By Tan Hsien-Li
My article “Intergovernmental Yet Dynamically Expansive: Concordance Legalization as an Alternative Regional Trading Arrangement in ASEAN and Beyond” published in the European Journal of International Law conceptualizes the Association of Southeast Asian Nations’ (ASEAN) integration model, which I term ‘Concordance Legalization’. This is amid the regional trading arrangement landscape that holds two contrasting models epitomized by the European Union (EU) and the United States–Mexico–Canada Agreement (USMCA). Concordance Legalization may offer sovereignty-centric states, especially those in the Global South, a ‘third way’ to regionalize dynamically whilst retaining intergovernmental preferences.
To briefly explain, one end of the regional trading arrangement spectrum lies the EU’s ‘dynamically expansive supranational model’ that enlarges and enforces the community’s economic, political, and social agendas beyond the constituent treaty with direct effect legalization and supranational institutions. On the other end lies the ‘static intergovernmental model’ of the USMCA: members implement economic-focused obligations of the constituent treaty. Agenda variation is rare as this necessitates treaty renegotiation. Broad variations of the EU’s model could include the Southern Common Market and the Economic Community of West African States. Examples of the USMCA’s model abound – notably, the new ‘mega-laterals’, the Regional Comprehensive Economic Partnership and Comprehensive and Progressive Agreement for Trans-Pacific Partnership. Asia-Pacific regional trading arrangements (and elsewhere in the Global South) sit uncomfortably in this spectrum – their members seek a community like the EU but insist on intergovernmental modalities typical of the USMCA. Moreover, there is preference for soft law commitments. This has led to perceptions that Asia-Pacific regionalization is ineffective.
ASEAN’s ongoing ‘Concordance Legalization’ presents a counter-phenomenon. In 2007, ASEAN undertook through its inaugural constituent Charter the obligation to integrate into a community. ASEAN’s post-2007 integration does not falter like earlier attempts. It demonstrates a way for community-building despite being agenda expansive like the EU and intergovernmentally operational like the USMCA.
Concordance Legalization comprises four characteristics. First, the constituent treaty entrenches an intergovernmental framework of legalized integration, spelling out long-term goals, coaxing members to persevere in community-building as the agenda expands, and the centralized secretariat is cautioned not to overstep its delegated competences.
Second, there is a continuous and dynamic process of ‘constituent treaty enlargement’ in a dual-step system of primary and secondary laws setting economic, security, and socio-cultural community agendas. The proliferation of these substantive instruments facilitates agenda expansion and integration without constituent treaty renegotiation. Concordance Legalization does not require primary and secondary laws to be legally-binding – hard and soft laws are acceptable and compliance is expected of both types. This is because sovereignty-centric states avoid having regional institutions such as secretariats and courts making decisions for them. Also, in valuing inter-member amicability, adjudication is downplayed.
The attraction of treaty usage in Concordance Legalization is not its judicial enforceability but to signal that these obligations demand the greatest responsibility. If breaches occur, negotiated solutions are available and members need not worry about triggering costly arbitral processes which take decision-making powers out of their hands. That said, dispute settlement mechanisms remain available. Concomitantly, primary soft law instruments are often used to articulate goals in either tension-fraught issues such as security and defence, or resource-intensive economic, socio-cultural, and developmental ambitions where some default is foreseeable due to the long-term attainment of these aims. Besides having more negotiating flexibility, soft law has an additional usage in realizing complex long-term goals. Soft law is a vital secondary legal vehicle in Concordance Legalization’s dual-step strategy. Although often deemed weaker than hard law, used prudently and in good faith, soft law is a genuine vector of integration.
Third, to implement the expanding agenda, there is a hierarchy of intergovernmental, centralized administrative institutions staffed by officials from member states’ governments and the regional secretariat. They meet frequently to ensure that intergovernmental decision-making and common interests remain upheld, and members are implementing regional laws domestically. Mutual surveillance maintains members’ sovereignty-centric interests. It also guards against members hijacking or reneging on agendas. More prosaically, these institutions carry out the day-to-day implementation to actualize outcomes. In ASEAN, the Summit makes the key decisions. General oversight is vested in ministerial councils that are supported by the senior civil servants and their staff from the ASEAN directorates of their respective national agencies responsible for implementing integration. The centralized administrative institution, the Secretary-General and Secretariat, has a vital supporting role facilitating regional engagement. As compliance is not lightly assumed, frequent engagement is a form of mutual accountability and enforcement as the ensuing transparency inevitably pressures members to uphold commitments.
Fourth, sovereignty-centric members’ desire for consensus and regional amicability leads to ‘unorthodox’ ways of ensuring compliance. Naturally, the heavy reliance on soft law precludes recourse to litigation to deter or redress violations. Even for treaty disputes, Concordance Legalization respects that sovereignty-centric states may shy from using regional arbitral panels arising from, inter alia, diminished control in adjudicatory outcomes, perceived escalation of intra-regional tension in adversarial litigation, or lack of or reluctance to expend technical and financial resources on legal proceedings. Such states would welcome less intrusive and punitive modalities to encourage implementation and compliance. In such circumstances, unlike the EU- or USMCA-type of regimes where courts are the main enforcement mechanisms, regular institutional monitoring has become Concordance Legalization’s primary mode of accountability. As seen in how the organizational hierarchy interacts, increasing transparency generates peer pressure to comply. Monitoring mechanisms deter member complacency on integration. Nonetheless, dispute settlement mechanisms remain available to resolve treaty violations. For ASEAN, the Secretary-General’s and Secretariat’s monitoring and reporting competences have evolved and members increasingly realize the need for effective implementation and that scrutiny is not a violation of sovereignty. Moreover, while arbitral mechanisms have not been activated, ASEAN members keep in view the future use of such dispute settlement modalities.
To sum, Concordance Legalization has proven apt in ASEAN and may be a useful lens to examine organizations that share similar integration contexts and characteristics. Without overstating Concordance Legalization’s generalizable traits, it offers sovereignty-centric states another way to regionalize beyond the models of the ‘dynamically expansive and supranational’ EU and the ‘static intergovernmental’ USMCA.
A longer version of this post may be found here at CIL Dialogues.
Keywords: Regional Organizations, ASEAN, Trade, Global South, International Law
AUTHOR INFORMATION
Tan Hsien-Li is assistant professor of law at the National University of Singapore, co-director of ASEAN Law and Policy at the Centre for International Law, and co-editor of the Asian Journal of International Law.
Email: lawtht@nus.edu.sg