The ASEAN Protocol on Dispute Settlement Mechanisms: An Appraisal

As ASEAN continues to build a more integrated, cohesive and coherent regional presence it must put in place the necessary structures to meet and better manage a wide range of challenges. One of these areas is that of the peaceful settlement of disputes. Whereas the peaceful settlement of disputes is a cornerstone of modern international law that has given rise to a framework of universal and regional treaties and bodies designed to achieve this end general international law does not impose the compulsory adjudication of disputes. Asian States have usually steered clear of formal institutionalized dispute settlement procedures but under the ASEAN Charter of 2007 the Member States commit themselves to the peaceful settlement of disputes. The Protocol on Dispute Settlement Mechanisms adopted in 2010 builds on this commitment. After reviewing the history of dispute settlement in ASEAN this article focuses on an analysis of the Protocol, seeking to highlight its distinctive features given that such an institutionalized system is rare. The Protocol provides Member States with a framework enabling recourse in advance to traditional, and largely optional, means of dispute settlement in the form of diplomatic, or non-adjudicative, modes, consultation, good offices, mediation and conciliation, to the quasi-judicial, arbitration, but no court. It steers a middle path between compulsory adjudication and freedom of choice, combining elements of both. It prescribes how these mechanisms should be organized and conducted but there are some notable omissions in the procedures. Nevertheless, overall the Protocol is considered a positive development.