The ASEAN agreements are not as straightforward as we imagine them to be
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The Association of Southeast Asian Nations (ASEAN) was established on the August 8, 1967 with five countries, namely, Malaysia, Thailand, Singapore, Philippines, and Indonesia. Over the years, ASEAN added five other nations; Myanmar, Brunei, Cambodia, Vietnam, and Laos, with the aim of creating a regional intergovernmental organisation which promotes intergovernmental collaboration and cooperation, and facilitates economic, political, socio-cultural, educational, military and security integration among its members. The initial declaration signed between the founding members was a simply worded document containing merely five articles, affirming the establishment of the organisation while stating its names and purposes. While ASEAN has made notable progress toward economic integration and free trade in the region, the credibility of the organisation has been affected due to its inability in dealing with regional issues and situations that have cropped up. With extreme emphasis dedicated towards consultation, consensus, and non-interference, the adoption of policies that have been the “lowest common denominator” between the nations has impeded the institution-building efforts of ASEAN. Nice its establishment, ASEAN has conducted thousands of meetings which have culminated with the creation with a variety of agreements. While agreements have been reached, the lack of any clear nomenclature, and the lack of definition provided to nomenclatures such as “ASEAN Instruments” has affected the implementation of such instruments, leading to the creation of what can be termed as “soft law”, and not “hard law”. While hard law instruments refer to legally binding obligations, making them legally enforceable before a legal authority, soft law provides an alternative for law making instruments, such as through a non-binding agreement which offers a viable alternative to apprehensive parties. Most ASEAN agreements are, therefore, merely descriptive, providing suggestions, rather than instruments that are mandatory and binding on the parties involved. A lack of clarity in nomenclature used has also led to confusion, and misunderstandings with regards to what terms refer to. The internal instruments of ASEAN include over 30 different titles without any official and comprehensive definitions provided. Terms such as Action Plan, Action Programme, Agenda, Agenda of Action, Agreement, Strategy, Strategic Plan, and others of the kind have been used without any official definition. A term such as “ASEAN Instrument” has been used across a multiplicity of documents and agreements with no comprehensive definition set out. The gradual accumulation of such vaguely defined instruments, varying in their nature and characteristics has led to a faltering development of ASEAN law. The variety that exists in the labels or nomenclature used in ASEAN instruments make it hard to locate all the instruments, and the lack of any clarity on their definitions adds on to the problem.