Asia and Dispute Settlement: the Law of the Sea

chapter 40 Asia and Dispute Settlement: The Law of the Sea

M.C.W. Pinto*

Teacher, jurist, publicist, judge – Budislav Vukas has made an outstanding con- tribution to our understanding and appreciation of the 1982 un Convention on the Law of the Sea and its 1994 Implementing Agreement. i Introduction: Asian States and International Dispute Settlement

It is often suggested that a distinctive attitude to international dispute settlement prevails among Asian States, an attitude characterized by reluctance to submit such disputes to decision by a third party or, to use the title of Section 2 of Part xv of the United Nations Convention on the Law of the Sea (unclos), to ‘Compulsory Procedures Entailing Binding Decisions’. To assess the validity of such a proposition is not easy, given the number of States included in the geographic entity ‘Asia’ (comprising over 50 Member States of the United Nations) and the cultural diversity of populations within their borders; as well as the difficulty of distinguishing any such suggested ‘reluctance’ from that manifest in States from other regions when asked to choose whether or not to relinquish their freedom of action to an external entity, however ‘independent’ and ‘impartial’, empowered to restrict that freedom by its decision. Assessment of ‘Asian’ attitudes to dispute resolution has been hindered by a lack of relevant data from the region as a whole. However, we do have today authoritative assessments of evolving attitudes to international adjudication among a group of South East Asian States as reflected in their declared aim of creating “a sense that each…belongs to a family of countries…interlinked eco- nomically, politically and culturally”, and seeking to establish a formal dispute settlement mechanism offering “a way of resolving disagreements without being disagreeable”.1

* Attorney of the Supreme Court of Sri Lanka, and of the Inner Temple, Barrister; Member of the Institut de Droit International. 1 An address by Professor Walter Woon, Attorney-General of Singapore to the 10th General Assembly of the ASEAN Law Association.

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Thus, Professor Walter Woon, the Attorney-General of Singapore, recounts how the Member States of ASEAN have moved from rudimentary references to dispute settlement in the Declaration on the Zone of Peace, Freedom and Neutrality (1971), the Declaration of ASEAN Concord (1976), and the Treaty of Amity and Concord (1976). In the last Treaty, Member States committed themselves to the settlement of differences or disputes by ‘peaceful means’ through agreements which, while focussing on the improvement of economic relations re-affirmed, in addition, the commit- ment to ‘amicable settlement’ and required that “whenever necessary an appropriate body shall be designated for the settlement of disputes” (1992). The Vientiane Protocol for Enhanced Dispute Settlement Mechanism (2004) and Chapter viii of the ASEAN Charter (2007) provided mechanisms for the settlement of disputes in all areas of ASEAN cooperation, while the Protocol to the ASEAN Charter on Dispute Settlement Mechanisms (2010) provides for consultations within a fixed time frame, and the ability to con- vene an arbitral tribunal. Unresolved disputes and non-compliance with the findings of dispute settlement mechanisms are to be referred to the ASEAN Summit, while the ASEAN Charter maintains Member States’ right of recourse to the modes of dispute settlement listed in Article 33 of the Charter of the United Nations.2 Although ASEAN countries3 appear to move ever closer to a complete man- datory system of dispute resolution, it is evident that some of ASEAN’s mem- bers still prefer to resolve disputes by less formal means, and non-legal avenues to dispute settlement such as consultation and negotiation rather than a formal process. In any event, the better view appears to be that, for the time being, ASEAN is “not ready for a court”.4 Another authoritative source suggests a similar evolution in the attitudes of Asian States toward international adjudication. In a wide-ranging article, Hisashi Owada, a judge of the International Court of Justice and, until recently its President, recalls that only five Asian States (Afghanistan, China, India, Japan and Siam) were signatories to the Statute of the Permanent Court of

2 Walter Woon, “Dispute Settlement in ASEAN”, 1 Korean Journal of International and Comparative Law, 2013, pp. 92–104; Dispute Settlement in ASEAN, National University of Singapore, . 3 Indonesia, Malaysia, Philippines, Singapore, Thailand, Brunei Darussalam, Viet Nam, Laos, Myanmar, Cambodia. 4 As Professor Walter Woon observes, although the ASEAN Charter creates ‘a new paradigm’ in regard to international dispute settlement mechanisms, progress along that path will take time. Ibid. at p. 104.