The Association of South-East Asian Nations came into being
on 8th August 1967 with the signing of the Bangkok Declaration by
the Foreign Ministers of Malaysia, The Philippines, Singapore, Thailand and
Indonesia, while assembled at the Thai Department of Foreign Affairs. The
political and economic organization now comprises of ten countries having
brought Brunei, Burma (Myanmar), Cambodia, Laos, and Vietnam into the fold.
Its primary purpose is to promote peace and stability in the
south-easterly region of Asia. Its two main objectives as declared in the first
ASEAN Regional Forum (ARF) Chairman’s statement[1]
are:
a) To cultivate productive dialogue and
consultation on political and security issues which are of common interest and
concern, and;
b) To make significant contributions
and efforts towards confidence building and preventive diplomacy in the region.
Since then, ASEAN has developed three main mechanisms to
achieve peaceful dispute settlement, including:
1. The Treaty of Amity and Cooperation
of 1976 (TAC)
This was signed in conjunction with the Declaration of ASEAN Concord of 1976
a landmark
agreement which sets out peaceful settlement of disputes as a fundamental
principle of ASEAN, thus committing member states to “refrain from the threat
or use of force” and settle any disputes through “friendly negotiations”.
To tackle unresolved disputes in the region, the TAC
established a High Council comprising of ministerial representatives of all
state parties. All parties to a dispute can apply TAC to their case conditional
to all parties consenting to the same. The High Council is also mandated to
recommend appropriate means of dispute settlement to the disputing parties,
which could include the constituting a committee of mediation, inquiry or
conciliation.
2. The 1996 Protocol on Dispute
Settlement Mechanism
Disputes relating to the interpretation and application of ASEAN
agreements arose due to the exponential growth and cooperation in the economic
sector, leading to the need by ASEAN to provide for the resolution of such
disputes.
An example of this is the Agreement for the Promotion and Protection of Investments in 1987 which
provides that such disputes that cannot be settled should be submitted to the
3. The Protocol for Enhanced Dispute
Settlement Mechanism, 2004 (EDSM or the Vientiane Protocol).
It applies to disputes relating to all ensuing economic
commitments in the ASEAN and also retroactively to earlier key economic
agreements before the agreement came into effect.
It is composed of panels and an appellate body that assess
disputes which cannot be settled through mediation or conciliation. Based
on the findings of the panel or appellate body, a member state may be requested
to take measures to bring itself into conformity with an ASEAN economic
agreement.
Where the findings or recommendations are not implemented
within a specified time, the complaining party may negotiate for compensation
or suspend concession towards the other party.
The ASEAN Charter
The Charter was
launched on 15th
December 2008 in Jakarta, Indonesia after the members of ASEAN met in the
Indonesian capital of Jakarta in November 2007 to sign it.
It serves as a
framework for dispute settlement in ASEAN and may be regarded as a
constitution-like document governing relations among the ASEAN members hence
establishing the organization as an international personality on its own. Its fundamental principles include:
a) Respect for the independence, sovereignty, equality,
territorial integrity and national identity of all ASEAN Member States;
b) Shared commitment and collective responsibility in
enhancing regional peace, security and prosperity;
c) Renunciation of aggression and of the threat or use of
force or other actions in any manner inconsistent with international law;
d) Reliance on peaceful settlement of disputes;
e) Non-interference in the internal affairs of ASEAN Member
States;
f) Respect for the right of every Member State to lead its
national existence free from external interference, subversion and coercion;
Role
of the ASEAN Charter in Dispute Resolution
ASEAN’s methodology of resolving
conflicts is usually different from how the domestic laws of these countries
would apply to the contextual dispute.
Article 22(1) of the ASEAN Charter
provides for peaceful resolution of all disputes between member states, in a
timely manner through consultation, negotiation and dialogue, further stating
that the Chairman or Secretary-General may offer his good offices to resolve
the parties’ differences.
