Concordance Legalization as an Alternative Regional Trading Arrangement to the EU and USMCA Models: ASEAN’s Intergovernmental yet Dynamically Expansive Way
By Dr Tan Hsien-Li
Published on 25 January 2023
This essay conceptualizes the Association of Southeast Asian Nations’ (ASEAN) integration model, which I term ‘Concordance Legalization’, in the regional trading arrangement landscape that holds two prevalent contrasting models epitomized by the European Union (EU) and the United States–Mexico–Canada Agreement (USMCA) that replaces the North America Free Trade Agreement (NAFTA). Concordance Legalization may offer sovereignty-centric states a ‘third way’ to regionalize dynamically whilst retaining intergovernmental preferences.
Contextualizing the Regional Trading Arrangement Landscape
To briefly contextualize the regional trading arrangement landscape, one end of the spectrum lies the ‘dynamically expansive supranational model’ of the EU that enlarges, implements, and enforces the community’s economic, political, and social agendas beyond the constituent treaty through laws with direct effect and supranational institutions, including the Commission and the Court. On the other end lies the ‘static intergovernmental model’ of the USMCA: members implement the economic-focused obligations once the constituent treaty is in force, and there is little agenda variation as substantive changes to the commitments necessitate treaty renegotiation. Broad variations of the EU’s dynamically expansive supranational model could include the Southern Common Market (MERCOSUR) and the Economic Community of West African States (ECOWAS). The USMCA’s static intergovernmental model is seen in numerous regional trading arrangements, including the most recent ‘mega-laterals’, the Regional Comprehensive Economic Partnership (RCEP) and Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).
A genre of Asia-Pacific regional trading arrangements (and elsewhere in the Global South) sits uncomfortably within this bifurcated landscape because their ‘sovereignty versus supranationalism’ tensions impede integration. The members seek a dynamically expansive community like the EU but, being sovereignty-centric and averse to supranationalism, insist on intergovernmental modalities typical of the USMCA. Moreover, there is discernible preference for soft law commitments. As Kahler and Katzenstein observed in the early 2000s, Asia-Pacific regionalization has been somewhat unfruitful. Effective integration seems elusive because Asia-Pacific organizations remain opposed to institutionalizing supranational powers or even centralizing functions to facilitate implementation and enforcement of their expansive agendas.
The contemporary integration of the ASEAN presents a counter-phenomenon. In 2007, ASEAN undertook through its inaugural constituent Charter the obligation to integrate into the ASEAN Community by 2015. ASEAN’s post-2007 integration does not falter like its earlier attempts. Instead, it demonstrates a plausible way to be regionalized as a community despite being simultaneously agenda expansive and intergovernmentally operational. ‘Concordance Legalization’ is ASEAN’s alternative way. ‘Concordance’ alludes to ASEAN’s extreme intergovernmentalism (sovereignty-centric ASEAN requires consensus of all members, not merely majority agreement, to move on every action), while ‘legalization’ points to ASEAN’s particular style of dynamic agenda expansion through law and institutions.
Concordance Legalization’s Four Characteristics
Concordance Legalization comprises four key characteristics. First, the constituent treaty entrenches a coherent intergovernmental framework of legalized integration, and the centralized secretariat is cautioned not to overstep its delegated competences. The treaty also spells out long-term integration goals, coaxing members to persevere in community-building as the agenda expands, rather than surreptitiously renege or vociferously oppose in the name of sovereignty. For ASEAN, its Charter establishes the Concordance Legalization environment and expresses members’ political-security, economic, and socio-cultural community ambitions (articles 1-2). Notably, ASEAN’s regimes of hard and soft law are to be upheld and domestic legislation enacted where necessary to fulfil the aims of the Charter (article 5). The Charter safeguards intergovernmentalism at all levels of decision-making. The Summit, comprising the Heads of State or Government, is the ‘supreme policy-making body’ instructing the various Councils and Sectoral Ministerial Bodies on community-building. Strict intergovernmentalism translates to relatively muted powers of the Secretary-General. Although possessing the rank and status of minister, the Secretary-General serves at the Summit’s pleasure under the ASEAN Foreign Ministers’ direction (articles 7-11).
Second, there is a continuous and dynamic process of ‘constituent treaty enlargement’ in a dual-step system of primary and secondary laws to set economic, security, and socio-cultural agendas across the community. The proliferation of these substantive instruments facilitates agenda expansion and integration without Charter renegotiation. Concordance Legalization does not require the primary and secondary laws to be legally-binding, as hard and soft legal instruments are acceptable, and compliance is expected of both types.
As is common in the international order, members often adopt treaties as their primary laws for their most important collective priorities. In ASEAN, this includes laws to facilitate trade and curb transboundary haze pollution. As sovereignty-centric states, such as ASEAN members, they avoid having regional institutions making decisions for them and they value inter-member amicability; therefore, adjudication is downplayed in Concordance Legalization. The attraction of treaty usage is not its judicial enforceability. Rather, it signals that these obligations demand the greatest respect and responsibility. If breaches occur, negotiated solutions are available and members need not worry too much about triggering costly arbitral processes which take decision-making powers out of their hands. That said, dispute settlement mechanisms remain available. In line with litigation avoidance, 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 incremental attainment of these aims.
Besides having more negotiating flexibility, soft law has an additional usage in realizing complex long-term goals. Here, a dual-step strategy using numerous secondary soft laws containing time-limited programmes may be employed. To illustrate, following the adoption of the primary hard or soft law instrument outlining the broad goals of and commitment to collective action, secondary soft laws with explicit deadlines may be used to detail the systematic steps needed to fulfil the primary instrument and corral states towards implementation and compliance. In ASEAN, an example is the Charter and its accompanying five-year blueprints. Soft law is a vital secondary legal vehicle in Concordance Legalization’s dual-step strategy. Although it is often deemed weaker than hard law, it is taken seriously in Concordance Legalization. Used prudently and executed in good faith, soft law is a genuine vector of integration.
Third, to implement the ever-expanding agenda, there is a complex and robust hierarchy of intergovernmental and centralized administrative institutions staffed by officials from member states’ governments and the regional secretariat. Regardless of their level in the organizational hierarchy, these officials follow a common modus operandi. They meet frequently to ensure that intergovernmental decision-making and common interests remain upheld, and that all members are implementing regional laws domestically. Such mutual surveillance and accountability help maintain the sovereignty-centric interests of every member. It also guards against members potentially hijacking or reneging on agendas, thereby hurting common interests. More prosaically, institutions within the hierarchy implement laws, execute programmes, and carry out the day-to-day administration 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 becomes a form of mutual accountability and enforcement. ASEAN holds more than 1,500 meetings annually to discuss work-in-progress. The transparent accountability demanded at these meetings inevitably pressures members to keep to integration 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. For instance, it could be a ‘missing piece’ to contemporary regional integration puzzles and could particularly resonate with the post-colonial Global South where states’ sovereignty concerns continue to contest against the necessity of regionalization for security and economic development. For instance, outside of the Asia-Pacific, integration challenges persist in African and Latin American community-building projects. More broadly, Concordance Legalization’s intergovernmental and soft law traits may be of comparative interest in the post-2009 Euro crisis and post-Brexit EU arena, aligning with what Bickerton, Hodson, and Puetter theorize as new intergovernmentalism. 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.
*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. This piece summarizes the integration theory arising from her empirical study, Intergovernmental Yet Dynamically Expansive: Concordance Legalization as an Alternative Regional Trading Arrangement in ASEAN and Beyond, 33(2) European Journal of International Law (2022) 341.