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Commonwealth Law Bulletin

ISSN: 0305-0718 (Print) 1750-5976 (Online) Journal homepage: http://www.tandfonline.com/loi/rclb20

ASEANs External Agreements: Law, Practice and


the Quest for Collective Action
Hao Duy Phan
To cite this article: Hao Duy Phan (2015) ASEANs External Agreements: Law, Practice
and the Quest for Collective Action, Commonwealth Law Bulletin, 41:4, 651-655, DOI:
10.1080/03050718.2015.1078251
To link to this article: http://dx.doi.org/10.1080/03050718.2015.1078251

Published online: 04 Nov 2015.

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Date: 18 April 2016, At: 23:09

Commonwealth Law Bulletin, 2015


Vol. 41, No. 4, 651659

BOOK REVIEWS

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ASEANs External Agreements: Law, Practice and the Quest for Collective
Action, by Marise Cremona, David Kleimann, Joris Larik, Rena Lee, and Pascal
Vennesson, Cambridge, Cambridge University Press, 2015, 598 pp, US$69.99
(paperback), ISBN: 9781107498150
At their 13th Summit held in Singapore in November 2007, the leaders of the
Association of Southeast Asian Nations (ASEAN) signed the ASEAN Charter,
the most important treaty since the creation of this regional organization back in
August 1967. It is worth noting that ASEAN was rst established by a political
document the Bangkok Declaration rather than a constitutional treaty. With
the ASEAN Charter, ASEAN has nally operated on a much stronger legal basis
after four decades of existence and development. It is now ofcially pronounced
as an inter-governmental organization and formally conferred with a legal personality separate from that of its member states. In this landmark document,
ASEAN member states commit that ASEAN shall develop friendly relations,
cooperation and partnerships with states and international organizations. The
Charter afrms that ASEAN shall be the primary driving force and maintain its
centrality in regional arrangements and cooperation. It also provides that
ASEAN, in its conduct of external relations, can conclude international agreements with states and other international organizations while member states shall
coordinate to develop common positions and pursue joint actions.
To date, no fewer than 175 ASEANs external agreements have been concluded. Most of them are collective external agreements, that is, those between
ASEAN member states and a third external party. Others are international agreements by ASEAN, which are agreements between ASEAN as an international
organization and a third external party. This is the backdrop against which
ASEANs External Agreements: Law, Practice and the Quest for Collective Action
is situated. The book focuses on the external relations of ASEAN, both as an
international organization with its own legal personality and, for the most part,
as a collectivity of its member states. The authors have carefully examined and
analysed the legal framework that governs ASEANs external relations and its
practice in concluding agreements with the outside world. In so doing, they have
made an important contribution to the growing body of literature that explores
the role of law and the rule of law in ASEAN integration. A few words about
the research context is in order here. The book is part of the ASEAN Integration
through Law project, which is supported by the Centre for International Law at
the National University of Singapore. This project has involved the participation
of more than 70 researchers from Asia and around the world and its general

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652 Book reviews

editors include JJJ Weiler, Tan Hsien-Li and Michael Ewing-Chow. For this particular volume, the general editors brought together a distinguished group of ve
experts from Europe and ASEAN, including Marise Cremona, David Kleimann,
Joris Larik, Rena Lee and Pascal Vennesson. All of them are noted scholars and/
or practitioners of international law and law on regional integration.
Even though it is written by ve different authors who come from different
regions, various institutions and diverse academic and professional backgrounds,
the book as a whole remains coherent in terms of content and arguments with
only a few instances of repetition in substance and inconsistency in the use of
technical terms. With nearly six hundred pages packed with numerous examples,
tables and diagrams, it is not always an easy read for everyday readers, but
generally very well written, fully articulated, vividly illustrated and highly organized. The book begins with the legal framework for the exercise of ASEANs
external relations. Chapter 2 reviews the scope, objectives, principles and institutions that inform, govern and structure the external relations of this regional
organization. The authors argue that the ASEAN Charter does indeed give
ASEAN the capacity to conduct its external relations. They caution, however,
that the exercise of such capacity depends on the institutional capacity of
ASEAN as well as the political will of its member states. Although the authors
adopt a broad denition of ASEAN that includes ASEAN as an international
organization with its own capacity and ASEAN as a label that member states use
to facilitate collective action, their focus is on the latter as they acknowledge that
ASEANs external relations are, to a large extent, dominated and controlled by
its member states, and not by ASEAN as a singular international entity.
Chapter 3 takes stock of the instruments that ASEAN has adopted in the conduct of its external relations. The chapter provides a meticulously researched
inventory of ASEANs external instruments. It categorizes these instruments in
terms of legal quality (bindingness), substantive content (political and security,
economic, social and cultural, and partnership and cooperation instruments), the
parties adopting the instruments on ASEANs side and the parties adopting the
instruments on the other side. As far as their legal quality and the subject content
are concerned, the authors nd a number of legally binding agreements,
especially in the economic area. In terms of partners, ASEANs relations with its
eleven dialogue partners (Australia, Canada, China, India, Japan, Korea, New
Zealand, Pakistan, Russia, the EU and the United States) predominantly gure in
the number of instruments. In terms of parties to the agreements on the ASEAN
side, the authors ndings indicate that the collective ASEAN formula is the
preferred form for both binding and non-binding instruments. The inventory will
prove very helpful for readers as it does not only provide an overview of
ASEANs wide-ranging external instruments but also creates the basis for a more
in-depth discussion in the following chapters on the practice and patterns of
ASEANs external relations.
In chapter 4, the authors take a closer look at ASEANs practice as a
contracting party to external agreements. Here they have found an important
paradox that lies at the heart of ASEANs conduct of external relations, namely
the claim of centrality by this organization in the absence of a legal personality.
Most of ASEANs external agreements are concluded between its member states
collectively and an external party. Just as important, the entry into force of the

