EXPLANATORY MEMORANDUM

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.

2012/0028 (NLE)

Joint Proposal for a

COUNCIL DECISION

On the accession of the European Union to the Treaty of Amity and Cooperation in Southeast Asia

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty of the European Union and the Treaty on the Functioning of the European Union, and in particular Article 37 TEU and Articles 209 and 211 TFEU in conjunction with Article 31(1) TEU and Article 218(6)(a) and (8), the second subparagraph, TFEU thereof,

Having regard to the joint proposal from the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy,

Having regard to the consent of the European Parliament,

Whereas:

(1) The Treaty of Amity and Cooperation in Southeast Asia 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. Today, the High Contracting Parties of that Treaty 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.

(2) 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. Hence, the rules and principles set out in the Treaty of Amity and Cooperation correspond to the objectives of the Union’s common foreign and security polity.

(3) 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. Thereby, the Treaty promotes cooperation with developing countries of that region as well aw economic, financial and technical co-operation with countries other than developing countries.

(4) 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,

(5) By letter of 7 December 2006, the European Union and the European Community have informed Cambodia, in its capacity of ASEAN Co-ordinator for relations with the EU, of its decision to apply for accession to the Treaty of Amity and Cooperation in Southeast Asia subject to the understandings expressed in the letter,

(6) On 28 May 2009, Thailand, then Chair of ASEAN, 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 to the Treaty of Amity and Cooperation in Southeast Asia,

(7) On 23 July 2010, a Third Protocol to the Treaty of Amity and Cooperation in Southeast Asia was signed which allows for the accession of regional organisations to the said Treaty. Following the completion of the ratification process; the Third protocol has entered into force on XX.XX.2012

(8) The European Union should therefore accede to the Treaty of Amity and Cooperation in Southeast Asia.

HAS ADOPTED THIS DECISION:

Article 1

The accession of the European Union to the Treaty of Amity and Cooperation in Southeast Asia is hereby approved on behalf of the Union.

The texts of the Treaty of Amity and Cooperation in Southeast Asia and its three amending Protocols, as well as the Instrument of Accession to the Treaty of Amity and Cooperation by the European Union, are attached to this Decision.

Article 2

The High Representative shall sign and deposit the Instrument of Accession to the Treaty of Amity and Cooperation on behalf of the European Union, in her capacity as High Representative for Foreign Affairs and Security Policy and as Vice-President of the Commission.

Article 3

This Decision shall enter into force on the date of its adoption.

