ASEAN

I N T E G R A T I O N:

ITS BINDING AGREEMENTS AND

LEGAL FRAMEWORK

(A Reaction)

Prepared by:

Judge (ret) Alicia G. Decano, DCL

Dean, College of Law, PUNP, Urdaneta City
Program Lead, USTGS (Law Discipline)

SOME PUBLICATIONS RELATING TO ASEAN INTEGRATION

Conquering an Integrated ASEAN

Raising Competitiveness. Overcoming Challenges. Unleashing
Potential.
A conference and an expo held on July 16-20 in the SMX Convention
Center, Manila, Philippines published in The Philippine Star, July 14, 2014;

ASEAN Integration Realigning Insurance Standards by Ted P. Torres published in

The Philippine Star, July 15, 2014;

ASEAN Community: A Call to Global Competitiveness and Regional Cooperation

published in The Philippine Star, August 4, 2014;

Sharing Prosperity from ASEAN Integration: The Legal Challenges by Manuel V.

Pangilinan published in The Philippine Star, March 3, 2015;

26th ASEAN Summit ASEAN Foreign Ministers Meeting in Kuala Lumpur,

Malaysia held on April 26, 2015;

The Visit recently of Pres. Benigno Aquino to Kuala Lumpur published in The
Philippine Star, April 27, 2015;

Adapt to ASEAN Demographic Shifts, Firms Urged, published in the Philippine

Daily Inquirer, April 28, 2015;

ASEAN Meeting a Chance to Deepen Ties with Europe by Cecilia Malstrom

published in The Philippine Star, May 1, 2015;

The Environment in ASEAN Integration by Cielito F. Habito published in the

Philippine Daily Inquirer, May 12, 2015;

Effective Legal System Key to Strong Economy by Paolo S. Romero published in

The Philippine Star, May 17, 2015.

yet, the basic knowledge of the birth of the ASEAN Integration and the nittygritty of it were never serialized.

We were just given the fresh insights of what this ASEAN Integration is all
about.
With due respect, I will only dwell on the Binding Agreements.
The investigation conducted by Silverman1 cited by Atty. Tito Samson in
his dissertation defended in USTGS on May 5, 2015 entitled
DECONSTRUCTING THE ASEAN WAY: A CRITICAL ANALYSIS reveals that most
of the agreements entered into dealt on the economic sphere.

According to Cockerham2 likewise cited by Atty. Samson there are mainly

three types of ASEAN agreements which are legally binding:
1. Principal Agreements
- may come under different names like treaty and convention which are
common. Intent to be bound is clearly stated in the document.
2. Supplementary Protocols
- are designed to further the objectives of existing agreements.
3. Protocols Amending Principal Agreements
- modify the language or add new provisions to change a principal
agreement and tend to provide minor procedural matters.

Silvermans Documentary Analysis cited in Atty. Samsons dissertation defended

in USTGS on May 5, 2015 entitled DECONSTRUCTING THE ASEAN WAY: A CRITICAL
ANALYSIS IN LEGAL THEORY AND PHILOSOPHY OF THE ASEAN REGIONAL
INTEGRATION EFFORTS p. 94
2
Geoffrey B. Cockerham Regional Integration in ASEAN: Institutional Design and
the ASEAN WAY 27 East Asia (2010) 165-185 cited by Atty. Samson
1

To understand fully the acronyms of some ASEAN agreements, the

following are given meaning, to wit:

ASEAN - Association of Southeast Asian Nations

DAC

- Declaration of ASEAN Concord

TAC

- Treaty of Amity and Cooperation

FAEAEC Cooperation

CEPT

- Common Effective Preferential Tariff

DSM

- Dispute Settlement Mechanism

SEOM - Senior Economic Official Meeting

AEC

- ASEAN Economic Community

ASC

- ASEAN Security Community

ASCC

- ASEAN Social and Cultural Community

Framework Agreement on Enhancing ASEAN Economic

Using content analysis, Cockerham presents two tables:

TABLE I
TYPES AND NUMBER OF ASEAN AGREEMENTS
WITH BINDING OBLIGATIONS
1967-2007 (40 years)

TYPES OF AGREEMENTS

NUMBER

Principal Agreements

55

Supplementary Protocols

24

Amending Protocols

21

TOTAL

100

Table I is a summary of legally binding agreements that emerged from

ASEAN negotiation from its founding in 1967 to the adoption of the ASEAN
CHARTER in 2007. ASEAN produced 100 legally binding agreements in its
40 years of existence.

