FURTHER INFORMATION ON AUSTRALIA'S ACCESSION TO

C O N F I D E N T I A L CANBERRA 000342


NOFORN
SIPDIS

STATE FOR EAP/RSP AND L/ESA

E.O. 12958: DECL: 04/03/2019
TAGS: KTIA PREL AS
SUBJECT: FURTHER INFORMATION ON AUSTRALIA'S ACCESSION TO
THE TREATY OF AMITY AND COOPERATION

REF: A. A. STATE 20228

B. B. CANBERRA 00239

Classified By: Political Counselor James F. Cole for reasons: 1.4 (b)
and (d)


1. (SBU) Summary: The Australian director of ASEAN relations
at the Department of Foreign Affairs and Trade (DFAT)
presented the USG with further information and materials on
the Australian process of accession to the Treaty of Amity
and Cooperation in Southeast Asia (TAC) in 2005. These
included an Australian description of the accession process,
three on-line references, and a verbal recounting of the
differing methods of conveying understandings to ASEAN. End
summary.


2. (SBU) Following is DFAT's description of the GOA's
accession process to the TAC:

--Australia acceded to the Treaty of Amity and Cooperation (T
AC) on 10 December 2005, and it immediately entered into
force. The TAC was tabled in conjunction with a National
Interest Analysis (see website in para 3 below) in the House
of Representatives and the Senate on 9 August 2005. It was
considered by the Joint Standing Committee on Treaties
(JSCOT) on 9 August 2005. The US State Department already has
a copy of the JSCOT Report (Report 68, 2005).

Australian domestic treaties process
--------------
--The power to enter into treaties is an executive power
within Section 61 of the Australian Constitution and
accordingly, is the formal responsibility of the Executive
rather than the Parliament. However, all treaties (except
those the Government decides are urgent or sensitive) are
tabled in both Houses of Parliament for at least 15 sitting
days prior to binding treaty action being taken. Treaties are
tabled in the Parliament with a National Interest Analysis
which notes the reasons why Australia should become a party
to the treaty. The JSCOT considers tabled treaties.

Concerns about accession
--------------
- Possible inconsistency with existing alliance obligations,
in particular ANZUS.
- The emphasis in the treaty on the principle of
non-interference. There was a possibility that this could
reduce our ability to express concerns over human rights
issues, for example.
- The unequal nature of access to the treaty's dispute body,
the High Council, by non-ASEAN members.
--Four understandings reached and set out by the Foreign
Minister in his letter of 13 July 2005 (note: US State
Department already has a copy)
- Accession to the TAC will not affect Australia's
obligations under other bilateral or multilateral agreements.
- TAC is to be interpreted in conformity with the UN Charter,
and accession to TAC will not affect Australia's rights and
obligations under the UN Charter.
- TAC will not apply to, nor affect, Australia's relationship
with States outside Southeast Asia.
- When a Contracting State outside Southeast Asia is directly
involved in a dispute, the agreement of that Contracting
State is required before the High Council can be convened, and
- Should the High Council be convened, that Contracting State
would be entitled to participate in the High Council.

Post-accession issues of interpretation or application of the
TAC--NIL
--------------

3.(SBU) Three Internet resources to thedocuments described in
para 2 above follow: Please note that a space has been added
to each in order to have them comply with Cable Express.

The Joint Standing Committee on Treaties (JSCOT) report 68
chapter 3 has the following paragraph that notes the
preference of ASEAN for non-public statements of
understanding: " 3.16 At the request of ASEAN states, the
exchange of correspondence states that the understandings are
provided on a 'non-prejudice basis to ASEAN.' This phrase
does not qualify the understandings but rather reflects the
fact that it is not usual ASEAN practice to record
understandings of the Treaty in a public document."
http: //portsea.austlii.edu.au/au/other/jscot/
reports/68/chapter3.html

http: //www.austlii.edu.au/au/other/dfat/
treaties/2005/30.html
This site has the text of the actual treaty.

http: //www.austlii.edu.au/au/other/dfat/ nia/2005/14.html
This site has the texts of subsequent amendments and
protocols.


4. (SBU) Ridwaan Jadwat, director of ASEAN regional issues at
DFAT elaborated on some challenges faced by the Australians
during the process and relayed comments from Lynette Wood,
the DFAT officer in charge of the procedures for Australia's
accession to TAC in 2005.

a. (SBU) It is very important to have a very active country
from ASEAN as coordinator of the process. Australia's
coordinating country was Vietnam.

b. (C/NF) Australia proposed six options to lodge its four
understandings with ASEAN:
-- Option 1. Formal reservation lodged with ASEAN
-- Option 2. Formal declaration of understandings to ASEAN
-- Option 3. Interpretive statement of understandings to ASEAN
-- Option 4. Exchange of correspondence setting out
understandings to ASEAN (a method actually used by South
Korea).
-- Option 5. Private understandings to ASEAN (used by Japan)
-- Option 6. No formal or informal declaration of
understandings

c. (SBU) Option 1 was not acceptable to ASEAN. Options 5 and
6 were preferred by ASEAN, which worried that a public
declaration might undermine TAC (see note to JSCOT report
para 3). Options 5/6 were not acceptable to Australia, which
wanted the transparency of a public declaration. Options 2/3
were less preferable to Australia as they were not formally
binding on the other parties. Option 4 was ultimately
preferred by Australia, because it afforded formal
acknowledgement by key state parties of Australia's
interpretation of the relevant parts of the TAC. It was not
preferred by ASEAN, which was already concerned that this
method chosen by South Korea would be given a further
precedent. The Koreans seemed to have reached this method by
chance rather than by choice. ASEAN eventually agreed to
Option 4, although reluctantly.

d. (C/NF) Australia sought a guarantee of membership in the
EAS in exchange for acceding to the TAC. Then Foreign
Minister, Alexander Downer, received private assurances from
ASEAN in this regard, but he waited for the public
announcement of Australia's membership in EAS before he
announced Australia's accession to the TAC.


5. (C) Comment: Jadwat, who had just returned from Bangkok
where he had met with EAS member country representatives,
commented that ASEAN members had spoken very positively about
Secretary Clinton's statements on her recent Asian visit
regarding the U.S. intent to accede to the TAC and her
commitment to participate more fully in ASEAN. ASEAN members
were curious whether the U.S. decision to pursue accession to
the TAC meant it was also interested in EAS membership, he
Qthe TAC meant it was also interested in EAS membership, he
added. He did not hear any opposition from ASEAN members to
the U.S. plan to accede to the TAC. He recalled, however,
that a Malaysian representative had bridled at the notion of
the U.S. seeking to enter the EAS, replying along the lines
that the U.S would have to wait for an invitation from ASEAN
first.

RICHE