It would however be unrealistic to
believe that consultation, negotiation and dialogue could resolve the conflict
arising hence Article 22(2) requires that “ASEAN shall maintain and establish
dispute settlement mechanisms in all fields of ASEAN cooperation” meaning that
if there are any ASEAN instruments providing for that particular dispute
settlement, the dispute should be resolved within that instrument.
Article 9 of the Charter further
provides that any differences between member states concerning the
interpretation or application of the charter should be settled amicably between
the parties, and, if need be, a body may be instituted to resolve the
particular dispute.
The establishment of the ASEAN Protocol
on Enhanced Dispute Settlement Mechanism (Vientiane Protocol) laid emphasis on
Article 9 though it basically covers ASEAN economic agreements. Article 22(3)
of the Charter provides that where it has not been specifically provided for,
all disputes dealing with the interpretation or application of ASEAN economic
agreements should be settled in accordance with the Vientiane Protocol.
The Protocol establishes a panel to look
into the dispute and make findings to assist the Senior Economic Officials
Meeting to come to a decision by considering the nature of the dispute as well
as how to best resolve it.
For disputes not involving an ASEAN
instrument, Article 24(2) of the Charter applies by providing that the modes of
dispute settlement prescribed in the TAC, along with its rules of procedure, will
apply. Disputes threatening peace, according to the TAC, shall be referred to
the High Council which should consist of representatives from each of the
contracting party states
The ASEAN Summit
The ASEAN Summit
is an annual meeting convened by the member states discussing matters relating
to their collective economic and cultural development. It conducts a three-day
annual meeting with invited ASEAN ‘dialogue partners’ who include, but are not
limited to South Korea, China and Japan. The usual itinerary for such a meeting
would include the following:
- ASEAN leaders hold an internal organization meeting.
- ASEAN leaders hold a conference together with Foreign Ministers of the ASEAN Regional Forum.
- Leaders of 3 ASEAN Dialogue Partners (also known as ASEAN+3) hold a meeting with the ASEAN leaders.
- A separate meeting is set for leaders of 2 ASEAN Dialogue Partners
The
Role of the ASEAN Summit in Dispute Resolution
Its role comes in after the appropriate,
provided means of dispute resolution has failed. Article 26 provides that if
this does occur, the dispute should be referred to the ASEAN Summit, ASEAN’s
highest organ.
The Secretary General is usually given
the task of monitoring compliance once a decision has been delivered in a
dispute after which he is to submit a report to the Summit. Should a State
refuse to comply with the decision, the aggrieved party may refer the matter to
the Summit for further action. The role of the Summit will be to recommend
measures to be taken to ensure compliance of the decision.
One of the most instrumental disputes in
which the ASEAN’s mechanisms have become apparent is the long-standing and
still ongoing dispute over the South China Sea, as regards the territorial
claims of each coastal State.
South
China Sea Dispute
South China Sea (SCS) dispute involves China,
Taiwan, Philippines, Malaysia, Vietnam, and Brunei, and other States related to
their legal claims over Spratly and Paracel chain of islands, as well as other
islands in the mineral-rich South China Sea. With four ASEAN member states
having overlapping claims in this marine territory, it is instrumental for
ASEAN to speak with one voice regarding this matter.[2]
The dispute was initiated by unilateral Chinese
claims regarding its territorial sovereignty in the South China Sea through
issuing a territorial map marked with nine dotted lines which reflected whole
area of South China Sea. This map immediately drew out a reaction from Brunei,
Malaysia, the Philippines, Vietnam, and Taiwan since Chinese claims over it
territorial jurisdiction breached their territorial sovereignty over
territorial waters as well as the exclusive economic zones (EEZ) of the
concerned States.
China underlies its claim on the basis
of several main reasons, such as:
a.
China considers that
Spratly Islands and most of SCS region are part of its territory based on its history.
This is shown through expedition of ancient Chinese history which states that
the SCS region had been part of Chinese territory on several dynasties.
b.
China declared that
Paracel Island is part of Hainan Island which is integrated to China.
c.
China declared the legality
of his claim on Spratly and Paracel islands bags as natural thing, considering
this claim had been made after the end of World War II, where these islands
were still claimed by Japan.