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ASEAN Charter does not seem to make that paradox go away. Consequently,
ASEANs compliance with its external agreements is incumbent upon its member
states, which means that in cases of non-compliance, it is the member states that
would be held responsible. ASEAN itself can only incur international responsibility for the international agreements it concludes as an international organization. Given the intergovernmental character and the weak role of ASEAN as an
organization, it is not very likely to see in the near future any particular case that
involves ASEANs international responsibility as a distinct entity.
The authors continue to provide more insights into two important substantive
categories of ASEANs external instruments: economic instruments and partnership and cooperation instruments. Chapter 5 addresses economic instruments,
which account for more than half of ASEANs external instruments. It focuses
on preferential trade agreements concluded by ASEAN member states with external partners (ASEAN + 1 PTAs), exploring the correlation between ASEAN + 1
PTAs, and ASEANs internal economic integration, as well as agreements concluded by individual member states with external partners. It turns out ASEANs
commitments vis--vis its external partners never exceed those that have been
made internally among its member states. In other words, ASEAN + 1 PTAs opt
for the lowest common denominator based on ASEANs internal agreements.
Below this ceiling, the depth of commitments varies, depending on the intensity
of trade between ASEAN and its external partners. It should be noted, however,
that member states have also sought outside the parameter of ASEANs collective agreements more ambitious, parallel bilateral agreements with the same
external partners. This point is corroborated by a review of six bilateral agreements with Japan, which suggests that commitments in these agreements tend to
be deeper than those in ASEAN + 1 PTA and ASEAN internal agreements.
In Chapter 6, the authors then turn their attention to ASEANs partnership
and cooperation instruments, whose purpose is usually to review the state of the
relations between ASEAN and its external partners and outline their future trajectories. The chapters ndings indicate a strong preference for soft, rather than
hard, legal instruments and for collective external instruments rather than international agreements by ASEAN as an international organization. However, the
authors take care to observe that, in a number of cases, most notably with the
Treaty of Amity and Cooperation in Southeast Asia, ASEAN member states have
been able to use ASEAN as their vehicle to develop regional relations and promote ASEANs identity, principles and regional norms (the ASEAN Way).
Concluded in 1976, the Treaty of Amity and Cooperation enumerates several
principles that member states consider as fundamental in terms of structuring the
interactions between regional countries, including respect for the independence
and sovereignty, non-interference in the internal affairs, peaceful settlement of
disputes, and renunciation of the threat of use of force. To date, even many nonASEAN countries have acceded to the treaty, including China, the United States,
Japan, South Korea, North Korea, India, Pakistan, Russia, France, Timor-Leste,
Australia, and the European Union, among others. This suggests that ASEAN
has succeeded in promoting and cascading its values and principles into its wider
neighbourhood, which, to some extent, indicates that ASEAN does become a
regional architect. It should be noted again, however, that the centrality of

