Thayer Consultancy

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Background Briefing: South China Sea: Dispute Settlement and the Norm of NonInterference Carlyle A. Thayer July 10, 2012

[client name deleted] Concerning the South China Sea issues, could you provide your assessment of the following: 1. Can ASEAN adopt a dispute settlement mechanism without violating its principle of noninterference? 2. Vietnams South China Sea White Paper (2004) issued by the Ministry of Foreign Affairs stated that Viet Nam has sufficient historical evidence and legal basis to support its claim over the Spratlys. How do you distinguish between historical evidence and legal basis for a states claim? ANSWER: The ASEAN Charter Chapter VIII is headed Settlement of Dispute. It has several articles related to dispute settlement mechanism. Some dispute settlement mechanisms are included in ASEAN agreements. The 1976 Treaty of Amity and Cooperation includes an ASEAN High Council to settle disputes among its members (it has never been used). Regarding the Treaty of Amity and Cooperation [TAC ] in Southeast Asia (February 24, 1976), Chapter IV: Pacific Settlement of Disputes, Article 14 states:
To settle disputes through regional processes, the High Contracting Parties shall constitute, as a continuing body, a High Council comprising Representatives 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.

Article 15 provides for the case where the dispute cannot be settled through direct negotiation; it states: The High Council shall recommend to the parties in dispute appropriate means of settlement such as good offices, mediation, inquiry or conciliation. The High Council may, however, offer its good offices, or upon agreement of the parties in dispute, constitute itself into a committee of mediation, inquiry or conciliation On October 8, 2003, the Chinese Foreign Minister signed the Instrument of Accession to the Treaty of Amity and Cooperation in Southeast Asia. His letter states: the Peoples Republic of Chinahereby accedes to the same [TAC and its Protocols] and undertakes faithfully to perform and carry out all the stipulations therein

2 contained. On the same day the ASEAN foreign ministers signed their consent to the accession to the Treaty by the Peoples Republic of China. There is a concept called "pooled sovereignty;" that is nations can give up some of their sovereignty to an international agreement or international organization in order to strengthen their national sovereignty. NATO countries, for example, have agreed that an attack on one is an attack on all. No NATO country expects to be attacked by another NATO country. They enhance their national security in relations to outside powers through NATO. The World Trade Organization has a dispute settlement mechanism to resolve trade disputes. The point being is that sovereign nations state freely enter into an agreement with a dispute settlement mechanism because they see the benefits of cooperation as greater than the loss of sovereignty. "Pooled sovereignty" enhances national sovereignty in these cases. This is not viewed as interference in their internal affairs because they voluntarily agreed to give up some aspect of national sovereignty. If Vietnam and China agreed to take their sovereignty dispute over one island in the South China Sea to international arbitration through a court, for example, the court would be looking for evidence of continual occupation and administration of the island in order to determine sovereignty. The historical evidence would be used to support a claim to sovereignty in the legal sense.

Suggested citation: Carlyle A. Thayer, South China Sea: Dispute Settlement and the Norm of Non-Interference , Thayer Consultancy Background Brief, July 9, 2012.