TABLE II
ASEAN AGREEMENTS BY DECADE
1967-2007 (40 years)

PRINCIPAL
AGREEMENTS

PROTOCOLS

AMENDING
PROTOCOLS

1960s

1970s

1980s

21

1990s

14

29

2000s

21

13

39

TOTAL

55

24

21

100

PERIOD

SUPPLEMENTARY

TOTAL

Table II shows that only 3 principal agreements were signed in the

60s. The key agreement was the 1967 Bangkok Declaration (BD) which
established the ASEAN for regional cooperation. The preamble provides for
security against external interference.

In the 70s, only 8 agreements were signed when Saigon was overrun
by Communist Military Forces in April, 1975, a compelling reason which
deepened integration giving rise to the 1976 Summit in Bali, Indonesia.
Three examples of the eight agreements cited were: (1) The Declaration of
ASEAN Concord (DAC) addressed economic issues; (2) The Treaty of Amity
and Cooperation (TAC) focused on security matters and policy. It was a
reiteration of the principles of non-aggression renouncing the threat or use of
force, pacific settlement of disputes, and non-interference. TAC also created
a High Council composed of a minister from each state to settle disputes;
and (3) The Agreement Establishing the ASEAN Secretariat provides an
organizational structure to ASEAN composed of a Secretary General and his
staff. The Secretary General is given the responsibility of facilitating and
monitoring the implementation of ASEAN activities.
Only 9 principal agreements were produced in the 80s. The signing of
12 protocols showed more willingness to modify the organization particularly
by providing procedures in existing agreements such as the TAC establishing
the Secretariat.
In the 90s, 14 principal agreements and 15 protocols were signed. Two
binding agreements were signed in Singapore in 1992. These were the
FRAMEWORK AGREEMENT ON ENHANCING ASEAN ECONOMIC COOPERATION
(FAEAEC) and the Agreement on the COMMON EFFECTIVE PREFERENTIAL
TARIFF (CEPT). The latter half of the 90s saw the membership expansion of
the ASEAN.

In 1996, the Protocol on Dispute Settlement Mechanism (DSM)

was adopted. It was the first formal method for ASEAN to resolve economic
disputes. The DSM established that if consultants failed to resolve a dispute
within 60 days after an official request, the Senior Economic Officials
Meeting(SEOM) would establish a panel to resolve the case. The DSM
covered 46 regional instruments covering agreements signed between
1971 and 1996. If a consultation fails, the SEOM may form a panel.
However, Article 8 of the Protocol gave the SEOM the option not to form a
panel. Furthermore, Article II provided that the ASEAN Secretariat could
assist in resolving the dispute through conciliation or mediation.

The 2000s displayed all sorts of ASEAN institutionalism, both in

quality and quantity. The ninth ASEAN Summit of 2003 held in Bali
produced the ASEAN Concord II which created the three pillars to integrate
the ASEAN community. The first pillar was the ASEAN Economic Community
(AEC); the second, the ASEAN Security Community (ASC) and the third, the
ASEAN Social and Cultural Community (ASCC). The strongest pillar is the
(AEC). Its goal, initially, was to create a single market and production based
allowing for the free flow of goods, services, labor and capital by 2020. But
during the 2007 ASEAN Summit, its leader advanced ASEAN Economic
Community integration to kick off on December 31, 2015; while the ASC
would have been a more meaningful step toward regional integration,
ASEANs preference for peaceful resolution of disputes rather than
formation of military alliances and pacts, limited the option to giving
priority to economic integration.

To address disputes more effectively ASEAN states signed the

protocol on Enhanced Dispute Settlement Mechanism in November 2004
to replace the 1996 Protocol. The major changes include: (1) more precise
specifications of the panel procedures and panel reports (2) more detailed
description of the monitoring of the implementation of the panels
recommendation and findings (3) better prompt filing of a status report
regarding its compliance with SEOM. But even with these changes, the
2004 Protocol was not seen having any radical change to the 1996
Protocol. Consultations were still required as a first step and the SEOM still
had the discretion on whether or not to form a panel. By the end of 2007,
ASEAN had established 21 principal agreements and 18 protocols, the
largest number in any decade.

