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University of Malaya
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I wish to thank the Asia-Europe Institute and the Faculty of Law of the
University of Malaya for inviting me to participate in this important conference
on this very interesting subject. Above all, I thank them for organizing the
conference. We in ASEAN have much to learn from Europe on laying the legal
foundations for regional integration and cooperation, and we need the lawyers
of ASEAN to guide us in this.
I believe that it is about time that people looked upon ASEAN in terms of
legal obligations and norms. People are not used to doing so, because ASEAN
has never been associated with international law and treaties. ASEAN has
always been regarded as a group of sovereign nations operating on the basis of
ad hoc understandings and informal procedures rather than within the
framework of binding agreements arrived at through formal processes.
Indeed, ASEAN has often been contrasted with the European Union – in
somewhat facile fashion – in those terms. The EU regulates the relationship
between the Union and its members and the cooperative arrangements among
its members largely through agreements with the force of law. ASEAN has been
cooperating through informal understandings that impose no legally binding
obligations.
With the hindsight of history, we can say that this aspect of the ASEAN
Way has served Southeast Asia well. By not forcing its incredibly diverse and
mutually suspicious members into legally binding standards, ASEAN has done
the remarkable job of moving its members from animosity to the close
cooperative relationship that they enjoy today, a relationship in which violent
conflict is all but unthinkable. We can say that the ASEAN Way has served
ASEAN well.
Even today, thirty-four years after its founding, ASEAN adheres to the
evolutionary approach, relying largely on patient consensus-building to arrive at
informal understandings or loose agreements. With the recent entry of new
members, ASEAN seems to be, in a way, starting over in terms of having to
delicately manage the legacies of history.
It took another ten years for ASEAN to produce another agreement that
carried some measure of legal obligation. This was the 1977 Preferential
Trading Arrangements. Yet another ten years were to pass before ASEAN was to
conclude, at the third ASEAN Summit in 1987, the Agreement for the Promotion
and Protection of Investments and the agreement on the standstill and rollback
of non-tariff barriers, both of which conferred legal rights and obligations upon
their signatories.
ASEAN has extended this logic beyond trade in goods to the equally
important realm of trade in services, like transportation, telecommunications,
financial services, construction and tourism. At the summit of December 1995,
ASEAN concluded the Framework Agreement on Services. The agreement is to
be given flesh through sector-by-sector negotiations. The resulting agreements
will be legally binding upon the parties.
Two things are to be noted about the legally binding agreements that
ASEAN has concluded thus far. The first is that they are overwhelmingly
economic in nature. The second is that, since the conclusion of the CEPT/AFTA
agreement in 1992, ASEAN has entered into such agreements with increasing
frequency. This may be an indication of ASEAN’s growing realization that closer
regional economic integration requires basing it on binding legal foundations if
integration is to be stable, credible and effective. The commitments undertaken
must be clear, firm and enforceable, and those making them cannot lightly back
out of them.