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THE DEVELOPMENT of the ASEAN TRADE DISPUTE SETTLEMENT MECHANISM: from DIPLOMACY to LEGALISM KOESRIANTI a Thesis Submitted In

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THE DEVELOPMENT of the ASEAN TRADE DISPUTE SETTLEMENT MECHANISM: from DIPLOMACY to LEGALISM KOESRIANTI a Thesis Submitted In THE DEVELOPMENT OF THE ASEAN TRADE DISPUTE SETTLEMENT MECHANISM: FROM DIPLOMACY TO LEGALISM KOESRIANTI A thesis submitted in accordance with the requirements for the award of the Degree of Doctor of Philosophy, Faculty of Law, University of New South Wales 2005 ABSTRACT In the late twentieth century international trade moved from a political multi-polar system based on the nation-state to a system featuring unified regional trading regimes. An inevitable feature of increased cooperation through bilateral, regional and international arrangements is the emergence of disputes over the interpretation and implementation of the agreed upon commitments. Accordingly, reliable mechanisms for the settlement of trade related disputes have become necessary to ensure the effective and continued functioning of these arrangements. Over the years these dispute settlement mechanisms have evolved from the relatively simple, diplomacy based structures called for in the GATT, to the detailed, legalistic, adjudication based mechanism found in the WTO. Bilateral and regional initiatives, such as NAFTA and MERCOSUR, as well as the EU, have similarly adopted dispute settlement mechanisms which adopt, in varying degrees, legalistic adjudicatory processes. Since 1967 ASEAN has spearheaded the creation of a regional trading bloc in the South East Asian region. As in other trading blocs, this has inevitable led to the need to develop effective and workable dispute settlement mechanisms. This thesis examines the development of trade dispute settlement mechanisms in ASEAN tracing its development from a model based on pragmatic diplomacy to a legalistic adjudicatory system with particular reference to the ASEAN context. It examines the extent to which the ASEAN context has influenced the content and the adoption of trade dispute settlement mechanisms in the region, as well as the extent to which the recently adopted 2004 Enhanced Protocol on Dispute Settlement can adequately address trade disputes in the region while remaining sensitive and responsive to the ASEAN context. Based on a comparative examination of dispute settlement mechanisms in other trade agreements, a range of key procedural issues are identified and examined with a view to identifying the prospects and challenges which ASEAN faces in the implementation of its dispute settlement mechanism. The thesis analyses the prospects and challenges of implementation the 2004 Enhanced Protocol on DSM. II Acknowledgements I acknowledge my gratitude to my supervisors, Associate Professor Rosemary Rayfuse and Mr Bryan Mercurio for their encouragement, patience and invaluable guidance. Also, I would like to thank the following: Professor David Dixon, Associate Dean (Research) and Mr Angus Corbett, Associate Dean (Coursework) of the Law Faculty the University of New South Wales for their support during the writing of my thesis; Kerry Daley, Dawesh Chand, Gaha Reef, Annabel Sutherland, Tony Antoniou, and Reg Potter for their assistance on administrative and IT support: Emily McCarron and Nikki Chong for their assistance in proof reading this thesis; Mr Smara Dahana for information on ASEAN. I also thank Mr Machsoen Ali, Dean of the Law Faculty of the Airlangga University and his staff for their support during my study; my friends, Laylee Tang, Dan Svantesson, Robin Huang, Marie Ange, Scot Calnan, Cathy Hunter and Cassandra Goldie for making the Julius Stone PG room like home. I wish to record my gratitude to my friends, including but not limited to, Umi, Maria and Sony, Diah, Zaafri and Ayu, Made Andi, Srie and Richard, Nurul and Yudi, and Nestri for their support in making my stay in Sydney as a PhD student as enjoyable and lively as possible. Thanks also go to my friend Dina Sunyowati and my sisters and brothers, in particular, my sister Tri Andjarwati for their help while I was away from home. Finally, special thanks go to my beloved husband, Saiffudin Zuhri and my inspiring children, Andin and Avi who have supported me throughout my study. They are everything to me. III ABSTRACT............................................................................................................. II ACKNOWLEDGEMENTS...................................................................................... III FIGURES ................................................................................................................X FLOWCHART .........................................................................................................X APPENDICES .........................................................................................................X LIST OF SELECTED ABBREVIATIONS...............................................................XI TABLE OF CASES ..............................................................................................XIII ASEAN TIME LINES........................................................................................... XVI TABLE OF TREATIES AND DECLARATIONS................................................. XVII INTRODUCTION..................................................................................................... 1 FORMULATION OF THE PROBLEM ........................................................................................................ 1 THE OBJECTIVE OF THE STUDY ............................................................................................................. 3 THE FRAMEWORK FOR ENQUIRY.......................................................................................................... 4 THE OUTLINE AND SCOPE OF THE STUDY.......................................................................................... 4 CHAPTER 1 – THE HISTORY, DEVELOPMENT AND STRUCTURE OF ASEAN 7 1.0 Introduction ................................................................................................................................................ 7 1.1 The ‘South East Asian’ Area ..................................................................................................................... 8 1.1.1 Early History....................................................................................................................................... 8 1.1.2 The meaning of ‘South East Asia’................................................................................................... 10 1.1.3 The development of a ‘South East Asian’ identity- the SEATO Years........................................ 11 1.2. The Formation of ASEAN ...................................................................................................................... 13 1.2.1 The early years.................................................................................................................................. 13 1.2.2 The Bangkok Declaration, 1967 ...................................................................................................... 14 1.2.3. The Bali Summit of 1976................................................................................................................. 15 1.3 The ASEAN Profile .................................................................................................................................. 17 1.4 The Organizational Structure of ASEAN............................................................................................... 24 1.4.1 The ASEAN Heads of Government Meeting (ASEAN Summit Meeting) ................................... 25 1.4.2 Ministerial Level Meetings............................................................................................................... 26 IV 1.4.3 ASEAN Standing Committee (ASC) ............................................................................................... 28 1.4.4 ASEAN Secretariat........................................................................................................................... 29 1.4.5 The ASEAN National Secretariats .................................................................................................. 30 1.4.6 Other Organs .................................................................................................................................... 31 1.4.7 ASEAN committees in third countries (‘Dialogue Partners’)....................................................... 31 1.5 Decision making in ASEAN..................................................................................................................... 32 1.5.1 The musyawarah and muafakat ....................................................................................................... 32 1.5.2 The ASEAN Way: Consensus in ASEAN ....................................................................................... 34 1.5.3 Implementation of decisions ............................................................................................................ 39 1.6 The legal personality of ASEAN.............................................................................................................. 41 1.7 Conclusion................................................................................................................................................. 49 CHAPTER 2 – ASEAN AS A REGIONAL ECONOMIC ORGANIZATION........... 52 2.0 Introduction .............................................................................................................................................. 52 2.1. The Beginnings of Trade Liberalization in ASEAN............................................................................. 53 2.1.1
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