The ASEAN Community

Ambitions, Laws and

Dispute Settlement
Mechanisms
Dr Tan Hsien-Li
Assistant Professor, NUS Faculty of Law;
Centre for International Law, NUS
 A Tri-Pillared ASEAN Community
(Est. 31 December 2015)
ASEAN Political-Security ASEAN Economic ASEAN Socio-Cultural
Community Community Community

• Regional peace • ‘Single market • Human

and security – and production development
among AMS base’ (E.g. Human
and with • Rule of law and rights,
external parties institutions education,
• Non-use of welfare,
force housing, etc.)
• Peaceful
settlement of
disputes
 ASEAN Charter (2007), Preamble

HEREBY DECIDE to establish, through this Charter,

the legal and institutional framework for ASEAN
Why the transformation to the ‘rule of law
and institutions’?
Eminent Persons Group Report (2007)
20. … ASEAN will face a very different strategic environment… The rise
of China and India, coupled with the resurgence of Japan... Southeast
Asia is well-poised to benefit… provided that ASEAN Member States
strengthen cooperation among themselves…

44. [N]oncompliance will… undermine ASEAN’s credibility and disrupt

ASEAN’s efforts in building the ASEAN Community… ASEAN’s problem is
not one of lack of vision, ideas, and action plans. The real problem is…
compliance and effective implementation of decisions.
What does this transformation entail?

Eminent Persons Group Report (2007)

45. The EPG therefore recommends that Dispute Settlement
Mechanisms (DSM) be established in all fields of ASEAN
cooperation, which should include compliance monitoring,
advisory, consultation as well as enforcement mechanisms.
 Dispute Settlement in ASEAN
(ASEAN Charter, Chapter VIII)
1. Alternative Dispute Resolution: Dialogue, consultation and negotiation
AND/OR Good offices, conciliation or mediation (A.22-23 ASEAN Charter)
2. Instrument-specific Mechanism [A.24(1) ASEAN Charter] – e.g. exists in
certain ASEAN economic agreements
3. 2004 ASEAN Protocol on Enhanced Dispute Settlement Mechanism [A.24(3)
ASEAN Charter] – generally for economic agreements
4. Treaty of Amity and Cooperation (1976) [A.24(2) ASEAN Charter] – generally
for Peace and Security disputes, e.g. territorial conflicts or ambiguities
5. Dispute Settlement Mechanisms for all other disputes [A.25 ASEAN Charter] –
‘catch-all’ for all other disputes that do not fall within above ambit
6. ASEAN Summit [A.26 ASEAN Charter] – disputing parties may refer any
unresolved dispute to the ASEAN leaders (heads of state or government)
 Rule of Law and Institutions: Are DSMs Helpful?
All ASEAN DSMs are ad hoc; none activated. Will they be?
What would catalyze such action?
Studies have queried the importance of dispute settlement
mechanisms in encouraging compliance. Monitoring
mechanisms could possibly be more helpful.
Also, the Rule of Law and Institutions does not exist in a
vacuum. Necessitates:
1. Better law-making
2. Greater resources and capacity
3. Empowering the ASEAN Secretariat in regional administration
without diminishing sovereignty
The Rule of ASEAN Law in National Jurisdictions
 Law is most effective at the domestic level.
 Is there a role for ASEAN law in member states?
 Beyond the state-to-state level, how do we activate ASEAN law
in national jurisdictions?
1. National Implementation
2. Support for public agencies and civil institutions
 In which courts could ASEAN law be most actively adjudicated?
 E.g. If there is a violation of an ASEAN economic treaty – say,
national barriers to the free movement of rubber tyres – can a
private party (individual or company) rely on the treaty for the
restitution of his rights?
Treaty of Amity and Cooperation (1976)
• First regional treaty exhorting non-use of force (UN
Charter principle) and pertains mainly to political-
security disputes
• Non-ASEAN signatories permitted
• Governed by 2001 Rules of Procedure of the High
Council of the TAC – uncertain whether in force
• Negotiation  High Council (ministerial body with
consensus powers)  recommend good offices,
mediation, inquiry, conciliation, etc.
• No time frame to settle dispute
• Is it a weak mechanism?
 2004 Protocol on Enhanced Dispute Settlement Mechanism

 Supersedes the 1996 Protocol on Dispute Settlement Mechanism

 Applies to MOST ASEAN economic agreements – disputes under the 1992
Framework Agreement, Covered Agreements (retrospective usage), and
future Agreements – 2004 Protocol, A.1(1)
 Modelled on the WTO mechanism (but with shorter timeframe of resolution)
 FIRST Obligation: consult and discuss BEFORE going to the adjudicatory
stage
 Adjudicatory Panel has 60 days to come up with recommendations
 Appeals procedure to Appellate Body (60 days)
 Enforcement procedures – monitoring, reporting, with compensation for
non-compliance with Panel or Appellate Body decision
 Efficacy?