See the List of Some Covered Agreements (Economic)

LIST OF SOME COVERED AGREEMENTS (ECONOMIC)

1. Agreement on ASEAN Preferential Trading Arrangements, Manila, 24 February
1977.
2. Agreement on the ASEAN Food Security Reserve, New York, 4 October 1979.
3. Basic Agreement on ASEAN Industrial Projects, Kuala Lumpur, 6 March 1980.
4. Supplementary Agreement of the Basic Agreement on ASEAN Industrial Projects
ASEAN Urea Project (Indonesia), Kuala Lumpur, 6 March 1980.
5. Basic Agreement on ASEAN Industrial Joint Ventures, Jakarta, 7 November 1983.
6. Agreement on ASEAN Energy Cooperation, Manila, 24 June 1986.
7. ASEAN Petroleum Security Agreement, Manila, 24 June 1986.
8. Agreement on the Preferential Shortlisting of ASEAN Contractors, Jakarta, 20
October 1986.
9. Supplementary Agreement to the Basic Agreement on ASEAN Industrial Joint
Ventures, Singapore,16 June 1987.
10. Protocol on Improvements on Extensions of Tariff Preferences under the ASEAN
Preferential Trading Arrangement, Manila, 15 December 1987.
11. Revised Basic Agreement on ASEAN Industrial Joint Ventures, Manila,15
December 1987.

LIST OF SOME COVERED AGREEMENTS (ECONOMIC)

12. Agreement Among the Government of Brunei Darussalam, the Republic of
Indonesia, Malaysia, the Republic of the Philippines, the Republic of Singapore,
and the Kingdom of Thailand for the Promotion and Protection of Investments,
Manila, 15 December 1987.
13. Protocol to Amend the Revised Basic Agreement on ASEAN Industrial Joint
Ventures,
1 January 1991.
14. Framework Agreement on Enhancing ASEAN Economic Cooperation, Singapore,
28 January 1992.
15. Agreement on the Common Effective Preferential Tariff Scheme for the ASEAN Free
Trade Area, Singapore, 28 January 1992.
16. Second Protocol to Amend the Revised Basic Agreement on ASEAN Industrial Joint
Ventures, Manila, 23 October 1992.
17. Third Protocol to Amend the Revised Basic Agreement on ASEAN Industrial Joint
Ventures,
2 March 1995.
18. Protocol to Amend the Agreement on the Common Effective Preferential Tariff
(CEPT) Scheme for the ASEAN Free Trade Area (AFTA), Bangkok, 15 December
1995.
19. Protocol to Amend the Agreement on ASEAN Preferential Trading Arrangements,
Bangkok,
15 December 1995.

LIST OF SOME COVERED AGREEMENTS (ECONOMIC)

20. ASEAN Framework Agreement on Services, Bangkok, 15 December 1995.
21. ASEAN Framework Agreement on Intellectual Property Cooperation, Bangkok,
15 December 1995.
22. Protocol Amending the Agreement on ASEAN Energy Cooperation, Bangkok,
15 December 1995.
23. Basic Agreement on ASEAN Industrial Cooperation, Singapore, 26 April 1996.
24. Protocol to Amend the Agreement Among the Government of Brunei Darussalam,
the Republic of Indonesia, Malaysia, the Republic of the Philippines, the Republic
of Singapore, and the Kingdom of Thailand for the Promotion and Protection of
Investments, Jakarta,
12 September 1996.
25. ASEAN Agreement on Customs, Phuket, Thailand, 1 March 1997.
26. Protocol Amending the Agreement on the ASEAN Energy Cooperation, Kuala
Lumpur, Malaysia, 23 July 1997.
27. 2nd Protocol to Amend the Agreement on the ASEAN Food Security Reserve,
Subang Jaya, Malaysia, 23 July 1997.
28. Protocol to Implement the Initial Package of Commitments Under the ASEAN
Framework Agreement on Services, Kuala Lumpur, Malaysia, 15 December 1997.
29. Agreement on the Establishment of the ASEAN Center for Energy, Manila,
Philippines,
22 May 1998.

LIST OF SOME COVERED AGREEMENTS (ECONOMIC)

30. Protocol on Notification Procedures, Makati, Philippines, 7 October 1998.
31. Framework Agreement on the ASEAN Investment Area, Makati, Philippines, 7
October 1998.
32. ASEAN Framework Agreement on Mutual Recognition Arrangement (MRAs), Ha
Noi, Viet Nam,16 December 1998.
33. Protocol to Implement the Second Package of Commitments Under the ASEAN
Framework Agreement on Services, Ha Noi, Viet Nam, 16 December 1998.
34. ASEAN Framework Agreement on the Facilitation of Goods in Transit, Ha Noi, Vet
Nam, 16 December 1998.
35. Protocol on the Special Arrangement for Sensitive and Highly Sensitive Products,
Singapore, 30 September 1999.
36. Protocol regarding the Implementation of the CEPT Scheme Temporary Exclusion
List, Singapore, 23 November 2000.
37. E-ASEAN Framework Agreement, Singapore, 24 November 2000.
38. Protocol 5: ASEAN Scheme of Compulsory Motor Vehicle Insurance, Kuala
Lumpur, Malaysia,
8 April 2001.