Done at Brussels,

                                                                       For the Council

                                                                       The President

ANNEX

Treaty of Amity and Cooperation in Southeast Asia Indonesia, 24 February 1976

The High Contracting Parties : CONSCIOUS of the existing ties of history, geography and culture, which have bound their peoples together; ANXIOUS to promote regional peace and stability through abiding respect for justice and the rule or law and enhancing regional resilience in their relations; DESIRING to enhance peace, friendship and mutual cooperation on matters affecting Southeast Asia consistent with the spirit and principles of the Charter of the United Nations, the Ten Principles adopted by the Asian-African Conference in Bandung on 25 April 1955, the Declaration of the Association of Southeast Asian Nations signed in Bangkok on 8 August 1967, and the Declaration signed in Kuala Lumpur on 27 November 1971; CONVINCED that the settlement of differences or disputes between their countries should be regulated by rational, effective and sufficiently flexible procedures, avoiding negative aftitudes which might endanger or hinder cooperation; BELIEVING in the need for cooperation with all peace-loving nations, both within and outside Southeast Asia, in the furtherance of world peace, stability and harmony; SOLEMNLY AGREE to enter into a Treaty of Amity and Cooperation as follows:     1.1.1.1.            CHAPTER I : PURPOSE AND PRINCIPLES Article 1 The purpose of this Treaty is to promote perpetual peace, everlasting amity and cooperation among their peoples which would contribute to their strength, solidarity and closer relationship, Article 2 In their relations with one another, the High Contracting Parties shall be guided by the following fundamental principles : a. Mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations;            b. The right of every State to lead its national existence free from external interference, subversion or coersion;   c. Non-interference in the internal affairs of one another;            d. Settlement of differences or disputes by peaceful means;        e. Renunciation of the threat or use of force;      f. Effective cooperation among themselves.        1.1.1.2.            CHAPTER II : AMITY Article 3 In pursuance of the purpose of this Treaty the High Contracting Parties shall endeavour to develop and strengthen the traditional, cultural and historical ties of friendship, good neighbourliness and cooperation which bind them together and shall fulfill in good faith the obligations assumed under this Treaty. In order to promote closer understanding among them, the High Contracting Parties shall encourage and facilitate contact and intercourse among their peoples.     1.1.1.3.            CHAPTER III : COOPERATION Article 4 The High Contracting Parties shall promote active cooperation in the economic, social, technical, scientific and administrative fields as well as in matters of common ideals and aspirations of international peace and stability in the region and all other matters of common interest. Article 5 Pursuant to Article 4 the High Contracting Parties shall exert their maximum efforts multilaterally as well as bilaterally on the basis of equality, non-discrimination and mutual benefit. Article 6 The High Contracting Parties shall collaborate for the acceleration of the economic growth in the region in order to strengthen the foundation for a prosperous and peaceful community of nations in Southeast Asia. To this end, they shall promote the greater utilization of their agriculture and industries, the expansion of their trade and the improvement of their economic infrastructure for the mutual benefit of their peoples. In this regard, they shall continue to explore all avenues for close and beneficial cooperation with other States as well as international and regional ~organisations outside the region. Article 7 The High Contracting Parties, in order to achieve social justice and to raise the standards of living of the peoples of the region, shall intensify economic cooperation. For this purpose, they shall adopt appropriate regional strategies for economic development and mutual assistance. Article 8 The High Contracting Parties shall strive to achieve the closest cooperation on the widest scale and shall seek to provide assistance to one another in the form of training and research facilities in the social, cultural, technical, scientific and administrative fields. Article 9 The High Contracting Parties shall endeavour to foster cooperation in the furtherance of the cause of peace, harmony, and stability in the region. To this end, the High Contracting Parties shall maintain regular contacts and consultations with one another on international and regional matters with a view to coordinating their views actions and policies. Article 10 Each High Contracting Party shall not in any manner or form participate in any activity which shall constitute a threat to the political and economic stability, sovereignty, or territorial integrity of another High Contracting Party. Article 11 The High Contracting Parties shall endeavour to strengthen their respective national resilience in their political, economic, socio-cultural as well as security fields in conformity with their respective ideals and aspirations, free from external interference as well as internal subversive activities in order to preserve their respective national identities. Article 12 The High Contracting Parties in their efforts to achieve regional prosperity and security, shall endeavour to cooperate in all fields for the promotion of regional resilience, based on the principles of self-confidence, self-reliance, mutual respect, cooperation and solidarity which will constitute the foundation for a strong and viable community of nations in Southeast Asia.            1.1.1.4.            CHAPTER IV : PACIFIC SETTLEMENT OF DISPUTES Article 13 The High Contracting Parties shall have the determination and good faith to prevent disputes from arising. In case disputes on matters directly affecting them should arise, especially disputes likely to disturb regional peace and harmony, they shall refrain from the threat or use of force and shall at all times settle such disputes among themselves through friendly negotiations. Article 14 To settle disputes through regional processes, the High Contracting Parties shall constitute, as a continuing body, a High Council comprising a Representative at ministerial level from each of the High Contracting Parties to take cognizance of the existence of disputes or situations likely to disturb regional peace and harmony. Article 15 In the event no solution is reached through direct negotiations, the High Council shall take cognizance of the dispute or the situation and shall recommend to the parties in dispute appropriate means of settlement such as good offices, mediation, inquiry or conciliation. The High Council may however offer its good offices, or upon agreement of the parties in dispute, constitute itself into a committee of mediation, inquiry or conciliation. When deemed necessary, the High Council shall recommend appropriate measures for the prevention of a deterioration of the dispute or the situation. Article 16 The foregoing provision of this Chapter shall not apply to a dispute unless all the parties to the dispute agree to their application to that dispute. However, this shall not preclude the other High Contracting Parties not party to the dispute from offering all possible assistance to settle the said dispute. Parties to the dispute should be well disposed towards such offers of assistance. Article 17 Nothing in this Treaty shall preclude recourse to the modes of peaceful settlement contained in Article 33(l) of the Charter of the United Nations. The High Contracting Parties which are parties to a dispute should be encouraged to take initiatives to solve it by friendly negotiations before resorting to the other procedures provided for in the Charter of the United Nations.  1.1.1.5.            CHAPTER V : General Provision Article 18 This Treaty shall be signed by the Republic of Indonesia, Malaysia, the Republic of the Philippines, the Republic of Singapore and the Kingdom of Thailand. It shall be ratified in accordance with the constitutional procedures of each signatory State. It shall be open for accession by other States in Southeast Asia. Article 19 This Treaty shall enter into force on the date of the deposit of the fifth instrument of ratification with the Governments of the signatory States which are designated Depositories of this Treaty and the instruments of ratification or accession. Article 20 This Treaty is drawn up in the official languages of the High Contracting Parties, all of which are equally authoritative. There shall be an agreed common translation of the texts in the English language. Any divergent interpretation of the common text shall be settled by negotiation.            IN FAITH THEREOF the High Contracting Parties have signed the Treaty and have hereto affixed their Seals.  DONE at Denpasar, Bali, this twenty-fourth day of February in the year one thousand nine hundred and seventy-six.

Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia Philippines, 15 December 1987

The Government of Brunei Darussalam  The Government of the Republic of Indonesia    The Government of Malaysia    The Government of the Republic of the Philippines         The Government of the Republic of Singapore   The Government of the Kingdom of Thailand     DESIRING to further enhance cooperation With all peace-loving nations, both within and outside Southeast Asia and, in particular, neighbouring States of the Southeast Asia region CONSIDERING Paragraph 5 of the preamble of the Treaty of Amity and Cooperation in Southeast Asia, done at Denpasar, Bali, on 24 February 1976 (hereinafter referred to as the Treaty of Amity) which refers to the need for cooperation with all peace-loving nations, both within and outside Southeast Asia, in the furtherance of world peace, stability and harmony.    HEREBY AGREE TO THE FOLLOWING: Article 1 Article 18 of the Treaty of Amity shall be amended to read as follows: "This Treaty shall be signed by the Republic of Indonesia, Malaysia, the Republic of the Philippines, the Republic of Singapore and the Kingdom of Thailand. It shall be ratified in accordance with the constitutional procedures of each signatory State. It shall be open for accession by other States in Southeast Asia. States outside Southeast Asia may also accede to this Treaty by the consent of all the States in Southeast Asia which are signatories to this Treaty and Brunei Darussalam." Article 2 Article 14 of the Treaty of Amity shall be amended to read as follows: "The settle disputes through regional processes, the High Contracting Parties shall constitute, as a continuing body, a High Council comprising a Representative at ministerial level from each of the High Contracting Parties to take cognizance of the existence of disputes or situations likely to disturb regional peace and harmony. However, this article shall apply to any of the States outside Southeast Asia which have acceded to the Treaty only in cases where that state is directly involved in the dispute to be settled through the regional processes." Article 3 This Protocol shall be subject to ratification and shall come into force on the date the last instrument of ratification of the High Contracting Parties is deposited. DONE at Manila, the fifteenth day of December in the year one thousand nine hundred and eighty-seven.

Second Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia Manila, Philippines, 25 July 1998

The Government of Brunei Darussalam  The Government of the Kingdom of Cambodia  The Government of the Republic of Indonesia    The Government of the Lao People's Democratic Republic        The Government of Malaysia    The Government of the Union of Myanmar        The Government of the Republic of the Philippines         The Government of the Republic of Singapore   The Government of the Kingdom of Thailand     The Government of the Socialist Republic of Vietnam    The Government of Papua New Guinea Hereinafter referred to as the High Contracting Parties: DESIRING to ensure that there is appropriate enhancement of cooperation with all peace-loving nations, both within and outside Southeast Asia and, in particular, neighboring States of the Southeast Asia region; CONSIDERING Paragraph 5 of the preamble of the Treaty of Amity and Cooperation in Southeast Asia, done at Denpasar, Bali, on 24 February 1976 (hereinafter referred to as the Treaty of Amity) which refers to the need for cooperation with all peace-loving nations, both within and outside Southeast Asia, in the furtherance of world peace, stability and harmony. HEREBY AGREE TO THE FOLLOWING: Article 1 Article 18, Paragraph 3, of the Treaty of Amity shall be amended to read as follows: "States outside Southeast Asia may also accede to this Treaty with the consent of all the States in Southeast Asia, namely, Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People's Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Vietnam." Article 2 This Protocol shall be subject to ratification and shall come into force on the date the last instrument of ratification of the High Contracting Parties is deposited. DONE at Manila, the twenty-fifth day of July in the year one thousand nine hundred and ninety-eight.

