The practice of interpretation brings the law to life. It takes part in shaping and making the law, and does not just give effect to the law that is out there. To the extent that international law affects peoples’ everyday life, so does the practice of interpretation. Even more so than other fields of law, international law is in large parts the product of interpretative practice. What then is this practice of interpretation?

Interpretation is best understood as an argument about what the law means. While such an understanding of interpretation enjoys considerable common ground, it immediately begs the question of how to then understand that practice of arguing. I will distinguish four different approaches to that question in light of their strategy of critique – whether that critique is formalist, instrumentalist, realist, or immanent. In other words, what are the arguments and broader strategies with which to criticize a specific interpretation or a broader interpretative practice? This question will provide the pathway for approaching the practice of interpretation.

The present contribution deals with the effect of ASEAN external relations within the ASEAN legal regime and the legal orders of ASEAN Member States. On the face of it, such effects could be expected to be the same as those of international law generally. But we find that ASEAN external agreements are likely to have stronger internal effects within Member States than other international law instruments. Furthermore, they contribute to ASEAN integration and may boost the role of the ASEAN Secretariat.

Our argument is based on an analysis of the obligations of membership in ASEAN and on the principle of ASEAN centrality. Whether compliance with external agreements forms part of the obligations of membership is certainly open to question. We submit that it does, at least with regard to those external agreements that can be read as ‘joint ASEAN agreements’. Furthermore, we draw attention to the role that the ASEAN Secretariat itself may play in developing an answer in that direction. The principle of ASEAN centrality is emphasized in a number of key instruments, including the ASEAN Charter. It is likely to contribute to the stronger impact that ASEAN legal instruments may have on the practice of members’ institutions when compared to instruments of international law generally.

In order to frame the discussion on internal effects, the contribution distinguishes three types of ASEAN external agreements: (i) external agreements of ASEAN as an IO, (ii) plurilateral agreements between state parties that resemble any other international treaty, and (iii) joint ASEAN agreements between state parties, which however credits the fact that state parties on one side of the agreement together form ASEAN.

1. i. For the time being, external agreements of the first type – concluded by ASEAN as an IO alone – do not bind Member States. Such bindingness could only arise from a provision to that effect in the Charter. Agreements of this type may however strengthen the monitoring, facilitating and compliance functions of the Secretariat with respect to the treaty obligations of Member States. Within the context of this first type of agreements, we also discuss the responsibility of ASEAN and the concurrent and subsidiary responsibility of its members. In particular, we submit that members may be indirectly liable for wrongful acts of ASEAN as an IO.

When speaking of the internal effects of ASEAN external agreements, it is important to identify and distinguish the range of such agreements. It is certainly not uncommon for legal instruments associated with ASEAN or for commentators to speak of ASEAN agreements in an undifferentiated manner, lumping together under this heading not only clearly different kinds of external agreements, but also agreements between ASEAN Member States alone. As a first qualification, it is evident from the subject and ambition of our inquiry that we are only concerned with external agreements – instruments whose parties include at least one party in addition to some ASEAN states or ASEAN as an international organisation. But even then, we encounter within the umbrella category of ‘external agreements’ instruments that differ widely with regard to their legal nature and what concerns the parties involved. There are, in particular, two different bases that would qualify for a typology of external agreements, in order to add further clarity.

The first would entail revisiting the spectrum of hard and soft obligations, in terms of the bindingness of these norms, their specificity and any mechanisms of enforcement or compliance. With regard to their legal nature, ASEAN external practices create instruments ranging on a scale from laudatory and hortatory declarations with no apparent ambition to create legal obligations, on the one hand, and agreements to create clear treaty commitments, on the other hand. When it comes to hard commitments, most of ASEAN external relations do indeed take the form of agreements between ASEAN Member States and one or more third parties. Other instruments, which involve ASEAN as an international organisation and which leave out any direct involvement of the Member States tend to impose weaker obligations.

On that basis, speaking about the internal effects of ASEAN external relations, we would need to distinguish between instruments such as the Agreement between the Governments of the Member Countries of the Association of Southeast Asian Nations and the Government of the Russian Federation on Economic and Development Cooperation, which is an international treaty signed and ratified by its eleven state parties, from instruments like the Memorandum of Understanding between the Association of Southeast Asian Nations (ASEAN) and the United Nations (UN) on ASEAN–UN Cooperation, signed by the respective Secretary-Generals of these organisations at that time, Ong Keng Yong and Ban Ki Moon.

As all ASEAN states are parties to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), it is a useful case study on how ASEAN states implement their international legal obligations within the domestic legal framework. Since it dates back to 1979, there is also more practice to draw on for a study of its internal effects, even if it entered into force at different stages for ASEAN Member States.

