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Australian Year Book of International Law |
Michael Bliss[∗]
Only rarely does the stance of the Federal government on a particular treaty become the subject of detailed and prolonged public debate in Australia. In the last decade, only a few treaties have earned such attention, the Rome Statute of the International Criminal Court,[1] the Kyoto Protocol to the Framework Convention on Climate Change,[2] and the Australia-US Free Trade Agreement[3] being, perhaps, the most obvious. In early 2005, another treaty joined this illustrious company: the 1976 Treaty of Amity and Cooperation in Southeast Asia (the Treaty).[4] While the Treaty had been in force for nearly 30 years, and Australian governments of both political persuasions had expressed their opposition to Australia acceding to the Treaty, the announcement by the Association of Southeast Asian Nations (ASEAN) member states of the imminent formation of the East Asia Summit (EAS), and the prospect that Australia could become a founding member of that regional grouping, put the Treaty in new perspective. The decision of ASEAN states that accession to the Treaty, or a stated intention to accede, would be a condition of entry to this new piece of regional architecture required a reconsideration of Australia’s long-standing position. What were the implications of accession for Australia? Could the Treaty be interpreted in a manner consistent with Australia’s existing rights and obligations under international law? Arriving at an answer to these questions required extensive consultation between Australian officials and ASEAN counterparts, and some carefully choreographed diplomatic steps. That process was, of course, successful: Australia’s accession to the Treaty, and subsequent participation in the first EAS in November 2005, was hailed as a ‘diplomatic coup’, or, more breathlessly, ‘the day foreign policy won Asia’.[5] Less attention was paid to the basis upon which Australia acceded to the Treaty, and the process that was followed. This article explores those issues.
The creation of the ASEAN in 1967 was a bold and perhaps optimistic initiative. Most of the five founding states – Indonesia, Malaysia, The Philippines, Singapore, and Thailand – had achieved their independence only relatively recently, and in a number of cases, were yet to achieve internal political stability. Relations between the five were not uniformly benign, and the Indo-China conflict was creating repercussions across the entire region.[6] Despite these beginnings, over the 40 years of its existence, ASEAN has evolved into a highly sophisticated and integrated regional organisation, significantly expanding and deepening its activities, and doubling its membership.[7] While ASEAN has not (yet) approached the level of regional integration achieved by the European Union, it has enabled a high degree of coordination and cooperation amongst its ten member states on a wide variety of political, economic, and security matters. There can be no doubt that the objectives that the original members of ASEAN set for themselves in the 1967 ASEAN Declaration (Bangkok Declaration) – ‘to accelerate economic growth, social progress and cultural development in the region, and to promote regional peace and stability’[8] – have been realised. ASEAN members continue to identify ways to pursue these objectives, including through ambitious plans for the future such as ‘ASEAN Vision 2020’, a statement of mutual aspirations to be achieved by the year 2020, the centrepiece of which is an ASEAN Economic Community in which there is ‘a free flow of goods, services and investments, a freer flow of capital, equitable economic development and reduced poverty and socio-economic disparities’.[9]
In recent years, ASEAN has sought to further its objectives and enhance and project its influence by strengthening its links with other countries in the region.[10] It has pursued this in a number of ways, including through the creation of new regional fora that place ASEAN at its centre, but enable ASEAN members to work with other regional countries in addressing regional issues. The ASEAN Regional Forum (ARF) is perhaps the best example. The establishment of the ARF in 1994 was a recognition of increasing security interdependence in the Asia-Pacific region. The ARF’s broad mandate encompasses the promotion of confidence-building, development of preventative diplomacy and elaboration of regional approaches to resolving conflicts. Non-ASEAN members of the ARF include Australia, Canada, China, the European Union, India, Japan, Democratic People’s Republic of Korea, Republic of Korea, Mongolia, New Zealand, Pakistan, Papua New Guinea, the Russian Federation, and the United States The ARF provides a regular and useful forum for dialogue amongst those states on regional security threats, including terrorism, proliferation of weapons of mass destruction, transnational crime, and Korean peninsular issues.[11]
Another example was the decision in 1998 to establish the ‘ASEAN plus Three’ grouping. ASEAN plus Three, which consists of the ten ASEAN members plus China, Japan and the Republic of Korea, represented an attempt by ASEAN to formalise a multilateral consultation process with the three North and East Asian states most important to ASEAN in political, economic and strategic terms. ASEAN plus Three involves annual summit meetings between heads of government or foreign ministers, and provides an opportunity for leaders to canvass a wide range of political, economic and security issues. It also underlines the importance for ASEAN members of their relations with the three countries concerned.[12]
When ASEAN made the decision in 2004 to establish a new regional forum, the EAS, which effectively expanded upon the ASEAN plus Three concept to include other states in the region, it was perhaps a logical development. For Australia, always keen to pursue opportunities for closer cooperation with both ASEAN and the major powers of North and East Asia, the establishment of the EAS was welcome news. The EAS was potentially a significant new addition to the regional architecture, and one in which Australia might be able to participate on an equal basis with ASEAN states and others.
The need for enhanced economic cooperation and integration between ASEAN and the major economies of the broader region was a key lesson from the 1997 Asian financial crisis, which hit ASEAN members particularly hard.[13] A study group was commissioned in 1999 by ASEAN members to explore the scope for East Asian integration – the East Asia Vision Group (EAVG). The group recommended, as a means to further strengthen cooperation, ‘the evolution of the annual summit meetings of ASEAN plus Three into the East Asian Summit’[14] and put forward 22 recommendations in six fields: economic; financial; political / security; environmental / energy; social / cultural / educational; and institutional cooperation.[15] ASEAN, not known for acting precipitately, formed the East Asia Study Group (EASG) to review the recommendations put forward by the EAVG. The EASG drew on those recommendations to propose a range of measures to ‘trigger the full realization of the huge potentials of East Asia, enabling East Asian countries to accelerate regional cooperation and to reduce the existing developmental gaps in the region’.[16]
ASEAN plus Three members were not universally positive about the idea:[17] a sentiment captured in the press statement at the conclusion of the Fifth ASEAN Plus Three Ministerial Meeting, held in Jakarta on 1 July 2004, which merely recorded that ‘the Meeting recognized the potential value of an EAS at an appropriate time’.[18] However, ASEAN states were determined, and only five months later, at the Tenth ASEAN Summit in Vientiane on 29 November 2004, the ASEAN Leaders formally endorsed the convening of the first EAS in 2005.[19] A week later, Prime Minister Badawi of Malaysia offered a much grander vision, asserting that the EAS was just the first of a number of milestones on the way to an East Asia Community. He foresaw many more steps towards an integrated region, including an East Asia Free Trade Area, an Agreement of East Asia Monetary and Financial Cooperation, an East Asia Zone of Amity and Cooperation, and an East Asia Declaration of Human Rights and Obligations. And he was quick to assert that ‘ASEAN would remain as the driving force in this process’.[20] Whether or not this list of proposals was realistic – and it has been noted that ASEAN’s rhetoric can run ahead of reality[21] – it was clear to regional countries that, even if assessed on potential alone, it was worth being part of the EAS.
