ASEAN’s primary purpose since its founding has been to promote peace and stability in Southeast Asia. However, peaceful settlement of disputes was not referred to in the founding ASEAN Declaration (Bangkok Declaration) of 1967. As ASEAN’s institutions developed, the creation of norms and formal mechanisms for peaceful dispute settlement has been incremental.
The earliest mention of dispute settlement in an ASEAN agreement was in the 1971 Declaration on the Zone of Peace, Freedom and Neutrality (PP3), which recognized the aims and objectives of the United Nations, including the peaceful settlement of international disputes. The 1976 Declaration of ASEAN Concord subsequently committed member states to “rely exclusively on peaceful processes in the settlement of intra-regional differences”, and included in its programme of action the “settlement of intra-regional disputes by peaceful means as soon as possible”. (paragraph 6 and programme of action point A3.)
On this basis, ASEAN has developed three key mechanisms for dispute settlement: the 1976 Treaty of Amity and Cooperation (TAC), the 1996 Protocol on Dispute Settlement Mechanism and subsequently the 2004 Protocol for Enhanced Dispute Settlement Mechanism (EDSM) for disputes relating to ASEAN economic agreements, and the provisions of the 2007 ASEAN Charter that serve as an overarching framework for dispute settlement in ASEAN. To date, neither the High Council of the TAC nor the EDSM have been utilised by member states.
Separately, ASEAN has specifically addressed territorial disputes in the South China Sea with the 1992 ASEAN Declaration on the South China Sea and the 2002 Declaration on the Conduct of Parties in the South China Sea, declarations of principle that emphasise the peaceful settlement of disputes and commitment to exercise restraint. A number of other ASEAN agreements as well as ASEAN agreements with dialogue partners (e.g. free trade agreements) also contain specific clauses on dispute settlement.
Treaty of Amity and Cooperation
The 1976 Treaty of Amity and Cooperation in Southeast Asia (TAC) was signed in conjunction with the 1976 Declaration of ASEAN Concord. It is a landmark agreement as it sets out peaceful settlement of disputes as a fundamental principle of ASEAN, commits member states to “refrain from the threat or use of force” and settle any disputes through “friendly negotiations”. To address unresolved disputes in the region, the TAC establishes a High Council comprising ministerial representatives of all contracting parties. Provided that all parties to the dispute agree to apply the TAC to their case, the High Council’s role is to recommend appropriate means of dispute settlement to the disputing parties, which could include the High Council offering its good offices, or constituting a committee of mediation, inquiry or conciliation. The TAC does not preclude recourse to modes of dispute settlement contained in Article 33(1) of the United Nations Charter. Rules of procedure for the High Council were agreed upon in 2001. (Note: As the TAC has now taken on non-ASEAN signatories, the 2001 rules of procedure for the High Council state that it shall comprise of representatives from all ASEAN member states and one representative from only the non-ASEAN states who are involved in the dispute. See 2001 Rules of Procedure of the High Council of the Treaty of Amity and Cooperation in Southeast Asia, rule 3.)
Protocol for Enhanced Dispute Settlement Mechanism
With fast-growing cooperation in the economic sector, ASEAN saw the need to provide specifically for disputes relating to the interpretation and application of ASEAN agreements. An early reference to the requirement for amicable settlement of economic disputes can be found in the 1987 Agreement for the Promotion and Protection of Investments (1987 Agreement for the Promotion and Protection of Investments, article IX), which further specifies that disputes that cannot be settled “shall be submitted to the [ASEAN Economic Ministers] for resolution”. The 1987 agreement was superseded by the 1996 Protocol on Dispute Settlement Mechanism and subsequently the 2004 Protocol for Enhanced Dispute Settlement Mechanism (EDSM). The EDSM applies to disputes relating to all subsequent economic commitments in ASEAN as well as retroactively to earlier key economic agreements. At the heart of the EDSM is a mandatory dispute settlement process involving panels and an appellate body to assess disputes that cannot be settled through good offices, 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, a complaining party may negotiate for compensation or suspend concessions towards the other party.
The ASEAN Charter
Chapter VIII of the 2007 ASEAN Charter on Dispute Settlement provides a comprehensive framework for existing and future dispute settlement mechanisms in ASEAN. The Charter reinforces the TAC’s principle of the resolution of disputes between ASEAN members in a peaceful and timely manner through dialogue, consultation and negotiation. The Charter adds that the Chairman of ASEAN or the Secretary-General may be called upon to offer their good offices, conciliation or mediation. The Charter further mandates dispute settlement mechanisms for all fields of ASEAN cooperation. Disputes not concerning the application or interpretation of ASEAN agreements are to be resolved in accordance with the TAC, while the disputes relating to ASEAN economic agreements are covered by the 2004 EDSM, and ASEAN agreements with their own built-in dispute settlement measures shall continue to apply. Where not otherwise specifically provided, all other disputes are covered by the 2010 Protocol to the ASEAN Charter on Dispute Settlement Mechanisms, which provides for consultations within a fixed timeframe, and the possibility to convene an arbitral tribunal. Unresolved disputes and non-compliance with the findings of dispute settlement mechanisms are to be referred to the ASEAN Summit. The Charter maintains member states’ right of recourse to the modes of dispute settlement listed in the United Nations Charter.
For a more detailed discussion of dispute settlement instruments in ASEAN, please refer to articles in the resources section of this document.
ASEAN Documents
- 1976 Treaty of Amity and Cooperation
- 2001 Rules of Procedure for the High Council of the Treaty of Amity and Cooperation
- 2004 Protocol on Enhanced Dispute Settlement Mechanism
- 1996 Protocol on Enhanced Dispute Settlement Mechanism
- 2007 ASEAN Charter, Chapter VIII
- 2002 Declaration on the Conduct of Parties in the South China Sea signed with the People’s Republic of China
- 1992 ASEAN Declaration on the South China Sea
Resources
- Woon, Walter. “Dispute Settlement in ASEAN” (Conference paper presented at the Korean Society of International Law Conference, 21 October 2011, Daegu, South Korea.)
- Woon, Walter. “The ASEAN Charter Dispute Settlement Mechanisms.” The Making of the ASEAN Charter. Ed Tommy Koh, Rosario Manalo and Walter Woon. Singapore: World Scientific, 2008.
- Davidson, Paul J. ASEAN: The Evolving Legal Framework for Economic Cooperation. Singapore: Times Media, 2002. “Chapter 7: Dispute Settlement”
Updated 4 November 2011.