WILLIAM ROTH
Bangkok Post
It is with obvious relief for everyone that the recent meeting of the Cambodian and Thai foreign ministers ended with a decision to mutually reduce the number of troops in the area of the Preah Vihear temple.
Though there remain issues as to who will make the first move, and when, a more relaxed and rational tone seems to have been set for further discussions concerning the general area.
Another matter that appears defused is the question of whether outside entities, such as Asean or the United Nations, should be brought into the process. Both countries now seem willing to make good-faith efforts to resolve the dispute between themselves, without outside assistance.
However, this dispute has been going on for 46 years, ever since the International Court of Justice in 1962 awarded sovereignty over the temple to Cambodia.
Is there truly realistic hope that the two parties, on their own, will somehow now be able to solve the complex and difficult issues involved?
With disputes in which the parties have taken what seem like intractable positions, such as that involving Preah Vihear, sometimes the only way the matter can be settled peacefully is by some form of third party help.
While it is understandable that one or both countries might look upon any outside assistance as being "interference" in what is essentially a bilateral affair, it should be kept in mind that "outside assistance" need not come just in the form of an organisation, such as Asean or the UN. Instead, it can be in the form of mediation.
Mediation involves mutually selecting a neutral person who possesses high integrity and is respected by both sides. This mediator then acts not only to facilitate discussions between the two sides, but also actively explores opportunities for settlement and proposes solutions.
In cases where it is politically difficult or impossible for one side or the other to make what is seen as even the slightest concession (such as with Preah Vihear), mediators can often propose reasonable ideas that the parties, on their own, could never be seen to put forward themselves.
A famous example of successful mediation is the 1998 Good Friday Agreement, which paved the way to ending the long-standing violence and political unrest in Northern Ireland.
The mediator, former US Senator George Mitchell, was able to bring the multiple parties together in what had, for years, been seen by many as an unsolvable situation.
A lesser known case, but one with some similarity to the current Preah Vihear matter, is the Beagle Channel boundary dispute. At issue was sovereignty over three islands at the tip of South America.
While an arbitration panel in 1977 had awarded the islands to Chile, Argentina refused to accept the decision because, under international law, "sovereignty" over these islands also gave Chile substantial maritime territory and control in areas important to Argentina.
In 1978 the two countries (both heavily Roman Catholic) were literally moments away from war when Pope John Paul II sent a Vatican envoy to act as a mediator.
While the arbitration panel had been required to apply existing rules of international law to decide the boundary dispute, the mediator was able to "disaggregate" the issues and found a solution that respected the genuine interests of both parties: Chile got to keep the islands (which was its primary interest), and Argentina received access to the maritime areas around the islands (the interest which was critical to it).
A book sponsored by the Carnegie Commission on Preventing Deadly Force aptly described the outcome as being "legally irrational but politically sensible".
In cases of "sovereignty", the existing rules of international law can easily create a "zero-sum" situation where, if there is to be a winner, there must also be a loser. Obviously this reality can be an absolute barrier to agreement, for it discourages creative and pragmatic solutions.
A mediator can, however, work outside the normal constraints of international law and, as shown in the Beagle Channel case, propose a solution that satisfies the legitimate interests of both sides.
While it is probably too soon for a mediator to be considered for the Preah Vihear case, should a stalemate again develop with no apparent way out, both sides should seriously consider mediation as an alternative to continued irresolution, or, worse, the onset of violence.
William Roth teaches International Law at Chulalongkorn University.
Though there remain issues as to who will make the first move, and when, a more relaxed and rational tone seems to have been set for further discussions concerning the general area.
Another matter that appears defused is the question of whether outside entities, such as Asean or the United Nations, should be brought into the process. Both countries now seem willing to make good-faith efforts to resolve the dispute between themselves, without outside assistance.
However, this dispute has been going on for 46 years, ever since the International Court of Justice in 1962 awarded sovereignty over the temple to Cambodia.
Is there truly realistic hope that the two parties, on their own, will somehow now be able to solve the complex and difficult issues involved?