ASEAN states elaborated the criteria for participation in the EAS at an ASEAN Foreign Ministers’ retreat in Cebu, The Philippines, on 10 April 2005. That meeting identified three conditions which states other than ASEAN or the ASEAN plus Three (China, Japan and the Republic of Korea) would be required to meet in order to receive an invitation to participate in the EAS: a state would be required to be a full dialogue partner of ASEAN; to have substantive relations with ASEAN; and to be party to, or have expressed an intention to become a party to, the Treaty.[22]
Australia clearly met two of these three criteria. Australia was the first of ASEAN’s formal dialogue partners, having achieved that status in 1974.[23] Australia’s relations with ASEAN – both on a bilateral basis and with the grouping as a whole – are undoubtedly substantive. Australia is a major trading partner of ASEAN and has been engaged with ASEAN for its 30 years of existence.[24] However Australia, as of April 2005, did not meet the third criterion. Australia was not party to the Treaty, and had not expressed an intention to become a party. In fact, successive Australian governments had publicly stated that Australia did not intend to become party to the Treaty.[25]
Following the elaboration by ASEAN Foreign Ministers of accession to, or expression of an intent to accede to, the Treaty, as a pre-condition for entry into the EAS, the government decided to re-examine its position on the Treaty. As Foreign Minister Downer explained to Parliament on 23 June 2005, ‘bearing [the accession criterion] in mind and bearing in mind the great benefits that potentially Australia could yield from [being] part of the emerging East Asian community … we decided we would have discussions with ASEAN officials about this issue of the Treaty of Amity and Cooperation’.[26]
When the original ASEAN members established ASEAN in 1967, they adopted the Bangkok Declaration, [27] which briefly set out the purposes and objectives of the organisation, and established the machinery of the organisation. It was not a treaty and did not attempt to encapsulate the fundamental values of ASEAN. The Treaty, although adopted nine years after the creation of ASEAN, was the first attempt to articulate those values in treaty form. It is, unsurprisingly, a product of its time.
A major inspiration for the drafters of the Treaty was the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations,[28] adopted seven years earlier. The Declaration, adopted by the United Nations (UN) General Assembly by consensus, was viewed by many as representing customary international law. [29] The key principles of that declaration included the obligation to refrain from the threat or use of force, the obligation to settle disputes by peaceful means, the duty of non-intervention in the domestic affairs of another state, the duty to cooperate, and the principle of sovereign equality. Many of these principles are reflected in the Treaty in some form.
The fact that all five original members of ASEAN were also members of the Non-Aligned Movement at the time of negotiations no doubt also helped shape the Treaty. The principles of the Non-Aligned Movement, as reflected in the 1955 Bandung Declaration,[30] were an obvious reference point. A number of the basic principles contained in the Bandung Declaration – non-interference in the internal affairs of others, respect for sovereign equality, the duty to settle disputes by peaceful means – found their way into the Treaty, and their provenance is acknowledged in the Preamble of the Treaty.[31]
The Treaty has long been viewed as a constitutional document for ASEAN. As Prime Minister Badawi of Malaysia stated in his ASEAN Lecture of 2006, ‘[t]he [Treaty] became such an important ASEAN document, not because it was an instrument that was able to resolve disputes but because it was a concept which successfully kept the peace.’[32] The Treaty is clearly viewed by ASEAN members not only as an important historical document, but as playing an important ongoing role in unifying the ASEAN membership, and in providing a framework for managing a range of regional challenges. Recent comments by Malaysia’s Prime Minister Badawi are illustrative:
Number one on the list of items to be preserved are the fundamentals enshrined in the Treaty of Amity and Cooperation. In that Treaty, we have found principles which have proven their worthiness. Abiding by the principles enshrined in the [Treaty], ASEAN countries had been able to build confidence between them. They have been able to prevent internal or bilateral problems spilling over and impacting on the cohesion of the organization. The Treaty spirit has also enabled ASEAN countries to keep extra-regional influences from upsetting regional unity and solidarity.[33]
Against this background, it is appropriate to consider the basic provisions of the Treaty. In brief, the Treaty sets out a range of principles and norms to guide the relations between states parties to the Treaty, and establishes a mechanism for the settlement of disputes between states parties. Article 1 states that ‘the purpose of this Treaty is to promote perpetual peace, everlasting amity and cooperation among their peoples which would contribute to their strength, solidarity and closer relationship’. Unusually, the statement does not stand on its own: the reference to ‘their peoples’ must be read together with the reference to ‘the High Contracting Parties’ at the commencement of the preamble to establish to whom the article applies. It is a high-minded sentiment, and one that the subsequent provisions seek to elaborate.
Article 2 of the Treaty articulates a number of fundamental principles that are to guide relations between the High Contracting Parties. It provides that:
[i]n their relations with one another, the High Contracting Parties shall be guided by the following fundamental principles:
a. Mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations;
b. The right of every state to lead its national existence free from external interference, subversion or coercion;
c. Non-interference in the internal affairs of one another;
d. Settlement of differences or disputes by peaceful means;
e. Renunciation of the threat or use of force;
f. Effective cooperation among themselves.
Article 3 of the Treaty provides that states parties shall endeavour to develop and strengthen the ties between them, and shall fulfil in good faith the obligations assumed under the Treaty: a relatively pro forma confirmation of the pacta sunt servanda principle.
The Treaty then requires, through Articles 4 to 9, states parties to take a range of positive actions to promote and strengthen active cooperation in the economic, social, technical, scientific and administrative fields. Specific obligations include the obligation to ‘exert maximum efforts multilaterally as well as bilaterally on the basis of equality, non-discrimination and mutual benefit’,[34] to ‘collaborate for the acceleration of the economic growth in the region in order to strengthen the foundation for a prosperous and peaceful community of nations in South East Asia …’,[35] to ‘strive to achieve the closest cooperation on the widest scale …’,[36] and ‘to foster cooperation in the furtherance of the cause of peace, harmony and stability in the region … [and to that end], maintain regular contacts and consultations with one another on international and regional matters with a view to coordinating their views actions and policies’.[37]
Following this list of general, aspirational actions required of states parties, Article 10 contains an important prohibition, providing that ‘States Parties shall not participate in any activity which shall constitute a threat to the political or economic stability, sovereignty, or territorial integrity of another High Contracting Party.’ This provision can be read as an articulation of the practical requirements of the principle of non-interference contained in Article 2.
Articles 11 and 12 provide that states parties shall endeavour to cooperate to promote national and regional ‘resilience’: an interesting insight into the psychology of the drafters of the Treaty, suggesting as it does an expectation that states parties will need consistently to resist and overcome threats and challenges to their existence or development. Article 11 makes clear that, for each state party, these threats include ‘external interference, as well as internal subversive activities’.
The remaining substantive articles of the Treaty establish a regional dispute settlement mechanism. Before setting out the ground rules for dealing with disputes, however, Article 13, somewhat ambitiously, states that ‘[t]he High Contracting Parties shall have the determination and good faith to prevent disputes from arising’. Recognising that determination and good faith may not be enough, Article 13 goes on to set out the basic (and familiar) principle:
In case disputes on matters directly affecting them should arise, especially disputes likely to disturb regional peace and harmony, they shall refrain from the threat or use of force and shall at all times settle such disputes among themselves through friendly negotiations.
In order to ensure such an approach to dispute resolution, the Treaty establishes a regional dispute resolution mechanism: the High Council. Article 14, as amended by the First Protocol amending the Treaty of Amity and Cooperation in Southeast Asia (1987) (the First Protocol),[38] provides that, in order to resolve disputes, the states parties shall constitute a High Council comprising a ministerial level representative of each of the states parties. The Article as amended by the First Protocol states that this provision applies to states parties outside Southeast Asia only in cases where that state is directly involved in the dispute to be settled.
Article 15 provides that, in the event that a dispute cannot be resolved through direct negotiations, the High Council shall take cognisance of the dispute, and recommend to the parties to the dispute an appropriate means of settlement. With the consent of the parties to the dispute, the High Council may also perform a mediation, inquiry or conciliation function. The High Council may also, where deemed necessary, recommend appropriate measures for the prevention of a deterioration of the dispute or situation. Crucially, Article 16 provides that Article 15 does not apply to a dispute unless all the parties to the dispute agree to its application to that dispute. That is, all states involved in a dispute must consent, at that time, to consideration of the dispute by the Council mechanism. Unlike the International Court of Justice, for example, there is no general prospective opt-in provision. Importantly, Article 17 also reserves the modes of peaceful settlement of disputes contained in Article 33(1) of the Charter of the United Nations (UN Charter).[39]
The Treaty has been amended on two occasions to reflect changes in the membership of ASEAN: first the entry of Brunei Darussalam in 1984, and then later Vietnam (1995), Laos and Myanmar (1997), and Cambodia (1999). While the Treaty was initially open to signature and ratification only by the original members of ASEAN – Indonesia, Malaysia, The Philippines, Singapore and Thailand – it was open for accession by other states in Southeast Asia. The Treaty was amended in 1987 by the First Protocol to permit states outside Southeast Asia to accede to the Treaty with the consent of the Southeast Asian states then party to the Treaty,[40] and to specify the circumstances in which states outside Southeast Asia could participate in the High Council.[41] The Treaty was amended again in 1998 by the Second Protocol[42] in order to expand the category of Southeast Asian states the consent of which was required to permit states outside Southeast Asia to accede to the Treaty, so as to reflect the expansion of ASEAN’s membership.
