“Territorial Dispute : Negotiate under the Dispute Settlement Mechanism of the ASEAN Charter”
Jeong Chun phuoc, 13th May 2011
The comments by Deputy Foreign Affairs Minister A. Kohilan Pillay and the article “Presence on Islands Helps our Claims“(NST, 6 May 2011 at page 18) serves to emphasize Malaysian public anxiety with regards to jurisdictional issues concerning the current Spratly Islands conflict. However, maintaining a presence is only a general factor and not a dominant factor.
The just concluded ICJ case between Singapore and Malaysia ie “Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge” (Summary of the Judgment of 23 May 2008) demonstrate that physical presence alone is insufficient.
According to the writer’s analytical white paper (dated 17th March 2011 and submitted to Y.B. Dato’ Mukhriz Bin Tun Dr. Mahathir, Deputy Minister Of International Trade And Industry), there are several other critical factors which played a crucial role in defining territorial possession.
On the other hand, the act of naming or even renaming unknown Islands ‘˜within’ the territorial waters of Malaysia will not improve the description of territorial possession.
In the submission leading to the ICJ Judgment of 23 May 2008, it can be seen that the ICJ has adopted a rather fair approach in settling the matter between two good neighbors. Singapore and Malaysia submitted to the ICJ because they believe in the ICJ mechanism of a fair resolution to a rather difficult legal issue. Unfortunately, both governments did not take advantage of the dispute mechanism provided for under the ASEAN Charter ie ” Protocol to the ASEAN Charter on Dispute Settlement Mechanisms.”
I believe, Singapore and Malaysia are free to elect any settlement mechanism provided for under any relevant international conventions, provided both governments are willing to settle the matter in an amicable manner.
Having said that, it is hope that in order to uphold the spirit and co-operation in ASEAN region, ASEAN members must worked together to improve, enhance and elevate the dispute settlement mechanism within the ASEAN Charter to greater heights. Article 2 of the ASEAN Charter states as follows :-
ASEAN and its Member States shall act in accordance with the following Principles:-
(b) shared commitment and collective responsibility in
enhancing regional peace, security and prosperity;
(c) renunciation of aggression and of the threat or use
of force or other actions in any manner inconsistent
with international law;
(d) reliance on peaceful settlement of disputes;
We hope the current controversial Thailand and Cambodia border dispute can be resolved along the ‘˜ Protocol to the ASEAN Charter on Dispute Settlement Mechanisms’ platformto serve as an excellent precedent for others to emulate.
Jeong Chun Phuoc
Expert Consultant at a major law firm and a pioneer advocate in Competitive Legal Intelligence(CLI)
and a Reader in Syariah Competitive Legal Intelligence(sCLI)
He can be reached at Jeongphu@yahoo.com
**The above professional analysis is the writer’s personal view and in no way represent the view/position of the research institutes/thinktanks/organisations to which he is currently attached to.