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Thayer South China Sea: Dispute Settlement and the Norm of Non-Interference

Thayer South China Sea: Dispute Settlement and the Norm of Non-Interference

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Published by Carlyle Alan Thayer
An analysis of two legal issues: (1) does ASEAN's norm of non-interference prohibit a dispute settlement mechanism? and (2) the historical and legal basis for determining sovereignty.
An analysis of two legal issues: (1) does ASEAN's norm of non-interference prohibit a dispute settlement mechanism? and (2) the historical and legal basis for determining sovereignty.

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Categories:Types, Research, History
Published by: Carlyle Alan Thayer on Jul 14, 2012
Copyright:Attribution Non-commercial

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12/17/2012

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Background Briefing:South China Sea: DisputeSettlement and the Norm of Non-InterferenceCarlyle A. ThayerJuly 10, 2012
[client name deleted]Concerning the South China Sea issues, could you provide your assessment of thefollowing:1. Can ASEAN adopt a dispute settlement mechanism without violating its principleof noninterference?2. Vietnam
s South China Sea White Paper (2004) issued by the Ministry of ForeignAffairs stated that Viet Nam has sufficient historical evidence and legal basis tosupport its claim over the Spratlys. How do you distinguish between historicalevidence and legal basis for a state
s claim?ANSWER: The ASEAN Charter Chapter VIII is headed Settlement of Dispute. It hasseveral articles related to dispute settlement mechanism. Some dispute settlementmechanisms are included in ASEAN agreements. The 1976 Treaty of Amity andCooperation 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 (February24, 1976), Chapter IV: Pacific Settlement of Disputes, Article 14 states:
To settle disputes through regional processes, the High Contracting Parties shallconstitute, as a continuing body, a High Council comprising Representatives at ministeriallevel 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 directnegotiation; 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 HighCouncil 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 People’s Republic of China…hereby accedes to the same [TAC and its Protocols]
and undertakes faithfully to perform and carry out all the stipulations therein
Thayer Consultancy
ABN # 65 648 097 123

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