The Treaty has not diminished in importance for ASEAN states over time. In fact, when ASEAN members in 1997 adopted ‘ASEAN Vision 2020’, the statement of mutual aspirations to be achieved by the year 2020, ASEAN members reaffirmed the Treaty’s centrality: ‘We envision the Treaty of Amity and Cooperation in Southeast Asia functioning fully as a binding code of conduct for our governments and peoples, to which other states with interests in the region adhere.’[43]
It should therefore have come as little surprise to those seeking to participate in the EAS that accession to the Treaty would be part of the price of entry. By December 2004, all three of the ‘plus Three’ had demonstrated their commitment to ASEAN principles by acceding to the Treaty: China on 6 October 2003; Japan on 2 July 2004; and the Republic of Korea on 27 November 2004.[44] Others had also taken the step, India acceding on 8 October 2003, and Russia on 29 November 2004.[45] Accession was fast becoming standard regional practice.
As noted above, the prospect of accession to the Treaty had been considered by previous Australian governments. Governments of both persuasions had made public statements that Australia did not intend to accede to the Treaty.[46] In the lead-up to the November 2004 Vientiane Leaders Summit, interest emerged as to whether Australia was inclined to reexamine this longstanding position. On the eve of the meeting, the government reiterated that Australia did not intend to accede to the Treaty. A spokesman for Prime Minister Howard confirmed the government’s position: ‘We recognise and respect the importance of the treaty to ASEAN [but] our extensive multilateral and bilateral links in the regions underline our commitment.’[47] Prime Minister Howard restated his opposition to Australia acceding to the Treaty on 7 April 2005 during a joint press conference with Malaysian Prime Minister Abdullah Badawi, stating that the Treaty was indicative of ‘a mindset that we’ve really all moved on from’.[48]
Three days later, ASEAN Foreign Ministers confirmed that accession to, or expression of an intent to accede to, the Treaty was a criterion for admittance to the EAS,[49] thus sparking a vigorous public debate in Australia about the merits of accession to the Treaty.
In the extensive public debate on the merits of Australia acceding to the treaty, five key concerns about the Treaty were commonly identified:
1. that the obligation to refrain from the threat or use of force did not include the right to self-defence contained in Article 51 of the UN Charter;
2. that the Treaty was inconsistent with Australia’s alliance commitments, including those under the Security Treaty between Australia, New Zealand and the United States (ANZUS Treaty[50])that the obligation of non-interference would prevent Australia from commenting on human rights situations in other states party to the Treaty
4. that the arrangements for participation in the High Council mechanism for settlement of disputes discriminated against non-ASEAN states; and
5. that the Treaty might constrain Australia’s relations with non-ASEAN states that were also party to the Treaty.
The Treaty’s prohibition on the use of force set out in Article 2 requires states parties to be guided, in their relations with one another, by the fundamental principle of ‘renunciation of the threat or use of force’. To the extent that this reflected the requirement set out in Article 2(4) of the UN Charter to ‘refrain in their international relations from the threat or use of force’, the prohibition was unexceptional.[51] However, the fact that the Treaty did not contain an equivalent to Article 51 of the UN Charter, which expressly permits the use of force in self-defence, was of concern.[52] There was no clear statement that an exception to the prohibition on use of force in Article 2 of the Treaty existed in circumstances where a state had been subject to an armed attack. Although a strong argument could have been mounted that the right to self-defence, as set out in Article 51 of the UN Charter, would prevail in the face of a subsequent treaty that did not acknowledge the right,[53] some clarification of this point was seen as essential.
The question as to whether the Treaty precluded exercise by a state party of the inherent right to self-defence was one that particularly resonated in Australia, as it played into an ongoing public debate on the parameters of the right to self-defence, and in particular whether it would encompass the doctrine of pre-emption. The issue of pre-emption – that is the pre-emptive use of force to counter a threat of force – was raised by Prime Minister Howard on 1 December 2002, when he said:
It stands to reason that if you believe that somebody was going to launch an attack on your country ... and you had a capacity to stop it, and there was no alternative other than to use that capacity, then of course you would have to use it.[54]
The comments, made in the aftermath of the Bali bombing of 12 October 2002, received a negative reaction from a number of neighbouring states,[55] and generated substantial debate domestically.[56] A central issue was what the concept of self-defence, as articulated in Article 51 of the UN Charter, actually encompassed in practice. It is generally accepted that Article 51 does not require a state to wait until it is actually attacked before using force. Anticipatory self-defence was recognised by international law over 150 years ago, in the Caroline Case.[57] However, the threshold for anticipatory self-defence identified in that case was a high one: a state must demonstrate that the necessity for anticipatory self-defence is ‘instant, overwhelming, and leaving no choice of means, and no moment for deliberation’.[58] The question was whether this test still reflected customary international law on the subject.[59]
Both in Australia and in the Southeast Asian region, the debate on the doctrine of pre-emption triggered by Prime Minister Howard’s December 2002 comments eventually died down. However, in late 2004, as the prospect of the East Asia Summit emerged, and a linkage between an invitation to the Summit and accession to the Treaty began to be drawn, the issue of pre-emption again became the subject of domestic debate. The federal opposition was, unsurprisingly, eager to assert that the doctrine of pre-emption was inconsistent with accession to the Treaty, and that the government would have to formally disavow the doctrine in order to accede and so gain entry to the EAS. During Parliamentary question-time sessions in November and December 2004, Opposition members of parliament repeatedly asked the government to disavow the doctrine of pre-emption.[60] The government, in response, made clear that its commitment was to seek to cooperate with other countries in the region to address threats.[61]
A second long-standing concern with the Treaty was that accession to it would be inconsistent with Australia’s alliance commitments, including under the ANZUS Treaty. As Foreign Minister Downer explained to Parliament on 29 November 2004:
[The Treaty is] a treaty based on a series of principles … [including] the so-called 10 principles of the Bandung Declaration of the 1950s. One of the components of the Bandung Declaration was that governments that signed up to the Treaty of Amity and Cooperation would abstain from the use of arrangements of collective defence to serve the particular interests of any of the big powers. Bearing that in mind, successive Australian governments – not just this one – have interpreted that particular principle as one that would be inconsistent with the ANZUS alliance. That obviously has been one of the reasons historically why Australian governments have not signed the treaty.[62]
The key concern was that Article 4 of the ANZUS Treaty, which provides that each party recognises that an armed attack in the Pacific area on any of the parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes, envisaged an exercise of collective self-defence not envisaged by the terms of the Treaty.
