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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