ASEAN

INTEGRATION:
ITS BINDING AGREEMENTS AND
LEGAL
FRAMEWORK
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

An investigation of ASEAN integration by Silverman 1 was made by

analyzing the agreements within the ASEAN framework from the start. The
investigation reveals that despite the norms and values that have influenced
the integration process, one can draw the conclusion that the framework that
best describes ASEAN is intergovernmentalism. Most of the agreements were
made in functional areas, such as the economic sphere, political security and
socio-cultural aspects.
According to Cockerham2 there are mainly three types of ASEAN
agreements:

1. Principal Agreements
These are legally binding agreements and may come under different names.
Treaty and convention are common. Intent to be bound is clearly stated in the
document

2. Supplementary Protocols
These are designed to further the objectives of existing agreements and are
legally binding.

3.Protocols Amending Principal Agreements

These protocols differ from supplementary protocols because they modify the
language or add a new provision to change a principal agreement rather than add
to it. Primarily they tend to provide minor procedural matters. They are legally
binding.

To understand fully the meaning of ASEAN bodies and agreements, the following
abbreviations are fully interpreted as follows:

ASEAN - Association of Southeast Asian Nations

DAC

- Declaration of ASEAN Concord

TAC

- Treaty of Amity and Cooperation

NAFTA - North America Free Trade Agreements

FAEAEC Framework Agreement on Enhancing ASEAN Economic

Cooperation

CEPT

- Common Effective Preferential Tariff

DSM

- Protocol on Dispute Settlement Mechanism

SEOM - Senior Economic Officials Meeting

AEC

- ASEAN Economic Community

ASC

- ASEAN Security Community

ASCC

- ASEAN Social and Cultural Community

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

TYPESOFAGREEMENTS

NUMBER

Principal Agreements

54

Supplementary Protocols

24

Amending Protocols

21

TOTAL

99

Table I indicated above is a summary of legally binding agreements that

emerged from ASEAN negotiation from its founding in 1967 to the adoption of
the ASEAN CHAPTER in 2007. ASEAN produced 99 legally binding agreements
in its 40 years of existence.

TABLE II
ASEAN AGREEMENTS BY DECADE
1967-2007

PRINCIPAL
AGREEMENTS

AGREEMENTS

AMENDING
PROTOCOLS

1960s

1970s

1980s

21

1990s

14

29

2000s

20

13

38

TOTAL

54

24

21

99

PERIOD

SUPPLEMENTARY

TOTAL

Table II printed above itemized that only 3 principal agreements were

signed in the 60s. This meager output does not provide much information about
ASEANs institutionalism during that decade. The key agreement was the 1967
Bangkok Declaration (BD) for regional cooperation. The Bangkok Declaration
established the ASEAN. In terms of security, the preamble provides for security
against external interference.

In the 70s, a total of only 8 agreements were signed when Saigon was overrun
by Communist Military Forces in April, 1975, a compelling reason to deepen
integration arose. This gave rise to the 1976 Summit in Bali, Indonesia. Those (3)
agreements were signed in the Summit: (1) The Declaration of ASEAN Concord
(DAC) which primarily addressed economic issues; (2) The Treaty of Amity and
Cooperation (TAC) focused on security matters and policy, and was more binding. It
was a reiteration of the principles of non-aggression renouncing the threat or use of
force, pacific settlement of disputes, and non-interferences. TAC also created a High
Council composed of a minister from each state to settle disputes; (3) The
Agreement Establishing the ASEAN Secretariat which was designed to provide 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
building upon procedures in existing agreements such as the TAC and the one
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.

The said protocol 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 Official Meeting (SEOM)
would establish a panel to resolve the case. The DSM covered 46 regional
instruments covering agreements, protocols, Ministerial Understanding,
Memoranda of Understanding signed between 1971 and 1996. Despite the
enhancement which was meant to make the DSM legalistic, the same is still
considered weak. For instance, if a consultation fails, the SEOM forms 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 was a bumper crop of all sorts for ASEAN institutionalism, both in
quality and quantity. The ninth ASEAN Summit of 2003 held in Bali produced the
ASEAN Concord II which in turn resulted in the proposal to create three pillars to
integrate the ASEAN community. The first pillar was to be the ASEAN Economic
Community (AEC); the second pillar, the ASEAN Security Community (ASC) and the
third pillar, the ASEAN Social and Cultural Community (ASCC). The strongest pillar
is the (AEC). AECs goal, initially, was to create a single market and production
base 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 found under this protocol 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) requires the states to file a status report with SEOM regarding its
compliance rather than reliance on the Secretariat oversight. 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.
ASEAN leaders were aware that there was a need to constitutionalize the
organization; they were aware that ASEAN had a series of agreements that found
institutionalization in political commitments and practices. They saw a need for a
document to formalize their organizational regions. Hence, the ASEAN CHARTER was
signed in November, 2007 and entered into force in December 2008, as was already
mentioned.
According to Cockerham, one important element of institutionalization is the
inclusion of mechanisms that enhance compliance. He cites Table IV.

TABLE IV
COMPLIANCE MECHANISM

MECHANISM
1.
2.
3.
4.

Dispute Settlement
Transparency
Monitoring
Sanctions
TOTAL

NUMBER OF AGREEMENTS
SPECIFYING MECHANISM
35
17
16
2
70

Table IV above cited 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.

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 an
indication for 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 noncompliance 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.
As a conclusion, it is considered that the ASEAN Integration is definitely not
a rules-based but a relations-based system one that 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 noninterference.

APPENDIX I COVERED AGREEMENTS

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.

APPENDIX I COVERED AGREEMENTS

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.

APPENDIX I COVERED AGREEMENTS

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.

APPENDIX I COVERED AGREEMENTS

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.

APPENDIX I COVERED AGREEMENTS

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
Nomenclature, Makati, Philippines, 7 August 2003.

ASEAN

Harmonized

Tariff

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.

Thank
you!