LIST OF SOME COVERED AGREEMENTS (ECONOMIC)

39.Protocol to Amend the Framework on the ASEAN Investment Area, Ha Noi, Viet
Nam,
14 September 2001.
40.Protocol to Implement the Third Package of Commitments Under the ASEAN
Framework Agreement Services, Ha Noi, Viet Nam, 31 December 2001.
41.ASEAN Sectoral Mutual Recognition Arrangement for Electrical and Electronic
Equipment, Bangkok, Thailand, 5 April 2002.
42.Protocol to Implement the Second Package of Commitments on Financial Services
Under the ASEAN Framework Agreements on Services, Yangon, Myanmar, 6 April
2002.
43.Protocol to Amend the Agreement on the Common Effective Preferential Tariff
(CEPT) Scheme for ASEAN Free Trade Area (AFTA) for the Elimination of Import
Duties, 31 January 2003.
44.Protocol Governing the Implementation of the ASEAN Harmonized Tariff
Nomenclature, Makati, Philippines, 7 August 2003.
45.Agreement on the ASEAN Harmonized Cosmetic Regulatory Scheme, Phnom
Penh, Cambodia, 2 September 2003.
46.Protocol to Amend the Protocol Governing the Implementation of the ASEAN
Harmonised Tariff Nomenclature, Jeju Island, Korea, 15 May 2004.

According to Cockerham, Asian Leaders believed in institutionalism

and one of its important elements is the inclusion of mechanisms that
enhances compliance. He cites Table III.

TABLE III
COMPLIANCE MECHANISM

MECHANISM
1.
2.
3.
4.

Dispute Settlement
Transparency
Monitoring
Sanctions
TOTAL

NUMBER OF AGREEMENTS
SPECIFYING MECHANISM
35
17
16
2
70

50%
24%
23%
3%
100%

Table III shows that there are four kinds of compliance mechanisms two
of which, transparency and monitoring, essentially involve early detection.
According to Cockerham, the dispute resolution/settlement mechanism can
provide a disincentive to avoid compliance, as monitoring and transparency
facilitate early detection of non-compliance. Sanction is the most powerful
mechanism since it imposes direct penalties on defectors. Fifty percent (50%)
of the agreements provide for dispute resolution/settlement but as already
stated they are weak since they would often be handled through negotiations
or consultations or even arbitration (Art. 25) Chapter VIII on Settlement of
Disputes. Art. 22 - dialogue, consultation and negotiation. Art. 23 - good
offices, conciliation or mediation.

Only the Protocols to the DSM provide for judicial settlement of

disputes but these only provide for ad hoc panels appointed by the SEOM
and are not permanently-constituted tribunals. Approximately 24% of the
agreements provide for transparency and 23% for monitoring. Only two
agreements provide possible sanctions for non-compliance, these are (1)
the 1995 Treaty on Southeast Asia Nuclear Free Zone and (2) the 2004
Protocol on the Enhanced Dispute Settlement Mechanism. In both
instances, penalties for non-compliance are not clearly defined. Art. 14 of
the Nuclear Free Zone Treaty states that the Commission which supervises
the agreement shall decide on any measure it deems appropriate to cope
with the situation; on the other hand, while the DSM Protocol is more
specific, it is not as severe as expected. Like the WTO mechanism, it
authorizes retaliation in terms of suspension of concessions but provides
that full compliance is the desired goal. In effect, suspension is temporary
and must be lifted once the SEOM is convinced that compliance standards
are met.
It is therefore considered that the ASEAN Integration is not only a
rules-based community but also a relations-based system, because it
stresses non-confrontation on key issues affecting the region. Concerns are
addressed by negotiation, consultation and consensus; one that tries to
maintain a healthy respect for the internal affairs of ASEAN member states
through non-intervention or non-interference, hence the

ASEAN MOTTO
One Vision, One Identity, One

Thank
you