Chapter 3 Third Protocol Amending the Treaty of Amity and Cooperation in
The proposed treaty action comprises minor amendments to the Treaty
of Amity and Cooperation in Southeast Asia (the Treaty of Amity), done at
Denpasar, Bali, on 24 February 1976.
Australia was asked to accede to the Treaty of Amity by the Association
of South East Asian Nations (ASEAN) as a condition of participation in the East
Asia Summit (EAS) in April 2005. ASEAN has actively promoted accession to the
Treaty to non-ASEAN members.
The purpose of the Third Protocol is to broaden the category of High
Contracting Parties under the Treaty of Amity to allow for accession by
regional organisations representing sovereign states. The amendments also update
limitations on dispute resolution powers to cover new non‑regional High
Australia signed the Third Protocol on 23 July 2010 during the ASEAN and
EAS meeting in Hanoi, Vietnam. As at 9 December 2010, there were 26 High
Contracting Parties which are signatories to the Protocol, comprising 10 ASEAN
and 16 non-ASEAN member states.
According to the National Interest Analysis, Australia’s ratification
of the Third Protocol is of strategic importance to ensure continued beneficial
engagement between Australia and ASEAN Member States. It will also underpin
ASEAN’s growing engagement with nations beyond the Asia‑Pacific region,
in particular, in the European Union (EU).
ASEAN has specifically requested that Australia approve the amendments
introduced by the Third Protocol.
The Treaty of Amity and
The Treaty of Amity is an agreement between ASEAN Member States, which sets
out the fundamental principles governing their relationship.7]
- mutual respect for
the independence, sovereignty, equality, territorial integrity, and national
identity of all nations;
- the right of every
State to lead its national existence free from external interference,
subversion or coercion;
- non-interference in
the internal affairs of one another;
- settlement of
differences or disputes by peaceful manner;
- renunciation of the
threat or use of force; and
- a commitment to effective
co-operation among themselves.
While primarily focussed on regional co-operation, ASEAN has actively
encouraged multilateral engagement with other nations though accession to the
Treaty of Amity. The Preamble to the Treaty of Amity, at paragraph 5, recognises:
…the need for cooperation with all peace-loving nations, both
within and outside Southeast Asia, in the furtherance of world peace, stability
In 1987 a first Protocol to the Treaty allowed for the formal accession
of non‑member High Contracting Parties to the agreement, on consent of
the other Member States. The Second Protocol
updated the ASEAN membership as at 28 July 1998.
The convening of the first EAS in Kuala Lumpur on 14 December 2005 represented
a further advance for international engagement with ASEAN. Major North Asian
countries Japan, Korea, China and India, as well as Australia and New Zealand,
were for the first time invited to participate in ASEAN’s dialogue of
The Committee was informed that being a signatory to the Treaty of Amity
is one of three preconditions to participation in the EAS. Members must also be
a dialogue partner with ASEAN and have a substantial relationship with the
As a dialogue partner with ASEAN since 1974, Australia was able to
participate in the inaugural EAS, seen as a watershed for Australian engagement
with the region. Mr John Fisher, Department of Foreign Affairs and Trade,
Essentially, it [the EAS] became a forum through which
Australia could play a key role and provide assistance to regional integration,
including ensuring that to the extent possible that regional integration
proceeds in a way which is consistent with our interests and the region’s
The EU, a regional organisation, now wishes to accede to the Treaty of
Amity. This has ASEAN’s support and has been listed as a priority in the 2007 Nuremberg
Declaration on EU–ASEAN Enhanced Partnership ‘Plan of Action’.
The Committee was advised that the inclusion of regional organisations under
the Third Protocol to the Treaty of Amity can be expected to foster closer engagement
between ASEAN Member States and the EU, as the former achieve greater economic
At this time, however, no other regional organisation has indicated an
intention to accede to the Treaty.
Obligations under the Third
The Third Protocol does not contain any additional obligations, but
modifies and expands on those in the Treaty of Amity in three articles:
- Article 1—amends Article
18, paragraph 3 of the Treaty of Amity to provide for accession of ‘regional
organisations whose members are only sovereign States’.
- Article 2—amends Article
14, paragraph 2 of the Treaty of Amity to provide that High Contracting Parties
outside of South–East Asia may participate in dispute resolution only if
involved in the matter under dispute.
- Article 3—determines
that the Protocol shall be subject to ratification and shall come into force on
the date the last instrument of ratification of the High Contracting Parties is
The Committee notes that Article 2 is a minor amendment in terminology
to reflect the new membership, for regional organisations. The use of ‘High
Contracting Party’ adjusts the First Protocol (1987) amendment to Article 14 to
exclude representatives of the new non-regional member ’States’ from
participating in the Ministerial Council established for ASEAN dispute resolution.
The Committee was advised that this exclusion is considered a proper
limitation on the role of Australia and other non-ASEAN members, as ASEAN seeks
to take a more active part in negotiation of regional disputes.
Amendments to the Treaty of Amity require the consent of all Member States.
The proposed changes to the Treaty of Amity are positive, but in effect minor,
and are supported by both ASEAN and non-ASEAN High Contracting Parties.
As no additional obligations are imposed under the Protocol, legislation
changes are not required and there are no financial costs associated with the
The Committee is pleased to see the ASEAN is consolidating ties beyond
The Committee supports the proposal to open accession to regional organisations
under the Treaty of Amity and Cooperation in South East Asia, and
recommends binding treaty action be taken.
The Committee supports the Third Protocol Amending the
Treaty of Amity and Cooperation in Southeast Asia and recommends binding
treaty action be taken.