This concern was not merely a theoretical one. Immediately after the 11 September 2001 attacks on the United States, Australia had invoked the ANZUS Treaty for the first time.[63] Given the renewed currency of the ANZUS Treaty in the wake of the terrorist attacks, any suggestion of inconsistency between the Treaty and the ANZUS Treaty was of real concern. While some commentators asserted that the ANZUS Treaty and the Treaty of Amity and Cooperation could be interpreted consistently,[64] the government was concerned to put this beyond question. Also relevant in this context was the Five Powers Defence Arrangements between Australia, Malaysia, New Zealand, Singapore and the United Kingdom.[65]
A further concern was that the obligation of non-interference could be interpreted as constraining Australia’s ability to comment upon the human rights practices of other states parties to the treaty, or to make representations to states parties about those practices. Mr Downer explained this concern to Parliament on 29 November 2004:
[The Treaty] contains a provision for non-interference in the internal affairs of other countries. Therefore, it raises questions about whether, if you signed the treaty and you meant to sign it in a genuine way – taking seriously the provisions of the treaty – you would not interfere in the affairs of another country; you would not, for example, criticise Burma, Myanmar, for human rights abuses.[66]
While the Opposition asserted that the principle of non-interference contained in the Treaty should not pose any obstacle to Australia’s accession,[67] the concern that another state party to the Treaty, such as Burma, might assert that Australia had a treaty obligation to refrain from any criticism of its human rights record was a real one. Certain states on the receiving end of criticism of their human rights practices have long asserted that such criticism is merely an interference in their internal affairs. Burma, unquestionably the state with the worst human rights record amongst the ASEAN members, has regularly run this argument. For example, in response to the adoption by the former UN Human Rights Commission of a resolution condemning Burma for its human rights record, the representative of Myanmar stated that the draft resolution, which Australia subsequently co-sponsored, was ‘a blatant attempt to interfere in [Burma’s] domestic political process by politicizing human rights’.[68]
The key issue for Australia was the content of the principle of non-interference set out in Article 2 of the Treaty. The principle appears in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations,[69] although the term “non-intervention” is more prevalent in that document. Arguably the terms were synonymous and, accordingly, the obligation of non-interference was a narrowly circumscribed obligation not to engage in activities directed at undermining the sovereignty or territorial integrity of other states.[70] Even if Australia were to take this view, the concern was that others might assert that the obligation was a broader one, and argue that any comment on matters of governance and human rights would be in contravention of the obligation. A common understanding between Australia and ASEAN of what the principle of non-interference meant was therefore essential.[71]
A further criticism of the Treaty was that the dispute resolution established by it, the High Council, was not equally open to all parties to the Treaty. Whereas all Southeast Asian states (members of ASEAN) are entitled under Article 14 to participate in the High Council to resolve disputes, states parties outside Southeast Asia may only do so in cases where that state is directly involved in the dispute to be settled. This distinction was said to be discriminatory, and accordingly to place non-ASEAN states at a disadvantage. As Mr Downer stated in Parliament on 23 June 2005:
[The Treaty] establishes a High Council. This High Council can only include a signatory like Australia – a non-ASEAN country – if a dispute relates to Australia itself, as I understand it. In other words, we would not be a full and constant member of the High Council.[72]
This arrangement is more easily understood when the history of the Treaty is reviewed. The Treaty was open for signature only to the original five members of ASEAN, with other states in Southeast Asia being eligible to accede to the Treaty. The focus of the Treaty was Southeast Asia, and outside participation in the Treaty and the mechanisms it established, including the High Council, was not envisaged. With the adoption of the 1987 Protocol to the Treaty, which permitted states outside Southeast Asia to accede to the Treaty, a concern for ASEAN states was to ensure that the Treaty’s geographic focus was retained. While a mechanism for permitting states outside Southeast Asia to participate in the Treaty’s dispute resolution mechanisms was required, to permit such states to participate in all meetings of the High Council, no matter what the subject matter, would dilute the geographic focus of the Treaty on Southeast Asia. Hence the two-tier system.
In order to assess the disadvantage which a state outside Southeast Asia might suffer as a result of the differential participation rights for ASEAN and non-ASEAN states in the High Council, it is necessary to review the exact nature of the High Council mechanism. The Treaty makes clear that the High Council may only be convened after direct negotiations have been attempted, and no solution has been reached through that process.[73] Further, the High Council may not be convened unless all the parties to the dispute agree to the articles’ application to that dispute.[74] Once convened, the High Council may only recommend appropriate means of settlement of the dispute, and may only attempt to mediate or conciliate if the parties to the dispute agree.[75] Also relevant is the fact that the High Council has never actually convened to consider a dispute under the Treaty.
Few commentators acknowledged the fact that differential participation rights for ASEAN and non-ASEAN states in the High Council actually presented an advantage for Australia: the ability to stay out of disputes between two or more ASEAN member states, or between one or more ASEAN member states and another non Southeast Asian state, should such a dispute arise and the Council be convened. The only real concern for Australia was to ensure that it was able to participate in the High Council’s consideration of any issue that affected Australia. This became another matter to confirm in discussions with ASEAN states on the possibility of Australia’s accession.
The final major criticism was that, if Australia were to accede, the principles of the Treaty would apply not only in respect of Australia’s relations with ASEAN states, but also to Australia’s relations with non-ASEAN states also party to the Treaty, such as China, Japan and the Republic of Korea. Accession at the request of ASEAN states to a treaty that would govern Australia’s relations with those states was one thing; having the principles of that treaty define or apply to Australia’s relations with non-ASEAN states quite another. This problem arose primarily from the fact that, while ASEAN states saw the Treaty as governing their relations with each other, and between themselves and their major regional partners, ordinary rules of treaty interpretation suggested that the principles of the Treaty were equally applicable as between non-ASEAN states parties. This was the final matter on which clarification was required.
Given the considerations elaborated above, it was necessary for Australian officials to find a mechanism that would enable Australia to become party to the Treaty without contravening its obligations, or curtailing its rights, under international law. Over May, June and July of 2005, a small team of officials from the Australian Department of Foreign Affairs and Trade met with ASEAN Senior Officials collectively and individually to find a way through. The objective was to ensure that Australia’s understandings of key provisions of the Treaty, and the obligations that these impose upon states parties, were shared by ASEAN member states.
As any international lawyer would know, there were, in theory at least, a number of ways in which this objective could have been achieved. The most common mechanism for a state to formally record its view on the application or interpretation of a treaty is for that state to lodge a declaration setting out that interpretation at the time of ratification or accession of the treaty. If such an interpretation excludes or modifies the terms of the treaty in some respect, the declaration would in fact be a disguised reservation (eg Belilos Case).[76]
In theory, it would have been possible for Australia to lodge a declaration or a reservation to the Treaty upon accession to ensure that accession to the Treaty did not affect Australia’s existing rights and obligations under international law. Declarations are permissible in respect of ratification or accession to any treaty. Reservations are permissible unless expressly prohibited by the terms of the treaty, and provided that the reservation does not defeat the object and purpose of the treaty.[77] However, theory notwithstanding, it was apparent that, even though the Treaty did not expressly prohibit the making of reservations upon accession, ASEAN states would not have abided either a reservation or a declaration upon accession. No other states had made an interpretative declaration or reservation upon accession. Such an action would have signalled, politically, less than the full commitment to ASEAN that ASEAN states were looking for from members of the EAS.
Another approach that could have been employed to address any potential conflict between the provisions of the Treaty and those of the UN Charter would have been for Australia simply to rely upon Article 103 of the UN Charter, which provides that ‘in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’. Given that all parties to the Treaty were also parties to the UN Charter, this savings provision would apply in all cases. However, even if this were seen as sufficient to address concerns about consistency with the UN Charter, it would not have provided a clear answer to all of the criticisms of the Treaty that had been raised.
After initial discussions with ASEAN member states, and in particular Vietnam, as Australia’s ASEAN dialogue partner, it appeared that another approach might be appropriate: the recording by Australia and ASEAN states of their common understandings as to the meaning of key provisions of the Treaty. While these common understandings were not to be taken as an amendment of the Treaty in any way, the recording of these understandings was important for interpretation of key provisions of the Treaty.
The basic rule of interpretation of treaties, as set out in Article 31(1) of the Vienna Convention on the Law of Treaties, is that ‘a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. The exchange of correspondence qualified as an instrument that was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty, and therefore was to be regarded as part of the context of Australia’s accession to the Treaty.[78] As such, the exchange of correspondence is to be relied upon in interpretation of the Treaty. Aust’s observation that such instruments constitute ‘a valuable tool of the treaty maker’[79] was certainly applicable in this case.
While those discussions were underway, Mr Downer updated Parliament on 23 June 2005:
Over the last few weeks a deputy secretary of my Department has been talking directly with some of those [ASEAN] officials and we have had other contacts with them through our embassies and high commissions in the region. If we can come up with a satisfactory solution, … we can achieve the perfect outcome for Australia, which would be to participate in the EAS without in any way undermining the importance of our existing treaty arrangements with countries outside of ASEAN.[80]
Mr Downer also actively pursued the matter himself, meeting with a number of his counterparts to discuss the terms of Australia’s possible accession.[81]
After extensive discussions, a solution was reached. A formulation of shared understandings was negotiated over a number of meetings. The shared understandings reached through those discussions were recorded in an exchange of correspondence between the Foreign Minister and H E Mr Somsavat Lengsavad, Deputy Prime Minister and Minister for Foreign Affairs of the Lao People’s Democratic Republic, in the latter’s capacity as Chairman of the ASEAN Standing Committee, which took place on 13 July 2005. The key paragraph of the letter from Mr Downer was as follows:
The Australian Government’s decision to accede to the Treaty
has been greatly assisted by the extensive discussions which Australian officials have had with ASEAN counterparts on the Treaty. In that context, the Australian Government, in taking the decision to accede to the Treaty, is pleased to note the following understandings of key provisions of the Treaty, on a non-prejudice basis to ASEAN. First, Australia’s accession to the Treaty would not affect Australia’s obligations under other bilateral or multilateral agreements. Second, the Treaty is to be interpreted in conformity with the United Nations Charter, and Australia’s accession would not affect Australia’s rights and obligations arising from the Charter of the United Nations. Further, the Treaty will not apply to, nor affect, Australia’s relationships with states outside South-East Asia. Finally, Articles 14 and 16 of the Treaty effectively provide that, when a state outside South-East Asia to the Treaty is directly involved in a dispute, the agreement of that state-party is required before the High Council can be convened. Should the High Council be convened, that state would be entitled to participate in the High Council.[82]
The letter contained four key understandings.[83] The first was that Australia’s accession to the Treaty will not affect Australia’s obligations under other bilateral or multilateral agreements. This provided an assurance that nothing in the Treaty was to be interpreted in a manner inconsistent with Australia’s treaty commitments, including on security matters. In particular, this ensured that Australia’s existing security agreements are unaffected, including under ANZUS and the Five Powers Defence Arrangements.
The second understanding was that the Treaty is to be interpreted in accordance with the Charter of the United Nations, and that Australia’s accession will not affect Australia’s rights and obligations under the UN Charter. This understanding was helpful in two ways. First, it ensured that the provisions of Article 2 of the Treaty stating that ‘States Parties shall be guided in their relations with one another by the fundamental principle of non-interference in the internal affairs of other States Parties’ does not affect Australia’s rights and obligations under the Charter of the United Nations. This includes Australia’s right under Article 51 of the Charter to take action in self-defence in appropriate circumstances.
This understanding also clarified that Australia’s rights and obligations as a member of the UN to fulfil the purposes of the UN set out in Article 1 of the UN Charter, including ‘to achieve international cooperation … in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion,’ was in no way affected. This provision of the UN Charter, together with the longstanding practice of states, including states parties to the Treaty, makes clear that nothing in the Treaty is to be interpreted as preventing a state party from engaging in or commenting upon issues of international interest arising within another state party to the Treaty, including human rights issues.
The third understanding was that the Treaty will not apply to, nor affect, Australia’s relations with the states outside Southeast Asia. This includes Australia’s relations with states outside Southeast Asia that are also party to the Treaty. By virtue of the First Protocol, the Treaty is now open to accession by states outside Southeast Asia and a number of such states, including China, India, Japan, Mongolia, New Zealand, Pakistan, Papua New Guinea, Republic of Korea, and Russia, have so acceded. This understanding clarifies that, notwithstanding this fact, the geographical focus of the Treaty remains on Southeast Asia. Accordingly, for non-ASEAN states parties, the Treaty governs the relations of each of the non-ASEAN states parties with ASEAN states parties, rather than with each other.
The final understanding contained in the letter is that Articles 14 and 16 of the Treaty (as amended by the First Protocol) effectively provide that, when a state outside Southeast Asia, which is Party to the Treaty, is directly involved in a dispute, the agreement of that state party is required before the High Council can be convened. Should that state consent to the High Council being convened, that state will be entitled to participate in the High Council. This understanding clarifies that the High Council could not consider or seek to resolve a dispute in which Australia was directly involved unless Australia first agreed to the convening of the High Council for that purpose. Further, Australia would be entitled to participate in the High Council’s deliberations in respect of any dispute in which Australia was directly involved.
One other notable aspect of the exchange of correspondence is the caveat contained in the following sentence: ‘[i]n that context, the Australian Government, in taking the decision to accede to the Treaty, is pleased to note the following understandings of key provisions of the Treaty, on a non-prejudice basis to ASEAN’ (emphasis added). ASEAN members sought inclusion of this phrase to reflect that fact that it is not usual ASEAN practice to record understandings of the Treaty in a public document upon accession of a state to the Treaty. ASEAN member states were concerned that the understandings not be viewed as a precedent for subsequent accessions by other states.
With these understandings in place, each of the major criticisms or concerns expressed about the Treaty had been addressed, thus meeting Australia’s needs. With the conclusion of this exchange of correspondence, Australia had made a clear commitment to ASEAN to accede to the Treaty. This intention was confirmed in Vientiane on 28 July 2005, when Mr Downer, in the margins of the annual ASEAN meeting, signed a document at a formal ceremony recording Australia’s intention to accede.[84] Laos, as the chair of ASEAN states and chair of the ASEAN Post Ministerial Conference, then formally extended invitations to Australia, New Zealand and India to join the EAS.[85]
With that exchange of correspondence, the Australian government had effectively reversed a position that the Prime Minister had articulated less than four months previously. Such a change of position did carry some political risk domestically. The federal opposition was quick to take the opportunity to characterise the move as a backflip.[86] However, the main media focus was on the fact that the government had successfully negotiated its way into the East Asian Summit, meeting the third of the three Cebu criteria, while effectively addressing legitimate concerns about aspects of the Treaty. Uncharacteristically, some Australian commentators went so far as to congratulate the government for a foreign policy triumph.[87]
The next challenge was to ensure that, having made the commitment to accede, Australia was actually in a position to accede prior to the first meeting of the EAS. The Treaty was tabled in Parliament on 9 August 2005,[88] only a few weeks after the Vientiane meeting. Importantly, the exchange of correspondence was tabled along with the Treaty. The National Interest Analysis[89] tabled on that date made clear that, consistent with Article 31 of the Vienna Convention on the Law of Treaties, the exchange of correspondence was to be regarded as part of the context of Australia’s accession to the Treaty.
The Joint Standing Committee on Treaties[90] expedited its consideration of accession to the Treaty, holding a public hearing on 12 September 2005. In its report, tabled on 7 November 2005, the Committee expressly considered the exchange of correspondence, noting:
In addition to the text of [the Treaty] itself, Australia clarified the interpretation of key provisions through four ‘understandings’. These are set out by Mr Downer in his letter of 13 July 2005. The understandings were reached through extensive discussions between Australian officials and their ASEAN counterparts and are to be regarded as part of the context of Australia’s accession to TAC, as specified under Article 31 of the Vienna Convention on the Law of Treaties.[91]
The Committee then noted that it supported the Treaty, and recommended that binding treaty action be taken.[92] Australia formally acceded to the Treaty in a ceremony in Kuala Lumpur on 10 December 2005.[93]
Following accession, in order to ensure that the interpretative value of the notes was not lost, the exchange of correspondence was attached to the Treaty in the Australian Treaty Series, and placed on the Australian Treaties Database.
Securing an invitation to Australia to participate in the inaugural EAS was a major achievement. This was evident in Mr Downer’s effusive comments on 27 July 2005, the day that the invitation was formally made:
We are delighted with the decision by the ASEAN Ministerial Meeting yesterday to invite Australia to participate in the East Asia Summit. This is an enormous step forward for Australia in terms of our engagement with East Asia. This is one of the most important developments in many years … We have now seen Australia enter the East Asia Summit process and it depends of course how it is handled, but the East Asia Summit process could play a very important part in building an East Asian community.[94]
In one sense, the exact value of Australia’s achievement in negotiating entry into the inaugural EAS will only be revealed in time. At the time of writing, two meetings of the East Asia Summit had been held: the first in Kuala Lumpur in December 2005, the second in Cebu, The Philippines in January 2007. Some are predicting that ‘[the EAS] has some potential to fulfil a need in East Asian international relations: a sustainable multilateral body which builds community in the broad sense and produces real results’.[95] Much will depend upon whether the EAS develops beyond an annual forum for dialogue amongst leaders. That, however, is not a bad place from which to start.
No matter how the EAS develops, Australia’s accession to the Treaty was without question a significant and positive step in Australia-ASEAN relations, providing a tangible and important symbol of Australia’s strong commitment to working with ASEAN towards regional goals. The careful negotiation of Australia’s accession to the Treaty enabled Australia to make a commitment that ASEAN states had long sought, while at the same time ensuring that Australia’s key interests were preserved. There can also be little doubt that the process of dialogue with ASEAN to reach that point was beneficial in and of itself. Although amity and cooperation may not appear to be the most ambitious of regional objectives, as the process of negotiating Australia’s accession to the Treaty made clear, these objectives do provide an important foundation for the new architecture of regional cooperation.
[∗] Director, International
Law and Transnational Crime Section, Australian Department of Foreign Affairs
and Trade. The author was
a member of the Australian team which negotiated
Australia’s accession to the Treaty, and principal drafter of the National
Interest Analysis for the Treaty. The views in this article are attributable to
the author alone, and do not necessarily reflect
the views of the Department of
Foreign Affairs and Trade or any other organisation.
The author is grateful to
Victoria Coakley, Jeremy Farrall, and Lynette Wood for their comments and
insights on earlier drafts.
[1] Rome Statute of the International Criminal Court (17 July 1998) [2002] ATS 15.
[2] Kyoto Protocol to the United Nations Framework Convention on Climate Change (11 December 1997), registered with UN Secretary General on 16 February 2005, No 30822.
[3] Australia-US Free Trade Agreement (18 May 2004) [2005] ATS 1.
[4] Treaty of Amity and Cooperation in Southeast Asia (24 February 1976), 1025 UNTS 317, [2005] ATS 30.
[5] P Kelly, ‘The day foreign policy won Asia’ Weekend Australian (6 August 2005) 17.
[6] D Chandler (ed), In Search of Southeast Asia: A Modern History (3rd ed, 1987) 354.
[7] Brunei Darussalam became a member of ASEAN in 1984, Vietnam in 1995, Laos and Burma in 1997, and Cambodia in 1999. G Dobell, Australia Finds Home: The Choices and Chances of an Asia Pacific Journey, (2000) 67.
[8] ASEAN Declaration (Bangkok Declaration) (8 August 1967), 1331 UNTS 236.
[9] ASEAN Vision 2020, adopted at the Second Informal ASEAN Summit in Malaysia, 15 December 1997 <http://www.aseansec.org/5228.htm> .
[10] This commitment was articulated in ASEAN Vision 2020, which affirmed an outward-looking ASEAN playing a pivotal role in the international fora and advancing ASEAN’s common interests. ASEAN Vision 2020, adopted at the Second Informal ASEAN Summit Malaysia, 15 December 1997 <http://www.aseansec.org/5228.htm> .
[11] For background, see <http://www.aseansec.org/64.htm> .
[12] See Joint Statement on East Asia Cooperation, 28 November 1999, <http://www.
aseansec.org/11905.htm>. For an overview of ASEAN plus Three, see R Stubbs, ‘ASEAN Plus Three: Emerging East Asian Regionalism?’ (2002) 42 Asian Survey 440.
[13] For a useful overview of the impact of the 1997 financial crisis on ASEAN, see Dobell, above n 7, 61.
[14] Final Report of the East Asia Vision Group, <http://www.mofa.go.jp/region/asia-paci/report2001.pdf> .
[15] Final Report of the East Asia Study Group, ASEAN +3 Summit (4 November 2002) [21], <http://www.aseansec.org/viewpdf.asp?file=/pdf/easg.pdf> .
[16] Ibid [174].
[17] For an account of China’s concerns about the East Asia Summit initiative, see M Malik, ‘China and the East Asia Summit: More Discord than Accord’, Asia-Pacific Centre for Military Studies (2006), <http://www.apcss.org/Publications/APSSS/
ChinaandEastAsiaSummit.pdf>.
[18] Chairman’s Press Statement of the 5th ASEAN Ministerial Meeting Plus Three, Jakarta, 1 July 2004, <http://www.aseansec.org/16212.htm, accessed 4 March 2007> .
[19] The decision to establish the East Asia Summit is recorded in the Chairman’s Statement of the 10th ASEAN Summit: ‘We agreed to hold the first EAS in Malaysia in 2005 and in this connection, tasked our Foreign Ministers to work out the details concerning its modality and participation.’ Chairman’s Statement of the 10th ASEAN Summit, Vientiane, 29 November 2004 [21] <http://www.aseansec.org/16631.htm> .
[20] A Badawi, ‘Towards an Integrated East Asia Community’, Keynote Address by Prime Minister of Malaysia, Second East Asia Forum, Kuala Lumpur, 6 December 2004, <http://www.aseansec.org/16952.htm> .
[22] Cebu Declaration (10 April 2005) on file with author.
[23] Australian Department of Foreign Affairs and Trade, ASEAN and Australia: Celebrating Thirty Years (2004) 1.
[24] In 2005, two-way goods and services trade between ASEAN and Australia was valued at A$55 billion, or around 15 per cent of Australia’s total trade. The announcement on 30 November 2004 of the commencement of negotiations on an ASEAN-Australia-New Zealand Free Trade Agreement served to further reinforce those ties. G Nandan, ASEAN: Building an Economic Community (2006) 69.
[25] Former Secretary of the Department of Foreign Affairs and Trade, Mr Richard Woolcott, provided an account of previous consideration of the issue under an Australian Labor Party government: ‘In 1991 when Gareth Evans was the Foreign Minister, I was Secretary of the Department at that time, we did give some consideration to adhering to the Treaty of Amity and Cooperation, the purpose being at that time of course, to sort of symbolise in a decisive way, our role and place in our own neighbourhood … I think it sort of drifted away and nothing particularly happened, but it was considered in 1991.’ Richard Woolcott, Transcript of interview, ABC Radio, ‘The World Today’ (26 November, 2004) 12:14pm, <http://www.
abc.net.au/worldtoday/content/2004/s1252275.htm>. This consistent stance was acknowledged by Mr Downer who observed, on 26 July 2005 in a Joint Press Conference with Dr Surakiart Sathirathai, then Deputy Prime Minister of Thailand, that ‘historically Australian Governments have reservations about the Treaty of Amity and Cooperation’. Transcript of Joint Press Conference with Dr Surakiart Sathirathai, Deputy Prime Minister of Thailand, <http://www.foreignminister.gov.au/transcripts/
2005/050726_joint_press_conf_bangkok.html>. In response to Opposition criticism of the government’s refusal to accede to the Treaty in late 2004, Mr Downer was quick to emphasise the previous bipartisan opposition to Australia’s accession to the Treaty: ‘The government has not changed its position … The reasons that Gareth Evans, Paul Keating and Bob Hawke gave for not signing the treaty are the reasons we give today.’ Commonwealth, Parliamentary Debates, House of Representatives, vol 267 (29 November 2004) 33.
[26] Commonwealth, Parliamentary Debates, House of Representatives, vol 272 (23 June 2005) 84.
[27] Bangkok Declaration, above n 8.
[28] Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) (24 October 1970).
[29] In the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v US) [1986] ICJ Rep 14, 102, the International Court of Justice, in considering the scope of the customary international law prohibition on the use of force, noted that the Declaration expressed an opinio juris on behalf of states in respect of the principles contained therein. For a detailed account of the drafting of the Declaration, see G Arangio-Ruiz, UN Declaration of Friendly Relations and the System of the Sources of International Law (1979).
[30] For a copy of the Final Communique of the Asian-African (Bandung) Conference, see Selected Agreements and Treaties affecting South-East Asia, SEATO Short Paper no 48 (1970) 34.
[31] Treaty of Amity and Cooperation in Southeast Asia, above n 4, Preamble [3].
[32] ‘2006 ASEAN Lecture’ on the occasion of the 39th ASEAN anniversary, H E Abdullah Bin Haji Ahmad Badawi, Prime Minister of Malaysia, Kuala Lumpur, 9 August 2006, <http://www.pmo.gov.my/webnotesapp/pmmain.nsf/314edc1f96172
e0a48256f240017b913/1a0fa641d67074da482571c50007d39a?opendocument>.
[33] Ibid. The utility of the Treaty is not merely rhetorical. One practical example of reliance on the Treaty was the 2002 Declaration on Conduct of the Parties in the South China Sea, in which ASEAN members and China set out a code of conduct for that area. In art 1 of the Declaration, the Parties reaffirm their commitment to the principles of the Treaty as a basis for dealing with their differences in this area. Nguyen Hong Thao, ‘The 2002 Declaration on the Conduct of Parties in the South China Sea: A Note’ (2003) 34 Ocean Development and International Law 279, 282.
[34] Treaty of Amity and Cooperation in Southeast Asia, above n 4, art 5.
[35] Ibid art 6.
[36] Ibid art 8.
[37] Ibid art 9.
[38] First Protocol amending the Treaty of Amity and Cooperation in Southeast Asia (1987) [2005] ATS 30.
[39] Art 33(1) of the UN Charter provides: ‘The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.’ Charter of the United Nations (26 June 1945) 1 UNTS xvi.
[40] Art 1 of the First Protocol amended art 18(3) of the Treaty to include the following sentence: ‘States outside Southeast Asia may also accede to this Treaty by the consent of all the States in Southeast Asia which are signatories to this Treaty and Brunei Darussalam.’
[41] Art 2 of the First Protocol amended art 14 of the Treaty to read as follows: ‘To settle disputes through regional processes, the High Contracting Parties shall constitute, as a continuing body, a High Council comprising a Representative at ministerial level from each of the High Contracting Parties to take cognizance of the existence of disputes or situations likely to disturb regional peace and harmony. However, this article shall apply to any of the States outside Southeast Asia which have acceded to the Treaty only in cases where that state is directly involved in the dispute to be settled through the regional processes.’
[42] Second Protocol amending the Treaty of Amity and Cooperation in Southeast Asia (1998) [2005] ATS 30.
[43] ASEAN Vision 2020 <http://www.aseansec.org/5228.htm> .
[44] See ASEAN Document Series 2003, <http://www.aseansec.org/15271.htm> ASEAN Document Series 2004, 315, <http://www.aseansec.org/16231.htm> ibid 318, <http://www.aseansec.org/16622.htm> .
[45] ASEAN Document Series 2003 <http://www.aseansec.org/15669.htm> ASEAN Document Series 2004, 324, <http://www.aseansec.org/16638.htm> .
[47] T Allard, ‘PM riles Asia with snub to peace treaty’ Sydney Morning Herald (26 November 2004).
[48] The full statement by Prime Minister Howard was as follows: ‘[Australia’s accession to the Treaty] was raised and I indicated that, not out of any disrespect or disagreement with the spirit of that agreement, that given its antecedence and given that it was delivered to the world or to the region by a mindset that we've really all moved on from, that I didn't think it was appropriate that Australia should sign it.’ Joint Press conference between Prime Minister Howard and Prime Minister Badawi, 7 April 2005 <http://www.pm.gov.au/media/Interview/2005/Interview1312.cfm> .
[49] Cebu Declaration (10 April 2005) on file with author.
[50] Security Treaty between Australia, New Zealand and the United States, [1952] ATS 2.
[51] Art 2 of the UN Charter provides: ‘The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles … 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’ Charter of the United Nations, above n 39.
[52] Art 51 of the UN Charter provides: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.’ Charter of the United Nations, above n 39.
[53] Art 103 of the UN Charter provides that ‘in the event of a conflict between the obligations of Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’. Charter of the United Nations, above n 39. In examining the scope of this article, Simma states that ‘no right or claim incompatible with Charter obligations may be invoked by the parties [to a treaty]’. B Simma (ed), The Charter of the United Nations: A Commentary (Vol II, 2nd ed, 2001) 1297.
[54] J Shaw, ‘Startling His Neighbors, Australian leader favors first strikes’ New York Times (2 December 2002) A11.
[55] Ibid; D Murphy, ‘Terror-preemption talk roils Asia’ Christian Science Monitor (5 December 2002); Editorial, ‘Howard should speak softly on strike doctrine’ The Australian (3 December 2002). For a summary of media comment by Southeast Asia media, see ‘Australia Pre-emptive policy: PM Howard’s remarks provocative’, US Department of State Office of Research Foreign Media Summary (6 December 2002).
[56] While it was the comments of the Prime Minister on 1 December 2002 that received most of the attention, the issue had been placed squarely on the agenda by the then Defence Minister, Senator Robert Hill, a few days earlier. In his John Bray memorial lecture, delivered on 28 November 2002, Senator Hill explored the problem, and said: ‘Some would argue that it’s time for a new and distinct doctrine of pre-emptive action to avert a threat. A better outcome might be for the international community and the international lawyers to seek an agreement on the ambit of the right to self-defence better suited to contemporary realities. But in the meantime those responsible for governance will continue to interpret self-defence as necessary to protect their peoples and their nations’ interests’. Senator the Hon Robert Hill, John Bray Memorial Oration, University of Adelaide, 28 November 2002 <http://www.minister.defence.gov.au/HillSpeechtpl.cfm?CurrentId=2121> .
[57] Caroline Case (exchange of diplomatic notes between Great Britain and the United States, 1842), (1906) 2 J. Moore, Digest of International Law 409, 412.
[58] Ibid.
[59] The international law issues involved have been canvassed extensively elsewhere, see eg, M Reisman and A Armstrong, ‘The Past and Future of the Claim to Preemptive Self-Defense’ (2006) 100 American Journal of International Law 525; W Taft IV and T Buchwald, ‘Pre-emption, Iraq and International Law’ (2003) 97 American Journal of International Law 557; M Shapiro, ‘Iraq, The Shifting Sands of Preemptive Self-Defense’ (2003) 97 American Journal of International Law 599; T McCormack, Self-Defence in International Law: The Israeli Raid on the Iraqi Nuclear Reactor (1996); D Rothwell, ‘Anticipatory Self Defence in the Age of International Terrorism’ [2005] UQLawJl 23; (2005) 24 University of Queensland Law Journal 337.
[60] See Commonwealth, Parliamentary Debates, House of Representatives, vol 267 (29 November 2004) 32, Commonwealth, Parliamentary Debates, House of Representatives, vol 267 (30 November 2004) 21, Commonwealth, Parliamentary Debates, House of Representatives, vol 267 (1 December 2004) 68.