China has severally confirmed that the country
is not going to let go of the control and protection of its core interest, even
if it must use the military instrument. Chinese Defense Ministry Spokesman even
added that China has patent sovereignty over disputed area encouraged by its
historical evidences as legal backing instrument. This confirmation of China
then followed by its implementing action on the field, such as establishing
Garrisons in various islands which are actually in the EEZ territory of another
state, building air bases on several islands of SCS and claimed the territory
which is claimed as Chinese traditional fishing ground, and sending naval and
air patrols to any occupied areas.
.
The potential values of the South China
Sea could be a reason for conflict. It has:
i.
Strategic geographical
location, where this area is surrounded by a 10 coastal states comprises of China,
Taiwan, Vietnam, Cambodia, Thailand, Malaysia, Singapore, Indonesia, Brunei
Darussalam, and the Philippines.
ii.
Rich biodiversity and
natural resources, where 30% of the world’s coral reefs and variable resource
of fisheries are in this region. The area is also rich in its natural resources
such as oil and gas, where Spratly and Paracel islands have oil reserves.
iii.
High economic and
political value through its naval power, considering the area is part of sea lanes
of communication and sea lanes of trade which connects the Indian and Pacific Ocean,
that make this area become one of world’s busiest international sea lanes that
connects world busiest shipping ports.
iv.
Geopolitical pivot
point, where the ability of controlling this region determines the action to do
some power projections to various regions around the world.
In light of China’s insistent push to
resolve this dispute through separate bilateral talks with each aggrieved State
in a bid to avoid the power of collective bargaining that an ASEAN-fronted
negotiation may result in, there have been several forums and meetings by the
ASEAN seeking to put an end to this debacle.
Some of these, such as the Summit of
Foreign Ministers in July 2012, end in tense disagreements with little progress
made.[3]
This however has culminated in the publication and acceptance of a declaration
on the conduct of ASEAN member states as regards the SCS dispute.[4]
Additionally, it must be noted that
through the continuous lobbying and negotiation undertaken at the highest
echelons of ASEAN’s structure, the Summit of Foreign Ministers, in 2012,
released a statement[5]
detailing the six principles that reaffirmed the conduct of ASEAN member states
as regards their relations among themselves and collectively towards China as
regards their territorial claims. Among these included an expeditious
conclusion of a regional Code of Conduct on the South China Sea well as the
continued exercise of self-restraint and non-use of force by all parties.
Conclusion
Ultimately,
ASEAN’s mechanisms come out as being evident support for the economic and
political stability of the South-East Asia region. This is in light of endless
disputes and heightening of tensions between member States themselves or
between them and other States.
ASEAN’s
undying efforts to resolve the South China Sea dispute though met by endless
infighting and competing interests, has been instrumental in the maintenance of
a continued state of calm in the region with armed conflict being far from mind
so long as ASEAN carries on its negotiating efforts.
Most
instrumental in this is the Summit of Foreign Ministers, whose endless efforts
at negotiation and the ability of each state to compromise at the negotiating
table propels ASEAN towards being an international success to be emulated.
References
4. Agreement
on Dispute Settlement Mechanism of the Framework Agreement on Comprehensive
Economic Co-operation Between the Association of Southeast Asian Nations and
the People’s Republic of China.
[1] 1994
[2] Can ASEAN unite on South China Sea? Hunt, L., http://thediplomat.com/2012/11/can-asean-unite-on-south-china-sea/ (Last accessed 16 March 2014).
[3] Sea dispute upends Asian summit, Barta, P., http://online.wsj.com/news/articles/SB10001424052702303919504577524133983292716 (Last accessed 16 March 2014)
[4] Accessible at http://www.asean.org/asean/external-relations/china/item/item/declaration-on-the-conduct-of-parties-in-the-south-china-sea
(Last accessed 16 March 2014).
[5] ASEAN’s six-point principles on the South China Sea, accessible at http://www.cfr.org/asia-and-pacific/aseans-six-point-principles-south-china-sea/p28915
(Last accessed 16 March 2014)
No comments:
Post a Comment