It thus offers a repository of insight in a matter that is otherwise difficult to grasp. We do not yet have sufficiently evolved case-studies on the internal effects of ASEAN plurilateral agreements. By proxy, we thus study the implementation of CEDAW. A caveat pertains to the fact that the potentially intrusive and transformative reach of CEDAW has been truncated by reservations. For example, contrary to Article 16 CEDAW, countries like Malaysia and Indonesia by dint of Muslim religious law permit polygamous marriages subject to certain conditions such as court permission.

Overall, the international obligations of CEDAW may be implemented in a variety of ways, such as through the form of hortatory aspirational guidelines (a form of domestic soft law), as part of a general programme or policy administered by general or dedicated agencies, or as justiciable rights within individualized adjudicative or quasi-judicial processes. As the Malaysian Court of Appeal noted in AirAsia Berhad v Rafizah Shima Binti Mohamad Aris, ‘[e]ach State decides how best to achieve its implementation. The CEDAW Committee has no enforcement authority; it can only make recommendations highlighting areas where more progress is needed in a particular country.’

Article 2 CEDAW lists the vehicles by which the obligations undertaken by state parties may be satisfied.

This section deals with the first kind of agreements that are concluded by ASEAN as an International Organisation and not by its Member States. It offers an introduction to the external relations powers of ASEAN, especially its Secretariat. It then argues that such agreements cannot bind Member States absent a provision to that effect in the Charter. As we will discuss in this chapter's final part, members can well bear concurrent and subsidiary responsibility and they can incur indirect liability for international wrongful acts of ASEAN. The external relations of ASEAN as an IO thus impact its internal relations with its members.

Introductory note on the Secretariat

The functions and role of the Secretariat and the ASEAN Secretary-General (ASG) are primarily managerial. The ASG is the Chief Administrative Officer of ASEAN and is appointed by the ASEAN Summit for a single non-renewable term of five years. According to Article 29 ASEAN Charter it falls onto the Secretariat to ensure and maintain ‘budgetary discipline’, ‘sound financial management policies’, and financial procedures consistent with international standards. Article 30 moreover charges the ASG with preparing the Secretariat's annual operating budget for the approval of the ASEAN Coordinating Council, upon recommendation of the committee of permanent representatives.

The ASG is to serve ‘as spokesman and representative of ASEAN on all matters’ in the absence of a contrary decision of the Chairman of the Standing Committee. The ASG is further to conduct consultations with contracting parties, the private sector, NGOs and other ASEAN constituencies, as well as coordinate dialogues with international and regional organisations and any dialogue country. The ASG also acts as the ‘channel of formal communications’ between ASEAN Committees, bodies and the Secretariat and other IOs and governments.

The distinct role of the ASEAN Secretary in relation to the Member States is reflected in several provisions relating to the obligations, which members owe to ASEAN as an IO. Some degree of institutional autonomy is sought by Article 30, which states that the ASEAN Member States should through ‘equal annual contributions’ remitted in a ‘timely manner’ provide the ASEAN Secretariat with ‘the necessary financial resources to perform its functions effectively’. However, funding is pegged at the lowest level by requiring equal funding, as opposed to funding based on the different wealth levels of each Member.

This contribution sets out the legal effects of ASEAN external agreements within ASEAN Member States, with regard to the relationship between ASEAN as an International Organisation and its members. In particular, it demonstrates how ASEAN practice in relation to its external relations is, on the whole, likely to contribute to an increased role for the ASEAN Secretariat.

In approaching the theme of internal effects of external agreements, we distinguish three types of agreements. First, agreements which ASEAN concludes as an International Organisation. Such agreements do not bind Member States and do not show internal effects within domestic legal orders. However, they might strengthen the monitoring and facilitating functions of the Secretariat in relation to Member States’ treaty obligations and thus have internal effects within the ASEAN legal order or, better expressed, as we will argue, its legal regime.

Agreements with non-ASEAN Member States usually take the form of international treaties between state parties, which is the second type of agreement. Such agreements may well be read in a rather uncontroversial manner to suggest plainly that they are plurilateral agreements indistinguishable from other international law agreements. There is nothing specific about them when it comes to internal effects or otherwise. We discuss their internal effects within Member States from the points of view of both international law and, in a comparative perspective, domestic constitutional law. Since knowledge about the constitutional practices of ASEAN Member States with regard to the internal effects of international law is uneven and in any event rather sparse, this part of the argument largely models different possibilities. As yet, we do not have sufficiently evolved case-studies on the internal effects of these plurilateral agreements. We draw on ASEAN Member States’ domestic practices to the extent that we could gather it. We note, and are aware, that our access and thus knowledge is distributed unevenly, with most references stemming from the Singapore context. In light of the need for further studies in this regard, for now, we further engage in a specific case study of the implementation of the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW). We do so for inspiration and by proxy, believing that this is illuminating and helpful for readers in imagining what impact ASEAN plurilateral legal relations might have.