Negotiate toward success, not stalemate

The Preah Vihear Temple, awarded to Cambodia by the International Court of Justice on June 15, 1962.

A resident of Thailand’s Ban Phumsarol village near the temple chases a PAD activist on Sept 9, 2009.

Villagers felt the activists from the People’s Alliance for Democracy were a nuisance that upset their livelihood, which depended on trade with their Cambodian fellow villagers.

19/02/2011
William Roth
Bangkok Post

The saga over the Temple of Preah Vihear continues to drag on, seemingly without an end in sight. Blood has been spilled and lives lost on both sides of the border, with the United Nations Security Council now calling for a "permanent ceasefire".

Yet Prime Minister Abhisit Vejjajiva "has rejected Cambodia's proposal for the two countries to sign a ceasefire agreement", because "it was too early to talk about such a move".

The Security Council further asked that the parties negotiate an end to their dispute, but the current imbroglio is further complicated by opposing views on the form negotiations should take. Thailand insists that any talks be strictly bilateral, although allowing for the Association of Southeast Asian Nations "facilitation", but rejects Cambodia's desire for third-party mediation or active involvement by other countries or any "regional framework".

But what is the objective of the negotiations?

Presumably it is "the demarcation of land boundary" between Thailand and Cambodia, for which the Joint Boundary Commission was established in 2000. Indeed, Thailand has been strenuously urging the UN Educational, Scientific and Cultural Organisation not to proceed with its listing of Preah Vihear as a World Heritage site until the border there has been demarcated.

But, like the proverbial elephant in the room, what no one seems able to mention is that no amount of negotiation, however it might be structured, will ever result in an agreed upon demarcation of the border in the area of Preah Vihear.

The reason is quite straight-forward: each country has an extremely good argument for why the so-called 4.6-square kilometre disputed area is theirs, and political and emotional considerations on both sides of the border make it absolutely impossible for either country to budge from their respective position.

Thus, any further negotiation to demarcate that border will only prove fruitless.

But is demarcation really necessary? The border in the temple area has been in dispute for well over 100 years, but for much of that time both sides have co-existed along it in relative peace. Demarcation of land boundaries is, in fact, primarily a Western (read "colonial") concept. As Canadian scholar Andreas Buss pointed out in a 2010 article about Preah Vihear and regional customary law, "Traditionally, the king was a king over people rather than over a defined area of territory; territorial jurisdiction could not be strictly defined by permanent boundaries, but was characterised by fluidity and flexibility, dependent on the power of the central government."

An earlier Bangkok Post article about the temple dispute, "A fine line" on May 22, 2008, reported comments by anthropologist and archaeologist Srisakra Vallibhotama. According to him, "Watershed lines were traditionally considered by ancient people as no man's land, belonging to no one. Crossing the areas required the performing of rituals... People from both sides came to Preah Vihear to perform rituals, as they do to this very day."

Well, maybe a "no man's land" is not a viable idea today, as some might see that as conceding Thai territory - a definite non-starter.

But why not simply leave the disputed area "disputed", and include it within a larger area administered by Unesco for the benefit of both countries?

The earlier article also reported comments of Tharapong Srisuchat, director of the Fine Arts Department's Office of Archaeology. According to him, "Each World Heritage site must consist of its nucleus, core zone and buffer zone, which should be circular, but Preah Vihear in Cambodia's proposal is in the shape of a fan with the core zone at its lowest end. The temple's surroundings located in Thai territory... are also important and should go together with the sanctuary in the nomination."

As it stands now, the temple remains closed, military forces are massed against one another, and both countries continue to lose out on the potentially immense benefits of tourism to the area. And over what?

Is it not time to take a step back and focus on what the benefits can be to both countries, rather than continue to be influenced by Western concepts of boundaries?

As pointed out by Mr Srisakra the anthropologist, "Ancient people just looked for a symbol before crossing from one zone to another but France drew the line for us to accept."

Why not negotiate toward a joint management area, under the oversight of Unesco, into which visitors from both countries could freely enter, see the temple and its surrounding areas, and then return the same day to the country from which they came?

It need not be a border crossing, and no need for a marked border, but only signs that read: "Welcome to the Preah Vihear Historical Park, a Unesco World Heritage Site." (Or maybe, on the Thai side, the sign could read, "Welcome to the Phra Viharn Historical Park.")

To exit, visitors would follow signs that said either "To Thailand" or "To Cambodia" and, at the respective document checking posts, a sign would simply say, "Leaving the Preah Vihear (Phra Viharn) Historical Park. Thank You for Visiting."

As for maps, both countries could continue to draw their respective boundary lines as they see fit, though it would make more sense to just have the lines end at the junction with the line surrounding the historical park, leaving the "real" boundary lines inside disputed. Both Thai and Cambodian flags, however, should be flown together as an equal pair throughout the park, regardless of whether a particular area of the park was or was not concededly a part of one country or the other.

The one and only exception would be at the very summit of the temple itself, where a single Cambodian flag would be allowed to fly. After all, the International Court of Justice did declare that "This is Cambodia", albeit with greater grammatical correctness.

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William Roth teaches international law at Chulalongkorn University.