[61] In response to a question in Parliament on 1 December 2004 from the then Opposition leader, the Hon Mark Latham MP, as to the circumstances in which the government would be prepared to support pre-emptive military action against the sovereign territory of another country, Prime Minister Howard said ‘the government believes that it has a duty to Australians to protect them in circumstances where their lives or their security might be threatened. The government of course would take that duty seriously. It would seek in all circumstances to operate with other like-minded countries in ensuring that the security and the safety of the Australian public is maintained’, Commonwealth, Parliamentary Debates, House of Representatives, vol 267 (1 December 2004) 68.
[62] Commonwealth, Parliamentary Debates, House of Representatives, vol 267 (29 November 2004) 32.
[63] Media Release, ‘Application of the ANZUS Treaty to the Terrorist Attacks in the US’, 14 September 2001, <http://www.pm.gov.au/media/Release/2001/media_release1241.cfm> .
[64] D Rothwell, ‘Treaty another way into East Asia’, Sydney Morning Herald (15 April 2005) 11.
[66] Commonwealth, Parliamentary Debates, House of Representatives, vol 267 (29 November 2004) 32.
[67] See eg, ibid 24.
[68] Statement by the Representative of Myanmar on the Draft Resolution entitled ‘Situation of Human Rights in Myanmar’ in the General Assembly’s Third Committee, 24 November 2003 <http://www.ibiblio.org/obl/docs/Tint%20Swe.htm> .
[70] On the content of the principle of non-intervention, see Nicaragua Case, above n 29, 108–110, Simma (ed), above n 53, 155; G Abi-Saab, ‘Some thoughts on the principle of non-intervention’, in K Wellens (ed), International Law: Theory and Practice (1998) 225.
[71] See generally R Ramcharan, ‘ASEAN and Non-Interference: A Principle Maintained’, (2000) 22 Contemporary Southeast Asia 60. The debate prior to Australia’s accession may in fact have precipitated a debate amongst ASEAN member states themselves over how the exact content and meaning of the principles of the Treaty, including the principle of non-interference, might evolve over time. Prime Minister Badawi of Malaysia acknowledged as much in his 2006 ASEAN Lecture, stating: ‘The concepts and principles contained in the Treaty might indeed require refining or updating in order to be relevant and responsive to the changing needs of member countries. In fact, differing reactions to the political developments in Myanmar had subjected the [Treaty] principle of non-interference to much debate and discussion. Indeed, that principle might require refinement especially in the face of the onslaught of globalization. I believe the new ASEAN Charter which is yet to be written is the right place to update the enduring principles of the [Treaty]. The important thing is to decide not to abandon without reservation the principle of non-interference. That principle is our ultimate defence of the inviolability of the nation state, particularly in this age of globalization and modernization’, H E Abdullah Bin Haji Ahmad Badawi, Prime Minister of Malaysia, 2006 ASEAN Lecture on the occasion of the 39th ASEAN anniversary, Kuala Lumpur, 9 August 2006, <http://www.pmo.gov.my/webnotesapp/pmmain.nsf/314edc1f96172e0a48256f240017b913/1a0fa641d67074da482571c50007d39a?opendocument> .
[72] Commonwealth, Parliamentary Debates, House of Representatives, vol 272 (23 June 2005) 83.
[73] Treaty of Amity and Cooperation in Southeast Asia, above n 4, art 15.
[74] Ibid, art 16.
[75] Ibid, art 15.
[76] Belilos v Switzerland (1988) ECHR Ser A, vol 132; Vienna Convention on the Law of Treaties (23 March 1969), 1155 UNTS 331, in United Nations Juridical Yearbook 140, 160, art 21.
[77] Vienna Convention on the Law of Treaties, above n 76, art 19.
[78] Vienna Convention on the Law of Treaties [1974] ATS 2, art 31.
[79] A Aust, Modern Treaty Law and Practice (2000) 190.
[80] Commonwealth, Parliamentary Debates, House of Representatives, vol 272 (23 June 2005) 84.
[81] ‘I have met personally with ASEAN Foreign Ministers over the last few months and weeks, and I think that all of these issues [associated with the Treaty] can be neatly resolved.’ Transcript, Joint Press Conference with Dr Surakiart Sathirathai, Deputy Prime Minister, Bangkok, 26 July 2005, <http://www.foreignminister.gov.au/transcripts/2005/050726_joint_press_conf_bangkok.html> .
[82] The exchange of correspondence was attached to the National Interest Analysis [2005] ATNIA 14, and is also annexed to the Treaty in the Australian Treaty Series, [2005] ATS 30. The National Interest Analysis (NIA) is a short document, prepared by the Executive, which summarises a relevant treaty action. The NIA is tabled before Parliament, together with the text of the treaty itself, and is intended to assist the Parliament’s Joint Standing Committee on Treaties in its consideration of a proposed treaty action..
[83] The following section draws heavily upon the National Interest Analysis, ibid, of which the author was the principal drafter.
[84] Declaration of Intent by Australia to Accede to the Treaty of Amity and Cooperation in Southeast Asia, 28 July 2005, ASEAN Document Series 2005, 48. Mongolia and New Zealand acceded to the Treaty at the same ceremony, see ASEAN Document Series 2005, 51, 54.
[85] The outcomes of the meeting were recorded in a press release issued by the Vietnamese Ministry for Foreign Affairs on 28 July 2005. ‘The meeting welcomed the decision of Australia to accede to the Treaty of Amity and Cooperation in Southeast Asia in December 2005 in Malaysia upon completion of its domestic procedures. In this connection, the meeting welcomed the signing of the Declaration on Intention to Accede to the Treaty of Amity and Cooperation in Southeast Asia by Australia in Vientiane on 28 July 2005. Australia expressed its appreciation to ASEAN for its decision to invite Australia to participate in the first East Asia Summit (EAS) to be held in Malaysia in December 2005.’ <http://www.mofa.gov.vn/en/nr040807104143/
nr040807105001/ns050729083246?b_start:int=10>.
[86] See eg, the following comment by then Opposition Leader the Hon Kim Beazley MP; ‘[t]he Prime Minister also talked vaguely and hinted at the possibility that Australia might, in Southeast Asia, sign the Treaty of Amity and Co-operation in order to give us a chance to attend the East Asian Summit. The Labor Party has argued for months and months now that the Prime Minister needed to do a back-flip on this, needed to change his mind in order for the Australian national interests to be protected and our economic and security interests in this region of Southeast Asia to be advanced.’ Transcript of Doorstop Interview by Hon Kim Beazley MP, Sydney, 23rd July 2005, <http://www.alp.org.au/media/0705/dsiloo240.php?tv=on> .
[88] Commonwealth, Parliamentary Debates, Senate, Vol 234 (9 August 2005) 72.
[89] Treaty of Amity and Cooperation in Southeast Asia, Indonesia, 24 February 1976, as amended by the First Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia 1987 and the Second Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia 1998, [2005] ATNIA 14.
[90] The Joint Standing Committee on Treaties (JSCOT) was established in 1996 to enable transparency of the treaty-making process in Australia.
[91] Joint Standing Committee on Treaties, Report 68: Review of Treaties tabled on 7 December 2004 (5) and Treaties tabled on 9 August 2005, 14.
[92] Joint Standing Committee on Treaties, Report 68: Review of Treaties tabled on 7 December 2004 (5) and Treaties tabled on 9 August 2005, 17.
[93] For Australia’s instrument of accession to the Treaty, see ASEAN Document Series 2005, 57.
[94] Transcript of doorstop interview with The Hon Alexander Downer MP, Minister for Foreign Affairs, Vientiane, Laos, 27 July 2005, <http://www.foreignminister.gov.au/transcripts/2005/050727_ds_vientiane_laos.html> .
[95] S Chu, ‘The East Asia Summit: Looking for an Identity’ Brookings Northeast Asia Commentary (February 2007), <http://www.brookings.edu/fp/cnaps/commentary/chu20070201.htm> .
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