With disputes in which the parties have taken what seem like intractable positions, such as that involving Preah Vihear, sometimes the only way the matter can be settled peacefully is by some form of third party help.
While it is understandable that one or both countries might look upon any outside assistance as being "interference" in what is essentially a bilateral affair, it should be kept in mind that "outside assistance" need not come just in the form of an organisation, such as Asean or the UN. Instead, it can be in the form of mediation.
Mediation involves mutually selecting a neutral person who possesses high integrity and is respected by both sides. This mediator then acts not only to facilitate discussions between the two sides, but also actively explores opportunities for settlement and proposes solutions.
In cases where it is politically difficult or impossible for one side or the other to make what is seen as even the slightest concession (such as with Preah Vihear), mediators can often propose reasonable ideas that the parties, on their own, could never be seen to put forward themselves.
A famous example of successful mediation is the 1998 Good Friday Agreement, which paved the way to ending the long-standing violence and political unrest in Northern Ireland.
The mediator, former US Senator George Mitchell, was able to bring the multiple parties together in what had, for years, been seen by many as an unsolvable situation.
A lesser known case, but one with some similarity to the current Preah Vihear matter, is the Beagle Channel boundary dispute. At issue was sovereignty over three islands at the tip of South America.
While an arbitration panel in 1977 had awarded the islands to Chile, Argentina refused to accept the decision because, under international law, "sovereignty" over these islands also gave Chile substantial maritime territory and control in areas important to Argentina.
In 1978 the two countries (both heavily Roman Catholic) were literally moments away from war when Pope John Paul II sent a Vatican envoy to act as a mediator.
While the arbitration panel had been required to apply existing rules of international law to decide the boundary dispute, the mediator was able to "disaggregate" the issues and found a solution that respected the genuine interests of both parties: Chile got to keep the islands (which was its primary interest), and Argentina received access to the maritime areas around the islands (the interest which was critical to it).
A book sponsored by the Carnegie Commission on Preventing Deadly Force aptly described the outcome as being "legally irrational but politically sensible".
In cases of "sovereignty", the existing rules of international law can easily create a "zero-sum" situation where, if there is to be a winner, there must also be a loser. Obviously this reality can be an absolute barrier to agreement, for it discourages creative and pragmatic solutions.
A mediator can, however, work outside the normal constraints of international law and, as shown in the Beagle Channel case, propose a solution that satisfies the legitimate interests of both sides.
While it is probably too soon for a mediator to be considered for the Preah Vihear case, should a stalemate again develop with no apparent way out, both sides should seriously consider mediation as an alternative to continued irresolution, or, worse, the onset of violence.
William Roth teaches International Law at Chulalongkorn University.
3 comments:
It s our rights to mediate in our territory. Therefore, Siams have no rights to prvent this ceremony held at Preah Vihear.
However, Siams must wthdraw the troop because they envade Cambodia land and territory.By law and ASEAN CHARTER, Siams must leave Preah Vihear.
Legitimately, Cambodia has enough rights to protect our territory when enemy envades her territory, and we also can sue SIAMS at international court, UN UNESCO.
TRUE KHMER
Min cham bach dos sray chea muoy ah siam te pruos vea kmean ey krav pi chang ban preah vihear ponnos. Boe phleu nov tae teak tong chea muoy vea reu aob kdo vea, keu puok ah bamphlanh dey ning cheat.
Pi anh
The Strongest man of Cambodia BUT the Weakest one worldwide.. Loung Vek Prak Doung/Phnom Penh Dollars.."
Anti-Thai Sentiment increases only Cam-Leaders are Quiete....////
" Patience/non-violence are Pretext of Fears..."
The main purpose of our Leaders is =Power within Cambodia..."
"win-win= Cambodia share 50% of land to Thais and get 50% (10% is Cambodian Land but offer 50% to Thais..."
This is the style of Settle Land dispute in Cambodia "
Samdach Excellency Bandit/Phd. General 7 diamond stras Oknha Acharknoy(Phd. from Chea Chanreourn Unv. PPenh
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