Explanatory Memorandum to JOIN(2012)1 - Accession of the EU to the Treaty of Amity and Cooperation in Southeast Asia

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dossier JOIN(2012)1 - Accession of the EU to the Treaty of Amity and Cooperation in Southeast Asia.
source JOIN(2012)1 EN
date 16-02-2012
The Treaty of Amity and Cooperation in Southeast Asia (hereafter called “the TAC”) was signed on 24 February 1976 by the Republic of Indonesia, the Kingdom of Malaysia, the Republic of the Philippines, the Republic of Singapore and the Kingdom of Thailand. The Treaty was amended by a Protocol on 15 December 1987 and a Second Protocol on 25 July 1998. The protocols, among others, opened the Treaty to accession by states outside Southeast Asia. Today, the High Contracting Parties (signatory states) to the TAC are Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, the Kingdom of Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand, the Socialist Republic of Vietnam, Papua New Guinea, the People’s Republic of China, the Republic of India, Japan, the Islamic Republic of Pakistan, the Republic of Korea, the Russian Federation, New Zealand, Mongolia, the Commonwealth of Australia, the French Republic, the Democratic Republic of Timor Leste, the People’s Republic of Bangladesh, the Democratic Socialist Republic of Sri Lanka, the Democratic People’s Republic of Korea, the United States of America, the Republic of Turkey and Canada.

The Treaty of Amity and Cooperation in Southeast Asia aims to promote peace, stability and co-operation in the region. To this end, it calls for the settlement of disputes by peaceful means, the preservation of peace, the prevention of conflicts and the strengthening of security in Southeast Asia. It establishes mechanisms for conciliation and mediation activated in the case of disputes. It stipulates that parties to the treaty shall refrain for the threat or use of force. Furthermore, the Treaty of Amity and Cooperation provides for enhancing co-operation in economic, trade, social, technical and scientific fields as well as for the acceleration of the economic growth in the region by promoting the greater utilisation of the agriculture and the industries of the nationals in Southeast Asia, the expansion of their trade and the improvement of their economic infrastructure. It calls for the adoption of regional strategies for economic development and mutual assistance, as well as the maintenance of contacts and consultations on international and regional issues.

The Council, in its 2768th meeting of 4-5 December 2006, authorised the Presidency and the Commission to negotiate the European Union’s and the European Community’s accessions to the TAC.

By letter of 7 December 2006, the EU and the EC informed Cambodia, in its capacity as ASEAN Co-ordinator for relations with the EU, of its decision to apply for accession to the TAC. In accordance with the negotiating mandate and directives for the EU’s and EC's accession to the TAC, the EU and EC recorded in the letter the following common understandings. The Treaty is to be interpreted in conformity with the principles of the United Nations Charter and shall not affect the rights and obligations arising there from. Further, the EU’s and EC’s accession to the Treaty is without prejudice to the EU’s and EC’s rights and obligations under other bilateral and multilateral agreements, as well as to EU and EC law. It shall not affect the EU’s and EC’s ability to pursue cooperation in international fora. Moreover, the Treaty shall not apply to, nor affect, the EU’s and EC’s relationships with states other than the Parties to the Treaty.

At the ASEAN[1]-EU Ministerial Meeting of 28 May 2009 in Phnom Penh, two declarations on the TAC were issued: (i) the Declaration on Accession to the Treaty of Amity and Cooperation in Southeast Asia by the European Union and the European Community, whereby the EU and EC declared their “intent to accede to the Treaty, on the basis of the letter of application of December 7, 2006, upon entry into force of the Third Protocol…”, and (ii) the Declaration of Consent to the Accession to the Treaty of Amity and Cooperation in Southeast Asia by the European Union and the European Community, whereby the then Chair of ASEAN, Thailand, on behalf of the governments of all ASEAN Member Sates declared “the consent of all the States in Southeast Asia to the accession to the Treaty by the European Union and the European Community, subject to the entry into force of the Third Protocol…”.

On 23 July 2010, the Ministers of Foreign Affairs of the signatory states to the TAC signed the Third Protocol amending the Treaty of Amity and Cooperation in Southeast Asia. The Third Protocol stipulates that “The Treaty is open for accession by…regional organisations whose members are only sovereign states…”. The Third Protocol will come into force on the day of the last instrument of ratification by the High Contracting Parties is deposited to the ASEAN Secretariat. To date (January 2012), twenty signatory states have ratified the Third Protocol. The remaining eight signatory states have given assurances to the EU that they would be able to complete their domestic ratification process in February/March 2012.

Subject to the entry into force of the Third Protocol, the EU, which has replaced and succeeded the European Community, should accede to the TAC.

The accession to the TAC is based both on the development of relationships with regional organisations which share the principles referred to in article 21, paragraph 1 TEU in the framework of CFSP and on non-CFSP policies (development cooperation as well as economic, financial and technical cooperation (Articles 209 and 212 TFEU).

The accession to the TAC will further the objectives of the EU, and in particular as they relate to the preservation of peace, the prevention of conflicts and the strengthening of security in Southeast Asia. Furthermore, it will foster the sustainable economic, social and environmental development of developing countries in the region.

The accession of the EU to the TAC will, subject to the entry into force of the Third Protocol, enter into effect on the date of the deposit of the Instrument of Accession to the Treaty of Amity and Cooperation in Southeast Asia.

The signature and deposit of the Instrument of Accession should take place on the occasion of the ASEAN-EU Ministerial Meeting, scheduled for 27 April 2012 in Brunei-Darussalam, at which all EU and ASEAN Member States Foreign Ministers would take part.