Published online by Cambridge University Press: 05 July 2016
While the ASEAN Secretary-General (ASG) has entered into agreements, especially Memoranda of Understanding (MOUs), either on behalf of ASEAN as an IO or, in exceptional cases, on behalf of the governments of ASEAN where so authorised, the ASG has so far made limited use of the potentially more encompassing competences in the conduct of external relations. It seems yet a distant practice that ASEAN as an IO would enter into international agreements, which would then create hard obligations for the Member States. The agreements that matter are concluded as plurilateral agreements (Chapter 5). But many of such, on the surface, plurilateral agreements, may also be considered slightly differently as joint ASEAN agreements. The parties to these agreements are still states, but the fact that the states on one side of the agreement, in one column of the signatures, together form ASEAN is not without effect. From a strictly formalist point of view, the difference between plurilateral and joint ASEAN agreements is indeed slim, almost non-existent. What we are proposing is a different reading. And the way in which they are read, we submit, does make a difference. What is more, a different reading of plurilateral agreements as joint ASEAN agreements is not only possible, but also warranted so as to credit the principle of ASEAN centrality.
In this chapter, we set out the argument that many of ASEAN's external relations, in critical fields such as economic relations, may well be understood as a form of joint ASEAN agreements. In particular, while rights and obligations rest with Member States, the role of the Secretariat is enhanced, and external agreements can show an internal effect in the relationship between ASEAN as a distinct entity and its Member States. What is more, we suggest that there is a strong argument in favour of harmonious interpretation by members, not only of the Charter and internal agreements, but of external agreements as well.
Specifically, by involving ASEAN in external agreements, Member States’ commitments in such agreements might be subject to monitoring and review within the framework of ASEAN in a way that can be (but need not be) connected to the enforcement mechanisms of the external agreement itself. These are internal effects of the ASEAN legal regime.