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654 Book reviews

ASEAN is not achieved through ASEAN as an autonomous legal person, but is


more the result of ASEAN member states acting collectively.
The nal chapter attempts to situate ASEANs external instruments in a
broader regional and international context to show how their legal character is
intertwined with diplomatic and security strategies of regional countries. Applying three major, sometimes competing, paradigms of international relations theory, namely liberal institutionalism, constructivism and realism as alternative
explanations for ASEANs conduct in its external relations, the authors offer
different ways to approach and debate ASEANs external instruments. They
advocate for an eclectic approach that draws insights from all three explanatory
frameworks. Such an approach, on the one hand, recognizes that ASEANs external instruments are designed to minimize transaction costs and enhance
efciency among actors with distinct interests. On the other hand, it also shows
that these external instruments are social and legal constructions that reect
shared identities and, at the same time, are expressed forms of power competition. The chapter argues that ASEANs external instruments are best understood
as part of a regional hedging strategy designed to shield ASEAN member states
from two developments they deem unwelcome: a direct confrontation of great
powers and supranationality in regional integration.
Threading various ndings from the previous chapters, the authors offer four
conclusions on the characteristics of ASEANs external instruments. First, while
there exists some legal potential in ASEANs external relations, many of
ASEANs external instruments are not legally binding. Second, while the
ASEAN Charter emphasizes the centrality of ASEAN as an important vehicle to
promote and stabilize a regional order its member states prefer, substantively
ASEANs external instruments are multi-directional and promoting an open
regionalism that is by no means conned to ASEAN. Third, half of ASEANs
external instruments are economic in nature. Yet, their economic benets remain
unclear and the value-added of ASEAN collectivity in such cases is not obvious.
Fourth, although ASEAN member states frequently use ASEAN as a label in
external agreements to promote ASEAN norms and maintain ASEANs central
role in a number of regional initiatives, ASEAN as a regional organization rarely
is a contracting party to these external agreements. The ASEAN label helps to
bolster a sense of togetherness, but not a supranational organization.
ASEANs External Agreements: Law, Practice and the Quest for Collective
Action, in short, provides a rich description and an extensive analysis of the various ASEANs external instruments that have been collectively concluded over
the years. A number of issues, however, could receive a more extensive treatment should space permit or, alternatively, in further research. They include, in
no particular order of importance, how ASEANs rights, privileges and immunities are addressed in ASEANs external agreements; the extent to which the conclusion of external agreements by ASEAN as an organization may impact its
member states; the implications that concluded external agreements have for the
ASEAN Secretariat; how signicant a role the ASEAN Secretariat has in
ASEANs external relations and the conclusion of its external agreements;
how ASEANs conduct external relations is similar or different from that of other
regional intergovernmental organizations; what a common position means for
ASEANs external relations; what challenges ASEAN would face in reaching a

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common position in its relations with an external party, for example, vis--vis
China in the South China Sea dispute; to what extent ASEANs diversity in
terms of political regimes, economic development, religious composition, and
cultural afnity, among others, affects its quest for collective action and whether
there is really an ASEAN identity and what constitutes such an ASEAN identity. The inventory should also have included the treaties that ASEAN, in the
capacity of an international organization, has concluded with Indonesia, such as
the 1979 Agreement the Government of Indonesia and ASEAN Relating to the
Privileges and Immunities of the ASEAN Secretariat, the 2012 Agreement
between the Government of the Republic of Indonesia and ASEAN on Hosting
and Granting Privileges and Immunities to the ASEAN Secretariat. The conclusion of these treaties clearly indicates the growth of ASEAN as an organization
with its own treaty-making capacity. Having said that, the book still presents the
most comprehensive study to date of ASEANs external collective instruments
and the legal framework governing ASEANs external relations. It, therefore, will
surely serve as an important and useful resource for scholars, practitioners,
government ofcials and students studying the role of law in ASEAN integration
and in its relations with the outside world.
Hao Duy Phan
Centre for International Law, National University of Singapore
cilpdh@nus.edu.sg
2015, Hao Duy Phan
http://dx.doi.org10.1080/03050718.2015.1078251

Evidence matters: science, proof, and truth in the law, by Susan Haack,
New York, Cambridge University Press, 2014, 416 pp, 24.99 (paperback),
ISBN 978-1-107-69834-5
The connection of evidence with truth in the title should make this book
irresistible for any advocate. The pun in evidence matters piques our curiosity
even more.
Susan Haack presents a collection of twelve interdisciplinary essays on
aspects of evidence in the trial process from the perspective of one who has
worked, taught and published on law, the theory of knowledge and philosophy
of science for many years. She is a Professor (holding several positions) at the
University of Miami, Florida, USA, the author of many books and papers in
these elds and is internationally recognized and awarded as a philosopher with
scientic/legal connections.
This book is published in The Law in Context Series, the publishers project
since 1970 to broaden the study of law. These essays are based on talks

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