporate governance principles are based especially on principles of Private law (especially Company law). Without the rule of law, good governance is not effective. But on the other hand practice has shown that without good governance, the rule of law is also not effective.
The “ASEAN Way” of good governance is that leaders prefer to pursue their goals by building trust, by a process of consultation, mutual accommodation and consensus.
The “ASEAN Way” refers to a methodology` or approach to solving issues that respect cultural norms of Southeast Asia. Policy constantly utilize compromise, and consultation in the informal decision-making process and above all prioritizes a consensus based non-conflictual way of establishing problems. The emphasis in decision-making on consensus, consultation and non–interference forces to adopt those policies which satisfy the lowest common denominator.
Another aspect of the “ASEAN Way” has to do with a general reluctance to build institutions or rely on rules and regulations, in stark contrast with the European experience characterized by institution building and regulation.
Greater institutionalization of ASEAN is necessary as for example setting up structural funds, monitoring by national agencies and national courts in ASEAN countries, more research and exchange programs in the field of law.
Greater institutionalization of ASEAN has more advantages on the external side than on the internal market. ASEAN countries have many options to trade with third countries rather than among themselves. Intra ASEAN trade is low compared to ASEAN trade with third countries. Therefore, supranational ASEAN institutions, which focus on external trade and prepare and negotiate trade agreements with third countries, would be more important than supranational institutions monitoring the ASEAN internal market program
In 2006 ASEAN was given observer status at the United Nations General Assembly
On 15 December 2008, ASEAN member states met in Jakarta to launch a Charter, signed in November 2007, to move closer to “an EU-style community”. The charter turned ASEAN into a legal entity and claimed to create a single free-trade area for the region encompassing 500 million people.
ASEAN + 3 was the first of attempts in 2008 for further integration to improve existing ties with China, Japan and South Korea. This was followed by the even larger East Asia Summit (EAS) which included ASEAN + 3 as well as India, Australia and New Zealand. ASEAN + 6 was considered as a step forwards to an ASIAN Economic Community. Codification of the relations between these countries has seen progress through the development of the Regional Comprehensive Economic Partnership, a proposed free-trade agreement involving the countries of ASEAN + 6.
After many propositions finally the human rights body was established later in 2009 at the ASEAN Intergovernmental Commission on Human Rights (AICHR)).
In November 2012 the commission adopted the ASEAN Human Rights Declaration.