Treaty another way into East Asia
Australia's agreements with the US do not preclude it signing ASEAN's pact of co-operation, writes Donald Rothwell.
Should Australia join China, Japan and South Korea and become a party to the 1976 ASEAN Treaty of Amity and Co-operation? This is the question which has been exercising the Government for a number of months. This week a clear link was drawn by ASEAN foreign ministers between Australian acceptance of the agreement and an invitation being issued to the East Asia summit scheduled for late this year.
New Zealand's announcement that it is prepared to sign the agreement has thrown the spotlight back to Australia. With the visit next week of the Prime Minister, John Howard, to China, speculation will continue as to what the position is. Howard has suggested the agreement is part of an old mind-set that is no longer reflected in present day international security arrangements, but is it really that contentious?
Essentially, the treaty provides for co-operation among South-East Asian countries in which the use of force is renounced in favour of dispute resolution by peaceful means. At its core, it seeks to promote "perpetual peace, everlasting amity and co-operation". There are extensive provisions dealing with the peaceful settlement of disputes, with importance placed on "friendly negotiations". All these principles are consistent with the UN Charter.
For Australia, the most obvious conflict would arise in the case of other security treaties it is a party to, or which are under negotiation. Here the ANZUS treaty with the US looms large. ANZUS commits Australia to aid the US when it has been subject to an armed attack. The most likely scenario in the region would arise following US backing of Taiwan in any dispute with China.
Other disputes are foreseeable, including over the Korean Peninsula or between Japan and China over claims to offshore oil and gas. In the event that it ever came to Australia choosing between the amity treaty or ANZUS, a hard political decision would need to be made. However, the amity treaty would not be a constraining factor. If Australia elected to side militarily with the US it would be doing so in self-defence. This is a recognised right of all countries under the UN Charter and alluded to under the treaty.
It is also improbable the proposed Australia-Indonesia security treaty, up for negotiation this year, would pose any difficulties given Indonesia's position as an ASEAN member and strong supporter of the agreement.
Australia's doctrine of pre-emption against terrorist attacks launched from within the region also creates a conflict with the amity treaty. This doctrine is highly controversial and lacks widespread international support. Howard and the Foreign Minister, Alexander Downer, in clarifying the doctrine, have said it would not be applied to friendly regional neighbours such as Malaysia and the Philippines but would be applied against so-called "collapsed states" no longer able to exercise control over their internal security. If Australia was forced to pre-empt a foreign terrorist threat by launching a military strike, it would inevitably still seek to justify such action on the grounds of self-defence.
The treaty also provides an additional mutual co-operation framework to combat regional terrorism through its reference to "matters of common ideals and aspirations of international peace and stability". Australia's commitment to the treaty would be an additional basis for further regional counter-terrorism co-operation similar to that which has recently developed between Australia and Indonesia. Given the recent importance Australia has attached to counter-terrorism, this aspect of the treaty is something of a bonus.
There are signs Australia may be reconsidering its position towards the agreement and elect to sign the treaty with a reservation to protect its position under ANZUS and its right to self-defence. This is a viable option under international law but one which needs to be handled diplomatically.
Consistent with reforms to the treaties process introduced by Downer, there will also be a need for the parliamentary treaties committee to review the agreement. This process will take time. If Australia wishes to secure an invitation to join the emerging East Asian club it will need to act quickly and demonstrate its commitment by becoming a party to the treaty, lest it miss an important opportunity for engagement with the world's fastest growing economic region.
Donald Rothwell is Challis professor of international law and director of the Sydney Centre for International Law at the University of Sydney.