Third Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia Ha Noi, Viet Nam, 23 July 2010

Brunei Darussalam        Kingdom of Cambodia The Republic of Indonesia         The Lao People's Democratic Republic Malaysia           The Union of Myanmar The Republic of the Philippines  The Republic of Singapore        The Kingdom of Thailand          The Socialist Republic of Vietnam         The Commonwealth of Australia           The People’s Republic of Bangladesh    The People’s Republic of China            The Democratic People’s Republic of Korea     The French Republic     The Republic of India    Japan   Mongolia          New Zealand    The Islamic Republic of Pakistan           Papua New Guinea       The Republic Of Korea            The Russian Federation The Democratic Socialist Republic of Sri Lanka            The Democratic Republic of Timor-Leste          The Republic of Turkey            The United States of America Hereinafter referred to as the High Contracting Parties: DESIRING to ensure that there is appropriate enhancement of cooperation with all peace-loving nations, both within and outside Southeast Asia and, in particular, neighboring States of the Southeast Asia region, as well as with regional organisations whose members are only sovereign States; CONSIDERING Paragraph 5 of the preamble of the Treaty of Amity and Cooperation in Southeast Asia, done at Denpasar, Bali, on 24 February 1976 (hereinafter referred to as the Treaty of Amity) which refers to the need for cooperation with all peace-loving nations, both within and outside Southeast Asia, in the furtherance of world peace, stability and harmony; HEREBY AGREE TO THE FOLLOWING: Article 1 Article 18, Paragraph 3, of the Treaty of Amity shall be amended to read as follows: "This Treaty shall be open for accession by States outside Southeast Asia and regional organisations whose members are only sovereign States with the consent of all the States in Southeast Asia, namely, Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People's Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Vietnam." Article 2 Article 14, Paragraph 2, of the Treaty of Amity shall be amended to read as follows: “However, this article shall apply to any of the High Contracting Parties which have acceded to the Treaty only in cases where that High Contracting Party is directly involved in the dispute to be settled through the regional processes." Article 3 This Protocol shall be subject to ratification and shall come into force on the date of the last instrument of ratification of the High Contracting Parties is deposited follows DONE at Hanoi, Viet Nam, the Twenty-Third day of July in the Year Two Thousand and Ten in a single copy in the English language.

Instrument of Accession to the Treaty of Amity and Cooperation in Southeast Asia by the European Union WHEREAS the Treaty of Amity and Cooperation in Southeast Asia, which was signed on 24 February 1976 in Bali, Indonesia, was amended by the First, the Second and the Third Protocols Amending the Treaty of Amity and Cooperation in Southeast Asia, which were signed on 15 December 1987, 25 July 1998 and 23 July 2010 respectively; WHEREAS Article 18, Paragraph 3, of the aforesaid Treaty as amended by Article 1 of the aforesaid Third Protocol provides that regional organisations whose members are only sovereign States may accede to the Treaty with the consent of all the States in Southeast Asia, namely Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam; WHEREAS the Minister of Foreign Affairs of Finland and the Member of the European Commission responsible for External Relations and the European Neighbourhood Policy lodged an application for the accession of the European Union to the Treaty through the letter dated 7 December 2006; WHEREAS the States in Southeast Asia have consented to the accession of the European Union to the Treaty; The European Union hereby accedes to the Treaty of Amity and Cooperation in Southeast Asia with effect of the date of deposit of this instrument. IN WITNESS WHEREOF, this Instrument of Accession is signed by the [TITLE]. DONE at [place], [country], this [date] Day of [month] in the Year Two Thousand and [year]. For the European Union

[1]               The Member States of the Association of Southeast Asian Nations, or ASEAN, are Brunei-Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam.