The Outsourcing of Legal Norms and Institutions by the ASEAN Economic Community

• Author: Edmund W. Sim
• Position: Appleton Luff - Singapore
• Pages: 314-331

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2014 e Institute for Migrant Rights

rst published online 13 November 2013

314

The Outsourcing of Legal

Norms and Institutions by the

ASEAN Economic Community

E W. S

Appleton Lu, Singapore

E-mail: sim@appletonlu.com

ASEAN member states (AMS) have relied on non-ASEAN sources of law to sup-

port their regional economic integration into the ASEAN Economic Community

(AEC). AMS have used WTO dispute resolution to resolve issues that could have

been resolved using the ASEAN Enhanced Dispute Settlement Mechanism. AMS

conducting cross-border inspections have used UN agreements as legal support rather

than use the ASEAN Trade in Goods Agreement. Using non-ASEAN legal instru-

ments to implement ASEAN-level commitments could undermine the legitimacy of

the ASEAN agreements. On other hand, using non-ASEAN legal instruments could

give AMS greater condence by giving them more experience in dealing with each

other, albeit in a non-ASEAN context. e success of the AEC will depend on which

lessons AMS learn from their experiences.

Keywords: ASEAN, Regionalism, Trade Law, Legal Pluralism, Dispute Settlements.

I. Introduction

e Charter adopted by ASEAN in 2007 was intended to instill a greater

incorporation of rules and formality into the regional bloc’s operations.

ASEAN members wanted the Charter to help in regional integration in

the three pillars of political-security, economic, and socio cultural mat-

ters. e ASEAN Economic Community (AEC) would form a large and

diverse economic entity by end 2015.

ASEAN has, by and large, followed the Charter so far. Furthermore,

the operations of ASEAN and its institutions have become more formal-

ized and rules-based. For example, in the formation of the AEC, ASEAN

members have used the ASEAN Trade in Goods Agreement (ATIGA),

ASEAN Comprehensive Investment Agreement (ACIA) and ASEAN

The Outsourcing of Legal Norms and Institutions by the ASEAN Economic Community

Edmund Sim

315

Framework Agreement in Services (AFAS) to advance regional economic

integration.

However, in implementing the AEC, ASEAN members have in

certain circumstances relied on non-ASEAN sources of law to support

their interactions. For example, ailand and the Philippines used WTO

dispute resolution procedures to resolve issues regarding tobacco, which

could have been resolved using the ASEAN Enhanced Dispute Settle-

ment Mechanism (EDSM).

e resort to non-ASEAN sources of international law reects

member nations’ ambivalence towards the ASEAN agreements. ASEAN

members want to follow rules and procedures in their administration of

the AEC, yet demonstrate a lack of condence in invoking and applying

ASEAN agreements as the underlying legal authorization. To a large ex-

tent, this reects the lack of maturity in many of ASEAN’s institutions,

particularly the EDSM. is was reected during the drafting of the

ASEAN Charter itself, with Indonesia advocating a limitation of the use

of dispute resolution between ASEAN members to ASEAN-level process-

es only, and with Singapore ultimately convincing the members to allow

for non-ASEAN dispute resolution as an option.

e continued use of non-ASEAN legal instruments to implement

ASEAN-level commitments could undermine the legitimacy of ASEAN

integration. On other hand, using non-ASEAN legal instruments could

give ASEAN members greater condence in applying ASEAN legal in-

struments in their interactions by giving them more experience in dealing

with each other, albeit in a non-ASEAN context.

e 2011 Cambodia-ailand border dispute over the Preah Vihear

temple and its resolution show how this can be accomplished. is is

surprising, since it had been felt that political-security disputes would be

less likely to lend themselves to a more formal process. It is also ironic,

because the Preah Vihear dispute was caused by a UN institution (the

International Court of Justice’s original ruling).

By invoking the Charter and its provisions for good oces, ASEAN

Chair Indonesia injected itself into the dispute. e actions of Indonesia,

supported by ASEAN legal instruments (the Charter) successfully de-

fused the dispute, and gave encouragement that ASEAN institutions and

agreements can be used eectively. If ASEAN members can apply those

lessons to economic integration as well, AEC formation and administra-