Temple dispute and ASEAN conflict settlement

Sat, 02/12/2011
Bambang Hartadi Nugroho, Jakarta
The Jakarta Post

While all eyes are directed towards affairs in Tunisia and Egypt, another urgent situation stemming from a rather neglected issue is occurring in our own backyard. A scuffle between Thai and Cambodian forces occurred along the border between both countries, near the Preah Vihear Temple, on Feb. 4.

The origin of the conflict over Preah Vihear is a century old. According to a border settlement between Cambodia’s French colonial government and the Kingdom of Siam, the temple and the area surrounding it was Cambodian territory. Yet, in 1938 the Thai government reclaimed the area and occupied it until 1958 when both sides held a series of negotiations to resolve the issue. They did not come to an agreement. In 1959, the countries brought the case to the International Court of Justice.

The Court decided in 1962 that the temple belonged to Cambodia and that Thailand should withdraw its forces and return any objects to the temple that might have been removed. The decision was accepted by both parties and became the status quo.

Meanwhile, the recent incidents have basically been driven by domestic pressures for a firm policy on Preah Vihear. In 2008, Thai Prime Minister Samak Sundaravej supported the temple’s nomination as a UNESCO World Heritage Site, a policy that soon drew strong criticism from opposition parties that argued that it would weaken Thailand’s claim to the territorial border near the temple. Cambodia, on the other hand, was about to hold an election, leading Prime Minister Hun Sen to take a firm stand on the issue in order to obtain support from his people. Since that time, a fresh series of disputes over the temple have occurred, remaining unsettled until now.

From a regional perspective, the Thai-Cambodian dispute is only the tip of the iceberg. There are plenty of other territorial disputes among Southeast Asian countries and most are handled through bilateral mechanisms. However, the Thai-Cambodian conflict is a particular blow for ASEAN for two reasons. First, the exchange of fire clearly violated ASEAN’s principle of not using force and settling disputes peacefully. Such principles have become the basic code of conduct for many regional organizations, particularly ASEAN. Second, Cambodia’s plea to the UN Security Council for a peaceful settlement undermines ASEAN’s role as the group that maintains regional security, whether or not Cambodia realized it.

From a regional perspective, the question should be: Where does ASEAN stand? And more broadly, what can be done by the group to resolve this case and other similar cases among its member states?

These questions are not really new, but have always been the main concerns of experts regarding the development of the organization.

For decades ASEAN has remained passive when it came to conflicts involving its member states. This is partially due to the lack of adequate regional mechanisms for resolving conflicts. The 1976 Treaty of Amity and Cooperation (TAC) does mention that the organization can, when needed, form a High Council to work under the mandate of the disputing parties to settle conflicts. However, this mechanism has never been employed by any ASEAN member due to several limitations in the treaty and for the council itself. The treaty is limited because there are no proscriptions for how the council may act in disputes. Further, the parties are not required to accept the mediation of the other members of the High Council.

There are other weaknesses that make the treaty ineffective. First, the treaty does not specifically note that members of the council should be lawyers, which would ensure that dispute solutions were legal. Members would not trust a council that consists of politicians because they distrust each other regarding borders because almost every country has a border problem with its neighbor. Second, the council can only be empowered if the parties have failed to reach a solution after direct negotiations. Last but not least, the disputing parties are not obliged to use regional mechanisms as a means to resolve conflicts; they can always choose other mechanisms.

Regardless of the treaty’s weaknesses, a new prospect for regional dispute settlement mechanisms may come from the signing of the ASEAN Charter. The charter provides other mechanisms such as good offices, conciliation, mediation and arbitration. But, the charter still seems to emphasize political solutions for disputes, as seen in Article 26, which says that whenever a case cannot be resolved through other mechanisms, it “shall be referred to the ASEAN Summit for its decision”.

That article can be considered a setback for the charter, which already provided many alternatives because the use of a summit as the ultimate mechanism to resolve conflicts does not guarantee a legal solution for the disputants. What is needed by the member states in the long run is to form a permanent mechanism, preferably in the form of an arbitration body, which can handle the many disputes among them.

A permanent dispute settlement body will better serve the interests of the member states rather than ad hoc mechanisms, because it will be more established and will have a more rigid set of rules compared to the ad hoc ones. This, in turn, may also increase member trust in the regional mechanism and increase ASEAN’s institutional capacity in the eyes of its member states.

Indonesia’s effort as the current ASEAN chair by sending the foreign minister to open the path towards peace talks between Thailand and Cambodia through “shuttle diplomacy” is a positive sign.

Historically, the chair has acted as the initiator of settlement efforts many times.

However, institution wise, it would be better if in other cases the responsibility was given to the ASEAN Secretariat or to a permanent arbitration body to guarantee the sustainability of such mechanisms. As a regional political entity, ASEAN must provide a formal regional instrument for settling conflicts that really functions, despite the fact that ASEAN members are allowed to choose any peaceful settlement mechanism that suits them. By providing formal settlement mechanisms, ASEAN would be making another step towards a politically secure community.

The writer is an assistant lecturer in international relations at the University of Indonesia in Depok, West Java.